Terms Of Service and End-User License Agreement
Together with its subsidiaries and other affiliates, LMS Cloud, a registered trademark of KnowTrade S.a.r.l. corporation (“LMS Cloud”), makes available the “Site” (websites including, without limitation, www.lmscloud.eu and all sub-domains), “Software” (software and mobile applications), and “Services” (including, without limitation, writing feedback suggestions and/or corrections, plagiarism detection, and human proofreading services) to help people communicate more effectively. Access to and use of LMS Cloud’s existing Site, Software and Services, as well as any future Sites, Software or Services provided by LMS Cloud are governed by this Terms of Service and License Agreement (this “Agreement”).
If you are a Community Edition subscriber, or are accessing the Site to use a Community Edition (as defined below) of the Services or Software, or are otherwise browsing the Site, this Agreement is between you, individually, and LMS Cloud.
THIS AGREEMENT CONTAINS AN ARBITRATION AGREEMENT, WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE YOU TO SUBMIT CLAIMS YOU HAVE AGAINST LMS CLOUD AND ITS LICENSORS AND ITS SUPPLIERS TO BINDING AND FINAL ARBITRATION. UNDER THE ARBITRATION AGREEMENT (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST LMS CLOUD AND ITS LICENSORS AND ITS SUPPLIERS ON YOUR OWN BEHALF, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, (2) YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON YOUR OWN BEHALF, AND (3) YOU ARE WAIVING YOUR RIGHT TO A JURY TRIAL AND YOUR RIGHT TO HAVE YOUR CLAIMS DECIDED BY A JUDGE OR JURY.
Table of Contents
- Registration and security
- Free Community Edition Subscription
- Access to Services
- Mobile Services
- User Content
- Changes to Services or Terms
- Links to third party sites
- Consent to receive email
- Data collection and privacy
- Warranty disclaimers
- Limitation of liability
If you are a Community Edition subscriber: In consideration for your acceptance of this Agreement LMS Cloud grants you a personal, limited, non-exclusive, non-sublicensable, non-transferable, revocable license to access and use the Site, the Services and the Software solely for your own internal business purposes.
You may access and use the Site, Services and Software only in accordance with any instruction manuals, user guides and other documentation as made available by LMS Cloud from time to time (“Documentation”).
You may not:
- copy, modify or create derivative works based on the Site, Services, Software or Documentation, or any portion(s) of any of the foregoing (individually and collectively, “LMS Cloud IP”);
- distribute, transmit, publish or otherwise disseminate any LMS Cloud IP;
- download or store any LMS Cloud IP except to the extent explicitly permitted on the Site;
- transfer to any third party any of your rights under this Agreement (except to the extent that an Enterprise Subscriber may permit such number of Authorized Users as has been agreed between the Enterprise Subscriber and LMS Cloud to access and make use of the Site, Services and Software);
- access or use the Services, Software or LMS Cloud IP for the benefit of any third party (except to the extent that Authorized Users may access and make use of the Site, the Services and the Software solely for the internal business purposes of their Enterprise Subscriber);
- access content or data not intended for you, log onto a server or account that you are not authorized to access, or otherwise violate or attempt to violate any security or authentication feature or measures of the Site, Software or Services;
- attempt to access or derive the source code or architecture of any Software;
- attempt to probe, scan or test the vulnerability of the Site, Services and/or Software, or any associated system or network, or to breach any security or authentication feature or measures of the Site, Software or Services (except with LMS Cloud’s express permission in connection with your participation in one of LMS Cloud’s security testing programs), and if you are blocked by LMS Cloud from accessing the Site, Software or Services (including by blocking your IP address), you will not implement any measures to circumvent such blocking (e.g., by masking your IP address or using a proxy IP address);
- interfere or attempt to interfere with service to any user, host or network, including, without limitation, by means of submitting malicious software or computer code (“Malicious Code”) to the Site or Services, load testing, overloading, “flooding,” “spamming,” “mail bombing,” “crashing,”;
- email or otherwise transmit any content that (i) infringes any intellectual property or other proprietary rights of any party; (ii) you do not have a right to upload under any law or under contractual or fiduciary relationships; (iii) contains any Malicious Code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (iv) poses or creates a privacy or security risk to any person or entity; (v) constitutes unsolicited or unauthorized materials; or (vi) is otherwise objectionable;
- automate access to the Site or the Services, including, without limitation, through the use of APIs, bots, scrapers or other similar devices;
- export or re-export any LMS Cloud IP;
- use or access any Services, Software or LMS Cloud IP in order to build a competitive product, service or solution;
- violate any applicable law or regulations in connection with your use of the Site, Services or Software;
- impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity, including, without limitation, an Enterprise Subscriber; or
- permit any third party to do any of the foregoing.
