SALONTRAININGONLINE.COM – Terms and Conditions of Service for Students
Student User Terms
Please read all the terms and conditions of these terms and conditions of services (“Agreement”) carefully.
This Agreement governs the relationship between Company and you as the student user using the Services (the “Student User“, “You”). By creating an account, clicking “I agree”, signing a copy of this Agreement, or otherwise entering into a business relationship with The Academy of Nail Design doing business as Salontrainingonline.com (“Company”, “STO”), you acknowledge that you have read, understood and agree to be bound by the terms and conditions of this Agreement. It is important to read this entire Agreement. IN PARTICULAR, IT CONTAINS PROVISIONS THAT MAY LIMIT YOUR RIGHTS, SUCH AS SECTION 10 INDEMNIFICATION AND INFRINGEMENT AND SECTION 11 DISCLAIMER AND LIMITATION OF LIABILITY. This Agreement applies to all current and future arrangements between you and Company.
If the Student User does not agree to any of the terms of this Agreement, the Student User must discontinue his, her or its use of the Hosted Service provided by Company (as such term is defined below).
THEREFORE, Company and Student User agree as follows:
DEFINITIONS AND INTERPRETATION
1.1 Definitions. Capitalized terms used in this Agreement, and not otherwise defined in this Agreement, shall have the following meanings:
(a) “Agreement”, “this Agreement”, “the Agreement”, “hereof”, “herein”, “hereto”, “hereby”, “hereunder” and similar expressions mean these Terms and Conditions of Service, as may be confirmed, amended, modified, supplemented or restated by the Company from time to time.
(b) “Brand Features” means all of the trademarks, trade names, service marks, logos or other distinctive brand features of Company, whether registered or unregistered that Company may in the future use and register to identify its products or services that Company may permit Student User to use from time to time in accordance with the terms and conditions of this Agreement (including Section 7), which as of the Effective Date includes ‘Salontrainingonline.com’ and its logo.
(c) “Educator’s LMS Environment” means the instance of online environment within Company’s online learning management that is designated for use by Educator and Student Users.
(d) “Company Marketing Guidelines” means the guidelines and policies established by Company from time to time pertaining to Student User’s practices relating to use of the Brand Features by third parties.
(e) “Content” means all information, links, emails, postings, code, data, text, software, music, sound, images, graphics, video, chat, messages, files, works of authorship, applications, or other materials submitted, displayed and published.
(f) “Copyrighted Materials” means all materials, in any format, created or distributed by Company for use in connection with the promotion and advertisement of its educational programs, online learning management system and services or school partnership program.
(g) “Effective Date” means that date upon which the Student User accepts this Agreement.
(h) “Hosted Service” means, collectively, (i) the Company hosted offering as set forth in the Educator’s LMS Environment to which Student User acquires rights under this Agreement to access or use. The Hosted Service to be provided, or which Student User is otherwise entitled to receive, as of the Effective Date, which includes Educator’s LMS Environment.
(i) “IP Rights” means any right that is or may be granted or recognized under any Canadian, United States or foreign legislation regarding patents, copyrights, neighbouring rights, moral rights, trade-marks (including trade names and service marks), trade secrets, confidential information, industrial designs, design rights, mask work, integrated circuit topography, privacy and publicity rights and any other statutory provision or common or civil law principle regarding intellectual and industrial property, whether registered or unregistered, and including rights in any application for any of the foregoing.
(j) “Student User” means an individual with a student account in the Educator’s LMS Environment who is authorized by Educator to access and use such Educator’s LMS Environment and for whom all applicable Fees to use the Hosted Service have been paid by Educator to Company.
(k) “Parties” means the Company and the Student User.
(l) “Person” means a natural person or any legal, commercial or governmental entity, such as, but not limited to, a corporation, general partnership, joint venture, limited partnership, limited liability company, trust, business association, group acting in concert, or any Person acting in a representative capacity.
(m) “Personal Information” means information about an identifiable individual in the Educator’s LMS Environment.
(n) “Refund Policy” means the policy created by the Educator pursuant to which Student User shall receive any applicable refund of Fees, a copy of which shall be provided by the Educator to the Student User.
(o) “Restricted Person” means a Person or any officer, director, or controlling shareholder of the entity on behalf of which the Student User is using the Hosted Service is (i) a national of or an entity existing under the laws of any country with which Canadian Persons are prohibited by the Governing Law from engaging in transactions, as may be determined from time to time by the government of Canada; (ii) owned, controlled, or acting on behalf of a Restricted Person; or (iii) under the age of 18. If You become a Restricted Person during the Term of this Agreement, You shall notify the Company within twenty-four (24) hours, and the Company shall have the right to terminate any further obligations to You , effective immediately and with no further liability to You, but without prejudice to Your outstanding obligations to the Company.
(p) “Services” means the provision of the Hosted Service, setup and implementation of the Hosted Service and such other services that are inherent to each of the foregoing.
(q) “Student Enrollment Fee” is defined in Section 4.1.
