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LICENSE AND USE AGREEMENT

LICENSE AND USE AGREEMENT

This License and Use Agreement (this “Agreement”) is between you (“you” or “Customer”, which for the avoidance of doubt, also refers to, as applicable: your school, school district or other educational institution for which you act as a duly authorized representative or agent; users of the Triumph Learning Sites or the Triumph Learning Products (defined below) in accordance with the terms of this Agreement and the applicable Order Form(s) (defined below)) and Triumph Learning (as defined below) with regard to any of the Triumph Learning Sites (as defined below). PLEASE READ THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY.  By using any Triumph Learning Site or by clicking “Agree” you accept and agree to these terms, you signify your acknowledgment and agreement with the terms and conditions of this Agreement, as of the date on which you click or otherwise fill in the box(es) at the end of this Agreement.   By clicking “Agree” you agree and acknowledge that you have been properly authorized and empowered by Customer and all other applicable Persons (as defined below) to enter into this Agreement.  Each of Triumph Learning and Customer are individually referred to herein as a “Party,” and collectively, the “Parties”. 

RECITALS

WHEREAS, Triumph Learning is the owner, publisher and distributor of certain online or digital educational software products carrying one of its and/or its Affiliates’ (as defined below) brands;

 

WHEREAS, Customer desires to purchase a perpetual, non-transferable, non-exclusive license from Triumph Learning, without the right of sublicense, to use the Triumph Learning Product(s) under the terms and conditions set forth in this Agreement (the “License”); and

 

WHEREAS, Triumph Learning desires to grant the License to Customer.

 

NOW, THEREFORE, in consideration of the terms and conditions of this Agreement, the premises contained herein, and other good and valuable consideration, the sufficiency of which is hereby acknowledged, the Parties, intending to be legally bound, hereby agree as follows:

