End User License Agreement

AGREEMENT BETWEEN YOU AND MOBIUS LEARNING

Last Updated Date: May 25th, 2018

PLEASE READ THIS TERMS OF USE AGREEMENT (THE “TERMS”) CAREFULLY. BY ACCESSING OR USING THIS WEBSITE OR ANY OTHER WEBSITES OF MOBIUS LEARNING (COLLECTIVELY, THE “WEBSITE”) IN ANY WAY, INCLUDING USING THE SERVICES ENABLED VIA THE WEBSITE (THE “SERVICES”) BY MOBIUS LEARNING OR USERS OF THE SITE (“USERS”), CLICKING THE “I ACCEPT” CHECK BOX, OR MERELY BROWSING THE WEBSITE, YOU REPRESENT THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE TERMS. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS, YOU MAY NOT ACCESS OR USE THIS WEBSITE OR THE SERVICES.

THESE TERMS INCLUDE A CLASS ACTION WAIVER AND WAIVER OF JURY TRIALS, AND REQUIRE BINDING ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES.

The Services include, but are not limited to, a learning management system that entities (“ENTITIES”) may subscribe to and provide to their instructors and learners (“INSTRUCTORS” and “LEARNERS”) in connection with courses (each, a “COURSE”). Mobius Learning provides an account that enables a designated User to manage the Services, manage Learner and Instructor access to the Services, and provide general support on behalf of an Entity. “User” means any user of the Services, including Learners, and Instructors.

PLEASE NOTE THAT THE TERMS ARE SUBJECT TO CHANGE BY MOBIUS LEARNING IN ITS SOLE DISCRETION AT ANY TIME. When changes are made, Mobius Learning will make a new copy of the Terms available at the Website. We will also update the “Last Updated” date at the top of the Terms. If we make any material changes, and you have registered to use the Services, we will also send an e-mail to you at the last e-mail address you provided to us. Any changes to the Terms will be effective immediately for new Users of the Website or Services and will be effective thirty (30) days after posting of notice of such changes on the Website for existing User. Mobius Learning may require you to provide consent to the updated Terms in a specified manner before further use of the Website or the Services is permitted. If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using the Website and/or the Services. Otherwise, your continued use of the Website and/or the Services constitutes your acceptance of such change(s). PLEASE REGULARLY CHECK THE WEBSITE TO VIEW THE THEN-CURRENT TERMS.

1.   USE OF THE SERVICES AND MOBIUS LEARNING PRODUCTS. The Website, the Services, and the information and content made available (“CONTENT”) by Mobius Learning on the Website and in the Services (collectively, the “MOBIUS LEARNING PRODUCTS”) are protected by copyright laws throughout the world. Subject to the Terms, Mobius Learning grants you a limited license to reproduce portions of the Mobius Learning Products for the sole purpose of using the Services for your personal purposes or, in the event you are an Instructor, your educational purposes.

1.1 CERTAIN RESTRICTIONS. The rights granted to you in the Terms are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the Mobius Learning Products, (b) you shall not use framing techniques to enclose any trademark, logo, or other Mobius Learning Products; (c) you shall not use any metatags or other “hidden text” using Mobius Learning’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Mobius Learning Products except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices, or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools, or the like) to “scrape” or download data from any web pages contained in the Website; (f) except as expressly stated herein, no part of the Mobius Learning Products may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (g) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the Mobius Learning Products. Any future release, update or other addition to the Mobius Learning Products shall be subject to the Terms. Mobius Learning, its suppliers and service providers reserve all rights not granted in the Terms. Any unauthorized use of the Mobius Learning Products terminates the licenses granted by Mobius Learning pursuant to the Terms.

2.   REGISTRATION. In order to access certain features of the Mobius Learning Products you must create an account (“ACCOUNT”). Certain features are only available to Administrator or Instructor Accounts.

2.1 ADMINISTRA or INSTRUCTOR ACCOUNTS. If you an Administrator or Instructor, Mobius Learning will provide you with access to an Administrator or Instructor Account, provided that you (1) provide any necessary information about you and/or your school when registering the Account (“REGISTRATION DATA”) and (2) accept the Terms. Using your Administrator or Instructor Account. You will be responsible for any activities, including any violation of the Terms that occur under Student Accounts created using your Administrator or Instructor Account.

2.2 LEARNER ACCOUNTS. To create a Learner Account, you must (1) specify the number of learner accounts, (2) provide us changes to learner accounts, and (3) accept the Terms.

