Terms and Conditions

The following Terms of Service, which include the Lernsys Privacy Policy, the Lernsys Solution Privacy Policy, the Lernsys Site Guidelines, and any guideline, policy or content displayed on the Website, are a legally binding contractual agreement between you (“User, “you,” “Merchant”, “your”) and Lernsys, Inc. (“Lernsys or "Company") (hereinafter collectively referred to as the “TOS”).  By visiting or using the services available from the domain and sub-domains of www.lernsys.com, www.lernsys.org, or any other server, page or online portal accessed through www.lernsys.com or www.lernsys.org (the “Website”) owned or operated by Lernsys, you agree to be legally bound by these Terms of Service. We reserve the right to revise these Terms of Service and all linked information from time to time in our sole discretion by updating this posting or any linked information. Unless otherwise provided in such revision, the revised terms will take effect when they are posted. By clicking the “ACCEPT” or the "I agree with Terms and Conditions" or "Register" button or similar option in connection with the registration of your account and this Agreement, you agreed to be bound by these terms and conditions not just with respect to the Solution you are obtaining at the time, but also for any additional Solution you later acquire directly or indirectly through that first Solution, including new and different products or services, or updates and upgrades to a prior Solution, for which you do not accept a separate end user license agreement.

Note as well that in this Agreement you:

• Represent that you are 18 years of age or older, and are authorized to accept this Agreement on behalf of yourself;
• Represent and warrant that you are not located in a country that is subject to a U.S. or Canada Government embargo, or that has been designated by the U.S. or Canadian Government as a “terrorist supporting” country and that you are not a person who is either barred or otherwise legally prohibited from receiving or using the Solutions under the laws of the country in which you are resident or from which you access or use the Solutions;
• Acknowledge that:

o         If, in the course of acquiring a Solution you provided LERNSYS with an email address and that email address later changes, you must update your user profile to ensure that you receive notices about your account and other important information about this Agreement and the Solutions.

o         LERNSYS, subject to the Special Terms, may from time to time update any Solution or replace a Solution with another Solution with similar functionality without requesting or obtaining your separate consent, and your accessible functionality or certain functions may not be available to you while the Update is in process;

o         LERNSYS collects and uses certain information concerning your use of Solutions in accordance with its Privacy Policy.

GENERAL TERMS

1. DEFINITIONS.

Affiliate means, with respect to LERNSYS, an entity controlling, controlled by or under common control with the LERNSYS. “Control”, as used in this section, means ownership of more than 50% of the outstanding voting interest of the applicable entity.

Base Price means the course price set by the Merchant.

Base Currency means the currency of the Base Price.

Base Exchange Rate means a system-wide rate used by the Company for foreign currency conversion and does not include any fee or mark-up by the Company. The rate is established using one or more third parties such as Open Exchange Rates and is fixed periodically (e.g. monthly) to prevent daily price fluctuations. Accordingly, the Base Exchange Rate may not be identical to the applicable market rate in effect at the specific time a foreign currency conversion is processed.

Beta Solution means any Evaluation Solution and any Solution marked or otherwise designated as a beta test version, irrespective of whether payment has been made.

Cost Adjustment Factor means applicable local taxes and other fees associated with currency conversions. In regions that use a common currency, e.g., the EU, the Cost Adjustment Factor uses a weighted average of country specific tax rates to ensure the same prices to end customers across the region.

Device means any mobile phone, mobile device, tablet, mobile network appliance, other mobile product (each, a “Mobile Device”) or any personal computer running on an operating system supported by LERNSYS as specified in the Applicable Conditions and in the Technical Specifications in respect of the Solution.

Dispute has the meaning ascribed to it by Section 25.0 of this Agreement.

Evaluation Solution means an otherwise paid Solution that LERNSYS provides without receiving payment for trial or evaluation purposes.

Free Solution means any Solution other than Beta Solutions that LERNSYS designates as “free” or otherwise provides without charge.

Net Amount means the amount actually received from Students for Your Course, less any refunds paid, applicable sales or other taxes (VAT in EU), and any amounts paid in connection with Marketing Programs that You participate in.

LERNSYS means LERNSYS Inc., a company formed under the laws of Canada or, with respect to any Solution, the LERNSYS Affiliate providing the Solution to you.

Personally Identifiable Information means information that can be used to uniquely identify, contact, or locate a single individual or can be used with other sources to uniquely identify a single individual including, as applicable under applicable law, personal data.

Privacy Policy means the LERNSYS privacy policy available at http://www.Lernsys.com/privacy as updated from time to time.

Sale Price means the actual sale price for the Course. When the Sale Currency is different from the Base Currency, the Company will determine the Sale Price based on the applicable Base Exchange Rate and Cost Adjustment Factor.

Sale Currency means the currency of the sale. This is determined by the country of origin of the User purchasing the Course.

Service means a Solution comprising services delivered online or by telephone.

Software means a Solution comprising software intended to be installed or operated on a Device, and shall include any Updates.

Solution has the meaning set forth in the preamble.

Subscription Period, with respect to each Solution, means the Initial Subscription together with all Extension Periods.

Technical Specifications means the technical documentation applicable to the relevant Software, as may be available at http://www.Lernsys.com/technical-specifications as updated from time to time.

Third Party Materials means software, services, websites, offers and promotions or products provided by any third party and governed by Third Party Terms and Conditions.

Third Party Terms and Conditions means any license agreements, terms of use, terms of service, privacy policies and other conditions established by third parties governing access to or use of Third Party Materials.

Update means content or code LERNSYS deploys to update a Solution including but not limited to new releases or versions of Software, updated malware signatures, spyware definitions, anti-spam rules, virus definitions, URL black or white lists, firewall rules, intrusion detection data, lists of authenticated web pages, and vulnerability data; or any other available update provided by LERNSYS from time to time in connection with a Solution.

US Government means the federal government of the United States of America.

1.0 AGREEMENT

The Lernsys Online System Service ("Lernsys Online System" or the "Solution"), owned and operated by Lernsys Inc. (Lernsys or "Company"), is provided to you ("you" or "Merchant") under the terms and conditions of this Lernsys Online System Merchant Service Agreement, the Lernsys Privacy Policy, the Lernsys Solution Privacy Policy, the Lernsys Site Guidelines, and any amendments thereto and any operating rules or policies (collectively, the "TOS" or "Agreement"). Lernsys reserves the right, in its sole discretion, to change, modify, add or remove all or part of the TOS at any time. Merchant will receive notice of such changes and/or modifications pursuant to Section 14 regarding notices.

1. 1.1 By accepting the terms and conditions of the TOS, Merchant (a) represents and warrants that he or she is 18 years old or older; (b) agrees to provide true, accurate, current and complete information about Merchant as prompted by the Account Registration Form; and (c) agrees to maintain and update this information to keep it true, accurate, current and complete. If any information provided by Merchant is untrue, inaccurate, not current or incomplete, Lernsys has the right to terminate Merchant's account and refuse any and all current or future use of the Service.


2. 1.2 BY COMPLETING THE ACCOUNT REGISTRATION PROCESS AND CLICKING THE "I ACCEPT" BOX or "I AGREE WITH TERMS AND CONDITIONS" OR "REGISTER" BUTTON, YOU AGREE TO BE BOUND BY THE TOS. Nothing in this agreement obligates Lernsys or the Service to list, link to, accept or otherwise host any online Course anywhere on the Lernsys site. If these terms and conditions or any future changes are unacceptable to you, you may cancel your account pursuant to Section 6.2 regarding non-renewal of service.

2.0 DESCRIPTION OF LERNSYS ONLINE SYSTEM SERVICE

Lernsys hosts interactive online Courses (the "Service") on the World Wide Web provided by independent contractors (Merchants) and may provide Merchants with, among other things, (i) access to its Lernsys Online System Software ("Software") to facilitate the creation and maintenance of Merchants’ Courses for the sale of their content; and (ii) the listing of such Courses in the Lernsys Online System Listings located at Lernsys.com ("Online Course Services").

3.0 MERCHANT'S OBLIGATIONS

3.1 Merchant acknowledges and agrees that it shall be responsible for all content (videos, lectures, images, documents, files, audios, etc.) offered through Merchant’s Course, all materials used or displayed in Merchant’s Course, and all acts or omissions that occur in the Course or in connection with Merchant's account or password. You agree that your use of the Service and your Course will be in compliance with the Lernsys Site Guidelines and any applicable laws and regulations at all times.

