Last updated November 1, 2016
As used herein, the term, "you" and "your" refers to the individual or entity that is using the Services, as defined below, and "we" and "our" refers to Articulate Global, Inc. (also referred to as "Articulate"). These Articulate 360 General Terms of Service (these "Terms") govern your use of our services such as Articulate 360, which includes the Articulate-proprietary software and third party licensed software that powers our services, and any related software applications, as well as any Content Files (defined below), and any related user documentation (collectively the "Services"). By using the Services, you agree to these Terms. As discussed more in Section 3 below, you retain all rights and ownership you have in your content that you make available through the Services.
1. How this Agreement Works.
- 1.1. Choice of Law. These Terms, and our provision and your use of the Services are governed by the laws of New York, U.S.A. You may have additional rights under mandatory law. We do not seek to limit those rights to the extent prohibited by law.
- 1.2. Eligibility. You may only use the Services if you are (a) over 18 years old and (b) allowed by law to enter into a binding contract.
- 1.4. Availability. Services descriptions may be accessible worldwide but for clarity, this does not mean all Services or service features are accessible in all languages or all areas, or that user-generated content available via the Services is legally compliant in all areas. It is your responsibility to make sure your use of the Services is available and legally compliant in your area.
2. Use of Service.
- 2.1. Articulate ID. You need to sign up for an Articulate user account by providing all required information in order to access or use Services and by selecting a unique user credential (the "Articulate ID"). If you represent an organization and wish to use the Services for your organization’s use, we recommend that you, and all other users from your organization, create Articulate IDs using your organization’s contact information. In particular, we recommend that you use your organization’s email address. You agree to: (i) provide true, accurate, current and complete information about yourself as prompted by the sign up process; and (ii) maintain and promptly update the information provided during sign up to keep it true, accurate, current, and complete; and (iii) not share your Articulate ID with any third party. If you provide any information that is untrue, inaccurate, outdated, or incomplete, or if Articulate has reasonable grounds to suspect that such information is untrue, inaccurate, outdated, or incomplete, Articulate may terminate your user account and refuse current or future use of any or all of the Services.
- 2.2. Activation. The Services may require you to take certain steps to activate your license or validate your subscription. If we determine that the Services have been used fraudulently or without authorization, we may reduce the functionality, operability, or availability of the Services, and/or suspend or terminate the license or subscription.
- 2.3. License. Subject to your compliance with these Terms and the law, we grant you a limited, personal, non-exclusive, non-transferable, non-sublicenseable, fee-bearing license to install and use the Services for your or your organization’s internal business purposes, so long as your applicable license and/or subscription is valid.
- 2.4. License Limitations You may activate the Services on up to two desktop devices and up to two mobile devices at a time (maximum four total activations), provided that these activations are associated with the same Articulate ID. However, the Services may not be used simultaneously on these devices.