2.3 REGISTRATION DATA. In registering for the Services, you agree to (1) provide true, current, and complete Registration Data; and (2) maintain and promptly update the Registration Data to keep it true, current, and complete. You are responsible for all activities that occur under your Account. You may not share your Account or password with anyone, and you agree to notify Mobius Learning immediately of any unauthorized use of your password or any other breach of security. You agree not to create or access an Account using a false identity or information, or on behalf of someone other than yourself. You agree that you shall not have more than one Account at any given time. You agree not to create an Account or use the Mobius Learning Products if you have been previously removed by Mobius Learning, or if you have been previously banned from any of the Mobius Learning Products.

2.4 NECESSARY EQUIPMENT AND SOFTWARE. You must provide all equipment and software necessary to connect to the Mobius Learning Products, including but not limited to, a mobile device that is suitable to connect with and use the Application. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing the Mobius Learning Products.

3.   PAYMENT TERMS. Customer shall provide Mobius Learning a Purchase Order for a Learning Management System and the necessary information to develop the site. Payment is due upon acceptance of P.O. by Mobius Learning (preferably within 30 days). Mobius Learning may provide you, via email, notice of non-payment and a request for immediate payment. If such non-payment is not remedied within seven (7) days after receiving such notice of non-payment, Mobius Learning may terminate your access to the applicable Learning Management System.

4.   RESPONSIBILITY FOR CONTENT.

4.1 TYPES OF CONTENT. You acknowledge that all Content, including the Mobius Learning Products, is the sole responsibility of the party from whom such Content originated. This means that you, and not Mobius Learning, are entirely responsible for all Content that you upload, post, e-mail, transmit or otherwise make available (“MAKE AVAILABLE”) through the Mobius Learning Products (“YOUR CONTENT”). Other Users of the Mobius Learning Products, and not Mobius Learning, are similarly responsible for all Content such other Users Make Available through the Mobius Learning Products (“USER CONTENT”).

4.2 NO OBLIGATION TO PRE-SCREEN CONTENT. You acknowledge that Mobius Learning has no obligation to pre-screen Content (including, but not limited to, Your Content and User Content), although Mobius Learning reserves the right in its sole discretion to pre-screen, refuse, or remove any Content that (1) violates any law or regulation, (2) violates these Terms, including the User Code of Conduct set forth in Section 5.4 hereof, and/or (3) otherwise creates liability for Mobius Learning.

5.   OWNERSHIP.

5.1 MOBIUS LEARNING PRODUCTS. Except with respect to Your Content and User Content, you agree that Mobius Learning and its suppliers own all rights, title and interest in the Mobius Learning Products. Mobius Learning’s name and other related graphics, logos, service marks and trade names used on or in connection with the Mobius Learning Products are the trademarks of Mobius Learning and may not be used without permission in connection with any third-party products or services. Other trademarks, service marks and trade names that may appear on or in the Mobius Learning Products are the property of their respective owners.

5.2 YOUR CONTENT. Except with respect to Your Content, you agree that you have no right or title in or to any Content that appears on or in the Mobius Learning Products. Mobius Learning does not claim ownership of Your Content. However, you grant Mobius Learning a fully paid, royalty-free, perpetual, irrevocable, worldwide, royalty-free, non-exclusive and fully sub-licensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, publicly perform, and publicly display, Your Content (in whole or in part) for the purposes of operating and providing the Mobius Learning Products to you and to our other Users. When you as a User post or publish Your Content on or in the Mobius Learning Products, you represent that you have the authority to grant the aforementioned license to Mobius Learning. Please remember that other Users may search for, see, use, modify, and reproduce any of Your Content that you submit to any area of the Mobius Learning Products that is generally available to all Users. You warrant that the holder of any worldwide intellectual property right, including moral rights, in Your Content, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above.

5.3 YOUR ACCOUNT. Notwithstanding anything contained herein to the contrary, by submitting Your Content to any forums, comments or any other area on or in the Mobius Learning Products, you hereby expressly permit Mobius Learning to identify you by your username as the contributor of Your Content in any publication in any form, media, or technology now known or later developed in connection with Your Content.

5.4 USER CODE OF CONDUCT. As a condition of use, you agree not to use the Mobius Learning Products for any purpose that is prohibited by the Terms or by applicable law. Do not post, or permit others to post, content on the Mobius Learning Products or on your profile that (i) encourages illegal activities, is fraudulent, or is unlawful; (ii) insults, defames, harasses, or threatens others; (iii) violates the copyright or intellectual property or privacy rights of others; (iv) contains obscene, vulgar, pornographic, or libelous material; (v) harms or impersonates others, including other Users; or (vi) advertises or sells a product or service. Do not reproduce content from your Course or other Learners unless allowed by the express copyright terms laid out by the Instructor (e.g. Creative Commons). Do not share the solutions to assignments with others unless this is expressly authorized by the Instructor. Do not submit the work of others as your own work. Respect the privacy of other Users. Respect the diversity of opinions and cultures that will be presented by other Users. Do not attempt or engage in, any potentially harmful acts that are directed against the Mobius Learning Products, including but not limited to violating or attempting to violate any security features of the Mobius Learning Products, introducing viruses, worms, or similar harmful code into the Mobius Learning Products, or interfering or attempting to interfere with use of the Mobius Learning Products by any other user, host or network, including by means of overloading, “flooding,” “spamming,” “mail bombing,” or “crashing” the Mobius Learning Products. If you believe that someone has violated this code of conduct, begin by notifying the Instructor of the Course. If the issue is not addressed by the Instructor to your satisfaction, contact conduct@canvas.net with your concerns.

5.5 FEEDBACK. You agree that submission of any ideas, suggestions, documents, and/or proposals to Mobius Learning through its suggestion, feedback, wiki, forum or similar pages (“FEEDBACK”) is at your own risk and that Mobius Learning has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Mobius Learning a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sub-licensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the Mobius Learning Products.

6.   INVESTIGATIONS. Mobius Learning may, but is not obligated to, monitor or review the Mobius Learning Products and Content at any time. Without limiting the foregoing, Mobius Learning shall have the right, in its sole discretion, to remove any of Your Content for any reason (or no reason), including if such Content violates the Terms or any applicable law. Although Mobius Learning does not generally monitor user activity occurring in connection with the Mobius Learning Products, if Mobius Learning becomes aware of any possible violations by you of any provision of the Terms, Mobius Learning reserves the right to investigate such violations, and Mobius Learning may, at its sole discretion, terminate your license to use the Mobius Learning Products, or change, alter or remove Your Content, in whole or in part.

7.   INTERACTIONS WITH OTHER USERS.

7.1 USER RESPONSIBILITY. You are solely responsible for your interactions with other Users of the Services and any other parties with whom you interact through the Services; provided, however, that Mobius Learning reserves the right, but has no obligation, to intercede in disputes among Users. You agree that Mobius Learning will not be responsible for any liabilities incurred as the result of such interaction.

7.2 CONTENT PROVIDED BY OTHER USERS. The Mobius Learning Products may contain User Content provided by other Users. Mobius Learning is not responsible for and does not control User Content. Mobius Learning has no obligation to review or monitor, and does not approve, endorse or make any representations or warranties with respect to User Content. You use all User Content and interact with other Users at your own risk.

8.   THIRD-PARTY WEBSITES.

8.1 THIRD-PARTY WEBSITES. The Mobius Learning Products may contain links to third-party websites (“THIRD-PARTY WEBSITES”). When you click on a link to a Third-Party Website, we will not warn you that you have left the Mobius Learning Products and are subject to separate terms and conditions or privacy policies. Such Third-Party Websites are not under the control of Mobius Learning. Mobius Learning is not responsible for any Third-Party Websites and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites, or their products or services. You use all links in Third-Party Websites at your own risk. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Websites, and should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third-party.

8.2 APP STORES. You acknowledge and agree that the availability of the Application and the Services is dependent on the third-party from which you received the Application, e.g., the Apple or Android app stores.

9.   INDEMNIFICATION. You agree to indemnify, defend, and hold Mobius Learning, its parents, subsidiaries, affiliates, officers, employees, agents, partners and licensors (collectively the “MOBIUS LEARNING PARTIES”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of: (a) Your Content; (b) your use of, or inability to use, the Mobius Learning Products; (c) your violation of the Terms; (d) your violation of any rights of another party, including any User; or (e) your violation of any applicable laws, rules or regulations. Mobius Learning reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Mobius Learning in asserting any available defenses. You agree that the provisions in this section will survive any termination of your Account, the Terms, or your access to the Mobius Learning Products.

10. DISCLAIMER OF WARRANTIES. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE MOBIUS LEARNING PRODUCTS IS AT YOUR SOLE RISK, AND THE MOBIUS LEARNING PRODUCTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. MOBIUS LEARNING PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. MOBIUS LEARNING PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE MOBIUS LEARNING PRODUCTS WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF THE MOBIUS LEARNING PRODUCTS WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE MOBIUS LEARNING PRODUCTS WILL BE ACCURATE OR RELIABLE; OR (4) ANY ERRORS IN THE MOBIUS LEARNING PRODUCTS WILL BE CORRECTED. ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH THE MOBIUS LEARNING PRODUCTS IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY OR PERSON, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS THE MOBIUS LEARNING PRODUCTS, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT. THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. MOBIUS LEARNING MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO THE SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF THE SERVICES. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM MOBIUS LEARNING OR THROUGH THE MOBIUS LEARNING PRODUCTS WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.

11. LIMITATION OF LIABILITY.

11.1 DISCLAIMER OF CERTAIN DAMAGES. YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL MOBIUS LEARNING PARTIES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE MOBIUS LEARNING PRODUCTS, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES RESULTING FROM LOSS OF USE, DATA, OR PROFITS, WHETHER OR NOT MOBIUS LEARNING HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THE TERMS, OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE MOBIUS LEARNING PRODUCTS, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO USE THE MOBIUS LEARNING PRODUCTS; (2) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH THE MOBIUS LEARNING PRODUCTS; (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (4) STATEMENTS OR CONDUCT OF ANY THIRD-PARTY ON MOBIUS LEARNING PRODUCTS; OR (5) ANY OTHER MATTER RELATED TO THE MOBIUS LEARNING PRODUCTS, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY.

11.2 CAP ON LIABILITY. UNDER NO CIRCUMSTANCES WILL MOBIUS LEARNING PARTIES BE LIABLE TO YOU FOR MORE THAN FIFTY DOLLARS ($50).

11.3 USER CONTENT. MOBIUS LEARNING PARTIES ASSUME NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT (INCLUDING, BUT NOT LIMITED TO, YOUR CONTENT AND USER CONTENT), USER COMMUNICATIONS OR PERSONALIZATION SETTINGS.

11.4 NO LIABILITY FOR CONDUCT OF THIRD PARTIES OR OTHER USERS. YOU ACKNOWLEDGE AND AGREE THAT MOBIUS LEARNING PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD MOBIUS LEARNING PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE MOBIUS LEARNING PRODUCTS. YOU UNDERSTAND THAT MOBIUS LEARNING DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE MOBIUS LEARNING PRODUCTS.

11.5 BASIS OF THE BARGAIN. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN MOBIUS LEARNING AND YOU.

12. PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT. It is Mobius Learning’s policy to terminate membership privileges of any User who repeatedly infringes copyright upon prompt notification to Mobius Learning by the copyright owner or the copyright owner’s legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on the Mobius Learning Products in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (1) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (2) a description of the copyrighted work that you claim has been infringed; (3) a description of the location on the Mobius Learning Products of the material that you claim is infringing; (4) your address, telephone number and e-mail address; (5) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; (6) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. Contact information for Mobius Learning’s Copyright Agent for notice of claims of copyright infringement is as follows: Edward J Cross, 1550 N. Meridian St., Suite 101, Carmel, IN 46032, ed.cross@mobiuslearning.com.

13. TERM AND TERMINATION.

13.1 TERM. The Terms commence on the date when you accept them (as described in the preamble above) and remain in full force and effect while you use the Mobius Learning Products, unless terminated earlier in accordance with the Terms.

13.2 TERMINATION OF SERVICES BY MOBIUS LEARNING. If you have breached any provision of the Terms, or if Mobius Learning is required to do so by law (e.g., where the provision of the Website, the Application, or the Services is, or becomes, unlawful), Mobius Learning has the right to suspend or terminate any Services provided to you or to delete any of Your Content. You agree that all terminations for cause shall be made in Mobius Learning’s sole discretion and that Mobius Learning shall not be liable to you or any third-party for any termination of your Account. Termination of any Service includes removal of access to such Service and barring of further use of the Service. Termination of all Services also may include deletion of your password and all related information, files and Content associated with or inside your Account (or any part thereof), including Your Content. Upon termination of any Service, your right to use such Service will automatically terminate immediately. Mobius Learning will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Content. All provisions of the Terms which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.

14. GENERAL PROVISIONS.

14.1 ELECTRONIC COMMUNICATIONS. The communications between you and Mobius Learning use electronic means, whether you visit the Mobius Learning Products or send Mobius Learning e-mails, or whether Mobius Learning posts notices on the Mobius Learning Products or communicates with you via e-mail. For contractual purposes, you (1) consent to receive communications from Mobius Learning in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Mobius Learning provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect any statutory rights you may have.

14.2 RELEASE. You hereby release Mobius Learning Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from any interactions with or conduct of other Website Users or third-party websites of any kind arising in connection with or as a result of the Terms or your use of the Mobius Learning Products. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.”

14.3 ASSIGNMENT. The Terms, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated, or otherwise transferred by you without Mobius Learning’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. Mobius Learning may assign its rights and obligations under these Terms to a third party without your consent.

14.4 FORCE MAJEURE. Mobius Learning shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.

14.5 COMPLIANCE. If you believe that Mobius Learning has not adhered to the Terms, please contact Mobius Learning by emailing us at ed.cross@mobiuslLearning.com. We will do our best to address your concerns. If you feel that your complaint has been addressed incompletely, we invite you to let us know for further investigation.

14.6 ARBITRATION AGREEMENT; CLASS WAIVER; WAIVER OF TRIAL BY JURY.

Please read this Arbitration Agreement carefully. It is part of your contract with Mobius Learning and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.

(a)   Applicability of Arbitration Agreement. All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with the Terms or the use of any product or service provided by Mobius Learning that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement. This Arbitration Agreement applies to you and Mobius Learning, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under the Terms.

(b) Notice Requirement and Informal Dispute Resolution. Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief. A Notice to Mobius Learning should be sent to: Attn: Mobius Learning, 11550 N. Meridian St., Suite 180, Carmel, IN (U.S.A.) 46032. After the Notice is received, you and Mobius Learning may attempt to resolve the claim or dispute informally. If you and Mobius Learning do not resolve the claim or dispute within 30 days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.

(c)  Arbitration Rules. Arbitration shall be initiated through the American Arbitration Association (“AAA”), an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section. If AAA is not available to arbitrate, the parties shall agree to select an alternative ADR Provider. The rules of the ADR Provider shall govern all aspects of this arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with the Terms. The AAA Consumer Arbitration Rules governing the arbitration are available online at www.adr.org or by calling the AAA at 1-800-778-7879. The arbitration shall be conducted by a single, neutral arbitrator. Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules. Any hearing will be held in a location within 100 miles of your residence, unless you reside outside of the United States, and unless the parties agree otherwise. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Each party shall bear its own costs (including attorney’s fees) and disbursements arising out of the arbitration, and shall pay an equal share of the fees and costs of the ADR Provider.

(d) Additional Rules for Non-appearance Based Arbitration: If non-appearance arbitration is elected, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties.

(e)  Time Limits. If you or Mobius Learning pursues arbitration, the arbitration action must be initiated and/or demanded within the statute of limitations (i.e., the legal deadline for filing a claim) and within any deadline imposed under the AAA Rules for the pertinent claim.

(f)  Authority of Arbitrator. If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of you and Mobius Learning, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the AAA Rules, and the Terms. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and Mobius Learning.

(g)  Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in court and are subject to very limited review by a court. In the event any litigation should arise between you and Mobius Learning in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND MOBIUS LEARNING WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.

(h) Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.

(i)  Confidentiality. All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, shall be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law. This Paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce this Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.

(j)  Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Agreement shall continue in full force and effect.

(k) Right to Waive. Any or all of the rights and limitations set forth in this Agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or affect any other portion of this Agreement.

(l)  Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Mobius Learning.

(m) Small Claims Court. Notwithstanding the foregoing, either you or Mobius Learning may bring an individual action in small claims court.

(n) Emergency Equitable Relief. Notwithstanding the foregoing, either party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.

(o) Claims Not Subject To Arbitration. Notwithstanding the foregoing, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret shall not be subject to this arbitration agreement.

(p) Courts. In any circumstances where the foregoing Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located within Salt Lake County, Indiana, for such purpose.

14.7 GOVERNING LAW. The Terms and any action related thereto will be governed and interpreted by and under the laws of the State of Indiana, consistent with the Federal Arbitration Act, without giving effect to any conflicts of law principles that provide for the application of the law of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.

14.8 NOTICE. Where Mobius Learning requires that you provide an e-mail address to access certain features of the Mobius Learning Products, you are responsible for providing Mobius Learning with your most current e-mail address. In the event that the last e-mail address you provided to Mobius Learning is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Terms, Mobius Learning’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Mobius Learning at the following address: Attn: Mobius Learning, 11550 N. Meridian St., Suite 180, Carmel, IN (U.S.A.) 46032. Such notice shall be deemed given when received by Mobius Learning by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.

14.9 WAIVER. Any waiver or failure by Mobius Learning to enforce any provision of the Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

14.10 SEVERABILITY. If any provision of the Terms is, for any reason, held to be invalid or unenforceable, the other provisions of the Terms will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.