LMS Cloud may offer certain Software, including certain interfaces, for download from the Site (“Ancillary Software”). Subject to the other terms and conditions of this Agreement, you may install and use Ancillary Software on computers owned, leased or otherwise controlled by you, solely in conjunction with your authorized use of the Services. Upon expiration or termination of this Agreement for any reason, you shall cease any further use of the Ancillary Software and shall promptly destroy all copies thereof in your possession.
Certain Services or Software (including Ancillary Software) may be subject to additional limitations, restrictions, terms and/or conditions specific to such Services or Software (“Specific Terms”). In such cases, the applicable Specific Terms will be made available to you and your access to and use of the relevant Services or Software will be contingent upon your acceptance of and compliance with such Specific Terms.
Registration and security
By completing the registration process for any given Services, you are agreeing to subscribe to the selected Services, subject to the terms and conditions of this Agreement. You agree to provide LMS Cloud with accurate and complete registration information and to promptly notify LMS Cloud in the event of any changes to any such information.
You shall be solely responsible for the security and proper use of all user IDs, passwords or other security devices used in connection with the Site and/or the Services, and shall take all reasonable steps to ensure that they are kept confidential and secure, are used properly and are not disclosed to or used by any other person or entity. You shall immediately inform LMS Cloud if there is any reason to believe that a user ID, password or any other security device issued by LMS Cloud has or is likely to become known to someone not authorized to use it, or is being or is likely to be used in an unauthorized way. LMS Cloud reserves the right (at its sole discretion) to request that you change your password(s) in connection with the Services, and you shall promptly comply with any such request.
You are solely responsible for all activity in connection with access to the Site and/or Services through your account or using your password, and for the security of your computer systems, and in no event shall LMS Cloud be liable for any loss or damages relating to such activity.
Free Community Edition Subscription
LMS Cloud may offer a free Community Edition subscription from time to time with regard to certain Software or Services (a “Trial”). By accessing or using the Site, Services or Software, you agree to the terms of any such Trial and further agree to any changes LMS Cloud may make to such Trial as described in “Changes to Services or Terms” below. If you cancel the Services before the end of the trial period, all your rights to any remaining free trial period will be waived and you will not be eligible to participate in any further Trials, except as allowed by LMS Cloud in its sole discretion.
This Agreement shall continue until you cancel your subscription or until terminated by LMS Cloud. You may cancel your subscription at any time. To cancel, you should send an e-mail to email@example.com. Your cancellation will be effective at the end of your then-current subscription period, subject to applicable law, and you may use the Services until your cancellation is effective (unless your access is suspended or terminated as set forth below).
LMS Cloud may deny you access to all or any part of the Services or terminate your account with or without prior notice if you engage in any conduct or activities that LMS Cloud determines, in its sole discretion, violate this Agreement or the rights of LMS Cloud or any third party, or is otherwise inappropriate. Without limitation, LMS Cloud may deny you access to the Services, or terminate this Agreement and your account, if your use of the Services exceeds the use limitations set forth under the section titled “License.”
Upon termination of your account(s) for any reason, your right to use the Services and Software and to access the Site and any of its content will immediately cease and all content in your account(s) will be deleted. All provisions of this Agreement that by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity, limitations of liability and miscellaneous provisions.
Access to Services
You are responsible for obtaining and maintaining any equipment and ancillary services needed to connect to or access the Site or otherwise use the Services, including, without limitation, modems, hardware, software, internet service and telecommunications capacity. You shall be solely responsible for ensuring that such equipment and ancillary services are compatible with the Services and Software.