1. 3.1.1 Merchant agrees not to display in the Merchant’s Course, Merchant's contact information, including but not limited to Merchant's personal or company name, address, telephone number, fax number, email address, geographical location, LinkendIn, Facebook, Twitter, Instagram, or any other type of online social media profile, or any other third-party's contact information. Merchant shall not try to collect any customers’ personal information, or to engage in any direct contact with students or Course purchasers directly or through a third-party.


2. 3.1.2 Merchant agrees that any and all press releases and other public announcements related to this Agreement and subsequent transactions between Lernsys and Merchant, including the method and timing of such announcements, must be approved in advance by Lernsys in writing. Lernsys reserves the right to withhold approval of any public announcement in its sole discretion. Without limitation, any breach of Merchant's obligation regarding public announcements shall be a material breach of the TOS.


3. 3.1.3 Merchant represents and warrants that it has full power and authority under all relevant laws and regulations: to offer and sell the content offered in the Course, including but not limited to holding all necessary licenses from all necessary jurisdictions to engage in the advertising and sale of the content offered in the Course;
4. to copy and display the materials used or displayed in the Course; and,


5. 3.1.4 Merchant represents and warrants that it will not engage in any activities: that defame, impersonate or invade the privacy of any third party or entity; that infringe the rights of any third party, including but not limited to the intellectual property, business, contractual, or fiduciary rights of others; and, that are in any way connected with the transmission of "junk mail" "spam" or the unsolicited mass distribution of unsolicited offerings, or with any unethical marketing practices, such as posting multiple submissions in public forums that are identical.

3.2 You agree to comply with the export, re-export, and import laws and regulations of the United States, and other applicable countries where you operate or do business, including but not limited to the United States Export Administration Regulations, the antiboycott rules, and the Office of Foreign Assets Control regulations. Specifically, but without limitation, you represent and warrant that you:

1. (a) will not use the Service to directly or indirectly conduct, promote, or facilitate business in countries and with nationals that are prohibited by U.S. embargoes or trade sanctions (these embargoed and sanctioned countries are: Cuba, North Korea, Iran, Sudan, and Syria; You are responsible for complying with any updates and revisions that the U.S. government makes to this list of prohibited export destinations);
2. (b) are not a party identified on any government export exclusion lists nor using the Service to conduct business with a party identified on such lists, including but not limited to the U.S. Denied Persons, Entity, and Specially Designated Nationals Lists;
3. (c) will not use the Service for any illegal purposes; and
4. (d) will defend, indemnify, and hold Lernsys harmless against any liability (including attorneys fees) arising out of or related to your failure to comply with applicable copyright laws and regulations.

You agree to comply with all applicable U.S. and non-U.S. laws, rules, regulations, and orders, including, but not limited to, tax and intellectual property, including copyright, content, sales, mail-order, commerce, and ecommerce laws and regulations. You shall be responsible for determining which laws or regulations are applicable to Your use of the Services. You shall, upon the request of Lernsys, provide Lernsys assurance of Your compliance with those laws. You acknowledge that Lernsys exercises no control whatsoever over the content of the information passing through Your Course(s) and that it is Your sole responsibility to ensure that the information You transmit receive complies with all applicable laws and regulations and the Lernsys Policies.

3.3 Lernsys reserves the right to refuse to host or continue to host any of Merchant’s Courses which Lernsys believes, in its sole discretion: (1) offers for sale content, or uses or displays materials, that are illegal, obscene, vulgar, offensive, dangerous, or are otherwise inappropriate; (2) has substantially changed its Course from the time it was accepted; (3) has received a significant number of complaints for failing to be reasonably accessible to customers or timely fulfill corrections to his or her Course; (4) has become the subject of a government complaint or investigation; or (5) has violated or threatens to violate the letter or spirit of the TOS. (6) has misrepresented the actual contents of the Course, including, but not limited to its scope, length, practice files, subject-matter, depth, duration, your expertise or academic and/or professional background.

4.0 PROPRIETARY RIGHTS

4.1 Software License

Lernsys hereby grants Merchant a non-exclusive, non-transferable license to use the Software (“Solution”) in object code form only on a server controlled by Lernsys for the sole purpose of creating and maintaining Courses on such server. Merchant is not being granted any right to copy the Software or to use it on computers other than a server controlled by Lernsys. Merchant may not use Web pages or parts of Web pages generated by means of the Software, other than content that originates from and is proprietary to Merchant, on any server other than the servers controlled by Lernsys without Lernsys's express written agreement. Merchant also acknowledges and agrees that the Software is intended for access and use by means of web browsing software, and that Lernsys does not commit to support any particular browsing platform. Lernsys reserves the right at any time to revise and modify the Software, release subsequent versions thereof and to alter features, specifications, capabilities, functions, and other characteristics of the Software, without notice to Merchant. If any revision or modification to the Software materially changes Merchant's ability to conduct business, Merchant's sole remedy is to terminate the TOS pursuant to Section 6.2 regarding non-renewal of service.

4.2 Lernsys Intellectual Property

Merchant acknowledges and agrees that some content available from Lernsys or the Service, including but not limited to text, software, music, sound, logos, trademarks, service marks, photographs, graphics, or video, is protected by copyright, trademark, patent, or other proprietary rights and laws, and may not be used in any manner other than as specified in Section 4.1 above.

4.3 Merchant's Property

Merchant agrees that by using the Service, Merchant grants Lernsys, and its successors and assigns, a non-exclusive, worldwide, royalty-free, perpetual, non-revocable license under Merchant's copyrights and other intellectual property rights, if any, in all material and content displayed in Merchant’s Course to use, distribute, display, reproduce, and create derivative works from such material in any and all media and display in any manner and on any Lernsys property the results of search queries and comparisons conducted on Lernsys, including, without limitation, searches conducted on Lernsys Site and the Service. Merchant also grants Lernsys the right to maintain such content on Lernsys's servers after the termination of the TOS for the duration and length which Lernsys at its sole discretion believes appropriate, and to authorize the downloading and printing of such material, or any portion thereof, by end users for their personal use who have paid to access such content.

4.4 Abusive User Behavior

Lernsys may use certain confidential internal and third-party tools and techniques to protect users from abusive and other harmful behavior on the Internet and on the Lernsys servers. Lernsys reserves the right to take any action it deems necessary at its sole discretion, including, without limitation, account termination or suspension, to protect against such abusive or harmful behavior. Lernsys may update these tools, techniques, and practices from time to time as the abusive practices and industry standards change. You agree that Lernsys shall not be responsible or liable for any loss or damage of any sort incurred by You, or any third party, as the result of Lernsys taking or not taking any actions in response to any actual or perceived abusive user behavior.

4.5 Interference

1. (a) You may not spam our system and/or impose an unreasonably or disproportionately large load on our system. You may not put any material on a Lernsys Site that contains any viruses, trojan horses, worms, time bombs, cancelbots, or other computer programming routines that may damage, interfere with, surreptitiously intercept, or expropriate any system, data, or personal information.
2. (b) upload, post, email, transmit, or otherwise make available any unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation, except in those areas that are explicitly designated by Company for such purpose;
3. (c) market Your business through multiple submissions in public forums that are identical.
4. (d) engage in tortuous interference or intentional interference or cause someone to act to prevent Lernsys from successfully establishing or maintaining its business relationships.

4.6 Unauthorized Access

Merchant shall not attempt to gain unauthorized access to any servers controlled by Lernsys.

4.7 Lernsys Solution Account Function

You acknowledge that the Solution is offered as a platform to host and serve web pages and Courses and is not offered for other purposes, such as remote disk space storage. Accordingly, You understand and agree to use the Solution service solely for the purpose of hosting and serving Courses as viewed through a web browser and the Hypertext Markup Language (HTML) protocol or other equivalent technology. Lernsys Solution is also a shared service, which means a number of merchants' Courses are hosted from the same server. To ensure that Lernsys Solution is reliable and available for the greatest number of users, a customer's website usage cannot adversely affect the performance of other customers' accessibility.

Additionally, the purpose of Lernsys Solution is to host complete and finished Courses, not Course data. Using an account primarily as an online storage space for archiving electronic files is prohibited. You further agree that if, at Lernsys's sole discretion, You are deemed to have violated this section, or if Lernsys, in its sole discretion, deems it necessary due to excessive burden or potential adverse impact on Lernsys's systems, potential adverse impact on other users, server processing power, server memory, abuse controls, or other reasons, Lernsys may suspend or terminate Your access without notice to You and with no liability to Lernsys.

5.0 Course Pricing

As an independent Merchant, You will be responsible for determining the Base Price You charge students for your Courses. You agree to charge only for Your own submitted content. The Company will handle billing and other fee interaction with Users and reserves the right to adjust the Base Price according with its pricing policy and marketing strategy. When the Sale Currency is different than the Base Currency, Lernsys will determine the Sale Price according to the most recent Base Exchange Rate and applicable Cost Adjustment Factor.