14.11 ENTIRE AGREEMENT. The Terms are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.

 

Company Information         Möbius Learning (dba)

                                                Cooperative Ventures of Indiana Corp

                                                11550 N. Meridian St., Suite 101

                                                Carmel, IN 46032

                                                Telephone (317) 564-4695, Fax (317) 564-4696

 

Privacy Policy

Welcome, and thank you for your interest in Mobius Learning (“Mobius”, “we,” or “us”), our web site http://mobiuslearning.com (the “Site”), and all related web sites, downloadable software, mobile applications (including tablet applications), and other services provided by Mobius Learning and on which a link to this Privacy Policy is displayed, and all other communications with individuals though from written or oral means, such as email or phone (collectively, together with the Site, our “Service”).

This Privacy Policy (“Policy”) describes the information that we gather on or through the Service, how we use and disclose such information, and the steps we take to protect such information. By visiting the Site, or by purchasing or using the Service, you accept the privacy practices described in this Policy.

This Policy is incorporated into, and is subject to, the Mobius Terms of Service. Capitalized terms used but not defined in this Policy have the meaning given to them in the Mobius Terms of Service.

Definitions

“Client” means a customer of Mobius.

“Client Data“ means personal data, reports, addresses, and other files, folders or documents in electronic form that a User of the Service stores within the Service.

“Personal Data” means any information relating to an identified or identifiable natural person.

“Public Area” means the area of the Site that can be accessed both by Users and Visitors, without needing to log in.

“Restricted Area” means the area of the Site that can be accessed only by Users, and where access requires logging in.

“User” means an employee, agent, or representative of a Client, who primarily uses the restricted areas of the Site for the purpose of accessing the Service in such capacity.

“Visitor” means an individual other than a User, who uses the public area, but has no access to the restricted areas of the Site or Service.

2. The Information Mobius Learning Collects on the Service:

Mobius Learning Collects different types of information from or through the Service. The legal bases for Mobius Learning’s processing of personal data is primarily that the processing is necessary for providing the Service in accordance with Mobius Learning’s Terms of Service and that the processing is carried out in Mobius Learning’s legitimate interests, which are further explained in the section “How We Use the Information We Collect” of this Policy. We may also process data upon your consent, asking for it as appropriate.

2.1 User-provided Information. When you use the Service, as a User or as a Visitor, you may provide, and Mobius Learning may collect Personal Data. Examples of Personal Data include name, email address, mailing address, mobile phone number, and credit card or other billing information. Personal Data also includes other information, such as geographic area or preferences, when any such information is linked to information that identifies a specific individual. You may provide Mobius Learning with Personal Data in various ways on the Service. For example, when you register for an Account, use the Service, post Client Data, interact with other users of the Service through communication or messaging capabilities, or send Mobius Learning customer service -related requests.

2.2 Information Collected by Clients. A Client or User may store or upload into the Service Client Data. Mobius Learning has no direct relationship with the individuals whose Personal Data it hosts as part of Client Data. Each Client is responsible for providing notice to its customers and third persons concerning the purpose for which Client collects their Personal Data and how this Personal Data is processed in or through the Service as part of Client Data.

2.3 “Automatically Collected" Information. When a User or Visitor uses the Service, we may automatically record certain information from the User’s or Visitor’s device by using various types of technology, including cookies, “clear gifs" or “web beacons.” This “automatically collected" information may include IP address or other device address or ID, web browser and/or device type, the web pages or sites visited just before or just after using the Service, the pages or other content the User or Visitor views or interacts with on the Service, and the dates and times of the visit, access, or use of the Service. Mobius Learning also may use these technologies to collect information regarding a Visitor or User’s interaction with email messages, such as whether the Visitor or User opens, clicks on, or forwards a message. This information is gathered from all Users and Visitors.

2.4 Integrated Services. You may be given the option to access or register for the Service through the use of your user name and passwords for certain services provided by third parties (each, an “Integrated Service”), such as through the use of your Google account, or otherwise have the option to authorize an Integrated Service to provide Personal Data or other information to Mobius Learning. By authorizing Mobius Learning to connect with an Integrated Service, you authorize Mobius Learning to access and store your name, email address(es), profile picture URL, and other information that the Integrated Service makes available to Mobius Learning, and to use and disclose it in accordance with this Policy. You should check your privacy settings on each Integrated Service to understand what information that Integrated Service makes available to Mobius Learning, and make changes as appropriate. Please review each Integrated Service’s terms of use and privacy policies carefully before using their services and connecting to our Service.