(r) “Student User Data” means any information (including Personal Information), data, communication or Content uploaded, generated, stored or transmitted by Student User as part of, or in conjunction with, the Hosted Service.
(s) “System” means the proprietary and third party information technology systems used by Company to provide the Hosted Service.
(t) “Term” is defined in Section 5.1.
(u) “Usage Data” means data or information generated by Company with respect to Student Users’ use or operation of, the Services and the System, including, without limitation, the Company Environment, and for greater certainty, includes any Student User Data.
1.2 Interpretation. The Parties agree to the following interpretive terms and conditions: (a) words importing the singular number include the plural and vice versa and words importing gender include all genders in this Agreement; (b) reference to any agreement, indenture or other instrument in writing means such agreement, indenture or other instrument in writing as amended, modified, replaced or supplemented from time to time, unless otherwise agreed to herein; (c) every use of the words “including” or “includes” in this Agreement is to be construed as meaning “including, without limitation” or “includes, without limitation”, respectively; and (d) the division of this Agreement into Sections and Appendices and the insertion of headings are for convenience of reference only and shall not affect the construction or interpretation of this Agreement.
- RELATIONSHIP OF THE PARTIES
2.1 Independent Contractor Status. It is the intention of the Parties, and the Parties understand and agree, that the Parties are and shall be independent contractors to one another, and neither Company, Student User nor any of their respective representatives is an employee, agent, joint venturer or partner of the other party. Nothing in this Agreement shall be interpreted or construed as creating or establishing a partnership arrangement. Nothing in this Agreement shall be interpreted or construed as creating or establishing the relationship of employer and employee between Student User and Company or any of their respective representatives or personnel.
2.2 No Authority. Neither Company nor Student User is authorized to oblige the other party or act in the name of the other party. Company and Student User are independent contractors and the Parties are not partners, agents or legal representatives of each other and have no power of attorney to represent, act for, bind or commit each other. Student User shall have no authority to bind Company in any manner whatsoever. Company shall not be held responsible for any debts, obligations, or liabilities of Student User arising from this Agreement.
2.3 Company’s Role. The Student User agrees that the Company’s role and responsibility is solely to provide the Services and process payments for the Fees as set forth in this Agreement. For greater certainty, the Company is not party to any transaction between the Educator and any Student User and cannot be held responsible for any issues arising from any such transaction.
3.1 Access to Hosted Service.
(a) Student User’s access to and use of the Hosted Service is on a subscription basis. Subject to the terms and conditions of this Agreement, Company grants to Student User a non-exclusive, royalty-free worldwide, non-assignable and non-transferable limited license to use the Services solely for Student User’s own educational purposes, all in accordance with this Agreement.
(b) Student User understands and agrees that information technology systems required for the operation and availability of Hosted Service, including the System, external authentication software, mobile networks, and the Internet, whether or not supplied by Company, can be unpredictable and may from time to time interfere with or prevent access to the Hosted Service. Student User is solely responsible for obtaining and maintaining all equipment, computers, and communications required to access the Hosted Service and for all expenses related thereto.
3.2 Restrictions on Use. Student User shall not access or use the Hosted Service except as may be expressly permitted by this Agreement. Without limiting the generality of the foregoing, except as this Agreement expressly permits, Student User shall not, and shall not permit any other Person to, directly or indirectly do any of the following: (a) copy, modify or create derivative works or improvements of the Hosted Service; (b) rent, lease, lend, sell, resell, license, sublicense, assign, distribute, publish, transfer or otherwise make available or commercially exploit the Hosted Service; (c) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of the Hosted Service, in whole or in part; (d) bypass or breach any security device or protection used by the Hosted Service; (e) input, upload, transmit or otherwise provide to or through the Hosted Service, any information or materials that are unlawful or injurious, or contain, transmit or activate any harmful code; (f) damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Hosted Service, the System or Company’s provision of services to any third party, in whole or in part, including attempt to probe, scan or test the vulnerability of any portion of the System or to breach the security or authentication measures; (g) remove, delete, alter or obscure any trademarks, specifications, documentation, warranties or disclaimers, or any copyright, trademark, patent or other intellectual property or proprietary rights notices from the Hosted Service, including any copy thereof; (h) access or use the Hosted Service or in any manner or for any purpose that infringes, misappropriates or otherwise violates any intellectual property right or other right of any third party or that violates any applicable law; (i) access or use the Hosted Service for purposes of competitive analysis of the Hosted Service, the development, provision or use of a competing software service or product or any other purpose that is to Company’s detriment or commercial disadvantage; or (j) post, submit or transfer to the Hosted Service any Prohibited Content (as defined in Section 9.4); or (k) otherwise access or use the Hosted Service beyond the scope of the authorization granted in this Agreement.
3.3 Student Users and Accounts.
(a) Each Student User will be entitled to access the Educator’s LMS Environment by means of a member account (“Account”) using a unique username and password. Unless otherwise expressly specified: (i) the Educator’s LMS Environment may not be accessed by more individuals than the quantity or limit of Student Users specified by the Company, if any, and (ii) each Account may only be used by, and otherwise assigned to, one individual and may not be shared with any other individual.