If You choose to participate in any of the Company's Marketing Programs, the fee You receive from the Company will be in accordance with the terms of the particular Marketing Program that applies to the sale of Your Course. Otherwise You will receive the following:

• Generally, the Company will pay You fifty percent (50%) of the Net Amount received for Your Course. The Net Amount equals the amount actually received from Students for Your Course, less any refunds paid, applicable sales or other taxes (if any), applicable fees for credit card processing, currency conversion fees, mobile application sales from either the Apple App Store or Google Play, Affiliate coupons, discounts and codes, and any amounts paid in connection with Marketing Programs that You agree to participate in. Bundle purchases are subject to additional processing fee. The Net Amount may be based on the Base Price, but Company reserves the right to increase or decrease the Base Price in connection with the Company's marketing and promotional efforts (including through Partner Channels, Affiliate, and Marketing Programs) or to maintain a fair playing field among all Merchants. Company reserves the sole right to determine the minimum fair value of a lesson and a Course.
• You may be able to increase Your portion of the fee by promoting Your Courses by using a coupon code that You have created on Lernsys in accordance with the instructions found at www.lernsys.com/en/affiliate-program. For those Users that input Your coupon code at the time they enroll in Your Course, You will receive 65% of the Net Amount received less any applicable transaction and currency conversion processing fees and a five percent (5%) administrative and handling fee, except in the territory of Japan, where the administrative and handling fee shall be ten percent (10%) plus the respecitve Teacher Commission fee minus any applicable discounts or coupons applied during checkout, and transaction processing fees. You authorize the Company to perform the appropriate calculations, deduct and retain the transaction fee, and pay You the Net Amount as indicated above.

  Marketing Programs include, but are not limited to, Company's Deals Program and Marketing Boost Program. You acknowledge that the amounts paid for Marketing Programs are not fixed, and the Company has the sole discretion to determine those amounts and which Courses to offer as part of Marketing Programs. Further, the Company does not guarantee any minimum level of success in connection with any Marketing Programs, and its selection of Courses to include is not an endorsement of those Courses, or of You. As part of Your participation in Marketing Programs, You give Us permission to share Your Course, and information about You and the Course with Lernsys employees and selected partners, for which you will not receive compensation. If You do not wish to participate in Marketing Programs, you may log into Your account and opt out of them or write to us within 30 days of this agreement via electronic mail to [email protected].

  5.1 Refunds and Commission Payments

  Users are entitled to refunds pursuant to Our general Terms of Service and You agree that Company may deduct such refunds from subsequent amounts owed to You. Company will issue remit to You any amounts remaining after the foregoing deductions and adjustments, in US dollars, via PayPal. Payment will be made by the 10th of the month, one hundred twenty (120) days after the fee for a Course was received minus any applicable deductions. You are responsible for providing Company with all identifying and tax information necessary for the payment of amounts due.

  5.2 Revenue Share Fee

  Merchant shall pay to Lernsys a revenue share fee equal to 50% of Network Revenue, with payments due on the 30th day of the month after the calendar month to which the revenue share fee applies. "Network Revenue" means that portion of Total Revenue generated from transactions conducted through Course offerings that originate from Lernsys's network of properties (e.g., a hypertext link within Lernsys's main directory that permits users to navigate directly to Merchant’s Course, Lernsys's website(s) or partner portals and websites where Merchant may offer Courses). Lernsys shall identify these transactions by, among other things, providing a payment gateway where customers can purchase access to Merchant’s Courses, by placing a 30-day cookie within the user's Internet browser at the time that the user navigates to Merchant’s Course directly from a page within the Lernsys.com domain, by receiving other forms of payments (checks, Money Orders, etc.), etc. However, Lernsys is not obligated under the TOS to host the Merchant’s Course or to place links within Lernsys's network of properties that drive traffic to Merchant’s Course. Merchant acknowledges that Lernsys may at its sole discretion take certain steps in order to attract and capture customers and to promote its website content, its competitive differentiator, and specific Course offerings and Course Content (e.g., by optimizing its site's content and keywords, marketing material, advertising, press releases, customer segmentation strategy, market differentiator, etc.,); and that this advertising and marketing strategy may change rapidly from time to time and may be based on the aggregate of the Courses and Course Content within Lernsys Solution's database or on specific Courses and Course Content, including Merchant's;

  5.5 Cancellations, Incomplete Transactions and Refunds

  With respect to the fees set forth in Sections 5.0, 5.1 and 5.2, Company shall be entitled to identify, and exclude from Total Revenue those transactions conducted through Merchant’s Course that are cancelled, incomplete or for which no Service is provided to the purchaser ("Excluded Transactions").

  5.6 Mechanics

  All fees are cumulative and payable in U.S. or Canadian dollars or in an equivalent sum in the local currency of the Merchant, if located outside of the United States or Canada, subject to Lernsys discretion. Lernsys may, upon 30 days prior notice to Merchant, alter its Revenue Share Fee under the TOS. All such fees and charges are payable in accordance with payment terms in effect at the time the fee or charge becomes payable.

  6.0 TERMS

  6.1 Term

  The term of the TOS shall be 365 business days commencing on the date that Merchant opens an account for Merchant’s Course and the account is approved, or the effective date when Merchant's course is published (the 'Start Date'), whichever of these two is later. If Merchant is participating in the 30-day trial, and opens an account for Merchant’s Course prior to the expiration of the 90-day trial, the Start Date will commence on the day after the 90-day trial expires. The term shall automatically renew for successive periods equal in length to the original period at renewal rates applicable at the time, unless notice of non-renewal is provided in accordance with Section 6.2, below; provided, however, that to qualify for each renewal Merchant must at the time of renewal be in substantial compliance with the material terms and conditions of the TOS. Lernsys shall have the right, but not the obligation, to review any Course for compliance with the TOS as part of the renewal process, or at any time.

  6.2 Non-Renewal

  Either party, in its sole and absolute discretion, may give notice of nonrenewal with or without cause and without stating any reason therefor. Any notice of nonrenewal must be given at least seven (60) days prior to the end of the current term for the TOS to expire on the last day of that term; otherwise, the TOS will expire on the last day of the following monthly period (e.g., if the Start Date were September 10, and Merchant were to provide Lernsys with notice of nonrenewal on July 1, then the TOS would expire on September 30). All notices under this Section 6.2 must be given in the manner described in Section 14 regarding notice.

  7.0 TERMINATION

  7.1 Termination

  Either party may terminate the TOS on thirty (30) days notice if the other party has materially breached or is otherwise not in compliance with any provision of the TOS, and such breach or noncompliance is not cured within such thirty (30) day period. Lernsys reserves the right to immediately suspend any Merchant access to the Lernsys System until such breach or noncompliance is cured and/or for a period equal in length as the time Merchant was in breach. In order to protect customers who may request partial or full refunds, any sales commissions due may be held for a period of up to 180 days for any Merchant whose account has been terminated or suspended.

  7.2 Termination for Illegal or Other Activity

  Notwithstanding the foregoing, Lernsys may, but has no duty to, immediately terminate Merchant and remove it from Lernsys servers if Lernsys in its sole discretion concludes that Merchant is or has engaged in illegal activities or the sale of illegal or harmful content, or is or has engaged in activities or sales that may damage the rights or reputation of Lernsys or others. Any termination under this Section 7.2 shall take effect immediately and Merchant expressly agrees that it shall not have any opportunity to cure.

  7.3 Waiver

  Merchant expressly waives any statutory or other legal protection in conflict with the provisions of this Section 7.

  7.4 Deletion of Information

  Upon termination, Lernsys reserves the right to delete from its servers any and all information contained in Merchant's account, including but not limited to Merchant’s Courses, order processing information, mailing lists, and any Web pages generated by the Solution.

  7.5 Survival

  The provisions of Section 4.0 (Proprietary Rights), Section 4.3 (Merchant's Property), Section 5.2 (Revenue Share Fee), Section 8.1 (Merchant Information), Section 10 (Indemnity), and Section 11 (Disclaimer of Warranties and Liabilities), Section 21 (Confidentiality), Section 23.0 (Unauthorized Sales, Distribution, Reproduction), 26.5 (User Content and Third Party Materials), 28.0 (Ownership) of this Agreement shall survive any termination of the Agreement or non-renewal.

  8.0 MERCHANT PRIVACY

  8.1 Merchant Information

  Lernsys maintains information about Merchant and the Course on Lernsys servers, including but not limited to Merchant's account registration information, Merchant's customer order information, sales information, and clickstream data ("Merchant Information"). Merchant grants to Lernsys a non-exclusive, worldwide, royalty-free, perpetual license to use Merchant Information in aggregate form (i.e., in a form that is not individually attributable to the Merchant) for research, marketing and other promotional purposes.

  1. 8.1.1 Merchant agrees that Lernsys may disclose Merchant Information in the good faith belief that such action is reasonably necessary: (a) to comply with the law; (b) to comply with legal process; (c) to enforce the TOS; (d) to respond to claims that the Merchant or Course is engaged in activities that violate the rights of third parties; or (e) to protect the rights or interests of Lernsys, Lernsys Online System or others; provided, however, that nothing in this section shall impose a duty on Lernsys to make any such disclosures.
  
  
  2. 8.1.2 Merchant agrees that Lernsys may delete customer information from Lernsys servers 14 days after Merchant retrieves such information, and may delete all other Merchant Information from Lernsys servers at the end of each calendar year.

   

  8.2 Password

  Merchant shall receive a password from Lernsys to provide access to and use of the Software and Online Course Services. Merchant is entirely responsible for any and all activities which occur under Merchant's account and password. Merchant agrees to keep its password confidential, to allow no other person or company to use its account, and to notify Lernsys promptly if Merchant has any reason to believe that the security of its account has been compromised.

  8.3 Technical Access

  Merchant acknowledges and agrees that technical processing of Merchant Information is and may be required: (a) for the Service to function; (b) to conform to the technical requirements of connecting networks; (c) to conform to the technical requirements of the Service; or (d) to conform to other, similar technical requirements. Merchant also acknowledges and agrees that Lernsys may access Merchant's account and its contents as necessary to identify or resolve technical problems or respond to complaints about the Service.

  8.4 Merchant Privacy Policy

  Merchant shall allow Company (a) to post a privacy policy in its Merchant Course that, at a minimum, discloses any and all uses of personal information collected from users by Merchant; (b) to include in Merchant's privacy policy a paragraph provided or approved by Lernsys that describes Lernsys's collection and use of Merchant's customer information, (c) to provide a hypertext link to Merchant's privacy policy on the page(s) of the Merchant Course, including but not limited to all of the content served by Merchant in its Course; and (d) to use personal information only as expressly permitted by Merchant's privacy policy.

  9.0 Maintenance and Support

  9.1 Merchant may obtain assistance with any technical difficulty that may arise in connection with Merchant's utilization of the Solution or Online Course Services by contacting customer care. Lernsys reserves the right to establish limitations on the extent of such support, and the hours at which it is available.

  9.2 Merchant is responsible for obtaining and maintaining all telephone, computer hardware, internet access, and other equipment needed for its access to and use of the Solution and Online Course Services and Merchant shall be responsible for all charges related thereto.

  10.0 Indemnity

  Merchant agrees to indemnify and hold harmless Lernsys, and its parents, subsidiaries, affiliates, officers, directors, shareholders, employees and agents, from any claim or demand, including reasonable attorneys fees, made by any third party due to or arising out of Merchant's conduct, Merchant's use of the Service, the content offered in Merchant’s Course, any alleged violation of the TOS, or any alleged violation of any rights of another, including but not limited to Merchant's use of any content, trademarks, service marks, trade names, copyrighted or patented material, or other intellectual property used in connection with Merchant’s Course. Lernsys reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by Merchant, but doing so shall not excuse Merchant's indemnity obligations.

  11.0 Disclaimer Of Warranties And Liabilities

  THE SERVICE, SOLUTION, AND SOFTWARE ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. NEITHER THIS AGREEMENT OR ANY DOCUMENTATION FURNISHED UNDER IT IS INTENDED TO EXPRESS OR IMPLY ANY WARRANTY THAT THE ONLINE COURSES SERVICES WILL BE UNINTERRUPTED, TIMELY OR ERROR-FREE OR THAT THE SOFTWARE WILL PROVIDE UNINTERRUPTED, TIMELY OR ERROR FREE SERVICE, THAT IT WILL MEET MERCHANTS OR CUSTOMERS' EXPECTATIONS OR THAT THE COURSE CREATED BY MERCHANT WILL BE PURCHASED BY A CUSTOMER OR ANY AMOUNT OF CUSTOMERS. ANY AND ALL DOCUMENTS SUPPLIED TO MERCHANT REGARDING COURSE SALES, REVENUE PROJECTIONS, AND SALES ESTIMATES ARE FOR ILLUSTRATIVE PURPOSES ONLY AND AS SUCH MERCHANT UNDERSTANDS AND AGREES THAT HIS OR HER INDIVIDUAL RESULTS, SALES, IF ANY, AND SUCCESS WILL VARY.  THE SECURITY MECHANISM INCORPORATED IN THE SOFTWARE HAS INHERENT LIMITATIONS AND MERCHANT MUST DETERMINE THAT THE SOFTWARE ADEQUATELY MEETS ITS REQUIREMENTS. MERCHANT ACKNOWLEDGES AND AGREES THAT ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT ITS OWN DISCRETION AND RISK AND THAT MERCHANT WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO ITS COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA. LERNSYS, AND ITS PARENTS, SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES AND AGENTS, SHALL NOT BE LIABLE, UNDER ANY CIRCUMSTANCES OR LEGAL THEORIES WHATSOEVER, FOR ANY LOSS OF BUSINESS, PROFITS OR GOODWILL, LOSS OF USE OR DATA, INTERRUPTION OF BUSINESS, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER, EVEN IF LERNSYS IS AWARE OF THE RISK OF SUCH DAMAGES, THAT RESULT IN ANY WAY FROM MERCHANT'S, OR ITS COURSE CUSTOMERS'S, USE OR INABILITY TO USE THE ONLINE COURSE SERVICES OR THE SOFTWARE, OR THAT RESULT FROM ERRORS, DEFECTS, OMISSIONS, DELAYS IN OPERATION OR TRANSMISSION, OR ANY OTHER FAILURE OF PERFORMANCE OF THE ONLINE COURSE SERVICES OR THE SOFTWARE. LERNSYS'S LIABILITY TO MERCHANT SHALL NOT, FOR ANY REASON, EXCEED THE AGGREGATE PAYMENTS ACTUALLY MADE BY Merchant’s Course PURCHASERS TO LERNSYS OVER THE COURSE OF THE EXISTING TERM. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR LIABILITIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. LERNSYS'S LIABILITY TO YOU SHALL NOT, FOR ANY REASON, EXCEED THE AGGREGATE PAYMENTS ACTUALLY MADE BY MERCHANT’S COURSE PURCHASERS TO LERNSYS OVER THE COURSE OF THE THEN CURRENT TERM. YOU ACKNOWLEDGE THAT LERNSYS HAS SET ITS PRICES AND PAYMENTS IN RELIANCE UPON THE LIMITATIONS OF LIABILITY AND THE DISCLAIMERS OF WARRANTIES SET FORTH HEREIN, AND THAT THE SAME FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. YOU AGREE THAT THE LIMITATIONS AND EXCLUSIONS OF LIABILITY AND DISCLAIMERS SPECIFIED IN THESE TERMS WILL SURVIVE AND APPLY EVEN IF FOUND TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE.

  12.0 No Resale Or Assignment Of Service

  Merchant agrees not to resell or assign or otherwise transfer its rights to the Course or obligations under the TOS without the express written authorization of Lernsys.

  13.0 Force Majeure

  Neither party shall be liable to the other for any delay or failure in performance under the TOS resulting directly or indirectly from acts of nature or causes beyond its reasonable control. Lernsys will not be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including, but not limited to, acts of war, acts of terrorists, acts of God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, governmental act, or failure of the Internet.

  14.0 Notices

  Any notices or communications under the TOS shall be by electronic mail or in writing and shall be deemed delivered upon receipt to the party to whom such communication is directed, at the addresses specified below. If to Lernsys, such notices shall be addressed to Lernsys Inc. 300 Hagey Blvd, Waterloo, On, Canada. If to Merchant, such notices shall be addressed to the electronic or mailing address specified when Merchant opens an account with Lernsys Online System, or such other address as either party may give the other by notice as provided above.

  15.0 Entire Agreement

  The TOS constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all previous proposals, both oral and written, negotiations, representations, writings and all other communications between the parties.

  16.0 General

  16.1 The TOS and the relationship between Merchant and Lernsys shall be governed by the laws of the Province of Ontario without regard to its conflict of law provisions. Merchant and Lernsys agree to submit to the personal and exclusive jurisdiction of the Superior Court of Ontario without regard to its conflict of law provisions, and specifically excluding from application to this Agreement that law known as the United Nations Convention on the International Sale of Goods.

  
  16.2 Other than disputes regarding the intellectual property rights of the parties, any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Lernsys Services may be subject to arbitration pursuant to Section 25.0.

  Lernsys's failure to exercise or enforce any right or provision of the TOS shall not constitute a waiver of such right or provision. If any provision of the TOS is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties intentions as reflected in the provision, and agree that the other provisions of the TOS remain in full force and effect. Merchant agrees that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or the TOS must be filed within one (1) year after such claim or cause of action arose, or be forever barred. The section titles in the TOS are for convenience only and have no legal or contractual effect.

  17.0 Relationship Of Parties; No Third-Party Beneficiaries

  This Agreement will not establish any relationship of partnership, joint venture, employment, franchise, or agency between Lernsys and You. Neither Lernsys nor You will have the power to bind the other or incur obligations on the other's behalf without the other's prior written consent, except as otherwise expressly provided herein. Except as otherwise expressly provided in this Agreement, there shall be no third-party beneficiaries to this Agreement. You acknowledge and agree that Company’s provision to you of the Solution creates a direct business relationship between Company and you. Company does not, and shall not be deemed to, direct or control you generally or in your performance under this Agreement specifically, including in connection with your provision of Courses and Course content, your acts or omissions, or your creation and maintenance of your Courses. You retain the sole right to determine when and for how long you will utilize the Solution. With the exception of any required regulations by local law or permit/license requirements, Company shall have no right to require you to: (a) display Company’s or any of its Affiliates’ names, logos or colors on your Courses(s); or (b) wear a uniform or any other clothing displaying Company’s or any of its Affiliates’ names, logos or colors. You acknowledge and agree that you have complete discretion to provide services or otherwise engage in other business or employment activities. For the sake of clarity, you understand that you retain the complete right to; (i) use other software application services in addition to Lernsys's Solution; and (ii) engage in any other occupation or business. Company retains the right to, at any time at Company's sole discretion, deactivate or otherwise restrict you from accessing or using the Solution in the event of a violation of this Agreement, your disparagement of Company or any of its Affiliates, your act or omission that causes harm to Company’s or its Affiliates’ brand, reputation or business as determined by Company in its sole discretion, or for any other reason at the reasonable discretion of Company.

  17.1 Except as otherwise expressly provided herein with respect to Company acting as the limited payment collection agent solely for the purpose of collecting payment from Users on your behalf, the relationship between the parties under this Agreement is solely that of independent contractors. The parties expressly agree that: (a) this Agreement is not an employment agreement, nor does it create an employment relationship, between Company and you; and (b) no joint venture, partnership, or agency relationship exists between Company and you.

  17.2 You have no authority to bind Company or its Affiliates and you undertake not to hold yourself out as an employee, agent or authorized representative of Company or its Affiliates. Where, by implication of mandatory law or otherwise, you may be deemed an agent or representative of Company, you undertake and agree to indemnify, defend (at Company’s option) and hold Company and its Affiliates harmless from and against any claims by any person or entity based on such implied agency or representative relationship.

  17.3 Your Relationship With Users

  You acknowledge and agree that your provision of Courses and Course Content to Users creates a direct business relationship between you and the User. Company is not responsible or liable for the actions or inactions of a User in relation to your activities or your Course. You shall have the sole responsibility for any obligations or liabilities to Users or third parties that arise from your provision of Courses and Course Content. You acknowledge and agree that you are solely responsible for taking such precautions as may be reasonable and proper (including complying with any applicable laws) regarding any acts or omissions of a User or third party.

  18.0 Ratings And Customer Reviews

  18.1 You acknowledge and agree that: (a) after receiving Course or Course Content, a User may be prompted by Lernsys’s system to provide a rating of you and your Course or content, optionally, to provide comments or feedback about you and your Course or content.

  18.2 You acknowledge that Company desires that Users have access to high-­‐quality services via Lernsys’s Solution. In order to continue to receive access to the Solution and Lernsys Services, you must maintain an average rating by Users that exceeds the minimum average acceptable rating established by Company for your territory, academic subject or area of expertise, as may be updated from time to time by Company in its sole discretion (“Minimum Average Rating”). In the event your average rating falls below the Minimum Average Rating, Company will notify you and may provide you, in Company’s discretion, a limited period of time to raise your average rating above the Minimum Average Rating. If you do not increase your average rating above the Minimum Average Rating within the time period allowed (if any), Company reserves the right to deactivate your access to the Solution and the Lernsys Services. Additionally, you acknowledge that your repeated failure to accept and rectify User requests for Course and Course Content corrections creates a negative experience for Users of Lernsys’s Solution. If you do not wish to accept User requests and make corrections to your Course and Course Content for a period of time, you will lose access to the Solution.

  18.3 Company and its Affiliates reserve the right to use, share and display your and User ratings and comments in any manner in connection with the business of Company and its Affiliates without attribution to you or your approval. You acknowledge and agree that Company and its Affiliates are distributors (without any obligation to verify) and not publishers of your and User ratings and comments, provided that Company and its Affiliates reserve the right to edit or remove comments in the event that such comments include obscenities or other objectionable content, include an individual’s name or other personal information, or violate any privacy laws, other applicable laws, or Company’s or its Affiliates’ content policies.

  19.0 You And Your Course(s)

  19.1 Your Requirements. You acknowledge and agree that at all times, you shall, if so required by the Company: (a) hold (i) a valid teacher's license or certificate with the appropriate level of certification to teach in the relevant area of expertise, or (ii) have held a teacher’s license (if Merchant is now retired, disabled or unemployed) which was never revoked by the granting authority as a result of a conviction connected to a sexual abuse crime or offense, or charges related to child pornography, and (b) possess the appropriate and current level of training, expertise and experience to provide Course information in a professional manner with due skill, care and diligence; and (c) maintain high standards of professionalism, service and courtesy. You acknowledge and agree that you may be subject to certain background checks from time to time in order to qualify to provide, and remain eligible to provide Course(s). You acknowledge and agree that Company reserves the right, at any time in Company’s sole discretion, to deactivate or otherwise restrict you from accessing or using the Solution or the Lernsys Services if you fail to meet the requirements set forth in this Agreement.

  19.2 Course Requirements. You acknowledge and agree that your Course shall at all times be: (a) properly constructed and that it must meet the lesson guidelines and minimum requirements for publishing including, but not limited to, videos, practice files, quizzes and tests, and (c) suitable for the age and audience for which the Course is intended. In the event that your Course or any lesson is found not to meet the minimum publishing guidelines, Company will provide You in writing details about the guidelines not being met and an opportunity to cure said deficiencies. If the deficiencies found are not cured by you within 30 days from the date when they were first reported to you, or you choose not to cure the deficiencies and effectively forfeit your course and all future sales' commissions under 5.0, Company may choose in its sole discretion to cure said deficiencies or remove your Course from the Solution. In the event where Company chooses to cure some or all of the Course deficiencies, the Company will pay You fifteen percent (15%) of the Net Amount received for Your Course instead of the standard fifty percent (50%) amount as specified under Section 5.0.

  19.3 Documentation. To ensure your compliance with all requirements in Sections 19.1 and 19.2 above, you may be required to provide Company with written copies of all such licenses, permits, approvals, registrations and certifications prior or after to your provision of any Courses. Thereafter, you must submit to Company written evidence of all such licenses, permits, approvals, authority, registrations and certifications as they are requested by Company. Company shall, upon request, be entitled to review such licenses, permits, approvals, authority, registrations and certifications from time to time, and your failure to provide or maintain any of the foregoing shall constitute a material breach of this Agreement.

  20.0 Financial Terms

  20.1 Payment Calculation and Your Payment. You are entitled to charge a fee for each user's access to each of your Courses and Course Contents or lessons, provided to a User that are obtained via the Solution (“Course Fee”). Company in its sole discretion will determine the duration of time the Course will be accessible to the User. You: (i) appoint Company as your limited payment collection agent solely for the purpose of accepting the Fee from the User on your behalf via the payment processing functionality facilitated by the Solution; and (ii) agree that payment made by User to Company shall be considered the same as payment made directly by User to you. In addition, the parties acknowledge and agree that as between you and Company, the Fee is a recommended amount, and the primary purpose of the pre-­‐arranged Fee is to act as the default amount. Company shall have the right to: (i) charge Users a Fee that is less or higher than the base Course Fee depending on the Company's marketing and promotional efforts (including through Marketing Programs), its growth strategy, market and/or seasonal trends, its competitors’ offerings and promotions, or to maintain a fair playing field among all Merchants. If you and Lernsys have separately agreed, Company may deduct other amounts from the Fee prior to remittance to you (e.g., technology and video recording hardware and software access or rental, server storage, etc.).

  20.2 Changes to Revenue Share Fee. Company reserves the right to change the Revenue Share Fee with 90 day notice at any time in Company’s discretion based upon local market factors, seasonal trends, its growth strategy, its competitors, other available Courses, sales and marketing trends. Continued use of the Solution after any such change in the Revenue Share Fee Calculation shall constitute your consent to such change.

  20.3 Fee Adjustment. Company reserves the right to: (i) adjust the Fee for a particular instance of the Solution (e.g., Course description does not accurately represent its content, length or scope, you fail to properly construct the Course, quizzes, tests, and practice material, errors in the Course, etc.); or (ii) cancel the Fee for a particular instance of the Course (e.g., User is charged for Course that was not provided, in the event of a User complaint, fraud, etc.). Company’s decision to reduce or cancel the Fee in any such manner shall be exercised in a reasonable manner.

  20.4 Receipts. As part of the Solution, Company provides you a record log with all users' purchases of your Courses. Upon final delivery of the Course to a User, Company prepares an applicable receipt with a breakdown of amounts charged to the User for Solution and all other transactional fees (credit card processing fees, chargeback fees, partial-credits, etc.) which will be deducted from the Course Fee before your final payment is calculated. Any corrections to a receipt for Solution must be submitted to Company in writing within five (5) business days after the completion of such receipt. Absent such a notice, Company shall not be liable for any mistakes in or corrections to the receipt or for recalculation or disbursement of the Fee.

  20.5 No Additional Amounts. You acknowledge and agree that, for the mutual benefit of the parties, through advertising and marketing, Company and its Affiliates may seek to attract new Users to Lernsys and to increase existing Users’ use of Lernsys’s application. You acknowledge and agree such advertising or marketing does not entitle you to any additional monetary amounts beyond the amounts expressly set forth in this Agreement. Additionally, you expressly agree that Company shall have no obligation whatsoever to find and attract users to your Course(s) and that any such marketing efforts by Company to find and attract users shall not imply any obligation to do so. As the Course provider, you retain the opportunity to drive users to your content hosted in the Solution, in a variety of advertising manners including social media, PPC, Adwords, SEO, word-of-mouth, referrals, printed media, etc. Any such advertising efforts made by you or a third-party on your behalf, should be incurred at your own expense and cost.

  21.0 Confidentiality

  21.1 Each party acknowledges and agrees that in the performance of this Agreement it may have access to or may be exposed to, directly or indirectly, confidential information of the other party ("Confidential Information"). Confidential Information includes Company Data, Driver IDs, User Information, and the transaction volume, marketing and business plans, business, financial, technical, operational and such other non-­‐public information of each party that such party designates as being proprietary or confidential or of which the other party should reasonably know that it should be treated as confidential.

  21.2 Each party acknowledges and agrees that: (a) all Confidential Information shall remain the exclusive property of the disclosing party; (b) it shall not use Confidential Information of the other party for any purpose except in furtherance of this Agreement; (c) it shall not disclose Confidential Information of the other party to any third party, except to its employees, officers, contractors, agents and service providers ("Permitted Persons") as necessary to perform under this Agreement, provided Permitted Persons are bound in writing to obligations of confidentiality and non-­‐use no less protective than the terms hereof; and (d) it shall return or destroy all Confidential Information of the disclosing party, upon the termination of this Agreement or at the request of the other party (subject to applicable law and, with respect to Company, its internal record-­‐keeping requirements).

  21.3 Notwithstanding the foregoing, Confidential Information shall not include any information to the extent it: (a) is or becomes part of the public domain through no act or omission on the part of the receiving party; (b) was possessed by the receiving party prior to the date of this Agreement without an obligation of confidentiality; (c) is disclosed to the receiving party by a third party having no obligation of confidentiality with respect thereto; or (d) is required to be disclosed pursuant to law, court order, subpoena or governmental authority, provided the receiving party notifies the disclosing party thereof and provides the disclosing party a reasonable opportunity to contest or limit such required disclosure.

  22 Taxes. You acknowledge and agree that you are responsible for all applicable taxes of any payments received by Company.

  23.0 Unauthorized Sales, Distribution, Reproduction

  Merchant agrees that he/she will not offer for distribution, download, reproduction, or sale in a different website or web portal that is not controlled or owned by Lernsys the same Course or Course content, or a largely similar Course or Course content (more than 40%), as the one created and offered through Lernsys or the Solution, its website(s) and/or web portal(s). Any revenues generated by Merchant for any unauthorized sale or distribution of Merchant’s Course outside of Lernsys’ website shall be commissionable under this TOS and Merchant shall provide to Lernsys within 10 business days upon Lernsys's request, copies of all records including, but not limited to, transactional records, statements, invoices, sales orders, receipts, or sales reports, to assess the amount of sales generated outside of the Lernsys Solution. Merchant shall be liable for all legal costs related to the enforcement of this provision. You acknowledge and agree that the prevailing 50% commission amount rate paid to you will no longer be applicable if you offer a largely similar course through a third-party portal, website or solution not owned or controlled by Lernsys, and that the effective commission rate paid to you by Lernsys in such event will be 30%.

  23.1 Eligibility for Lernsys Premier Marketing

  In order to become eligible for discretionary placement with Lernsys Marketing, Merchant agrees to the following: (a) Merchant will comply with the Lernsys Shopping Merchant Guidelines; and (b) Merchant grants to Lernsys a non-exclusive, worldwide, royalty-free license to modify certain pages within the Merchant’s Course solely for purpose of implementing features and functionality of Lernsys Solution that, in Lernsys's reasonable discretion, either facilitate transactions or promote Lernsys Courses or Lernsys generally.

  23.2 Discretionary Placement within Lernsys Marketing

  Subject to Section 23.1 above, Lernsys will consider Merchant for discretionary placement within Lernsys Marketing, which might include a Merchant listing in the following areas: (a) http://Lernsys.com; or (b) contextually relevant search results pages. Lernsys will be entitled to revoke any discretionary placement at any time in its sole discretion.

  24.0 Integration; Severability; Timeliness Of Claims; Titles And Headings

  The TOS constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all previous proposals, both oral and written, negotiations, representations, writings and all other communications between the parties. If any provision of this Agreement or incorporated documents is found by a court of competent jurisdiction to be invalid, the other provisions of this Agreement remain in full force and effect to the maximum extent permitted by applicable law. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or this Agreement must be filed within one year after such claim or cause of action arose or be forever barred. The section titles and headings in the Agreement are for convenience only and have no legal or contractual effect.

  25.0 Binding Arbitration Provision and Class Action Waiver

  Important Note Regarding this Arbitration provision:

  • Arbitration does not limit or affect the legal claims you may bring against the Company. Agreeing to arbitration only affects where any such claims may be brought and how they will be resolved.
  • Arbitration is a process of private dispute resolution that does not involve the civil courts, a civil judge, or a jury. Instead, the parties’ dispute is decided by a private arbitrator selected by the parties using the process set forth herein. Other arbitration rules and procedures are also set forth herein.
  • Unless the law requires otherwise, as determined by the Arbitrator based upon the circumstances presented, you will be required to split the cost of any arbitration with the Company.
  • IMPORTANT: This arbitration provision will require you to resolve any claim that you may have against the Company or Lernsys on an individual basis pursuant to the terms of the Agreement unless you choose to opt out of the arbitration provision. This provision will preclude you from bringing any class, collective, or representative action against the Company or Lernsys. It also precludes you from participating in or recovering relief under any current or future class, collective, or representative action brought against the Company or Lernsys by someone else.

  WHETHER TO AGREE TO ARBITRATION IS AN IMPORTANT BUSINESS DECISION. IT IS YOUR DECISION TO MAKE, AND YOU SHOULD NOT RELY SOLELY UPON THE INFORMATION PROVIDED IN THIS AGREEMENT AS IT IS NOT INTENDED TO CONTAIN A COMPLETE EXPLANATION OF THE CONSEQUENCES OF ABRITRATION. YOU SHOULD TAKE REASONABLE STEPS TO CONDUCT FURTHER RESEARCH AND TO CONSULT WITH OTHERS — INCLUDING BUT NOT LIMITED TO AN ATTORNEY — REGARDING THE CONSEQUENCES OF YOUR DECISION, JUST AS YOU WOULD WHEN MAKING ANY OTHER IMPORTANT BUSINESS OR LIFE DECISION.

  1. How This Arbitration Provision Applies.

   

  This Arbitration Provision is governed by the Federal Arbitration Act, 9 U.S.C.§ 1 et seq. (the“FAA”) and evidences a transaction involving commerce. This Arbitration Provision applies to any dispute arising out of or related to this Agreement or termination of the Agreement and survives after the Agreement terminates. Nothing contained in this Arbitration Provision shall be construed to prevent or excuse you from utilizing any procedure for resolution of complaints established in this Agreement (if any), and this Arbitration Provision is not intended to be a substitute for the utilization of such procedures. Except as it otherwise provides, this Arbitration Provision is intended to apply to the resolution of disputes that otherwise would be resolved in a court of law or before a forum other than arbitration. This Arbitration Provision requires all such disputes to be resolved only by an Arbitrator through final and binding arbitration on an individual basis only and not by way of court or jury trial, or by way of class, collective, or representative action.Such disputes include without limitation disputes arising out of or relating to interpretation or application of this Arbitration Provision, including the enforceability, revocability or validity of the Arbitration Provision or any portion of the Arbitration Provision. All such matters shall be decided by an Arbitrator and not by a court or judge. Except as it otherwise provides, this Arbitration Provision also applies, without limitation, to disputes arising out of or related to this Agreement and disputes arising out of or related to your relationship with the Company, including termination of the relationship. This Arbitration Provision also applies, without limitation, to disputes regarding any city, county, state/province or federal wage--‐hour law, trade secrets, unfair competition, compensation, breaks and rest periods, expense reimbursement, termination, harassment and claims arising under the Uniform Trade Secrets Act, Civil Rights Act of 1964, Americans With Disabilities Act, Age Discrimination in Employment Act, Family Medical Leave Act, Fair Labor Standards Act, Employee Retirement Income Security Act (except for claims for employee benefits under any benefit plan sponsored by the Company and covered by the Employee Retirement Income Security Act of 1974 or funded by insurance), Genetic Information Non--‐Discrimination Act, and state statutes, if any, addressing the same or similar subject matters, and all other similar federal and state or provincial statutory and common law claims. This Agreement is intended to require arbitration of every claim or dispute that lawfully can be arbitrated, except for those claims and disputes which by the terms of this Agreement are expressly excluded from the Arbitration Provision. The parties expressly agree that Lernsys is an intended third--‐party beneficiary of this Arbitration Provision.

  1. Limitations On How This Agreement Applies.

  The disputes and claims set forth below shall not be subject to arbitration and the requirement to arbitrate set forth in this Arbitration Provision shall not apply: Claims for workers compensation, state disability insurance and unemployment insurance benefits; Regardless of any other terms of this Arbitration Provision, claims may be brought before and remedies awarded by an administrative agency if applicable law permits access to such an agency notwithstanding the existence of an agreement to arbitrate. Such administrative claims include without limitation claims or charges brought before the Equal Employment Opportunity Commission (www.eeoc.gov), the U.S. Department of Labor (www.dol.gov), the National Labor Relations Board (www.nlrb.gov), or the Office of Federal Contract Compliance Programs (www.dol.gov/esa/ofccp). Nothing in this Arbitration Provision shall be deemed to preclude or excuse a party from bringing an administrative claim before any agency in order to fulfill the party's obligation to exhaust administrative remedies before making a claim in arbitration; Disputes that may not be subject to predispute arbitration agreement as provided by the Dodd--‐Frank Wall Street Reform and Consumer Protection Act (Public Law 111--‐203) are excluded from the coverage of this Arbitration Provision; Disputes regarding your, the Company’s, or Lernsys’s intellectual property rights; This Arbitration Provision shall not be construed to require the arbitration of any claims against a contractor that may not be the subject of a mandatory arbitration agreement as provided by section 8116 of the Department of Defense ("DoD") Appropriations Act for Fiscal Year 2010 (Pub. L. 111-­‐118), section 8102 of the Department of Defense ("DoD") Appropriations Act for Fiscal Year 2011 (Pub. L. 112-­‐10, Division A), and their implementing regulations, or any successor DoD appropriations act addressing the arbitrability of claims. This Binding Arbitration Agreement and Class Action Waiver applies to any Dispute arising from or related to a Solution or this Agreement and involving you and Lernsys Inc. and/or its Affiliates. “Dispute”, for purposes of this provision, means any dispute, action, or other controversy regardless of the particular cause of action(s) asserted (i.e., it encompasses, among any other potential cause of action or legal basis, claims for breach of contract, fraud, and violation of statute or regulation). The foregoing definition of “Dispute” will be given the broadest possible meaning allowable under law.

  iii.                  Selecting The Arbitrator and Location of the Arbitration.

  The Arbitrator shall be selected by mutual agreement of the Company and you. Unless you and the Company mutually agree otherwise, the Arbitrator shall be an attorney licensed to practice in the location where the arbitration proceeding will be conducted or a retired federal or state judicial officer who presided in the jurisdiction where the arbitration will be conducted. If the Parties cannot agree on an Arbitrator, then an arbitrator will be selected using the alternate strike method from a list of five (5) neutral arbitrators provided by JAMS (Judicial Arbitration & Mediation Services). You will have the option of making the first strike. If a JAMS arbitrator is used, then the JAMS Streamlined Arbitration Rules & Procedures rules will apply. Those rules are available here:

  http://www.jamsadr.com/rules-­‐streamlined-­‐arbitration/

  The location of the arbitration proceeding shall be no more than 35 miles from the place where Lernsys is headquartered unless each party to the arbitration agrees in writing otherwise.

  iv.                  Starting The Arbitration.

  All claims in arbitration are subject to the same statutes of limitation that would apply in court. The party bringing the claim must demand arbitration in writing and deliver the written demand by hand or registered mail with signature confirmation to the other party within the applicable statute of limitations period. The demand for arbitration shall include identification of the Parties, a statement of the legal and factual basis of the claim(s), and a specification of the remedy sought. Any demand for arbitration made to the Company or Lernsys shall be provided to Lernsys Inc, 300 Hagey Blvd, Waterloo, On, Canada. The arbitrator shall resolve all disputes regarding the timeliness or propriety of the demand for arbitration. A party may apply to a court of competent jurisdiction for temporary or preliminary injunctive relief in connection with an arbitrable controversy, but only upon the ground that the award to which that party may be entitled may be rendered ineffectual without such provisional relief.

  v. How Arbitration Proceedings Are Conducted.

  In arbitration, the Parties will have the right to conduct adequate civil discovery, bring dispositive motions, and present witnesses and evidence as needed to present their cases and defenses, and any disputes in this regard shall be resolved by the Arbitrator.

  You and the Company agree to resolve any dispute in arbitration on an individual basis only, and not on a class, collective, or private attorney general representative action basis. The Arbitrator shall have no authority to consider or resolve any claim or issue any relief on any basis other than an individual basis. If at any point this provision is determined to be unenforceable, the parties agree that this provision shall not be severable, unless it is determined that the Arbitration may still proceed on an individual basis only.  

  While the Company will not take any retaliatory action in response to any exercise of rights you may have under Section 7 of the National Labor Relations Act, if any, the Company shall not be precluded from moving to enforce its rights under the FAA to compel arbitration on the terms and conditions set forth in this Agreement.

  vi.                  Paying For The Arbitration.

  Each party will pay the fees for his, her or its own attorneys, subject to any remedies to which that party may later be entitled under applicable law (i.e., a party prevails on a claim that provides for the award of reasonable attorney fees to the prevailing party). If under applicable law the Company is not required to pay all of the Arbitrator’s and/or arbitration fees, such fee(s) will be apportioned equally between the Parties or as otherwise required by applicable law. Any disputes in that regard will be resolved by the Arbitrator.

  vii.                 The Arbitration Hearing And Award.

  The Parties will arbitrate their dispute before the Arbitrator, who shall confer with the Parties regarding the conduct of the hearing and resolve any disputes the Parties may have in that regard. Within 30 days of the close of the arbitration hearing, or within a longer period of time as agreed to by the Parties or as ordered by the Arbitrator, any party will have the right to prepare, serve on the other party and file with the Arbitrator a brief. The Arbitrator may award any party any remedy to which that party is entitled under applicable law, but such remedies shall be limited to those that would be available to a party in his or her individual capacity in a court of law for the claims presented to and decided by the Arbitrator, and no remedies that otherwise would be available to an individual in a court of law will be forfeited by virtue of this Arbitration Provision. The Arbitrator will issue a decision or award in writing, stating the essential findings of fact and conclusions of law. Except as may be permitted or required by law, as determined by the Arbitrator, neither a party nor an Arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of all Parties. A court of competent jurisdiction shall have the authority to enter a judgment upon the award made pursuant to the arbitration. The Arbitrator shall not have the power to commit errors of law or legal reasoning, and the award may be vacated or corrected on appeal to a court of competent jurisdiction for any such error.

  viii.               Your Right To Opt Out Of Arbitration.