2.5 Information from Other Sources. We may obtain information, including Personal Data, from third parties and sources other than the Service, such as our partners, advertisers, credit rating agencies, and Integrated Services. If we combine or associate information from other sources with Personal Data that we collect through the Service, we will treat the combined information as Personal Data in accordance with this Policy.

3. How Mobius Learning Uses the Information We Collect

Mobius Learning uses the information that we collect in a variety of ways in providing the Service and operating our business, including the following:

3.1 Operations

Mobius Learning uses the information – other than Client Data - to operate, maintain, enhance and provide all features of the Service, to provide the services and information that you request, to respond to comments and questions and to provide support to users of the Service. We process Client Data solely in accordance with the directions provided by the applicable Client or User.

3.2 Improvements

Mobius Learning uses the information to understand and analyze the usage trends and preferences of our Visitors and Users, to improve the Service, and to develop new products, services, feature, and functionality. Should this purpose require Mobius to process Client Data, then the data will only be used in anonymized or aggregated form.

3.3 Communications

Mobius Learning may use a Visitor’s or User’s email address or other information – other than Client Data – to contact that Visitor or User (i) for administrative purposes such as customer service, to address intellectual property infringement, right of privacy violations or defamation issues related to the Client Data or Personal Data posted on the Service. You have the ability to opt-out of receiving any promotional communications as described below under “Your Choices.”

3.4 Cookies and Tracking Technologies

Mobius Learning uses automatically collected information and other information collected on the Service through cookies and similar technologies to: (i) personalize our Service, such as remembering a User’s or Visitor’s information so that the User or Visitor will not have to re-enter it during a visit or on subsequent visits; (ii) provide customized advertisements, content, and information; (iii) monitor and analyze the effectiveness of Service and third-party marketing activities; (iv) monitor aggregate site usage metrics such as total number of visitors and pages viewed; and (v) track your entries, submissions, and status in any promotions or other activities on the Service. You can obtain more information about cookies by visiting http://www.allaboutcookies.org.

3.5 Analytics

Mobius Learning uses Google Analytics to measure and evaluate access to and traffic on the Public Area of the Site and create user navigation reports for our Site administrators. Google operates independently from us and has its own privacy policy, which we strongly suggest you review. Google may use the information collected through Google Analytics to evaluate Users' and Visitors’ activity on our Site. For more information, see Google Analytics Privacy and Data Sharing.

We take measures to protect the technical information collected by our use of Google Analytics. The data collected will only be used on a need to know basis to resolve technical issues, administer the Site and identify visitor preferences; but in this case, the data will be in non-identifiable form. We do not use any of this information to identify Visitors or Users.

4. To Whom Mobius Learning Discloses Information

Except as described in this Policy, we will not intentionally disclose the Personal Data or Client Data that we collect or store on the Service to third parties without the consent of the applicable Visitor, User or Client. We may disclose information to third parties if you consent to us doing so, as well as in the following circumstances:

4.1 Unrestricted Information

Mobius Learning is not responsible for any unrestricted information you choose to disclose voluntarily in a Public Area of the Service.

4.2 Service Providers

Mobius Learning works with third party service providers who provide website, application development, hosting, maintenance, and other services for us. These third parties may have access to, or process Personal Data or Client Data as part of providing those services for us. We limit the information provided to these service providers to that which is reasonably necessary for them to perform their functions, and our contracts with them require them to maintain the confidentiality of such information.

4.3 Non-Personally Identifiable Information

Mobius Learning may make certain automatically-collected, aggregated, or otherwise non-personally-identifiable information available to third parties for various purposes, including (i) compliance with various reporting obligations; (ii) for business or marketing purposes; or (iii) to assist such parties in understanding our Clients’, Users’ and Visitors’ interests, habits, and usage patterns for certain programs, content, services, and/or functionality available through the Service.

4.4 Law Enforcement, Legal Process and Compliance

Mobius Learning may disclose Personal Data or other information if required to do so by law or in the good-faith belief that such action is necessary to comply with applicable laws, in response to a facially valid court order, judicial or other government subpoena or warrant, or to otherwise cooperate with law enforcement or other governmental agencies.

We also reserve the right to disclose Personal Data or other information that we believe, in good faith, is appropriate or necessary to (i) take precautions against liability, (ii) protect ourselves or others from fraudulent, abusive, or unlawful uses or activity, (iii) investigate and defend ourselves against any third-party claims or allegations, (iv) protect the security or integrity of the Service and any facilities or equipment used to make the Service available, or (v) protect our property or other legal rights, enforce our contracts, or protect the rights, property, or safety of others.