The Site, Software and Services may include products and services that are available via a mobile device, including (i) the ability to upload content to the Services via a mobile device, (ii) the ability to browse the Services and the Site from a mobile device, and (iii) the ability to access certain features through an application downloaded and installed on a mobile device (collectively, “Mobile Services”). To the extent you access the Service through a mobile device, your wireless service carrier’s standard charges, data rates and other fees may apply. In addition, downloading, installing or using certain Mobile Services may be prohibited or restricted by your carrier, and not all Mobile Services may work with all carriers or devices. By using the Mobile Services, you agree that LMS Cloud may communicate with you regarding LMS Cloud and other entities by electronic means to your mobile device and that certain information about your usage of the Mobile Services may be communicated to us. In the event you change or deactivate your mobile telephone number, you agree to promptly update your account information to ensure that your messages are not sent to the person that acquires your mobile telephone number.
You are solely responsible for all text, documents or other content or information uploaded, entered or otherwise transmitted by you in connection with your use of the Services and/or Software (“User Content”). User Content includes, among other things, any mistakes contained in the content or information transmitted by you. LMS Cloud has no obligation to monitor any User Content and shall have no liability to you or any other person or entity with respect thereto, including, without limitation, liability with respect to any information (including your confidential information) contained in or apparent from any User Content. You warrant, represent and covenant that you own or have a valid and enforceable license to use all User Content, and that no User Content infringes, misappropriates or violates the rights (including, without limitation, any copyrights or other intellectual property rights) of any person or entity or any applicable law, rule or regulation of any government authority of competent jurisdiction. LMS Cloud is not responsible for the loss, corruption or other changes to User Content. Without limiting the foregoing, any feature(s) of the Services and/or Software that may permit you to temporarily save or otherwise store User Content is offered for your convenience only and LMS Cloud does not guarantee that the User Content will be retrievable. You are solely responsible for saving, storing and otherwise maintaining User Content including by maintaining backup copies of your User Content on appropriate independent systems that do not rely on the Services and/or Software.
By uploading or entering any User Content, you give LMS Cloud (and those it works with) a non-exclusive, worldwide, royalty-free and fully-paid, transferable and sublicensable, perpetual, and irrevocable license to copy, store and use your User Content in connection with the provision of the Software and the Services and to improve the algorithms underlying the Software and the Services.
Changes to Services or Terms
LMS Cloud reserves the right at any time to (i) change any information, specifications, features or functions of the Site, Services or Software, including any Trial, (ii) suspend or discontinue, temporarily or permanently, any or all of the Services or any Trial, including the availability of any feature, database or content, or (iii) impose limits on certain features and Services or restrict access to parts or all of the Services, including any Trial, in each case with or without prior notice and without any liability to you or any third party. LMS Cloud will use its commercially reasonable efforts to notify you of changes to the Services and/or Software that, in LMS Cloud’s reasonable opinion, have the effect of materially and adversely diminishing the functionality of the Services to which you have subscribed.
LMS Cloud may from time to time update or revise this Agreement. If LMS Cloud updates or revises this Agreement, LMS Cloud will notify you either by email to your most recently provided email address, by posting the updated or revised Terms of Service and End User License Agreement on the Site or by any other manner chosen by LMS Cloud in its commercially reasonable discretion. Your use of the Site, Services or Software following any such update or revision constitutes your agreement to be bound by and comply with this Agreement as updated or revised. You can view the most current Terms of Service and End User License Agreement at Terms of Service and License Agreement. It is your responsibility to review the Terms of Service and End User License Agreement periodically.
Links to third party sites
Any links on the Site to third party websites are provided for your convenience only. If you choose to access third party websites or obtain products or services from third parties, you do so entirely at your own risk and such access is between you and such third party. LMS Cloud does not warrant or make any representation regarding the legality, accuracy or authenticity of content presented by such websites or any products or services offered by third parties and shall have no liability for any loss or damages arising from the access or use of such websites, products or services.
Consent to receive email
For users located outside of the European Economic Area (EEA):
Your registration to use the Site and/or Services constitutes your consent to receive email communications from LMS Cloud, including messages regarding customer service issues and other matters. You may opt not to receive email correspondence, other than technical notifications and email regarding issues related to your account and your use of the Site and Services, at any time by following the link included in the email messages.
For users located in the European Economic Area (EEA):
We only send marketing communications to users located in the European Economic Area (EEA) with your prior consent, and you may withdraw your consent at any time by clicking the “unsubscribe” link found within LMS Cloud emails and changing your contact preferences. Please note you will continue to receive transactional messages related to our Services, even if you unsubscribe from marketing emails.