  1. Certain Definitions
  • Affiliate” shall mean any entity that directly or indirectly, through one or more intermediaries, controls, or is controlled by, or is under common control with, Triumph Learning or Customer, as applicable. For purposes of this definition, “control” means having the beneficial ownership, directly or indirectly, of the voting power to elect directors having a majority of the votes that directors may cast (in the case of a corporation) or managers, trustees, agents or representatives performing a similar function (in the case of an entity that is not a corporation) or the power to otherwise direct the management of such entity.
  • Agreement” shall mean this License and Use Agreement, the exhibits hereto and the applicable forms ancillary hereto, including but not limited to, the product quote provided by Triumph Learning (the “Quote”); purchase order from Customer in respect of the Triumph Learning Product(s) (the “Customer PO”); and the notice of activation of Triumph Learning Product(s), access start and end dates, and user name and passwords (the “Activation Notice”), as the case may be (the Quote, the Customer PO and the Activation Notice, collectively referred to herein as the “Order Form(s)”), in respect of any and all Triumph Learning products or services being utilized by Customer, all of which are hereby incorporated herein by this reference.
  • Person” means any association, corporation, individual, limited liability company, partnership, trust or other non‑governmental entity or any governmental agency, court, authority or other body (whether foreign, federal, state, local or otherwise).
  • Triumph Learning”, “we,” “us” or “our” refers to Triumph Learning LLC, a Delaware limited liability company, and any and all entities that control, are controlled by, or are affiliated or under common control with, Triumph Learning.
  • Triumph Learning Product(s)” means any and all Triumph Learning products to be accessed via the Triumph Learning Sites, including without limitation, Waggle, Coach Digital, Mastering the Teks and Common Core Coach Online Assessments, each as modified and/or updated by Triumph Learning from time-to-time. The specific product(s) of Triumph Learning covered by this Agreement are identified on the Order Form(s).
  • Triumph Learning Sites” means triumphonline.com, www.tlcoachdigital.com , getwaggle.org and any other Web site(s) through which Triumph Online® , Waggle®, Coach Digital ™ and other Triumph Learning products may be accessed from time-to-time, and other Internet sites on which the terms of use attached hereto as Exhibit A are posted.
  1. License; Restrictions
  • Grant of License. Subject to Customer’s timely payment of all applicable fees and compliance with the term and conditions of this Agreement, Triumph Learning hereby agrees to grant, and Customer agrees to accept, the License, subject to the terms and conditions set forth in this Agreement. 
  • Use of License. The Triumph Learning Product(s) shall be used solely for the type(s) and number of users as set forth in the applicable Order Form(s) (collectively, the “Authorized Users”) and solely for educational or instructional purposes.
  • Customer Obligations; Prohibited Uses.Except as expressly provided in this Agreement, Customer shall:
    • not directly or indirectly (or allow any third party to) disclose or provide any Triumph Learning Product(s) to any Person other than the Authorized Users;
    • not directly or indirectly (or allow any third party to) license, sublicense, loan, sell, lease, rent, transfer, share or assign any Triumph Learning Product(s) or any portion thereof to any Person;
    • not directly or indirectly (or allow any third party to) alter, reverse engineer, disassemble, decompile or copy, or in any way modify or attempt to discover the source code of, any Triumph Learning Product(s) or the underlying software, documentation or data related thereto;
    • not directly or indirectly (or allow any third party to) add to, modify, delete any portion of or make derivative works based upon any Triumph Learning Product(s);
    • not directly or indirectly (or allow any third party to) use any Triumph Learning Product(s) or allow any Person to use Triumph Learning Products for any commercial purposes or in any manner not set forth in this Agreement, including without limitation to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of any Triumph Learning Product(s), or (c) copy any ideas, features, functions or graphics of any Triumph Learning Product(s);
    • take all reasonable precautions to prevent unauthorized or improper use or disclosure of the Triumph Learning Product(s);
    • not directly or indirectly (or allow any third party to) reproduce on or remove from any copies of the Triumph Learning Product(s), any or all titles, trademarks and copyright and other proprietary or restrictive legends or notices;
    • limit access to the Triumph Learning Product(s) to the Authorized Users and who have agreed in writing or are otherwise legally bound to observe Customer’s obligations hereunder and, in connection therewith, require all Authorized Users to agree to and abide by the terms and conditions of that certain end user agreement substantially in the form attached hereto as Exhibit A; and
    • take commercially reasonable best efforts to monitor, abide by and enforce all of the foregoing provisions.
  1. Intellectual Property Rights