4.5 Change of Ownership

Information about Users and Visitors, including Personal Data, may be disclosed and otherwise transferred to an acquirer, successor or assignee as part of any merger, acquisition, debt financing, sale of assets, or similar transaction, as well as in the event of an insolvency, bankruptcy, or receivership in which information is transferred to one or more third parties as one of our business assets and only if the recipient of the User or Visitor Data commits to a Privacy Policy that has terms substantially consistent with this Privacy Policy.

Client Data may be physically or electronically transferred to an acquirer, or successor or assignee as part of any merger, acquisition, debt financing, sale of assets, or similar transaction, as well as in the event of an insolvency, bankruptcy, or receivership in which information is transferred to one or more third parties as one of our business assets, for the sole purpose of continuing the operation of the Service, and only if the recipient of the Client Data commits to a Privacy Policy that has terms substantially consistent with this Privacy Policy.

5. Your Choices

5.1 Access, Correction, Deletion

Mobius Learning respects your privacy rights and provide you with reasonable access to the Personal Data that you may have provided through your use of the Services. If you wish to access or amend any other Personal Data we hold about you, or to request that we delete or transfer any information about you that we have obtained from an Integrated Service, you may contact us as set forth in the “How to Contact Us” section. At your request, we will have any reference to you deleted or blocked in our database.

You may update, correct, or delete your Account information and preferences at any time by accessing your Account settings page on the Service. Please note that while any changes you make will be reflected in active user databases instantly or within a reasonable period of time, we may retain all information you submit for backups, archiving, prevention of fraud and abuse, analytics, satisfaction of legal obligations, or where we otherwise reasonably believe that we have a legitimate reason to do so.

You may decline to share certain Personal Data with us, in which case we may not be able to provide to you some of the features and functionality of the Service.

At any time, you may object to the processing of your Personal Data, on legitimate grounds, except if otherwise permitted by applicable law. If you believe your right to privacy granted by applicable data protection laws has been infringed upon, please contact Mobius’s Data Protection Officer at it@mobiuslearning.com You also have a right to lodge a complaint with data protection authorities.

This provision does not apply to Personal Data that is part of Client Data. In this case, the management of the Client Data is subject to the Client’s own Privacy Policy, and any request for access, correction or deletion should be made to the Client responsible for the uploading and storage of such data into the Service.

5.2 Navigation Information

You may opt out from the collection of navigation information about your visit to the Site by Google Analytics by using the Google Analytics Opt-out feature.

5.3 Opting out from Commercial Communications

If you receive commercial emails from Mobius Learning, you may unsubscribe at any time by following the instructions contained within the email or by sending an email to the address provided in the “How to Contact Us” section.

Users are able to view and modify settings relating to the nature and frequency of promotional communications that they receive from us by accessing the “Account functionality” tab on the Service.

Please be aware that if you opt-out of receiving commercial email from us or otherwise modify the nature or frequency of promotional communications you receive from us, it may take up to ten (10) business days for us to process your request. Additionally, even after you opt-out from receiving commercial messages from us, you will continue to receive administrative messages from us regarding the Service.

Mobius has no direct relationship with the Client’s customers or third party whose Personal Data it may process on behalf of a Client. An individual who seeks access, or who seeks to correct, amend, delete inaccurate data or withdraw consent for further contact should direct his or her query to the Client or User they deal with directly. If the Client requests Mobius to remove the data, we will respond to its request within thirty (30) days. We will delete, amend or block access to any Personal Data that we are storing only if we receive a written request to do so from the Client who is responsible for such Personal Data, unless we have a legal right to retain such Personal Data. We reserve the right to retain a copy of such data for archiving purposes, or to defend our rights in litigation. Any such request regarding Client Data should be addressed as indicated in the “How to Contact Us” section and include sufficient information for Mobius to identify the Client or its customer or third party and the information to delete or amend.

6. Third-Party Services

The Service may contain features or links to web sites and services provided by third parties. Any information you provide on third-party sites or services is provided directly to the operators of such services and is subject to those operators’ policies, if any, governing privacy and security, even if accessed through the Service. We are not responsible for the content or privacy and security practices and policies of third-party sites or services to which links or access are provided through the Service. We encourage you to learn about third parties’ privacy and security policies before providing them with information.

7. Your California Privacy Rights

Mobius Learning will not share any Personal Data with third-parties for their direct marketing purposes to the extent prohibited by California law. If our practices change, we will do so in accordance with applicable laws and will notify you in advance.