- 2.5. Restrictions. We (and our licensors) remain the sole owner of all right, title, and interest in the Services. We reserve all rights not granted under these Terms. Without limiting the generality of the foregoing, unless permitted in these Terms, you must not (and must not permit any third party to):
- a. modify, port, adapt, or translate any software or other intellectual property elements underlying the Services;
- b. reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code of any software or other intellectual property elements underlying the Services. (If however, directly applicable law prohibits enforcement of the foregoing, you may engage in reverse engineering solely for purposes of obtaining such information as is necessary to achieve interoperability of independently created software with the Services, or as otherwise and to the limited extent permitted by directly applicable law, but only if: (a) such reverse engineering is strictly necessary to obtain such information; and (b) you have first requested such information from Articulate and Articulate failed to make such information available (for a fee or otherwise) under reasonable terms and conditions. Any information supplied to or obtained by you under this section is the confidential and proprietary information of Articulate, may be used by you only for the purpose described in this section, and will not be disclosed to any third party or used to create any software which is substantially similar to the expression of the software underlying the Services);
- c. use or offer the Services on a service bureau basis;
- d. host or stream the Services or allow access to the Services;
- e. circumvent technological measures intended to control access to the Services or develop, distribute, or use with the Services, products that circumvent the technological measures;
- f. rent, lease, sell, sublicense, assign, or transfer your rights in the Services, or authorize any portion of the Services to be copied onto another’s device. If you license the multi-user Services commonly referred to as “Articulate 360 Teams” (or such other product or service name that Articulate may designate from time to time) (for such purposes, “Articulat 360 Teams”), then the Articulate 360 Teams administrator may designate Articulate 360 Teams seats pursuant to the applicable documentation for Articulate 360 Teams. In addition, should an Articulate 360 Teams user no longer require use of Articulate 360 Teams, the administrator may reassign such usage rights to a new Articulate 360 Teams user, so long as the maximum number of Articulate 360 Teams users (for whom licenses have been purchased) is not exceeded;
- g. make any copy of the any software or other intellectual property elements underlying the Services without preserving all copyright and other proprietary notices that appear on or in the Services or such software or other intellectual property elements;
- h. use Articulate’s name, logo, trademarks, service marks, or other branding elements without Articulate’s prior written consent on a case-by-case basis. Such consent, if granted, is subject to revocation by Articulate at any time. Any use of the foregoing shall be in compliance with Articulate's then-current trademark usage and branding guidelines.
- 2.6. Terms Applicable to Reviewers and/or Commenters. Any individual(s) whom you select to provide review and comment functions within Articulate Review need not be Articulate subscribers or customers for such purpose; however, each such reviewer will need an Articulate ID. You will be responsible for such reviewers’ acts and omissions with regard to their activities in connection with Articulate Review.
- 2.7. Updates. The Services may automatically download and install updates from time to time from Articulate. These updates may take the form of bug fixes, new features, or new versions. You agree to receive such updates from Articulate as part of your use of the Services, as applicable.
- 2.8. Third Party Software. The Services may contain third-party software, subject to additional terms and conditions, available at https://articulate.com/thirdparty
- 2.9. Notice to U.S. Government End Users. For U.S. Government procurements, Software is a commercial computer software as defined in FAR 12.212 and subject to restricted rights as defined in FAR Section 52.227-19 "Commercial Computer Software - Restricted Rights" and DFARS 227.7202, "Rights in Commercial Computer Software or Commercial Computer Software Documentation", as applicable, and any successor regulations. Any use, modification, reproduction release, performance, display, or disclosure of the Software by the U.S. Government must be in accordance with license rights and restrictions described in these Terms.
- 2.10. Storage When the Services provide storage, we recommend that you continue to back up your content regularly. We may create reasonable technical limits on your content, such as limits on file size, storage space, processing capacity, and other technical limits. We may suspend the Services until you are within the storage space limit associated with your account.
- 2.11. Content Files. "Content Files" means Articulate-provided files such as character images and illustrations, templates, interactions or other pre-built content as part of the Services. Unless the documentation or specific license associated with the Content Files states otherwise, you may use, display, modify, reproduce, and distribute any of the Content Files as part of the Services. However, you may not distribute the Content Files on a stand-alone basis.
- 2.12. Other License Types.
- (a) Pre-release Version. We may designate the Services as a pre-release or beta version ("Pre-release Version"). Pre-release Version does not represent the final product and may contain bugs that may cause system or other failure and data loss. We may choose not to commercially release the Pre-release Version. You must promptly cease using the Prerelease Version and destroy all copies of Pre-release Version if we request you to do so, or if we release a commercial version of the Pre-release Version. Any separate agreement we enter into with you governing the Pre-release Version will supersede the provisions on Pre-Release Version set out in this section. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PRERELEASE VERSIONS ARE PROVIDED BY ARTICULATE WITHOUT WARRANTY, SUPPORT, OR INDEMNIFICATION.
- (b) Academic Version. If we designate the Services as being for use by educational users ("Academic Version"), then you may only use the Academic Version if you meet the eligibility requirements provided for by Articulate. Articulate or its authorized resellers will determine if you meet the academic requirements.