    • Intellectual Property Rights. All title to and rights and interests in the Triumph Learning Products are the exclusive proprietary property of Triumph Learning. Triumph Learning is the exclusive owner of all copyright, trademark, patent and other intellectual property and proprietary rights in and to the Triumph Learning Products, all goodwill associated therewith, and any derivative work thereof. Customer acknowledges that Triumph Learning asserts that the Triumph Learning Products embody valuable confidential and trade secret information of Triumph Learning, the development of which required the expenditure of considerable time and money.  All trademarks appearing in or on the Triumph Learning Products are the property of Triumph Learning and its respective third party owners. Triumph Learning disclaims any affiliation or endorsement of such third parties’ goods or services and does not intend to imply any third party’s endorsement of the goods and services of Triumph Learning. Nothing in this Agreement shall be interpreted as a transfer of any of the aforementioned intellectual property or proprietary rights from Triumph Learning to Customer. No part of any Triumph Learning Products may be reproduced in whole or in part, stored in a retrieval system, or transmitted in any form by any means, electronic, mechanical, photocopying, recording, or otherwise, without written permission from Triumph Learning.
    • Security Measures. Triumph Learning may from time to time implement password protection, anti-copying subroutines or other security measures for the Triumph Learning Products, and Customer shall cooperate with any such measures that are part of a Triumph Learning Product as of the date it is licensed to Customer.
    • Audit Rights. Triumph Learning shall have the right, from time to time, upon five (5) days’ prior notice to Customer, to audit Customer’s usage of Triumph Learning Products so as to ensure compliance with the provisions of this Agreement.
    • Injunctive Relief. Customer specifically agrees that in the event of a breach or threatened breach by Customer of its obligations under Section 2 or Section 3 of this Agreement, Triumph Learning could suffer substantial and irreparable damage, which could be of a character which could not be fully compensated for solely by a recovery of money damages. Accordingly, Customer hereby expressly agrees that in the event of a breach or threatened breach of Section 2 or Section 3 of this Agreement, in addition to and not in lieu of any damages that may be sustained by Triumph Learning, and any other remedies which Triumph Learning may pursue hereunder at law or in equity, Triumph Learning shall have the right to seek equitable relief, including issuance of a temporary or permanent injunction, by any court of competent jurisdiction against the commission or continuance of any such breach or threatened breach, without the necessity of the posting of any bond or other surety therefor. In addition to, and not in limitation of the foregoing, Customer understands and confirms hereby that, in the event of any breach or threatened breach of Section 2 or Section 3 of this Agreement, you hereby agree to indemnify Triumph Learning for any losses suffered by Triumph Learning as a result thereof, including, without limitation, all reasonably attorney’s fees, court costs and disbursements incurred as the result of any such breach or threatened breach of Section 2 or Section 3 of this Agreement.
    • Intellectual Property Indemnification. Subject to the provisions of Section 8 below, Triumph Learning shall indemnify and hold Customer and its governing administrative body, Affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all third party claims (and all resulting costs, damages awarded to third parties, third party liabilities and expenses, including attorneys’ fees and costs) arising out of infringement (or alleged infringement) by Triumph Learning of any third party patent, copyright, trademark or trade secret rights, provided in any such case that Customer: (a) gives written notice of the claim promptly to Triumph Learning; (b) gives Triumph Learning sole control of the defense and settlement of the claim (provided that Triumph Learning may not settle or defend any claim unless Triumph Learning unconditionally releases Customer of all liability); (c) provides to Triumph Learning all available information and assistance; and (d) has not compromised or settled such claim. Notwithstanding clause (c) above, Customer shall have the right at its own cost to assume defense of such third party claim(s) in the event (i) Triumph Learning is also a party to the same proceeding and Customer determines in good faith that joint representation would be inappropriate or (ii) Triumph Learning fails to provide reasonable assurance to Customer of its financial capacity to defend such proceeding and provide indemnification with respect to such proceeding.
  2. Fees
  • Customer shall pay Triumph Learning the then applicable fees for the use of the Triumph Learning Product(s) and other products and services as noted on Customer’s applicable Order Form(s), including any applicable shipping fees and taxes (the “Fees”). Customer must pay within thirty (30) days of invoice date for the Triumph Learning Product(s) stated in the Order Form(s) or other agreement between the Parties. All pricing terms are confidential, and the Parties agree not to disclose said pricing terms to any third party (excluding its Affiliates, agents or current or potential investors on an as-needed basis).
  • Triumph Learning charges and collects Fees in advance for use of the Triumph Learning Products. Customer shall be responsible for all taxes associated with its use of Triumph Learning Product(s) other than U.S. taxes based on the net income of Triumph Learning. If Customer is an organization that is exempt from sales tax, it is Customer’s responsibility to include a copy of the sales tax exemption form with the applicable Order Form(s), without which Triumph Learning shall charge sales tax to Customer as applicable. Customer agrees to provide Triumph Learning with complete and accurate billing and contact information. This information shall include Customer’s legal name, street address, e-mail address, and name and telephone number of an authorized billing contact. Customer agrees to update this information within thirty (30) days of any changes thereto. If the contact information Customer has provided is false, fraudulent or misleading, Triumph Learning reserves the right to suspend or terminate Customer’s access to the Triumph Learning Products in addition to any other legal remedies. Customer will be billed in U.S. dollars and subject to U.S. payment terms. Late fees shall be subject to a finance charge of the lesser of one and five tenths percent (1.5%) per calendar month and the greatest amount allowed by applicable law.
  1. Term; Termination.
    • This Agreement and the License shall have a term commencing on the date as of which Customer receives initial access to the applicable Triumph Learning Product(s) and shall continue for the term specified on the applicable Order Form(s). Either Party hereto may terminate this Agreement if the other Party materially breaches this Agreement and fails to cure such breach within thirty (30) days’ from receipt of written notice thereof.  Section 2, Section 3 and Sections 6 through 11 (inclusive), as well as all accrued payment obligations and any and all license and use restrictions shall survive the termination or expiration, as the case may be, of this Agreement.  In the event Customer terminates within thirty (30) days from initial access to the applicable Triumph Learning Product(s), Customer shall be eligible for a full refund.
    • Triumph Learning may terminate this Agreement at any time without cause by providing at least thirty (30) days’ prior written notice to Customer. Upon termination under this Section 5(b),  the License shall also terminate.  Section 2, Section 3 and Sections 6 through 11 (inclusive), as well as all accrued payment obligations through the date of termination and any and all license and use restrictions shall survive the termination or expiration, as the case may be, of this Agreement.
  2. Representations and Warranties.
    • Each Party represents and warrants to the other Party that it has the legal right, power and authority to enter into this Agreement and that the Person signing on behalf of each such Party is duly authorized to bind such Party.
    • Customer represents and warrants to Triumph Learning that it has taken or will take such steps as are necessary to ensure that the requisite prior written consents have been obtained from the parents or the legal guardians of any and all Authorized Users, as applicable (e.g., natural persons under the age of 18).
  3. Disclaimer of Warranties. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 6, TRIUMPH LEARNING PROVIDES all TRIUMPH LEARNING PRODUCT(S) “AS IS” and without warranty of any kind, AND TRIUMPH LEARNING hereby disclaimS all OTHER WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO ANY AND ALL SUBJECT MATTER OF THIS AGREEMENT, including, without limitation, THE warranties of merchantability, fitness for a particular purpose, and non-infringement. This disclaimer of warranty constitutes an essential part of this Agreement.
  4. Limitation of Liability. NEITHER PARTY SHALL BE LIABLE UNDER ANY SUBJECT MATTER OF THIS AGREEMENT, UNDER ANY LEGAL OR EQUITABLE THEORY, FOR ANY: (I) INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, (II) COST OF PROCUREMENT OF SUBSTITUTE TECHNOLOGY OR SERVICES, OR (III) AMOUNTS IN THE AGGREGATE IN EXCESS OF THE FEES PAID BY CUSTOMER TO TRIUMPH LEARNING DURING THE TWELVE (12)-MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION ACCRUES. THE LIMITATIONS ON LIABILITY CONTAINED IN THIS SECTION 8 SHALL NOT APPLY TO EITHER PARTY’S BREACH OF SECTION 9 OR CUSTOMER’S BREACH OF sECTION 2 OR sECTION 3 OR ANY LICENSE OR USE RESTRICTIONS HEREUNDER.
  5. Confidentiality. “Confidential Information” means all information that (i) the disclosing Party designates as being confidential, or which (ii) by the nature of the information or the manner in which it is disclosed, should be reasonably understood by the receiving Party to be confidential. The receiving Party shall maintain the confidentiality of the disclosing Party’s Confidential Information and will not disclose such information to any third party without the prior written consent of the disclosing Party. The receiving Party will only use the Confidential Information internally for the purposes contemplated hereunder. The obligations in this Section 9 shall not apply to any information that: (i) is made generally available to the public without breach of this Agreement, (ii) is developed by the receiving Party independently from the Confidential Information, (iii) is disclosed to the receiving Party by a third party, which third party is not subject to an obligation in favor of the disclosing Party to keep such Confidential Information confidential, or (iv) was in the receiving Party’s lawful possession prior to the disclosure by the disclosing Party. The receiving Party may disclose Confidential Information as required by law or court order provided that, to the extent permitted by law, it provides the disclosing Party with prompt written notice thereof and uses its best efforts to limit disclosure. At any time, upon disclosing Party’s request, the receiving Party shall return to disclosing Party (or destroy and certify destroyed) all of the disclosing Party’s Confidential Information in its possession, including, without limitation, all copies and extracts thereof. Notwithstanding the foregoing, the receiving Party may disclose Confidential Information to any third-party to the limited extent necessary to perform its obligations, under this Agreement; provided that, all such third parties are bound by obligations of confidentiality and non-use at least as protective of such as this Agreement.
  6. Export Control. Customer acknowledges and agrees that the Triumph Learning Products shall not be used, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo, or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders. If Customer uses the Triumph Learning Products from outside the United States of America, Customer is solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries. Any diversion of the Triumph Learning Products contrary to United States law is strictly prohibited.
  7. General
  • Notices. Notice required or desired to be given by the Parties under this Agreement shall be in writing and will be mailed by first-class, registered or certified mail, return receipt requested, postage prepaid, by U.S. express mail or a nationally recognized overnight mail service (e.g., FedEx), or transmitted by hand delivery, or facsimile transmission addressed as follows:

If to Triumph Learning:    Triumph Learning, LLC

                                                                  136 Madison Avenue, 8th floor,

                                                                  New York, NY 10016

                                                                  Attention: Sales Operations

                                                                  Facsimile:  (212) 857-8499

With a copy simultaneously by like means to:

 

                                                                  Triumph Learning, LLC

                                                                  136 Madison Avenue, 7th floor,

                                                                  New York, NY 10016

                                                                  Attention: Contracts Department 

                                                                  Facsimile:  (212) 652-0203

                        If to Customer, as set forth in the applicable Order Form(s).

Any Party may designate by written notice to the other Party(ies) a new address to which any notice may thereafter be given. 

  • Force Majeure. Neither party hereto shall be held responsible for any delay in performance of any part of this Agreement to the extent such delay results from causes beyond its reasonable control and without its fault or negligence (“Force Majeure Event”) provided, however, that the non-performing Party shall act diligently and in good faith to (i) minimize potential cost, loss or damage to the other Party due to such non-performance and (ii) perform its obligations under this Agreement as soon as the Force Majeure Event has subsided or can be avoided.
  • Press Release. Customer hereby agrees and consents to the use of Customer’s name in a press release by Triumph Learning which may announce Customer’s use of the Triumph Learning Products. Customer grants Triumph Learning the right to use Customer’s name on any of its Web sites (and in Triumph Learning marketing material) as part of a Triumph Learning customer list.
  • Should any provision of this Agreement be held by a court of competent jurisdiction to be enforceable only if modified, or if any portion of this Agreement shall be held as unenforceable and thus stricken, such holding shall not affect the validity of the remainder of this Agreement, the balance of which shall continue to be binding upon the Parties with any such modification to become a part hereof and treated as though originally set forth in this Agreement. The Parties further agree that any such court is expressly authorized to modify any such unenforceable provision of this Agreement in lieu of severing such unenforceable provision from this Agreement in its entirety, whether by rewriting the offending provision, deleting any or all of the offending provision, adding additional language to this Agreement or by making such other modifications as it deems warranted to carry out the intent and agreement of the Parties as embodied herein to the maximum extent permitted by law.  The Parties expressly agree that this Agreement as so modified by the court shall be binding upon and enforceable against each of them. In any event, should one or more of the provisions of this Agreement be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions hereof, and if such provision or provisions are not modified as provided above, this Agreement shall be construed as if such invalid, illegal or unenforceable provisions had not been set forth herein. 
  • Neither Party hereto may assign this Agreement without the express written consent of the other Party, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, either Party may, without the express written consent of the other Party, assign all its rights and obligations hereunder to: (a) any of its Affiliates; (b) any entity that results from a merger or consolidation with such Party; or (c) any purchaser or other acquirer of substantially all of such Party’s assets or equity, provided that such assignee agrees to be bound by the terms and conditions of this Agreement as a condition to such assignment.
  • Entire Agreement; Amendments; Nature of Relationship. Both Parties agree that this Agreement and the Attachments hereto, as well as the applicable Order Form(s) in respect of any of the Triumph Learning Products constitute the complete and exclusive statement of the mutual understanding of the Parties and supersede and cancel all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both Parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement, Customer does not have any authority of any kind to bind Triumph Learning in any respect whatsoever, and Triumph Learning does not have any authority of any kind to bind Customer in any respect whatsoever.  In any action or proceeding to enforce rights under this Agreement, the prevailing Party will be entitled to recover reasonable actual costs including attorneys’ fees.
  • No Waiver. No waiver of any provision of this Agreement by either arty shall be deemed a further or continuing waiver of such provision or any other provision, and either Party’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.
  • Headings. The headings throughout this Agreement are for reference purposes only, and the words contained therein shall in no way be held to explain, modify, amplify or aid in the interpretation, construction or meaning of the provisions of this Agreement.
  • Governing Law. This Agreement shall be governed by the laws of the State of New York without regard to its conflict of laws provisions. Triumph Learning and Customer hereby agree that the exclusive and sole jurisdiction and venue for all disputes arising under this Agreement shall be the state and Federal courts located in New York, New York. Triumph Learning and Customer hereby waive the right to a jury trial.
  • Counterparts. This Agreement may be executed in one or more original, facsimile or electronic counterparts (i.e., portable document format, or pdf), all of which when taken together shall constitute one document.

