VMWARE IT ACADEMY – INSTITUTION TERMS OF USE

THIS TERMS OF USE AGREEMENT ("TERMS OF USE") SHALL APPLY TO YOU ON BEHALF OF YOUR ENTITY OR ORGANZIATION AND D2L LTD. YOU SHOULD REVIEW THIS ENTIRE AGREEMENT BECAUSE ALL OF THE TERMS AND CONDITIONS ARE IMPORTANT AND CREATE A LEGAL AGREEMENT THAT, AFTER BEING ACCEPTED BY YOU, APPLIES TO YOUR ENTITY OR ORGANIZATION (“YOU” OR “ORGANIZATION”). PLEASE READ THIS TERMS OF USE AGREEMENT CAREFULLY BEFORE REGISTERING ON, ACCESSING AND/OR PURCHASING SUBSCRIPTIONS FOR THE VMWARE IT ACADEMY ("IT ACADEMY ") ON THIS SITE (THE “SITE”).

THIS SITE IS BEING DELIVERED BY D2L LTD. (D2L) TO ALLOW YOU TO PURCHASE ACCESS TO CONTENT AND SOFTWARE PROVIDED BY VMWARE INC (VMWARE) (“COURSEWARE”), ALONG OTHER ORGANIZATION(S) AND, IF APPLICABLE, THEIR LICENSORS (“PARTNERS”), RELATED TO VMWARE IT ACADEMY (“IT ACADEMY”). YOU MAY ONLY USE THIS SITE IF (I) VMWARE HAS ENROLLED YOUR ORGANZIATION INTO THE IT ACAEDMY; (II) YOU ARE AUTHORIZED BY VMWARE TO PURCHASE SUBSCRIPTIONS TO IT ACADEMY; (III) YOU HAVE AGREED TO THE VMWARE IT ACADEMY PROGRAM AGREEMENT.

BY REGISTERING, ENROLLING, LOGGING IN AND/OR USING THE SITE, (I) YOU AGREE TO BE BOUND BY THESE TERMS OF USE; (II) YOU AGREE TO USE THE SITE AND ITS CONTENT ONLY IN A MANNER AS STATED IN THESE TERMS OF USE. IF YOU DO NOT WISH TO BE BOUND BY THESE TERMS OF USE, YOU MUST EXIT THE SITE NOW. IF YOU HAVE ANY ISSUES OF ANY KIND WITH THIS SITE, YOUR SOLE REMEDY IS TO STOP USING THE SITE; AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE NECESSARY AUTHORITY TO BIND YOUR ENTITY OR ORGANIZATION TO THESE TERMS.

1. User Account
You need an account for most activities on this Site, including for purchases on behalf of your Organization. You are required to create and use your unique account and password as prompted when completing our online registration form, which requests certain information and data ("Data"), and maintaining and updating your and your Organization’s Data as required. You agree that all information you provide as Data (i) is being rightfully provided; and (ii) is true and accurate, and that you will maintain and update this Data as needed in order to keep it current, complete, and accurate at all times.

2. Ordering
You may use this Site to search for, review and purchase subscription(s) to Courseware (“Subscriptions”) which may be allocated to students/learners (“Learners”) at your Organization, subject to the applicable Courseware terms of use. Once purchased, Subscriptions enable you to grant access to the applicable VMware Authorized Courseware to Learners in a non-transferable, time-limited (revoked upon termination/expiration) manner by assigning such Subscription to a Learner. Subscriptions may not be assigned to more than one named individual.

Subscriptions must be allocated to Learners, or otherwise deemed consumed and/or expired, within twelve (12) months from the date of purchase. Upon allocation of a Subscription to a named Learner, such Learner will be granted access to the applicable VMware authorized Courseware as indicated in the description on this Site. Learners access to the VMware Courseware shall end upon expiration of the Subscription (i.e. twelve (12) months after the date you purchased such Subscription).

When you submit your order, such order will constitute an offer from you to D2L to purchase the Subscriptions(s) and Courseware described in the order, for the price and subject to the other charges, terms and conditions set out in the order and these Terms of Use. Orders are not binding on D2L until accepted by D2L. D2L’s acceptance of your order is evidenced by return e-mail from D2L indicating that your order has been accepted.

3. Payment
All prices quoted are payable in U.S. Dollars. D2L reserves the right to correct any errors in pricing or product information and to modify the prices of Courseware, at any time, without prior notice.

Terms of payment shall be determined at D2L’s sole discretion. Payment shall be made by credit card unless some other pre-arranged method of payment has been accepted by D2L. Any payments made by credit card are subject to the approval of the financial institution that has issued the credit card.

4. Courseware
Courseware may be subject to applicable end user license agreements and other such agreements between D2L, VMware, and/or applicable third-parties (“Courseware Terms”). Prior to accessing Courseware, Learners may be required to agree to such Courseware Terms. You may not use such Courseware without first agreeing to the applicable Courseware Terms.

5. Cancellations
D2L reserves the right, in its discretion, to limit quantities, terminate accounts and to refuse or cancel any order, including after the order has been submitted, whether or not the order has been confirmed and your credit card charged. In the event that your order is cancelled after your payment has been processed, D2L will issue a full refund.

6. Returns
Unless otherwise specified or required by law, D2L will provide no refunds, returns or exchanges for Courseware and/or Subscriptions purchased under this Site.

7. Privacy
The information we obtain through your use of this Site, including your Data, is subject to our Privacy Policy which is incorporated by reference into these Terms of Use. By using the Site, you also grant us the right to disclose your Data to third parties to provide the service. We, our Partners and certain third parties may use the Data in aggregate form for certain business purposes; e.g. to create other materials and services by performing statistical analyses of the collective characteristics and behavior of all users, and/or by measuring demographics and interests regarding specific areas of the Site. By using the Site, you authorize the providers, and its affiliates, of this Site to use the email address provided as a reliable method for communicating to (a) administer effectively those programs you selected and subscribed to and/or (b) be contacted through the use of the Site. Failure to provide D2L with a reliable email address may deem your account invalid and therefore your account may be removed by D2L without notice.

8. Support
You or your Organization shall provide name(s) of its Approved Support Contact(s) (ASC) to D2L. Approved Support Contact(s) will have privileges to log and monitor Application assistance, help desk and remote support, upgrades, fixes, and other services set out in this section (“Support”). Your Organization shall have no more than 2 ASCs. The ASC may contact D2L Support up to the number of queries, or user-identified concerns about the Site (“Incidents”) specified in the table below.

D2L provides Support to ASCs during the times specified in the table below. Support includes (i) access by ASCs to the D2L Community, which contains documentation (e.g., user guides, how-to guides, release notes), knowledgebase, known issues list, community blog, self-paced learning admin videos, technical resources, etc.; and (ii) access to the Product Idea Exchange portal within the Brightspace Community where faculty, ASCs and other non-student roles can submit new feature requests, and promote or comment on existing feature requests. Support is available to record Incidents, explain the functions and features of the Site and clarify the contents of documentation. Incidents may be submitted through D2L’s web-based portal, or using a predefined D2L Support email address, or by calling the D2L helpdesk. The number of Incidents per month your Organization is allowed as part of the support package is set out in the table below.

9. Conduct
Your use of the Site is subject to all applicable laws and regulations. By using the Site to communicate and/or by posting information on the Site or by using any communications service, chat room, message board, newsgroup, software library, or other interactive service that may be available to you on or through this Site, you agree that you will not upload, download, use, share, post, or otherwise disclose, distribute or facilitate distribution of anything in any form that:

1. contemplates illegal activities or encourages others to commit such activities;
2. libels, defames, victimizes, harasses or threatens others;
3. infringes another party’s copyrights, moral rights, patents, trademarks or trade secrets;
4. contains obscene (e.g., pornographic) language or images;
5. constitutes or contains advertising, spam, promotional materials, any form of commercial solicitation or chain letters;
6. contains software viruses or any other computer code, files, or programs that are designed or intended to disrupt, disable, damage, or limit the functioning of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any data or other information of any third party or otherwise harms other users of the Site; or
7. is otherwise unlawful or that violates any applicable local, state, national or international law.

We do not assume any liability of any kind for content uploaded or submitted by you or by third party users of the Site (“User Materials”). In general, we do not screen, monitor, approve of or edit User Materials. However, we and our Partners have the unilateral right to remove any User Materials that, in our or our Partners’ judgment, does not comply with these Terms of Use and any other rules of user conduct for this Site, or is otherwise harmful, objectionable, or inaccurate, though we are not responsible for any failure or delay in removing such User Materials. You hereby waive any claim against us arising out of such removal of User Materials.

If you upload or make available User Materials, you represent and warrant that (i) you have the necessary rights to provide the User Materials and permit us and our Partners to use such User Materials; and (ii) the User Materials will not infringe or misappropriate infringes another party’s copyrights, moral rights, patents, trademarks or trade secrets. You are and shall remain responsible to pay any fees arising from the User Materials you upload or make available.

You agree not to (i) misrepresent your identity or impersonate any person; (ii) copy, sell, resell or exploit any part of the Site or its Content other than as expressly allowed under these Terms of Use; (iii) use our or our Partners’ names, logos or other intellectual property in connection with unsolicited communications; or (iv) use any automated or electronic means (such as robots, spiders, scripts or web-scrapers) to access the Site; or (v) use any means (such as framing or pop-ups) to affect how the Site is displayed; or (vi) interfere in any way with anyone else’s use and enjoyment of the Site. Also, you must not breach security of another account or attempt to gain unauthorized access to another network or server, or to an area of the Site that may be unavailable to you.

Users who violate this Section of these Terms of Use may incur criminal or civil liability. You agree that we may at any time, and at our sole discretion, terminate your membership, account, or other affiliation with our Site without prior notice to you if we have reason to believe that you have violated or may attempt to violate these Terms of Use. In addition, you acknowledge that we will cooperate fully with investigations of systems or network security violations, including law enforcement authorities in investigating suspected criminal violations.

10. Third Party Sites and Information
This Site may contain (i) links to other sites on the Internet; or (ii) content, data, documents, software, materials and/or services provided by other parties (collectively, “Third Party Materials”) that may offend some people. These Third-Party Materials are not under our control and we are not responsible for the Third Party Materials in any way, nor are we claiming or implying any endorsement of, or association with, the Third Party Materials or their creators.

11. Intellectual Property Information
All Materials presented to you on this Site as well as the Site itself are protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws, and are the sole property of us, our Partners, and/or third parties, as applicable. You are only permitted to use the Materials and Site as expressly authorized by us or the specific Materials provider. You may not copy, reproduce, modify, republish, upload, post, transmit, or distribute any documents or information from this Site in any form or by any means without prior written agreement from us or the specific Partner.

All trademarks or service marks are property of their respective owners. Nothing in these Terms of Use grants you any right to use any trademark, service mark, logo, and/or the name of the Partner(s).

12. Content Protected by Copyright.
Content may be protected by copyright. People appearing in content may have a right to control the use of their image. If you share content on the Service in a way that infringes others' copyrights, other intellectual property rights, or privacy rights, you are breaching this Agreement. You represent and warrant that you have all the rights necessary for you to grant the rights in this section and the use of the content doesn't violate any law. D2L will not pay you for your content. D2L may refuse to publish your content for any or no reason. D2L may remove Your content from the Service at any time at its discretion. D2L will respond expeditiously to clear notices of alleged copyright infringement and terminate accounts of repeat infringers according to the process set out in the U.S. Digital Millennium Copyright Act or the laws of another jurisdiction. If you believe your copyrights are being violated and want to notify us, you can find information about submitting notices and D2L's policy about responding to notices in our Notice and Takedown Procedure. D2L does not have an obligation to police the copyright validity of any of the content on the Service.

13. Use of Materials
Subject to our Privacy Policy, any communication or material that you transmit to this Site or to us, whether by electronic mail, post, or other means, for any reason, will be treated as non-confidential and non-proprietary. This includes your suggestions, ideas and input about the Site. While you retain the rights in such communications or material, you grant us and our Partners a non-exclusive, paid-up, perpetual, and worldwide right to copy, distribute, display, perform, publish, translate, adapt, modify, and otherwise use such material for any purpose regardless of the form or medium (now known or not currently known) in which it is used. Please do not submit confidential or proprietary information to us unless we have mutually agreed in writing otherwise.

14. Disclaimer of Warranties
THIS SITE AND ALL MATERIALS ON IT ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, WE MAKE NO WARRANTY THAT (I) THE SITE WILL MEET YOUR REQUIREMENTS, (II) THE SITE OR ACCESS TO IT WILL BE UNINTERRUPTED, TIMELY, ACCURATE, SECURE, OR ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SITE WILL BE EFFECTIVE, ERROR-FREE, ACCURATE OR RELIABLE, OR (IV) THE QUALITY OF THE SITE WILL MEET YOUR EXPECTATIONS OR BE FREE FROM MISTAKES OR DEFECTS.

WE MAY MAKE CHANGES TO THE SITE AT ANY TIME WITHOUT NOTICE. THE SITE MAY BE OUT OF DATE, AND WE MAKE NO COMMITMENT TO UPDATE THE SITE. THE USE OF THE SITE OR MATERIALS IS DONE AT YOUR OWN DISCRETION AND RISK AND WITH YOUR AGREEMENT THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM SUCH ACTIVITIES.

THROUGH YOUR USE OF THE SITE AND THE MATERIALS, YOU MAY HAVE THE OPPORTUNITIES TO ENGAGE IN COMMERCIAL TRANSACTIONS WITH OTHER PARTIES. YOU ACKNOWLEDGE THAT ALL TRANSACTIONS RELATING TO ANY MERCHANDISE OR SERVICES OFFERED BY ANY PARTY, INCLUDING, BUT NOT LIMITED TO THE PURCHASE AND PAYMENT TERMS, WARRANTIES, GUARANTEES, MAINTENANCE AND DELIVERY TERMS RELATING TO SUCH TRANSACTIONS, ARE AGREED TO SOLELY BETWEEN THE OTHER PARTY AND YOU. WE MAKE NO WARRANTY REGARDING ANY TRANSACTIONS EXECUTED THROUGH, OR IN CONNECTION WITH THIS SITE, AND YOU UNDERSTAND AND AGREE THAT SUCH TRANSACTIONS ARE CONDUCTED ENTIRELY AT YOUR OWN RISK. ANY WARRANTY THAT IS PROVIDED IN CONNECTION WITH ANY PRODUCTS, SERVICES, MATERIALS, OR INFORMATION AVAILABLE ON OR THROUGH THIS SITE FROM A THIRD PARTY IS PROVIDED SOLELY BY SUCH THIRD PARTY, AND NOT BY US.

MATERIALS AVAILABLE ON THIS SITE MAY CONTAIN OPINIONS AND JUDGMENTS. WE DO NOT ENDORSE, NOR ARE WE RESPONSIBLE FOR THE ACCURACY OR RELIABILITY OF, ANY OPINION, ADVICE, OR STATEMENT MADE BY ANYONE.

SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.

15. Limitation of Liability
UNDER NO CIRCUMSTANCES SHALL WE BE LIABLE TO YOU OR ANY THIRD PARTY WITH RESPECT TO ANY SUBJECT MATTER OF THESE TERMS OF USE (INCLUDING ANY BREACH OF SECURITY OR DATA LOSS) UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LOST PROFITS, LOSS OR INACCURACY OF DATA OR DOCUMENTS OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE OR OTHERWISE. IN NO EVENT SHALL OUR LIABILITY TO YOU OR TO ANY THIRD PARTY EXCEED THE GREATER OF (I) TWENTY DOLLARS (US$20.00); OR (II) THE AMOUNT YOU PAID TO US FOR YOUR USE OF THE SITE DURING THE SIX MONTHS IMMEDIATELY PRECEDING THE CLAIM. YOU AGREE THAT THE FOREGOING LIMITATION IS A NECESSARY REQUIREMENT FOR US TO BE ABLE TO MAKE THE SITE AVAILABLE TO YOU.

IN ADDITION, WE ARE NOT LIABLE IN ANY WAY FOR THIRD PARTY MATERIALS OFFERED THROUGH THIS SITE OR FOR ASSISTANCE IN CONDUCTING COMMERCIAL TRANSACTIONS THROUGH THIS SITE, INCLUDING THE PROCESSING OF ORDERS.

SOME JURISDICTIONS PROHIBIT THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

16. Indemnification
You shall defend, indemnify, and hold us and our Partners harmless from all liabilities, claims, and expenses, including attorneys’ fees, which arise from your acts, omissions, use or misuse of the Site. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will cooperate with us in asserting any available defenses.

17. Password; Security
You alone are responsible for maintaining the confidentiality of your password and account and for any and acts or omissions that occur through the use of your password and account. Therefore, you must take steps to ensure that others do not gain access to your password and account. Our personnel will never ask you for your password. You may not transfer or share your account with anyone, and we reserve the right to immediately terminate your account if you transfer or share your account.

We take reasonable measures to protect the security, confidentiality and integrity of the Data you upload. We have security measures in place to protect the loss, misuse, and alteration of the Data under our control. Unfortunately, there is no such thing as perfect security. Although we strive to protect all Data including personal information, we cannot ensure or guarantee the security of any Data transmitted to us through or in connection with the Site.

18. Participation in Promotions
From time to time, this Site and/or other links available at this Site may include advertisements offered by third parties. You may enter into correspondence with or participate in promotions of the advertisers showing their products on this Site. Any such correspondence or promotions, including the delivery of and the payment for goods and services, and any other terms, conditions, warranties or representations associated with such correspondence or promotions, are solely between you and the advertiser. We assume no liability, obligation or responsibility for any part of any such correspondence or promotion.

19. E-mail, Messaging, Blogging, and Chat
We may make email, messaging, blogging, or chat functionalities (collectively, "Communications") available to users of the Site, either directly or through a third-party provider. We will not inspect or disclose the contents of private Communications except with the consent of the sender or the recipient, or in situations provided under the Electronic Communications Privacy Act or other relevant laws, or as otherwise required by law or by court or governmental order. Further information is available in our Privacy Policy.

We may employ automated monitoring devices or techniques to protect our systems and users from mass unsolicited communications (also known as “spam”) and/or other types of communications that we deem inconsistent with our business purposes. However, such devices or techniques are not perfect, and we will not be responsible for any legitimate communication that is blocked, or for any unsolicited communication that is not blocked.

20. International Use
Although this Site may be accessible worldwide, we do not represent that materials on this Site are appropriate or available for use in your jurisdiction and accessing them from territories where their contents are illegal may be prohibited. Those who choose to access this Site from other locations do so on their own initiative and are responsible for compliance with local laws. Any offer for any product, service, and/or information made in connection with this Site is void where prohibited.

21. Termination; Suspension of Your Account
We may, in our sole discretion, terminate or suspend your access to all or part of the Site with or without notice and for any reason, including breach or potential breach of these Terms of Use.

Upon termination or suspension, regardless of the reasons, your right to use this Site immediately ceases, and you acknowledge and agree that we may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or this Site. We shall not be liable to you or any third party for any claims or damages arising out of any termination or suspension or any other actions taken by us in connection with such termination or suspension.

22. Governing Law
This Site (excluding any linked sites) is controlled by us and by our Partners. It can be accessed globally. By accessing this Site, you agree that IT Academy and these Terms of Use will be governed by the laws of the State of New York.

23. Miscellaneous
You shall not assign your rights and obligations under these Terms of Use to any party, and any purported attempt to do so will be null and void. We may freely assign our rights and obligations under these Terms of Use.

You shall not sell, resell, reproduce, use for any commercial purposes, duplicate or copy any portion of this Site, or use of or access to this Site. In addition to any excuse provided by applicable law, we shall be excused from non-performance or delay in delivery of the Site arising from any event beyond our reasonable control, whether or not foreseeable by either party.

Any failure by us to enforce or exercise any provision of these Terms of Use or related rights shall not constitute a waiver of that right or provision. If any part of these Terms of Use is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect.

24. Notices and Contact Information
All notices to a party shall be in writing and shall be made either via email, mail or courier. Notices to us must be sent to the contact details below. Notices to you may be sent to the address supplied by you as part of your Data. In addition, we may post notices on the Site to inform you of changes to the Site or other matters, and such publications shall constitute notice to you at the time of posting.

25. Entire Agreement
These Terms of Use (including any rules, policies and other documents incorporated by reference) constitute the entire agreement and understanding between us concerning the subject matter of these Terms of Use. You may not alter, supplement or amend these Terms of Use in any way. Any attempt to alter, supplement or amend this document shall be null and void.