- (c) Trial Licenses. Trial licenses are available under a one-time 30-day evaluation period. You agree to provide Articulate certain information as indicated on the trial download form. At the end of the trial period, and unless the trial is converted to a paid subscription, the Services will automatically terminate, and Articulate will delete any content that was uploaded to the Storage provided for as part of the trial. Articulate reserves the right to terminate your trial at its sole discretion. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TRIAL VERSIONS ARE PROVIDED BY ARTICULATE WITHOUT WARRANTY OR INDEMNIFICATION.
3. Your Content.
- 3.1. Ownership. You retain all rights and ownership of your content. We do not claim any ownership rights to your content.
- 3.2. Licenses to Your Content in Order to Operate the Services. We require certain licenses from you to your content to operate and enable the Services. When you upload content to the Services, you grant us a non-exclusive, worldwide, royalty-free, sub-licensable, and transferable license to access, use, reproduce, distribute, and translate the content as needed in response to user driven actions (such as when you choose to store privately or share your content with others) for the legal duration of protection of such rights. This license is granted for the purposes of: (a) providing, operating, or improving the Services; (b) responding to support requests; (c) detecting, preventing, or otherwise addressing fraud, security, unlawful, or technical issues; and (d) enforcing these Terms.
- 3.3. Sharing Your Content.
- (a) Sharing. Some Services may provide features that allow you to Share your content with other users or to make it public. "Share" means to email, post, transmit, upload, or otherwise make available (whether to us or other users) through your use of the Services. Other users may use, copy, modify, or re-share your content in many ways. Please consider carefully what you choose to Share or make public as you are entirely responsible for the content that you Share.
- (b) Level of Access. We do not monitor or control what others do with your content. You are responsible for determining the limitations that are placed on your content and for applying the appropriate level of access to your content. If you do not choose the access level to apply to your content, the system may default to its most permissive setting. It’s your responsibility to let other users know how your
- (c) Comments. The Services may allow you to comment on content. Comments are not anonymous, and may be viewed by other users. Your comments may be deleted by you, other users, or us.
- 3.4. Termination of License. You may revoke this license to your content and terminate our rights at any time by removing your content from the Service. However, some copies of your content may be retained as part of our routine backups.
- 3.5. Feedback. You have no obligation to provide us with ideas, suggestions, or proposals ("Feedback"). However, if you submit Feedback to us, then you grant us a nonexclusive, worldwide, royalty-free license, for the legal duration of protection of rights that is sublicensable and transferrable, to make, use, sell, have made, offer to sell, import, reproduce, publicly display, distribute, and modify the Feedback.
4. Account Information.
- You are responsible for all activity that occurs via your account. Please notify Articulate Customer Support or your authorized Articulate reseller immediately if you become aware of any unauthorized use of your account. You may not (a) share your account information (except with an authorized account administrator) or (b) use another person’s account. Your account administrator(s) may use your account information to manage your access to the Services.
5. User Conduct.
- 5.1. Responsible Use. The Articulate communities often consist of users who expect a certain degree of courtesy and professionalism. Articulate is committed to protecting Articulate’s employees, partners, customers, and users from illegal or damaging actions by individuals, either knowingly or unknowingly. Articulate’s platform and systems, including but not limited to computer equipment, software, operating systems, storage media, network accounts, websites, and file transfer sites are to be used for lawful and legitimate business purposes, in the course of normal operations. Supporting the above is a team effort involving the participation and support of all individuals and organizations that deal with the Services. The purpose of this section is to outline the acceptable use of the Services, and are designed to protect Articulate and all customers and users against risks, including virus attacks, compromise of network systems and services, and legal issues. Articulate does not guarantee that by all users complying with this section, all risks and potential liability will be eliminated. Risks come fro many different sources, and while Articulate has taken reasonable steps to ensure that the likelihood of risk is reduced, it cannot be completely eliminated.
- 5.2. Misuse. You agree that you will not (directly or indirectly, through a third party):
- (a) copy, modify, host, stream, sublicense, or resell the Services;
- (b) enable or allow others to use the Services using your account information;
- (c) access or attempt to access the Services by any means other than the interface we provided or authorized;
- (d) circumvent any access or use restrictions put into place to prevent certain uses of the Services;
- (e) share content or engage in behavior that violates anyone’s Intellectual Property Right ("Intellectual Property Rights" means copyright, moral rights, trademark, trade dress, patent, trade secret, unfair competition, right of privacy, right of publicity, and any other proprietary rights);
- (f) upload or share any content that is unlawful, harmful, threatening, abusive, tortious, defamatory, libelous, vulgar, lewd, profane, invasive of another’s privacy, or hateful;
- (g) impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;
- (h) attempt to disable, impair, or destroy the Services;
- (i) disrupt, interfere with, or inhibit any other user from using the Services (such as stalking, intimidating, or harassing others, inciting others to commit violence, or harming minors in any way),
- (j) engage in chain letters, junk mails, pyramid schemes, spamming, or other unsolicited messages;
- (k) place advertisement of any products or services in the Services;
- (l) use any data mining or similar data gathering and extraction methods in connection with the Services; or
- (m) violate applicable law.
6. Fees and Payment; Term and Renewal.
- 6.1. General. You agree to pay any and all applicable charges associated with your account, in advance, regardless of usage. For non-credit card-based transactions, payment is due within thirty (30) days following the date of Articulate’s invoice, and any amount not paid when due is subject to interest at a rate that is the lower of: (a) one percent (1%) per month or (b) the highest interest rate permissible under applicable law, and without limiting the generality of the foregoing, we reserve the right to suspend and/or terminate any order (and/or license, access, or other rights to the related Services) for which fees are not paid when due. No refunds or credits for subscription charges or other fees or payments will be provided to you if you elect to cancel or downgrade your Services plan or scope of license, access, or other rights with respect thereto.
- 6.2. Taxes and Third-Party Fees. You must pay any applicable taxes, and any applicable third-party fee (including, for example telephone toll charges, mobile carrier fees, ISP charges, data plan charges, credit card fees, foreign exchange fees). We are not responsible for these fees. If you are required to withhold sales, transaction, VAT, GST, or similar tax from any payment to Articulate under this Agreement, you will be entitled to withhold or deduct such tax from the gross amount to be paid. However, you will “gross up” the payments so that Articulate receives the amount actually quoted and invoiced, and you will use all endeavors to reduce any such withholding tax payable to the lowest possible rate subject to compliance with all applicable laws and double taxation treaties. We may take steps to collect the fees you owe us. You are responsible for all related collection costs and expenses.
- 6.3. Credit Card Information. You agree to keep your credit card and other billing information that is provided to Articulate up to date at all times. If you do not notify us of updates to your payment method, to avoid interruption of your service, we may participate in programs supported by your card provider to try to update your payment information, and you authorize us to continue billing your account with the updated information that we obtain.
- 6.4. Contract Term. For Services trials for which no fee is payable, the Services contract will commence upon your acceptance of these Terms, as specified in the preamble to these Terms. For fee-based service(s), the Service(s) contract will start when Articulate processes the applicable Services order. If such order is executed (or otherwise accepted) by either Articulate or you after the start date set forth on such order, Articulate may adjust the start date and applicable end date, without increasing the total price, based on the date Articulate activates the applicable products or services and provided that the total term length does not change.
- 6.5. Cancellation/Nonrenewall. During the first thirty (30) days of your initial subscription, you may elect to cancel your order to the Services; in such event, Articulate will, as its sole obligation, refund your prepaid fees. Otherwise, but subject to Section 1, your account and subscription will be non-cancellable, and fees are non-refundable. Your and our right to extraordinary termination for cause shall remain unaffected. We shall be entitled to extraordinary termination as set out in Section 10.2 below. In case you terminate for cause, upon your written request (within thirty (30) days following the effective date of such termination), we will partially refund your prepaid fees for the remainder of the term. Subject to the foregoing terms, cancellations can be made by contacting Articulate Customer Support. Either you or Articulate may elect to not renew your account and subscription to the Service as of the end of your then current Service term, by providing notice, in accordance with these Terms, on or prior to the last day of the then-current term. Unless otherwise provided for in any form that Articulate and you mutually accept, the fees for your Services subscription for each subsequent term will be Articulate’s standard, then-current charges for the applicable Services. Unless otherwise expressly set forth in these Terms, no refunds or credits for fees or payments will be provided to you if you terminate your subscription to the Services or cancel your account prior to the end of your then-effective subscription term. Following the termination or cancellation of your subscription to the Services and/or related account, we reserve the right to delete all your data and content in the normal course of operation. Your data and content cannot be recovered once your account is cancelled.
- 6.6. Additional Commercial Terms for Articulate 360 Teams. Articulate 360 Teams administrators can purchase additional user subscriptions at any time. Added user subscriptions are priced at the rates available at the time of purchase and are prorated based on the days remaining in your annual contract. All Articulate 360 Teams subscriptions under a specific plan will have the same scheduled subscription end date, subject to renewal as set forth herein. Further, upon renewal, Articulate will charge you for the number of seats at the time of such renewal.
- 6.7. Promotional Discount and/or Exchange/Conversion Credits Under certain mutually agreeable circumstances, Articulate may, in its sole discretion, grant a promotional discount and/or an exchange and/or credit for unused portions of Articulate services, upgrades or licenses. Upon issuance of such promotional discount and/or an exchange or credit, you agree to terminate applicable agreements and waive Articulate’s obligations and your rights thereunder. Additional details regarding the discount, exchange, and/or credit described above will be set forth in the applicable order which, by accepting such order, you thereby confirm that Articulate has no further obligations under such terminated and/or waived agreement or arrangement, as such obligations will be deemed fully satisfied by Articulate.
7. Your Warranty and Indemnification Obligations.
- 7.1. Warranty. By uploading your content to the Services, you agree that you have: (a) all necessary licenses and permissions to use and Share your content and (b) the rights necessary to grant the licenses in these Terms.
- 7.2. Indemnification. You will indemnify us and our subsidiaries, affiliates, officers, agents, employees, partners, and licensors from any claim, demand, loss, or damages, including reasonable attorneys’ fees, arising out of or related to your content, your use of the Services, or your violation of these Terms.
8. Our Warranty and Indemnification Obligations.
- 8.1. TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE DISCLAIM ALL WARRANTIES EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT OF THIRD PARTY RIGHTS. WE MAKE NO COMMITMENTS ABOUT THE CONTENT WITHIN THE SERVICES. TO THE EXTENT PERMITTED BY LAW WE FURTHER DISCLAIM ANY WARRANTY THAT (A) THE SERVICES WILL MEET YOUR REQUIREMENTS OR WILL BE CONSTANTLY AVAILABLE, UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; (B) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE EFFECTIVE, ACCURATE, OR RELIABLE; (C) THE QUALITY OF THE SERVICES WILL MEET YOUR EXPECTATIONS; OR THAT (D) ANY ERRORS OR DEFECTS IN THE SERVICES WILL BE CORRECTED.
- 8.2. Indemnification by Us. If a third party initiates a claim against you, claiming that the Services directly infringe any copyrights or misappropriate any trade secrets, we will pay the costs and damages that a court (having final jurisdiction) awards against you in the lawsuit, to the extent that the costs and damages directly relate to the claim. Alternatively, we will pay the costs and damages that we agree to in a written settlement of the lawsuit. Our obligations under this paragraph apply only if you: (a) promptly notify us of the lawsuit in writing, (b) allow us to control the defense of the lawsuit and any related settlement negotiations, and (c) cooperate with us and, at our request and expense, assist us in the defense or settlement of the lawsuit. Also, our obligations under this paragraph do not apply to any infringement claim based upon: (i) any use of the Services not in accordance with this Agreement; (ii) any use of the Services in combination with other products, equipment, software, or data that we do not supply; (iii) any use of any release of the Services other than the most current release made available to you or (iv) any modification of the Services by any person other than us. To the maximum extent permitted by law, this paragraph states our entire liability and your sole and exclusive remedy for infringement claims and actions against you.
9. Limitation of Liability.
- 9.1. WE ARE NOT LIABLE TO YOU OR ANYONE ELSE FOR: (A) ANY LOSS OF USE, DATA, GOODWILL, OR PROFITS, WHETHER OR NOT FORESEEABLE; AND (B) ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, OR PUNITIVE DAMAGES WHATSOEVER (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF THESE DAMAGES), INCLUDING THOSE: (1) RESULTING FROM LOSS OF USE, DATA, OR PROFITS, WHETHER OR NOT FORESEEABLE, (2) BASED ON ANY THEORY OF LIABILITY, INCLUDING BREACH OF CONTRACT OR WARRANTY, NEGLIGENCE OR OTHER TORTIOUS ACTION, OR (3) ARISING FROM ANY OTHER CLAIM ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF OR ACCESS TO THE SERVICES. NOTHING IN THESE TERMS LIMITS OR EXCLUDES OUR LIABILITY.
- 9.2. OUR TOTAL LIABILITY IN ANY MATTER ARISING OUT OF OR RELATED TO THESE TERMS IS LIMITED TO $100 (USD) OR THE AGGREGATE AMOUNT THAT YOU PAID FOR ACCESS TO THE SERVICES DURING THE THREE-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE LIABILITY, WHICHEVER IS LARGER. THIS LIMITATION WILL APPLY EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF THE LIABILITY EXCEEDING THE AMOUNT AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
- 9.3. SUBJECT TO AND WITHOUT LIMITING OUR EXPRESS OBLIGATIONS SET FORTH IN THESE TERMS, (A) WE SPECIFICALLY DISCLAIM ANY LIABILITY FOR ANY ACTIONS RESULTING FROM YOUR USE OF ANY SERVICES; (B) YOU MAY USE AND ACCESS THE SERVICES AT YOUR OWN DISCRETION AND RISK; AND (C) YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE USE AND ACCESS OF ANY SERVICES.
- 9.4. THE LIMITATIONS AND EXCLUSIONS IN THIS SECTION 9 APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW.
- 10.1. Termination by You. You may stop using the Services at any time. Unless otherwise expressly set forth in these Terms, termination of your account does not relieve you of any obligation to pay any outstanding fees or require Articulate to refund any prepaid fees.
- 10.2. Termination by Us. If we terminate these Terms for reasons other than for cause (to the extent permissible under applicable law), we will make reasonable effort to notify you at least 30 days prior to termination via the email address you provide to us with instructions on how to retrieve your content. We may at any time terminate these Terms (and your access to Services) with you if:
- (a) you breach any provision of these Terms (or act in a manner that clearly shows you do not intend to, or are unable to, comply with these Terms);
- (b) you fail to make the timely payment of fees for the Services, if any;
- (c) we are required to do so by law (for example, where the provision of the Services to you is, or becomes, unlawful);
- (d) we elect to discontinue the Services, in whole or in part, (such as if it becomes impractical for us to continue offering Services in your region due to change of law); or
- (e) there has been an extended period of inactivity (of thirty (30) days or more) in your free account.
- 10.3. Termination by Administrator. For group subscriptions, such as an "Articulate 360 Teams", the designated subscription administrator(s) may terminate a user’s access to a Service at any time. If the applicable administrator terminates your access, then you may no longer be able to access content that you (or, if applicable, other users of the group) have shared on a shared workspace within that Service.
- 10.4. Effect of Termination. If you terminate your subscription to the Services or cancel your account prior to the end of your then-current term (other than due to Articulate’s material breach of these Terms of which you notify Articulate and afford Articulate not less than thirty (30) days to cure such breach), or we terminate or cancel your account due to your breach of these Terms, then in addition to other amounts you may owe Articulate, you must immediately pay any then unpaid fees and charges associated with the remainder of such term.
- 10.5. Survival. Upon expiration or termination of these Terms, the following sections will survive: 1.1 (Choice of Law), 1.3 (Privacy), 1.5 (Modification), 2.4 (License Limitations), 2.5 (Restrictions), 2.8 (Third Party Software), 2.9 (Notice to U.S. Government End Users), 3 (Your Content), 4 (Account Information), 5 (User Conduct), 6 (Fees and Payment; Term and Renewal), 7 (Your Warranty and Indemnification Obligations), 8 (Our Warranty and Indemnification Obligations), 9 (Limitation of Liability), 10.4 (Effect of Termination), 10.5 (Survival), 11 (Investigations), 12 (Export Control Laws), 13 (Dispute Resolution), 14 (Compliance with Licenses), and 15 (Miscellaneous). Upon the expiration or termination of the Services, the Services may cease to operate without prior notice.
- 11.1. Screening. You may stop using the Services at any time. Unless otherwise expressly set forth in these Terms, termination of your account does not relieve you of any obligation to pay any outstanding fees or require Articulate to refund any prepaid fees.
- 11.2. Disclosure. If we terminate these Terms for reasons other than for cause (to the extent permissible under applicable law), we will make reasonable effort to notify you at least 30 days prior to termination via the email address you provide to us with instructions on how to retrieve your content. We may at any time terminate these Terms (and your access to Services) with you if:
12. Export Control Laws.
- The Services and you use thereof are subject to U.S. and international laws, restrictions, and regulations that may govern the import, export, and use of the Services. You agree to comply with all such laws, restrictions, and regulations.
13. Dispute Resolution.
- 13.1. Process. For any concern or dispute you may have, you agree to first try to resolve the dispute informally by contacting us. If a dispute is not resolved within 30 days of submission, then except as otherwise set forth in Section 17.2, you or Articulate may initiate a claim in the state and/or federal courts in New York County, New York, USA. However, either party may initiate a claim before the expiration of such thirty (30) day period, if the claim relates to intellectual property, or to preserve either party’s rights under applicable statutes of limitations.
- 13.2. Injunctive Relief. Notwithstanding the foregoing, in the event of your or others’ unauthorized access to or use of the Services or content in violation of these Terms, you agree that we are entitled to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.
14. Compliance with Licenses.
- If you are a business, company, or organization, then we may, no more than once every twelve (12) months, upon seven (7) days’ prior notice to you, appoint an independent third party auditor who is obliged to maintain confidentiality to inspect (including manual inspection, electronic methods, or both) your records, systems, and facilities to verify that your installation and use of any and all Services is in conformity with these Terms. Additionally, you will provide the auditor with all records and information requested, within 30 days of such request. If the verification discloses a breach of these Terms, you will immediately take steps to cure the breach and comply with these Terms, including but not limited to purchasing and paying for any necessary subscriptions. If the underpaid fees exceed 5% of the value of the payable license fees, then you will also pay for our cost of conducting the verification.
- 15.1. Interpretation The English version of these Terms will be the version used when interpreting or construing these Terms. Section headings are provided for convenience only, and will not affect the interpretation of these Terms. Any words following the terms "including", "in particular", "for example", "such as", or any similar expression, shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
- 15.2. Notice to Articulate. You may send notices to us to at the following address: Articulate Global, Inc., Attn: Legal, 244 5th Avenue – Suite 2960, New York, NY 10001, USA.
- 15.3. Notice to You. To the extent permitted under applicable law, we may notify you by email, postal mail, postings within the Services, or other legally acceptable means.