(b) Student User shall be responsible and liable for all activity that occurs under all Student Users’ Accounts, whether authorized by Educator or Student Users (as the case may be) or not. Student User acknowledges and agrees that in no event shall Company be liable, directly or indirectly, to Educator or Student Users for any loss or damage as a result of an activity under any Accounts; provided that the foregoing shall not apply to the extent that any unauthorized access was initiated by any Company personnel.
(c) Student User will notify Company immediately of any actual or suspected unauthorized use of Hosted Service or any Accounts or other breach of security in relation to the Hosted Service, Student User Data to which Student User becomes aware.
3.4 Registration Information. As a condition of using the Hosted Service, Student User agrees to provide true, accurate, current and complete information about Student User to the extent necessary for Company to provide the Hosted Service and, to the extent possible shall cause each Student User to maintain and promptly update their Company member profile information to keep them true, accurate, current and complete. If Student User provides any information that is untrue or inaccurate, or if Company has reasonable grounds to believe that such information is untrue or inaccurate, Company may suspend or terminate Student User or the Student User’s access to the Hosted Service and refuse any and all current or future use of the Hosted Service following notice to Student User of the incorrect information and a failure by Student User to correct said information within thirty (30) days.
3.5 Subcontractors. Student User acknowledges that Company utilizes subcontractors and third party services providers (collectively “Subcontractors”) in connection with the performance and delivery of the Services and the operation of the System. The cost of any Subcontractors shall be the sole responsibility of Company and shall be, in no instance, in addition to the fees hereunder.
3.6 Nature of the Hosted Service.
(a) Student User acknowledges that the operation, maintenance, performance and availability of the Hosted Service is being provided by a Subcontractor of Company (the “Hosted Service Provider”). Student User acknowledges and agrees that: (i) the operation, maintenance, performance or availability of the Hosted Service may be interrupted or unavailable from time to time for any reason, including due to the Hosted Service Provider’s provision of routine or emergency maintenance to the Hosted Service or the System or events beyond Company or the Hosted Provider’s control; or (ii) the Hosted Service (which, for greater clarity, includes Educator’s LMS Environment) may from time to time change as a result of the decisions or actions of the Hosted Service Provider, and such changes may include having certain features or functionalities replaced, modified, supplemented or terminated.
(b) Student User further acknowledges and agrees that Company reserves the right, in its sole discretion, at any time and from time to time to change the Hosted Service Provider and that any such change may, among other things, result in: (i) Student User be assigned new Accounts with a new Hosted Service Provider’s system, (ii) changes to the look and feel of the Hosted Service (which, for greater clarity, includes Educator’s LMS Environment), or (iii) certain features or functions of the Hosted Service previously made available to Student User (a) no longer be provided in the same manner, or (b) no longer be made available as part of the Hosted Service. Company will use commercially reasonable efforts to: (1) endeavor to ensure that there is not a material degradation in the Hosted Service as a result of a change in the Hosted Service Provider; and (2) promptly notify Student User of any changes to the Hosted Service resulting from a change in the Hosted Service Provider.
(c) TO THE MAXIMUM EXTENT PERMITTED BY LAW, STUDENT USER ACKNOWLEDGES AND AGREES THAT COMPANY CANNOT AND WILL NOT BE LIABLE TO EDUCATOR, ANY STUDENT USER OR ANY OTHER PERSON FOR THE ACTS OR OMISSIONS OF ANY HOSTED SERVICE PROVIDER, INCLUDING, FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES RESULTING THEREFROM, EVEN IF SUCH DAMAGES WERE FORESEEABLE.
3.7 Changes to the Hosted Service. Notwithstanding Section 3.6(b), Company reserves the right, in its sole discretion, to make any changes to the Hosted Service that it deems necessary or useful to: (a) maintain or enhance (i) the quality or delivery of Company’s services to its clients; (ii) the competitive strength of or market for Company’s services or (iii) the Services’ cost efficiency or performance; or (b) comply with applicable law.
3.8 Maintenance. Company reserves the right to perform maintenance on the Hosted Service and/or System at any time as reasonably required by Company in order to maintain the operation or security of the Hosted Service and/or the System. Student User acknowledges that maintenance contemplated by this Section may result in a decrease in the performance of the Hosted Service during such times or Student Users not being able to access the Hosted Service during such times.
- FEES, PAYMENT AND ADDITIONAL SERVICES
(a) Student User shall pay to Educator the applicable fee for each Student User the Educator enrolls in a course as set out on the Company web site (www.salontrainingonline.com from time to time (the “Student Enrollment Fee”).
(b) The Student Enrollment Fee (Course Price) for a Student User is due prior to the enrollment of such Student User, and the Student User being granted access to, the Hosted Service. Once enrollment fees for such Student User has been received and processed by Company, Student User will allow for a 24 hour period (during business days and 48-60 hour period on weekends) for Company to then set up the Student User’s Account and issue “Welcome Package” instructions to the Student User.
(c) All Fees are net of any sales, use, excise, value added and similar taxes imposed by any governmental authority regardless of how denominated.