Data collection and privacy
By initiating any such transaction, you hereby consent to the foregoing disclosure and use of your information.
All intellectual property rights in and to the User Content are and shall remain your property, and LMS Cloud shall acquire no right of ownership with respect to your User Content.
All intellectual property rights in and to the Software, Site and Services and other LMS Cloud IP are and shall remain the sole property of LMS Cloud and its affiliates and licensors, as applicable, and you shall acquire no right of ownership or use with respect to any Software or other LMS Cloud IP except as specified in this Agreement. Without limiting the foregoing, you acknowledge that the Software and the Service and the inventions, know-how and methodology embodied therein are proprietary to, and contain valuable trade secrets of, LMS Cloud and its affiliates and licensors, as applicable, and that the Software constitutes Confidential Information of LMS Cloud. You may from time to time provide LMS Cloud with suggestions, comments, recommendations, improvements, solutions, bug fixes, features, concepts, techniques, ideas, know-how and/or any feedback regarding the Services, the Software, the Site and/or any of LMS Cloud’s related technologies (“Feedback”). Any and all Feedback is and shall be given entirely voluntarily. As between the you, LMS Cloud and, if applicable, your Enterprise Subscriber, all Feedback shall be exclusively owned by LMS Cloud, and you hereby make all assignments necessary to accomplish the foregoing ownership, and as a result LMS Cloud shall be freely entitled to reproduce, prepare derivative works, disclose to third parties, display and perform (publicly or otherwise), sell, lease, license, distribute and otherwise use and exploit any and all such Feedback as it deems appropriate, at its sole discretion, without obligation or liability of any kind to you, your Enterprise Subscriber (if applicable) or any other person or entity.
You shall indemnify, release and hold harmless LMS Cloud and its parents, subsidiaries, affiliates, licensors and suppliers, and each of their respective officers, directors, employees and agents, from and against any loss, liability (including settlements, judgments, fines and penalties) and costs (including reasonable attorney fees, court costs and other litigation expenses) relating to any claim or demand made by any third party due to or arising out of your access to the Site, use of the Services or Software, violation of this Agreement, or infringement of any intellectual property or other right of any person or entity.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, LMS CLOUD, ITS LICENSORS AND ITS SUPPLIERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, REGARDING THE SITE, SERVICES, AND SOFTWARE, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT, SATISFACTORY QUALITY OR ARISING FROM A COURSE OF DEALING, LAW, USAGE, OR TRADE PRACTICE, OR REGARDING SECURITY, QUIET ENJOYMENT, RELIABILITY, TIMELINESS AND PERFORMANCE. YOU AGREE THAT YOUR USE OF THE SITE, SERVICES AND SOFTWARE ARE AT YOUR OWN SOLE RISK AND THAT THE SITE, SERVICES AND ANY SOFTWARE ARE PROVIDED ON AN “AS IS,” “WHERE IS,” “AS AVAILABLE,” “WITH ALL FAULTS” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, LMS CLOUD AND ITS LICENSORS AND ITS SUPPLIERS DO NOT WARRANT THAT THE OPERATION OF THE SITE, SERVICES AND/OR SOFTWARE WILL MEET YOUR REQUIREMENTS OR WILL BE UNINTERRUPTED OR ERROR-FREE.
Limitation of liability
IN NO EVENT SHALL LMS CLOUD BE LIABLE WITH RESPECT TO THE SITE, SERVICES AND/ OR SOFTWARE FOR (I) ANY AMOUNT IN THE AGGREGATE IN EXCESS OF THE FEES YOU HAVE ACTUALLY PAID TO LMS CLOUD DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT(S) GIVING RISE TO SUCH LIABILITY; (II) ANY LOST PROFITS, LOST OR DAMAGED USER CONTENT OR OTHER DATA, OR FAILURE TO MEET ANY DUTY, INCLUDING WITHOUT LIMITATION GOOD FAITH AND REASONABLE CARE; OR (III) ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER.
YOU AGREE THAT THIS LIMITATION OF LIABILITY REPRESENTS A REASONABLE ALLOCATION OF RISK AND IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN LMS CLOUD AND YOU. YOU UNDERSTAND THAT THE SITE, SERVICES AND SOFTWARE WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS.