Brainshark Inc. ("Brainshark") requires that all persons visiting the myBrainshark and/or SlideShark Websites (the "Websites") read, agree to, and abide by the following terms and conditions ("Terms of Use") that govern the general use of the Websites. These Terms of Use may be in addition to the terms and conditions of a Learning Provider Agreement or other separate agreements, if applicable, between you and Brainshark governing your use of the Websites. In the event of a conflict between the terms of such separate agreements and these Terms of Use, the separate agreement shall govern with respect to the subject matter of such conflicting terms. The date on which these Terms of Use was last updated was April 21, 2012.
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License Grants.
Subject to the terms and restrictions herein, Brainshark hereby grants you a non-exclusive, non-transferable, non-sublicensable license to access and use the Websites, including the software proprietary to, or licensed by, Brainshark (in object code format only) (the "Software"), for the limited purposes set forth in Section 2 ("Use of Websites") and subject to the restrictions set forth in Section 3 ("Restrictions").
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Use of Websites.
(a) You may access and use the Websites and the Software solely for the purposes of (i) authoring digital content (each a "Presentation") (ii) viewing third party Presentations; (iii) using other features and functionality made available to you from time to time on the Websites, (iv) purchasing view access to third party Presentations for your personal use, and/or (v) licensing copies of certain third party Presentations for use within your organization, provided the integrity of the content of such Presentation, including the expression and organization of the Presentation, is preserved in its whole. Presentations may include information, data, text, music, sound, photographs, graphics, video, messages and/or other materials owned or licensed by third-party content providers ("Learning Providers");
(b) You affirm that you are at least 18 years of age or otherwise possess legal parental or guardian consent to enter into and abide by these Terms of Use.
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Restrictions.
You agree that you will not:
(a) share your logon ID, Username or password with any other party;
(b) copy, distribute, sell, resell, give away, or provide access to the Software
or the Websites to third parties or the general public, including, without
limitation, as an application service provider, service bureau or hosting
services provider;
(c) sell or provide access to Presentations for a fee except under the terms of a Learning Provider Agreement or other agreement with Brainshark;
(d) rent, lease, loan, or time-share Presentations or the use of, or access to, the Websites;
(e) copy, modify, adapt, reverse-engineer or create derivative works of the Software;
(f) use the Websites to upload, post, email or otherwise transmit any content or material that is unlawful, harmful, threatening, abusive, harassing, tortuous, vulgar, indecent, obscene, pornographic, defamatory, invasive of another's privacy or rights of publicity, hateful, or racially, ethnically or otherwise offensive or objectionable, harmful to minors, infringing of another's proprietary rights, including, without limitation, copyrights, trademarks, patents and trade secrets, or damaging, corruptive or otherwise in any way harmful to the Websites such as but not limited to viruses, including any software, hardware or services associated with the Websites;
(g) use the communication systems available on the Websites (e.g., posting comments, email) to further or make available any unsolicited or unauthorized advertising or promotional materials such as junk mail, spam, chain letters, pyramid schemes or any other form of abusive commercial solicitation; or
(h) harvest or collect personally identifiable information from the Websites for use in any manner that violates governmental regulations.
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Ownership and Protection of Content and Intellectual Property.
(a) Brainshark Intellectual Property. Brainshark or Brainshark's licensors retain all ownership of, and intellectual property rights in, the Software and the Websites. Except for the limited license granted to you herein, you have no right, title or interest in the Software or the Websites. All rights not expressly granted herein are reserved to Brainshark, including the right to charge a fee for access or use of the Websites;
(b) Intellectual Property in Presentations. ownership of, and intellectual property rights in, any unmodified Presentation, are owned exclusively by the publisher of such Presentation. Any permitted modification of the Presentation is owned by the party making the modification to the Presentation, provided ownership of the unmodified Presentation remains with the publisher. You may not remove any identifications, attributions, copyright notices, or other notices or proprietary restrictions contained in any Presentation;
(c) Indemnity Obligations. You will defend, indemnify and hold harmless Brainshark, Brainshark's subsidiaries, affiliates, officers, employees, stockholders, agents, co-branders or other partners from and against any claim or demand, made by any third party, arising from or related to (i) the Presentation(s) you create, publish or share using the Software or Websites or (ii) your general use of the Software or Websites, and will pay all costs and damages including reasonable attorneys' fees incurred as a result of such claim.
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Terms Applicable to Learning Providers.
If you are a Learning Provider and provide Presentations you must agree to the terms and conditions of the Learning Provider Agreement prior to publishing your Presentations on the Websites as "Learning Content".
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Content of Presentations; Other Content.
You acknowledge that Brainshark does not pre-screen, monitor or endorse any Presentations or other content or materials on the Websites and makes no claims regarding their accuracy or content. Brainshark or its designees have the right (but not the obligation) in their sole discretion to refuse or remove any such Presentations or other content. For those users that are accessing the Website(s) as a 'free user', if you do not access or use the Website(s) for a period of six (6) months, your content, Presentations, and/or materials on the Website(s) may be removed.