- TERM AND TERMINATION
5.1 Term and Renewal. This Agreement commences on the Effective Date and continues for a period of one year from that date (the “Initial Term”) and shall automatically renew at the end of the Initial Term for successive one (1) year periods (each, a “Renewal Term”, and together with the Initial Term, the “Term”), at Company’s then current list Fees pricing in effect at the time of the renewal, unless one party gives the other party written notice of its intention not to renew at least thirty (30) days before the expiration of the Initial Term or Renewal Term (as the case may be).
5.2 Termination. The Company may immediately terminate the Student User’s registration and access to the Services without notice upon the occurrence of any of the following events: (a) Student User fails to comply with or breaches any provision of this Agreement; or (b) Student User attempts to assign, sub-license, or otherwise transfer any of its rights under this Agreement without the consent of the Company. In the event that Company terminates or suspends the Student User access to the Services or this Agreement under this Section 5.2, the Student User understands and agrees that he, she or it will not receive a refund or exchange from the Educator. No refunds shall be made by the Company.
5.3 Suspension. Notwithstanding Section 5.2, if, in Company’s reasonable opinion, the nature of the breach contemplated by the notice under Section 5.2 presents a material risk to Company or the System, Company reserves the right to immediately suspend Student’s access to the Hosted Service until such breach is corrected. Student agrees that Company shall not be liable to Student for any action Company takes to remove or restrict access to any Student Data that violates any of the terms of this Agreement. No refunds shall be made by the Company.
5.4 Termination of Accounts. Student acknowledges and agrees that Company reserves the right to suspend or terminate, with or without notice to Student, the Account of any Student User that is, or Company reasonably believes is, in material violation of any terms of this Agreement applicable to Student User or any other agreement between Company and such Student User. No refunds shall be made by the Company.
5.5 Refund of Fees. Except in the circumstances described in Section 5.2, 5.3, and 5.4, the Educator shall be responsible for refunding any Student Enrollment Fees owed to the Student User pursuant to the Refund Policy as stated in the Educator’s Course Description.
5.6 Effect of Termination. Upon the termination or expiration of this Agreement:
(a) Student User shall cease its use of the Brand Features and, if applicable, Copyrighted Materials and shall immediately cease to promote and market its use of the Hosted Service and any holding out of itself as being associated with Company;
(b) Student User shall request from the Educator a copy of the Student User’s transcripts;
(c) Educator shall pay all fees and other amounts owing to Company and to Student Users at such time pursuant to the Refund Policy;
(d) Student User’s rights to use the Services shall be terminated and Educator shall immediately cease use of the Hosted Service;
(e) each of the Parties shall deliver or destroy all Confidential Information of the other party which is in its possession, care or control;
(f) each of the Parties shall return all materials or property of the other party which is in its possession;
(g) all Student User Data shall be promptly irretrievably deleted from Hosted Service the System by Company; and
(h) any terms and conditions of this Agreement, which by their nature extend beyond the termination or expiry of this Agreement, shall survive the termination or expiry of this Agreement, including Sections 1, 2, 3.1(b), 3.3(b), 3.6(c), 3.9, 4.1, 6, 7.1, 8, 9.1, 9.2, 9.3, 10, 11, 12 and 13.
- INTELLECTUAL PROPERTY RIGHTS
6.1 Ownership. The Hosted Service (including any Content therein that is not Student User Data), all copies and portions thereof, Work Products (as defined below) Brand Features and Copyrighted Works and all improvements, enhancements, modifications and derivative works thereof, and all IP Rights therein (collectively, “Company Property”), are and shall remain the sole and exclusive property of Company and its licensors (including all Hosted Service Providers) and are protected by domestic and international laws and treaties, and shall remain the sole property of Company or Company’s licensors. Student User agrees not to, and not to cause or permit others to: (i) remove any proprietary notices, markings and legends appearing on or contained in Company Property, the Hosted Service and/or Work Products (as defined below), or any Company Property as delivered by Company; or (ii) change any security or right management technology used in connection with any Company Property.
6.2 Rights Reserved By Company. Student User’s rights to use the Hosted Service and other Company Property shall be limited to those expressly granted in this Agreement. No other rights with respect to the Hosted Service or any other Company IP Property (including all related IP Rights) are implied. Student User agrees that Student User shall take commercially reasonable measures to protect Company’s proprietary and IP Rights in Company Property and will comply with the terms of this Agreement to protect Company’s proprietary and IP Rights in Company Property. Except as Company may otherwise expressly agree in writing, any discoveries, enhancements, improvements, customizations, translations or other modifications made to, or derived from, Company Property, and all related IP Rights therein, shall be owned exclusively by Company.
6.3 Ownership of Deliverables. All improvements, enhancements, modifications, customizations, derivative works or similar work products or deliverables that are in respect of the Hosted Service that are developed or produced by Company for Student User (“Work Products”) shall be owned exclusively by Company without restriction. By execution of this Agreement, Student User hereby irrevocably assigns any and all of Student User’s right, title and interest in all Work Products and all deliverables to Company and waives in favour of Company, its licensees and successor and assigns any of its moral rights therein. No rights in Work Products or deliverables are reserved to Student User.
6.4 Submissions. Notwithstanding any term of this Agreement, any suggestions, enhancement requests, recommendations or other feedback provided by Student User to Company relating to the Services (collectively “Submissions”) shall become Company’s sole property. Company shall exclusively own rights, including all IP Rights, in and to all Submissions. Company shall be entitled to the unrestricted use and dissemination of Submissions for any purpose, commercial or otherwise, without acknowledgement or compensation to Student User. In the event that any IP Rights in and to any Submissions vest, or has vested, in Student User, Student User hereby assigns to Company all of Student User’s right, title and interest in all Submissions and Student User hereby waives to and in favour of Company any of its moral rights therein.
- USE OF COMPANY LOGOS AND TRADEMARKS
7.1 Use of Brand Features, Reservation of Rights and Restrictions.
(a) No right, title, license or interest in or to the Brand Features and/or any other property of Company is hereby granted to Student User.
(b) Student User agrees that it shall not do, nor cause to be done, during the Term and thereafter, any acts or things contesting or in any way impairing or tending to impair or infringe any portion of Company’s right, title and interest therein. Student User shall not in any manner represent that it possesses any ownership interest in the Brand Features, Copyrighted Materials or any registration thereof, nor shall any action taken by Student User or on Student User’s behalf create in Student User’s favor any right, title or interest in and to the Brand Features or Copyrighted Materials. Student User acknowledges and agrees that all use of the Brand Features and Copyrighted Materials shall enure to the benefit of Company or its licensors (as the case may be). Student User recognizes Company’s exclusive right to seek copyright protection for and/or the registration of copyright of any Copyrighted Materials, including translation of any and all promotional or descriptive material furnished to Student User by Company.
(c) Student User shall not alter or remove any Brand Features, any reference to Company, or any other name displayed in connection with the Brand Features or the Copyrighted Materials. Student User shall not use the Brand Features or Copyrighted Materials in connection with any products or services.
(d) Student User shall not during or after the Term, directly or indirectly, contest, oppose, or challenge nor assist any third party in doing anything by any act or omission that might adversely affect the validity, integrity, or Company’s ownership of the Brand Features. Without limiting the generality of the foregoing, Student User agrees that it will not assert any claim of ownership to the Brand Features, or to the reputation or goodwill therein, by virtue of Student User’s use of the Brand Features or otherwise, and agrees that it shall not during or subsequent to the Term of this Agreement attempt to register the Brand Features, or any trade mark, service mark, trade name, or domain name confusingly similar thereto, alone or in combination with any other written or figurative element, in any jurisdiction. During the Term and thereafter, Student User shall not modify or create any derivative works based on the Brand Features or Copyrighted Materials, or otherwise infringe the rights of Company in the Brand Features or Copyrighted Materials. The foregoing obligation shall survive the termination of this Agreement.
- WEBSITE CREDITS AND LINKS
8.1 Use of Student User’s Name and Logo. Student agrees that Company may use Student User’s given name and any reviews or testimonials submitted to the Company by the Student User in marketing materials and website, including in “Student Testimonials” section of marketing materials and on Company’s website, or in presentations or other marketing materials or, at times mutually agreeable to the Parties, as part of Company’s marketing efforts (including reference calls and stories, press testimonials, Course ratings and reviews etc.). Student User grants to Company the non-exclusive, fee-free, royalty-free, fully-paid, worldwide right to use Student User’s name and, if applicable, trademarks, trade names, logos or service marks, whether registered or unregistered, in connection with the foregoing.
- STUDENT DATA
9.1 Rights to Student User Data. Each Student User shall retain all rights in and to their respective Student User Data. Student User hereby grants to Company a non-exclusive, royalty-free, fee-free worldwide, right and license during the term of this Agreement to use, reproduce, modify, adapt, publish, translate, sublicense, distribute, perform, and display Student User Data solely on and through the Hosted Service and the System for the sole purpose of providing the Hosted Service to Student User, which includes, but is not limited to, making Student User Data available to Educator. Student User represents and warrants that Student User is the owner or licensor of all rights to all Student User Data or otherwise has the rights to grant the license set forth in this Section 9.1. The foregoing representation and warranty shall survive the expiration or termination of this Agreement. Student User acknowledges and agrees that all Student User Data shall be promptly permanently deleted by Company following the expiration or termination of this Agreement. Student User warrants, represents and covenants to Company that it shall comply with all applicable privacy, anti-spam and data security laws, rules and regulations (collectively, “Privacy Laws”).
9.2 Analytical Data. Student User agrees that Company shall be entitled to generate Usage Data based on Student User’s use and operation of the Services and to use such Usage Data in order to, amongst other things: (i) improve Company’s products and services generally; (ii) provide Educator with reports on its (and its Student Users’) use of the Services; or (iii) at any time and for any purpose develop, advertise, or market new products or services or other promotional offerings for or to Student User.
9.3 Personal Information. Where Student User discloses Personal Information to Company or transfers Personal Information to Company for processing, Student User is deemed to represent, warrant and covenant to Company that: (i) Student User is solely and exclusively responsible for the collection, accuracy or completeness of Personal information disclosed, or provided to, Company or uploaded, submitted or inputted by Student Users to the Hosted Service; (ii) All Personal Information disclosed to Company or uploaded, submitted or inputted by Student Users to the Hosted Service has been, and will continue to be, collected and disclosed in accordance with all applicable laws, including all Privacy Laws. Student User hereby grants to Company the right to collect, store, access and use Personal Information disclosed to Company or uploaded, submitted or inputted by Student Users to the Hosted Service for the purposes of providing the Services to Student User. Student User will promptly respond to enquiries concerning any Personal Information provided to Company and will promptly address all enquiries concerning such information. Student User has obtained and will continue to obtain all necessary consents from those individuals whose Personal Information is disclosed or transferred to Company to grant the Personal Information rights herein to Company.
9.4 Prohibited Content. Prohibited Content includes, any Content that, in the sole discretion of Company: (a) includes a photograph of a third party that is submitted, posted or transferred to the Service without that third party’s consent; (b) includes any advertisements for any commercial or non-commercial activates; (c) violates or attempts to violate the privacy rights, publicity rights, copyrights, trademark rights, contract rights or any other rights of any third party; (d) is bullying, harassing, abusive, threatening, harmful, vulgar, obscene, or offensive, or that contains pornography, nudity, or graphic or gratuitous violence, or that promotes violence, racism, discrimination; (e) advocates harassment of another Person; (f) constitutes obscenity, contains nudity, excessive violence, or offensive subject matter or links to an adult website; (g) violates any law, regulation, or contractual obligations; (h) is tortious, trade libelous, defamatory, false, intentionally misleading, or that impersonates any other Person, including Company or its personnel, or that otherwise misrepresents Student User’s affiliation with any Person; (i) solicits or is designed to solicit personal information from anyone under age 18; (j) solicits or is designed to solicit an inappropriate or unlawful relationship with a third party; (k) constitutes or promotes an illegal or unauthorized copy of another Person’s copyrighted work; (l) publicly posts information that poses or creates a privacy or security risk to any Person; (m) gives rise to civil liability or from otherwise violating the rights or assisting others to violate the rights of Company or any third party; (n) constitutes or promotes information that the Student User knows is false or misleading or promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous; or (p) furthers, promotes, encourages, provides instructions for or depicts any illegal or criminal activity or enterprise., or violates the rights of any party, or that would otherwise create liability or violate any local, provincial, federal or international law.
- INDEMNIFICATION AND INFRINGEMENT
10.1 Indemnification by Student User. Student User shall indemnify, defend (at Company’s election) and hold Company harmless from and against any third party claims, liabilities, costs and expenses, including reasonable outside legal expenses arising from or relating to: (a) Student User Data; (b) any infringement or misappropriation of any IP Rights or privacy rights by Educator or Student Users; (c) any violation of applicable law by Educator or Student Users; (d) Student User’s use of the Services in violation of this Agreement; (e) any negligence, wilful misconduct, fraud or other breach of this Agreement by Educator, its personnel or any Student User; or (vi) any dispute, disagreement, demand or claim of, by or with a Student User.
10.2 Infringement Claims. Should the Hosted Service become, or if Company or the then current Hosted Service Provider reasonably believes that the Hosted Service may likely become, subject to a claim by a third party alleging that the Hosted Service or the use of the Hosted Service infringes, misappropriates or violates the rights, including the IP Rights, of such third party (an “Infringement Claim”), then Company may, at its sole option and expense: (i) procure the right for Student User to continue using the Hosted Service; (ii) replace the same with other software, services or other material of equivalent functions and efficiency that is not subject to an Infringement Claim; (iii) modify the affected Hosted Service so that the same is no longer infringing; or (iv) terminate this Agreement and refund to Student User the unused portion of any fees paid in advance by Student User for use of the Services, based on the number of full months, if any, remaining in duration of this Agreement. Company’s liability to Student User in the event of infringement or claimed infringement shall be strictly limited to the obligations set forth in this Section 10.2.
- DISCLAIMER AND LIMITATION OF LIABILITY
11.1 Disclaimer of Warranties. SUBJECT TO THE EXPRESS REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COMPANY AND ITS LICENSORS AND SUPPLIERS DISCLAIM ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE, REGARDING OR RELATING TO THIS AGREEMENT, INCLUDING THE HOSTED SERVICE, THE DOCUMENTATION, THE SERVICES, WORK PRODUCTS, DELIVERABLES OR ANY OTHER MATERIALS OR SERVICES FURNISHED OR PROVIDED TO STUDENT USER UNDER THIS AGREEMENT. COMPANY DOES NOT WARRANT THAT THE HOSTED SERVICE WILL OPERATE UNINTERRUPTED OR THAT IT WILL BE FREE FROM DEFECTS. THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE HOSTED SERVICE REMAINS WITH STUDENT USER. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, COMPANY DOES NOT WARRANT THE ACCURACY OR SECURITY OF ANY STUDENT USER DATA. ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY GOVERNED BY THE TERMS OF THE OWNER OF THE THIRD-PARTY MATERIALS OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS. COMPANY PROVIDES AND FACILITATES THE COMPANY WEBSITE, BUT IS NOT RESPONSIBLE FOR ANYTHING PLACED ON THE WEBSITE BY STUDENT USERS OR A THIRD PARTY. COMPANY DOES NOT GUARANTEE THE ACCURACY OF ANY INFORMATION SUBMITTED BY ANY STUDENT USER TO THE COMPANY WEBSITE, INCLUDING ANY IDENTIFYING INFORMATION ABOUT ANY STUDENT USER. ANY THIRD PARTY SITES THAT ARE LINKED TO THE COMPANY WEBSITE ARE NOT UNDER COMPANY’S CONTROL. COMPANY IS NOT RESPONSIBLE FOR ANYTHING ON THE LINKED SITES, INCLUDING WITHOUT LIMITATION, ANY CONTENT, LINKS TO OTHER SITES, ANY CHANGES TO THOSE SITES, OR ANY POLICIES THOSE SITES MAY HAVE. COMPANY HAS NO RESPONSIBILITY FOR ANY ISSUES THAT ARISE BETWEEN AN STUDENT USER AND SUCH THIRD PARTY. COMPANY PROVIDES LINKS AS A CONVENIENCE ONLY AND SUCH LINKS DO NOT IMPLY ANY ENDORSEMENT BY COMPANY OF THOSE SITES OR THEIR OWNERS.
11.2 LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES WILL COMPANY BE LIABLE TO STUDENT USER FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE, BASED ON STUDENT USER’S CLAIMS (INCLUDING CLAIMS FOR LOSS OF DATA, GOODWILL, PROFITS, USE OF MONEY OR USE OF THE SERVICES, INTERRUPTION IN USE OR AVAILABILITY OF DATA, STOPPAGE OR IMPAIRMENT OF OTHER ASSETS) ARISING FROM THIS AGREEMENT, THE SERVICES (INCLUDING THE HOSTED SERVICE), THE DOCUMENTATION, WORK PRODUCTS, DELIVERABLES OR ANY OTHER MATERIALS OR SERVICES FURNISHED OR PROVIDED TO STUDENT USER UNDER THIS AGREEMENT, PUBLIC DATA OR OUT OF ANY BREACH OR FAILURE OF EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT WILL COMPANY’S CUMULATIVE OR AGGREGATE LIABILITY TO STUDENT USER FOR DAMAGES OF ANY KIND OR NATURE HEREUNDER EXCEED AN AMOUNT EQUAL TO TWENTY-FIVE PERCENT (25%) OF THE FEES PAID BY THE STUDENT USER FOR THE SERVICES DURING THE 6 MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE CAUSE OF ACTION AROSE. THE FOREGOING LIMITATIONS SHALL APPLY REGARDLESS OF WHETHER COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE. THE FEES AND LIMITATIONS OF LIABILITY AND REMEDIES UNDER THIS AGREEMENT REFLECT THE ALLOCATION OF RISK BETWEEN THE PARTIES. THIS SECTION 11 IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES.
12.1 Disclosure of Confidential Information. In connection with this Agreement one party (“Disclosing Party“) may disclose or make available Confidential Information to the other party (“Receiving Party“). In this Agreement, “Confidential Information” means information in any form or medium (whether oral, written, electronic or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, in each case whether or not marked, designated or otherwise identified as “confidential”. Notwithstanding anything in this Agreement, Company’s Confidential Information is deemed to include the terms of this Agreement, including all pricing and fees information, and the Hosted Service.
12.2 Exclusions. Confidential Information does not include information that the Receiving Party can demonstrate by written or other documentary records: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information’s being disclosed or made available to the Receiving Party in connection with this Agreement; (b) was or becomes generally known by the public other than by the Receiving Party’s or any of its representatives’ noncompliance with this Agreement; (c) was or is received by the Receiving Party on a non-confidential basis from a third party that was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.
12.3 Protection of Confidential Information. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall: (a) not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement; (b) not disclose or permit access to Confidential Information other than to its representatives who: (i) need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with this Agreement; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party’s obligations under this Section; and (iii) are bound by confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section; (c) safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care; and (d) ensure its representatives’ compliance with, and be responsible and liable for any of its representatives’ non-compliance with, the terms of this Section 12.
12.4 Compelled Disclosures. If the Receiving Party or any of its representatives is compelled by applicable law to disclose any Confidential Information then, to the extent permitted by applicable law, the Receiving Party shall: (a) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under the Section; and (b) provide reasonable assistance to the Disclosing Party, at the Disclosing Party’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section, the Receiving Party remains required by law to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that, on the advice of the Receiving Party’s legal counsel, the Receiving Party is legally required to disclose.