  Arbitration is not a mandatory condition of your contractual relationship with the Company. If you do not want to be subject to this Arbitration Provision, you may opt out of this Arbitration Provision by notifying the Company in writing of your desire to opt out of this Arbitration Provision, either by (1) sending, within 30 days of the date this Agreement is executed by you, electronic mail to [email protected], stating your name and intent to opt out of the Arbitration Provision or (2) by sending a letter by U.S. Mail, Canada Post or by any nationally recognized delivery service (e.g, UPS, Federal Express, etc.), or by hand delivery to:

  Lernsys Inc

  300 Hagey Blvd,

  Waterloo, On, Canada

  In order to be effective, the letter under option (2) must clearly indicate your intent to opt out of this Arbitration Provision, and must be dated and signed. The envelope containing the signed letter must be received (if delivered by hand) or post-­‐marked within 30 days of the date this Agreement is executed by you. Your writing opting out of this Arbitration Provision, whether sent by (1) or (2), will be filed with a copy of this Agreement and maintained by the Company. Should you not opt out of this Arbitration Provision within the 30-­‐day period, you and the Company shall be bound by the terms of this Arbitration Provision. You have the right to consult with counsel of your choice concerning this Arbitration Provision. You understand that you will not be subject to retaliation if you exercise your right to assert claims or opt-­‐out of coverage under this Arbitration Provision.

  1. Enforcement Of This Agreement.

  If this provision is found to be illegal, invalid or unenforceable as to all or some parts of a Dispute, then Section 25.0 will not apply to those parts. Instead, and only in that circumstance, those parts will be severed and will proceed in a court of law, subject to all other provisions of this Agreement, in which case the governing law and exclusive jurisdiction for any such court proceeding shall be the provincial or federal courts sitting in the City of Brampton, Province of Ontario, Canada. For purposes of any such court proceeding, you consent to, and will not challenge, those courts’ personal jurisdiction over you, and further waive objection based upon improper venue or forum non conveniens or to seek transfer to another district or jurisdiction.

  25.1 Interpretation. The headings in this Agreement do not affect its interpretation. The use of any gender includes all genders. The singular includes the plural and vice-versa. Where a word or phrase is defined, its other grammatical forms have a corresponding meaning.

  25.2 Waiver. The failure of either party to insist on the strict performance of any of the terms, conditions and provisions of this Agreement shall not be construed as a waiver or relinquishment of future compliance with the Agreement, and the terms, conditions and provisions of this Agreement shall remain in full force and effect. No waiver of any term or condition of this Agreement on the part of either party shall be effective for any purpose whatsoever unless such waiver is in writing and signed by such party. The waiver by either party of a breach of any provision of this Agreement by the other party shall not be construed as a continuing waiver of such breach or as a waiver of other breaches of the same or of other provisions of this Agreement.

  25.3 Language. This Agreement was originally prepared in the English language. Although Lernsys may provide one or more translations for your convenience, the English version will control in the case of any conflict or discrepancy.

  25.4 Product names. Lernsys reserves the right to change the name of its Solutions in its sole discretion from time to time.

  26.0 Security and Ownership

  26.1 USAGE MONITORING/COMPLIANCE. Lernsys may monitor your use of a solution to confirm that it complies with the terms of this agreement. Should Lernsys determine that you are in breach of this agreement, Lernsys, in addition to such other rights that may be available at law, equity or otherwise, shall be entitled to exercise its rights under sections 4.4, 7.0 and 7.2 of this Agreement.

  26.2 You will not, and will not permit any third party to reverse engineer, disassemble, decompile, translate, reconstruct, transform or extract any Solution or any portion of the Solution (including without limitation any courses, course data, video and audio files, or other course related files, or publish, resell, distribute, broadcast, transmit, communicate, transfer, pledge, rent, share or sublicense any Solution, (v) grant any third party access to or use of any Solution on a service bureau, timesharing, subscription service or application service provider or other similar basis, (vi) test or benchmark, or disclose or publish testing or benchmark results, for any LERNSYS Solution without LERNSYS’s prior written consent (which you may request at http://www.Lernsys.com/benchmarking), or (vii) defeat or circumvent, attempt to defeat or circumvent, or authorize or assist any third party in defeating or circumventing controls on the installation or use of copies of any Solution.

  26.3 Course. In addition to the limitations established by Section 26.2, you will not (i) copy course material for any purpose other than, as reasonably necessary to use the same as contemplated by this Agreement, and to preserve 1 uninstalled/off-line copy for disaster recovery purposes; (ii) install or upload the course material on any server, website, or publicly accessible medium not owned and supported by LERNSYS or (iii) remove any copyright, trademark or other proprietary notices from the Solution.

  26.5 User Content and Third Party Materials. Certain Solutions may enable you to publish or share with Lernsys content you have generated or obtained from other sources (“User Content”). Subject to the rights, licenses, and other terms of this Agreement, including any underlying rights of others in any User Content that you may use or modify. You grant to LERNSYS, a non-exclusive, unrestricted, unconditional, unlimited, worldwide, irrevocable, perpetual, and cost-free right and license to use, copy, record, distribute, reproduce, disclose, sell, re-sell, sublicense (through multiple levels), modify, display, publicly perform, transmit, publish, broadcast, translate, make derivative works of, and otherwise exploit in any manner whatsoever, all or any portion of the User Content you publish, upload, or share through a Solution (and derivative works thereof). Each time you publish or share any User Content, you represent and warrant that you are at least the age of majority in the state or province in which you reside and are the parent or legal guardian, or have all proper consents from the parent or legal guardian, of any minor who is depicted in or contributed to any User Content you publish or share, and that, in regard to that User Content, (a) you are the sole author and owner of the intellectual property and other rights to the User Content, or you have a lawful right to publish or share the User Content and grant LERNSYS the right to use it as described in this Section, all without any LERNSYS obligation to obtain consent of any third party and without creating any obligation or liability of LERNSYS; (b) the User Content is accurate; (c) the User Content does not and, as to LERNSYS’s permitted uses and exploitation set forth in this Agreement, will not infringe any intellectual property or other right of any third party; and (d) the User Content will not violate this Agreement or cause injury or harm to any person.

  28.0 Ownership

  28.1 LERNSYS reserves all rights in the Solutions not expressly granted by this Agreement. All copyrights, trademarks and other conceivable intellectual property rights in and to the Solution (including, but not limited to, malware signatures and other data files, images appearing in the Solution and screen displays as well as any and all documentation relating to the Solution) are owned by LERNSYS or its licensors, and are protected by United States and foreign copyright laws, international treaties and other applicable laws. Any copy of a Solution you are permitted to create pursuant to this Agreement must contain the entire copyright notice and other notices included with the original copy of the Solution. Merchant's source-code, scripting, proprietary programmer code, work-up files, and unfinished lessons including lectures, video and audio files, and documents not yet uploaded to the Solution will remain the exclusive property of Merchant. Assembled lessons, courses, lectures, including their respective videos, audios, quizzes, tests, images and/or document files uploaded on Lernsys.com, Lernsys.org, or any other Company owned or controlled entity or server will remain the property of Company.

  28.2 Any trade names, trademarks, service marks, logos, domain names or other distinctive brand features used with, on or relating to any third party products or services including Third Party Materials available on or through a Solution are the property of the third party providers or their respective licensors.

  29.0  Updates. LERNSYS, from time to time during the Subscription Period and, without your separate permission or consent, may deploy Updates for any Solution, and you may not be able to use the applicable Solution or Device (or certain functions of the Device) until the Update is fully installed. Updates will be deemed a part of the Solution for all purposes under this Agreement. Updates may include both additions to and removals of particular functionality offered by a Solution or may replace it entirely, and the content and functionality of such updates is at the sole discretion of LERNSYS. LERNSYS may stop providing support for a Solution until you have accepted and installed all Updates. LERNSYS will determine when and if Updates are appropriate and has no obligation to make any Updates available to you. LERNSYS in its sole discretion may stop providing Updates for any version of the Solution other than the most current version, or Updates supporting use of the Solution in connection with any versions of operating systems, email programs, browser programs and other software with which the Solution is designed to operate.