 

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Exhibit A

END USER LICENSE AGREEMENT

  1. INTRODUCTION; GENERAL

Welcome to the Internet sites of Triumph Learning, LLC, a Delaware limited liability company (“Triumph Learning”). As used herein, “Triumph Learning Sites” means triumphonline.com, getwaggle.org and any other Web site(s) through which Coach Digital ™, Triumph Online ®, Waggle® and other Triumph Learning products may be accessed from time-to-time, and other Internet sites on which these terms of use are posted. Triumph Learning and any and all entities that control, are controlled by, or are affiliated or under common control with Triumph Learning are collectively referred to herein as “we,” “us” or “our”.

This End User License Agreement (this “Agreement”) is between you, the user of any of the Triumph Learning Sites (“you” which includes your parents or legal guardians if you are under the legal age of majority) and us with regard to any of the Triumph Learning Sites. PLEASE READ THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY BEFORE USING ANY TRIUMPH LEARNING SITE. By using any Triumph Learning Site or by clicking a box that states that you accept or agree to these terms, you signify your acknowledgment and agreement with the terms and conditions of this Agreement.

Note that special terms apply to some services offered on certain Triumph Learning Sites, like subscription-based services or other features or activities. These special terms are posted in connection with the applicable service or other features or activities.  Any such terms are in addition to the terms of this Agreement, and in the event of a conflict, prevail over the terms of this Agreement.

If you do not agree to this Agreement or any special terms of use, as applicable, or you do not meet any eligibility requirements established by us for use of and access to the Triumph Learning Sites, you may not access or otherwise use the Triumph Learning Sites.

Unless you are visiting a Triumph Learning Site that specifically allows otherwise, you are of over the age of 18, or your parent or legal guardian has provided any and all necessary consents to permit your usage of the Triumph Learning Sites. 

You agree to the terms and conditions of our privacy policy, which are incorporated herein by reference and constitute part of the terms and conditions of this Agreement. Our privacy policy details the ways in which we may use your personal information that belongs to, or is related to, you. Our privacy policy is available at http://www.triumphlearning.com/learn-more/privacy-policy.

You acknowledge that your acceptance of the terms and conditions of this Agreement are supported by reasonable and valuable consideration, the receipt and adequacy of which are hereby acknowledged. Without limiting the generality of the foregoing, you acknowledge that such consideration includes your use of the Triumph Learning Sites and receipt of data, materials and information available at or through the Triumph Learning Sites.

  1. USE OF CONTENT

All information, materials, functions and other content contained on Triumph Learning Sites (“Content”) are our copyrighted property or the copyrighted property of our licensors or licensees. All trademarks, service marks, trade names, and trade dress are proprietary to us and/or our licensors or licensees. We may change the Triumph Learning Sites or delete Content or features at any time, in any way, for any or no reason.

Except as we specifically agree in writing, no Content may be used, reproduced, transmitted, distributed or otherwise exploited in any way other than as part of the Triumph Learning Site, except that where a Triumph Learning Site is configured to enable the download of particular Content, you may download one copy of such Content to a single computer for your personal, noncommercial home use only, provided that you: (a) keep intact all copyright and other proprietary notices; (b) make no modifications to the Content; and (c) do not use the Content in a manner that suggests an association with any of our products, services or brands.  Any business use, “re-mailing” or high-volume or automated use of Triumph Learning Sites is prohibited.

In the event that we offer downloads of software on a Triumph Learning Site and you download such software, such software, including any files, images incorporated in or generated by such software, and data accompanying such software (collectively, the “Software”) are licensed to you by us or third-party licensors, as applicable, for your personal, noncommercial home use only for educational or instructional purposes only. We do not transfer title to the Software to you. You shall not distribute or otherwise exploit the Software or decompile, reverse engineer, disassemble or otherwise reduce the Software to a human-readable form.

  1. ACCOUNTS

Some services on the Triumph Learning Sites may permit or require you to create an account to participate or to secure additional benefits. You agree to provide, maintain and update true, accurate, current and complete information about yourself as prompted by our registration processes (the “Registration Data”). You shall not impersonate any person or entity or misrepresent your identity or affiliation with any person or entity, including using another person’s username, password or other account information, or another person’s name, likeness, voice, image or photograph. You also agree to promptly notify us at support@triumphonline.com of any unauthorized use of your username, password, other account information, or any other breach of security that you become aware of involving or relating to any Triumph Learning Site. In addition, you agree to exit from your account at the end of each session.

We may suspend or terminate your account and your ability to use any Triumph Learning Site or portion thereof for failure to comply with these terms of use or any special terms related to a particular service, for infringing copyright, or for any other reason whatsoever.

  1. CONTENT ACCESSIBLE THROUGH LINKS FROM TRIUMPH LEARNING SITES AND SEARCH RESULTS

You should be aware that when you are on a Triumph Learning Site, there may be links to other sites that take you outside of our service to sites that are beyond our control, such as banner advertisements and links from advertisers, sponsors and content partners that may use our logo(s) as part of a co-branding relationship. You acknowledge that when you click on any of the aforementioned links, the sites you are taken to are not controlled by us; different terms of use and a different privacy policy may apply, and we are not responsible for such sites. We do not endorse and cannot ensure that you will be satisfied with any products or services that you purchase from a third-party site that links to or from any Triumph Learning Site or third-party Content contained on our sites. We strongly encourage you to make whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction with any third parties.

You agree that we cannot be held responsible for the accuracy, relevance, legality or decency of material contained on sites retrieved in searches and/or listed in search results or identified on search results pages.

  1. DISCLAIMERS

THE CONTENT ON OR OTHERWISE RELATED IN ANY WAY TO TRIUMPH LEARNING SITES OR ANY THIRD PARTY SITES OR SERVICES LINKED TO FROM ANY TRIUMPH LEARNING SITE IS PROVIDED “AS IS” AND WITHOUT WARRANTIES OF ANY KIND.  TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, COMPLETENESS, AVAILABILITY, SECURITY, COMPATABILITY AND NONINFRINGEMENT.  WE DO NOT WARRANT THAT ANY CONTENT WILL BE ERROR-FREE, THAT ACCESS THERETO WILL BE UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, OR THAT ANY TRIUMPH LEARNING SITE OR THE SERVERS THAT MAKE SUCH CONTENT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.  MOREOVER, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION.  WE DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF ANY CONTENT.  YOU HEREBY IRREVOCABLY WAIVE ANY CLAIM AGAINST US WITH RESPECT TO CONTENT AND ANY INFORMATION YOU PROVIDE TO THIRD PARTY SITES (INCLUDING CREDIT CARD AND OTHER PERSONAL INFORMATION).

  1. INDEMNIFICATION

You are responsible for maintaining the confidentiality of your username(s), password(s), and your Registration Data, as well as all activities that occur under your account(s). You hereby agree to indemnify, defend, and hold us, our licensors, licensees, distributors, agents, representatives and other authorized users, and each of the foregoing entities’ respective resellers, distributors, service providers and suppliers, and all of the foregoing entities’ respective officers, directors, owners, employees, agents, representatives and assigns (collectively, the “Indemnified Parties”) harmless from and against any and all losses, damages, liabilities and costs (including settlement costs and any legal or other fees and expenses for investigating or defending any actions or threatened actions) incurred by the Indemnified Parties in connection with any claim arising out of any breach by you of these terms of use or claims arising from your use of the Triumph Learning Sites and/or your account(s). You shall use your best efforts to cooperate with us in the defense of any claim. We reserve the right, at our own expense, to employ separate counsel and assume the exclusive defense and control of any matter otherwise subject to indemnification by you.

  1. LIMITATION OF LIABILITY

UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, SHALL WE, OUR LICENSORS OR LICENSEES, OR ANY OF THE FOREGOING ENTITIES’ RESPECTIVE RESELLERS, DISTRIBUTORS, SERVICE PROVIDERS OR SUPPLIERS, BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE WHATSOEVER, THAT RESULT FROM THE USE OF, OR THE INABILITY TO USE, ANY TRIUMPH LEARNING SITE OR CONTENT.  IN NO EVENT SHALL OUR TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE EXCEED THE AMOUNT PAID BY YOU, IF ANY, OR $100 (WHICHEVER IS LESS) FOR ACCESSING OR PARTICIPATING IN ANY ACTIVITY RELATED TO ANY TRIUMPH LEARNING SITE. MOREOVER, UNDER NO CIRCUMSTANCES SHALL WE, OUR LICENSORS OR LICENSEES, OR ANY OF THE FOREGOING ENTITIES’ RESPECTIVE RESELLERS, DISTRIBUTORS, SERVICE PROVIDERS OR SUPPLIERS, BE HELD LIABLE FOR ANY DELAY OR FAILURE IN PERFORMANCE RESULTING DIRECTLY OR INDIRECTLY FROM AN ACT OF FORCE MAJEURE OR CAUSES BEYOND OUR OR THEIR REASONABLE CONTROL. THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION AND ELSEWHERE IN THESE TERMS OF USE APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

  1. JURISDICTIONAL AND VENUE ISSUES

You agree that any action at law or in equity arising out of or relating to these terms of use or the Triumph Learning Sites shall be filed, and that venue properly lies, only in state or federal courts located in the borough of Manhattan, New York, New York, and you hereby consent and submit to the personal jurisdiction of such courts for the purposes of litigating any such action. We make no representation that Content on any Triumph Learning Site is appropriate or available for use in any particular location. Those who choose to access a Triumph Learning Site do so on their own initiative and are responsible for compliance with all applicable laws including any applicable local laws.

  1. AMENDMENT

At any time, we may amend these terms of use (including by modification, deletion and/or addition of any portion thereof). If we make a material amendment to these terms of use, we will notify you of such amendment by either (i) sending you an e-mail at the last e-mail address that you provided us, (ii) sending notification to your school or school district, or other applicable administrative body, and/or (iii) posting notice of such amendment on the Web sites covered by these terms of use. Please note that, at all times, you are responsible for updating your Registration Data to provide us your current e-mail address, to the extent requested by any Triumph Learning Site. In the event that the last e-mail address that you have provided us is not valid, or for any other reason is not capable of delivering to you the notice described above, our dispatch of the e-mail containing such notice will nonetheless constitute effective notice of any amendment described in the notice.

  1. GENERAL PROVISIONS

These terms of use shall be governed by and construed in accordance with the laws of the State of New York and the laws of the United States, without giving effect to any principles of conflicts of law.  We and you hereby agree that the exclusive and sole jurisdiction and venue for all disputes arising under these terms of use shall be the state and Federal courts located in New York, New York. We and you hereby waive the right to a jury trial. If any provision of these terms of use shall be unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these terms of use and shall not affect the validity and enforceability of any remaining provisions. No waiver of any provision of these terms of use by us shall be deemed a further or continuing waiver of such provision or any other provision, and our failure to assert any right or provision under these terms of use shall not constitute a waiver of such right or provision. In these terms of use, the word “including” is used illustratively, as if followed by the words “but not limited to.”  YOU AGREE THAT ANY CAUSE OF ACTION YOU MAY HAVE ARISING OUT OF OR RELATED TO THESE TERMS OF USE OR ANY TRIUMPH LEARNING SITE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES; OTHERWISE, SUCH CAUSE OF ACTION SHALL BE PERMANENTLY BARRED.

Supply of goods, services and software through Triumph Learning Sites is subject to U.S. export control and economic sanctions requirements. By acquiring any such items through Triumph Learning Sites, you represent and warrant that your acquisition comports with and your use of the item will comport with those requirements. Without limiting the foregoing, you may not acquire goods, services or software through Triumph Learning Sites if: 1) you are in, under the control of, or a national or resident of Cuba, Iran, North Korea, Sudan or Syria or if you are on the U.S. Treasury Department’s Specially Designated Nationals List or the U.S. Commerce Department’s Denied Persons List, Unverified List or Entity List; or 2) you intend to supply the acquired goods, services or software to Cuba, Iran, North Korea, Sudan or Syria (or a national or resident of one of these countries) or to a person on the Specially Designated Nationals List, Denied Persons List, Unverified List or Entity List.

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