13.1 Entire Agreement. This Agreement and any other documents incorporated herein by reference, constitutes the complete and exclusive agreement between the Parties with respect to the subject matter hereof, and supersedes and replaces any and all prior or contemporaneous discussions, negotiations, understandings, representations and agreements, written or oral, regarding such subject matter. There are no representations, warranties, terms, conditions, undertakings or collateral agreements, express, implied or statutory, between the Parties other than as expressly set forth in this Agreement.
13.2 Force Majeure. If there is a default or delay in a party’s performance of its obligations under this Agreement (except for the obligation to make any payments under this Agreement), and the default or delay is caused by circumstances beyond the reasonable control of that party, including fire, flood, earthquake, elements of nature, acts of God, epidemic, pandemic, explosion, power failure, cable cut, war, terrorism, revolution, civil commotion, acts of public enemies, law, order, regulation, ordinance or requirement of any government or legal body having jurisdiction, or labour unrest such as strikes, slowdowns, picketing, boycotts, denial of service attacks, virus or hacking, then that party shall not be liable for that default or delay, and shall be excused from further performance of the affected obligations on a day by day basis, if that party uses commercially reasonable efforts to expeditiously remove the causes of such default or delay in its performance, provided that any payments shall not be delayed by more than ten (10) days from the day the Force Majeure event occurred.
13.3 Amendment. Company may amend this Agreement from time to time, such changes being effective after Company posts the revised version to its website. The Student User’s continued use of the Services and the Company website after Company posts any changes to this Agreement is the Student User’s consent to any such changes. If the Student User does not agree to any and all of the terms of this Agreement, he, she or it must discontinue using the Services and/or Company website immediately.
13.4 Waiver. A waiver of any provision in this Agreement by either party of its rights hereunder shall not be binding unless contained in a written notice signed by an authorized representative of the party waiving its rights. The non-enforcement or waiver of any provision on one occasion shall not constitute a waiver of such provision on any other occasions unless expressly so agreed in writing. It is agreed that no use of trade or other regular practice or method of dealing between the Parties shall be used to modify, interpret, supplement, or alter in any manner the terms of this Agreement.
13.5 Further Assurances. Each party shall promptly do, execute, deliver or cause to be done, executed and delivered all further acts, documents and things in connection with this Agreement that the other party may reasonably require for the purposes of giving effect to this Agreement.
13.6 Notices. All general notices, requests and other communications hereunder shall be in writing and shall be deemed delivered at the time of receipt if delivered or communicated by electronic transmission, or, if mailed, five (5) days after mailing by first class mail with postage prepaid. All formal notices, consents, authorizations, waivers or demands hereunder relating to (i) extension, expiration or termination of the term, (ii) breach, (iii) claims for indemnity, or (iv) matters of similar import shall be in writing and shall be deemed duly delivered and received at the time of receipt if delivered by a nationally-recognized overnight courier service providing proof of delivery, or three (3) business days after mailing by certified mail, postage prepaid with return receipt requested. Notices shall be addressed to the following addresses, or to such other address as either party shall designate in writing to the other from time to time:
To Company at: The Academy of Nail Design DBA
1051 2nd Avenue East
Owen Sound, Ontario, N4K 2H8
Attn.: Jennifer Ponzi
To Student User: at the email address used to register with the Company
13.7 Severability. If any provision of this Agreement is held to be unenforceable or illegal by a court of competent jurisdiction, such provision shall be modified to the extent necessary to render it unenforceable, or shall be modified to the extent necessary to render it enforceable, or shall be severed from this Agreement, and all other provisions of this Agreement shall remain in full force and effect.
13.8 Dispute Resolution. If a dispute arises under this Agreement, one party may give written notice to the other party of such dispute and all disputes arising under this Agreement shall be settled, if possible, by good faith negotiation of the Parties. If such negotiations fail to resolve any dispute within sixty (60) days after a party has given written notice of the dispute to the other party, then any party may commence legal action against the other.
13.9 Governing Law. This Agreement is governed by and construed in accordance with the laws of the Province of Ontario, Canada and each of the Company and the Student User irrevocably attorns to the exclusive jurisdiction of the courts of the Province of Ontario, located in the City of Toronto, Ontario, without regard to conflicts of laws principles. The Company and the Student User agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
13.10 Injunctive Relief. Notwithstanding Section 13.8 or 13.9, nothing in this Agreement shall prevent either party from applying to a court of competent jurisdiction for injunctive or other equitable relief in the case of an infringement of IP Rights or the breach of an obligation of confidentiality or to preserve or protect real or tangible property from continuing damage or risk of same.
13.11 Limitation Period. No action, regardless of form, arising from this Agreement or any Services provided or to be provided hereunder may be brought by either party more than one year after the cause of action has accrued, except that an action for non-payment may be brought at any time.
13.12 Assignment. Student User shall not assign this Agreement without the prior written consent of Company. Company may assign this Agreement with or without notice to Student User. This Agreement shall be binding upon and enure to the benefit of the Parties and their respective heirs, executors, administrators, successors and permitted assigns.
Last Revised: August 31st, 2018