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Availability of the Websites.
Brainshark will use commercially reasonable efforts to ensure that the Websites is accessible via the internet twenty-four (24) hours a day, seven (7) days a week.
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Use and Fees.
Your no-charge license to use the Websites and Software is provided solely at Brainshark's discretion, and Brainshark reserves the right to place limits on the use including, but not limited to, the number of Presentations which can be created, the amount of audio which can be recorded, the amount of video that can be uploaded, and the frequency of Presentation viewing.
Certain premium services on the Websites may be available for a fee, including (i) view access to or licensed copies of select Presentations posted by Learning Providers and (ii) Software subscription upgrades. For monthly subscription upgrade purchases, Brainshark will securely charge your credit card at the initial time of purchase for the prorated portion of the current month (days remaining through the end of the current month). Then, at the beginning of each subsequent month, Brainshark will bill your credit card for monthly subscription fees corresponding to your subscription plan. You may cancel your subscription at any time by choosing the cancellation option within your account, and your subscription will terminate at that time. For annual subscription upgrade purchases, Brainshark will securely charge your credit card at the initial time of purchase for twelve (12) months of service in advance. Then, at the beginning of each annual term, Brainshark will bill your credit card for annual subscription fees corresponding to your subscription plan. You may cancel your subscription at any time by choosing the cancellation option within your account, and your subscription will terminate at that time.
Brainshark does not issue refunds for charges incurred on the Websites.
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Disclaimer of Warranties.
THE WEBSITES AND THE PRESENTATIONS ARE PROVIDED "AS IS" WITHOUT ANY WARRANTY OF ANY KIND EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. BRAINSHARK DOES NOT WARRANT (I) THE RESULTS THAT MAY BE OBTAINED BY USING THE SOFTWARE OR THE WEBSITES WILL MEET YOUR REQUIREMENTS, (II) AN UNAUTHORIZED PERSON WILL NEVER GAIN ACCESS TO THE CUSTOMER CONTENT OR PRESENTATIONS, (III) THAT THE SOFTWARE OR THE WEBSITES WILL BE UNINTERRUPTED OR ERROR FREE, OR (IV) THE ACCURACY, ADEQUACY OR COMPLETENESS ANY PRESENTATION.
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Limitation of Liability.
BRAINSHARK SHALL NOT BE LIABLE, WHETHER IN AN ACTION IN NEGLIGENCE, CONTRACT, TORT OR BASED ON ANY OTHER LEGAL THEORY, IN ANY WAY TO YOU FOR ANY LOST PROFITS OR REVENUES, LOSS OF USE, LOSS OF DATA OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, LICENSES OR SERVICES OR SIMILAR ECONOMIC LOSS, OR FOR ANY PUNITIVE, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR SIMILAR DAMAGES OF ANY NATURE, WHETHER FORESEEABLE OR NOT.
BRAINSHARK'S MAXIMUM LIABILITY FOR ANY DAMAGES, REGARDLESS OF FORM OF ACTION, SHALL NOT EXCEED THE LICENSE FEES, IF APPLICABLE, ACTUALLY PAID BY YOU TO BRAINSHARK FOR USE OF THE WEBSITES, OR OTHER AMOUNTS ACTUALLY PAID BY YOU PROCURING PRESENTATIONS USING THE WEBSITES IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVEN RISE TO SUCH LIABILITY.
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Termination of Use of Websites.
You may terminate your use of the Websites at any time by terminating any agreements, if applicable, between you and Brainshark associated with your use of the Websites and/or discontinuing your access of the Websites and destroying your access credentials (e.g., logon ID, password). No liabilities (including but not limited to refunds or credits for any fees paid for premium services) will be incurred by Brainshark if you terminate your use of the Websites.
Brainshark may terminate your account with immediate effect for breach of any term or condition of these Terms of Use, or may generally discontinue the availability of the Websites, without notice to you and without any liability to you.
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Notice of Copyright Infringement.
If you believe in good faith that (i) a Presentation or other content or material on the Websites infringes your copyrights, or (ii) any such notice of infringement was made falsely or mistakenly against your Presentation or other content or material on the Websites, you may provide notice to Brainshark's Designated Agent for Notice of Infringement identified below. Brainshark, Inc.
Attention: Brainshark, Product Director
130 Turner Street
Building 1, Suite 100
Waltham, MA 02453.
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Interpretation, Execution and Modification.
Nothing contained herein shall be construed as creating any agency, partnership, or other form of joint enterprise between the parties. The parties agree that the subject matter of these Terms of Use will be governed by the laws of the Commonwealth of Massachusetts and, to the extent applicable, the federal laws of the United States. No failure of either party to exercise or enforce any of its rights under these Terms of Use will act as a waiver of such rights. If any provision of these Terms of Use is found invalid or unenforceable, that provision will be enforced to the maximum extent permissible, and the other provisions will remain in force. These Terms of Use may be modified by Brainshark at any time without notice.