- 15.4. Entire Agreement. These Terms constitute the entire agreement between Articulate and you regarding your use of the Services and the subject matter hereof, and these Terms supersede any prior agreements or understandings (whether written or oral) between Articulate and you relating to the subject matter hereof.
- 15.5. Assignment. You may not assign or otherwise transfer these Terms or your rights and obligations under these Terms, in whole or in part, without our written consent and any such attempt will be void. We may freely assign or transfer our rights and/or obligations under these Terms to a third party. In addition, if you are purchasing through a reseller, distributor, or similar third party, you acknowledge and agree that Articulate reserves the right, upon notice, to require such third party to assign the relationship directly to Articulate (or to another third party that Articulate may specify), and in such event, you agree to fully comply and cooperate with such transfer and to do all things reasonably necessary to effect the same.
- 15.6. Severability. If at any time any provision of these Terms is or becomes illegal, invalid or unenforceable in any respect under the law of any jurisdiction, neither the legality, validity or enforceability of the remaining provisions hereof nor the legality, validity, or enforceability of such provision under the law of any other jurisdiction will in any way be affected or impaired thereby, and the remainder of the provisions of these Terms will remain in full force and effect. Articulate and you agree to endeavor in good faith negotiations to replace any illegal, invalid or unenforceable provision with a valid, legal and enforceable provision, the economic effect of which comes as close as possible to the illegal, invalid or unenforceable provision.
- 15.7. No Waiver. Our failure to enforce or exercise any provision set forth in these Terms is not a waiver of that provision.
- We respect the Intellectual Property Rights of others and we expect our users to do the same. We will respond to clear notices of copyright infringement consistent with the Digital Millennium Copyright Act (“DMCA”).
17. Jurisdiction-Specific Terms.
This section applies to specific jurisdictions. If there is any conflict between this section and other sections, then this section governs in relation to the relevant jurisdiction:
- 17.1. Australia:
- (a) NOTHING IN THIS AGREEMENT IS INTENDED TO LIMIT YOUR NONEXCLUDABLE RIGHTS UNDER THE COMPETITION AND CONSUMER ACT 2010 (CTH).
- (b) DESPITE ANY OTHER PROVISION OF THESE TERMS, IF THE COMPETITION AND CONSUMER ACT 2010 (CTH) OR ANY OTHER LEGISLATION STATES THAT THERE IS A GUARANTEE IN RELATION TO THE SERVICES SUPPLIED BY ARTICULATE IN CONNECTION WITH THESE TERMS, AND ARTICULATE’S LIABILITY FOR FAILING TO COMPLY WITH THAT GUARANTEE CANNOT BE EXCLUDED BUT MAY BE LIMITED, SECTIONS 9.1, 9.2 AND 9.3 DO NOT APPLY TO THAT LIABILITY. INSTEAD, ARTICULATE’S LIABILITY FOR THAT FAILURE IS LIMITED TO (AT THE ELECTION OF ARTICULATE), IN THE CASE OF A SUPPLY OF GOODS, ARTICULATE REPLACING THE GOODS OR SUPPLYING EQUIVALENT GOODS OR REPAIRING THE GOODS, OR IN THE CASE OF A SUPPLY OF SERVICES, ARTICULATE SUPPLYING THE SERVICES AGAIN OR PAYING THE COST OF HAVING THE SERVICES SUPPLIED AGAIN.
- (c) If for any reason the provision of the Services under or in connection with these Terms constitutes a “Taxable Supply” in Australia (or similar term under the laws of other jurisdictions) for GST or similar purposes, then at or before the time the Services fees are payable, you must pay Articulate an amount equal to the GST or similar tax or withholding for the Services (in addition to the fees otherwise payable for the Services), and Articulate will give you a Tax Invoice (or similar receipt or acknowledgement) for the Service. For the purpose of this section, GST means the goods and service tax under the Good and Services Tax Act 1999 (Cth) and capitalised terms have the meaning given in that Act.
- 17.2. Other.
- (a) THE FOLLOWING PARAGRAPH DOES NOT APPLY TO PURCHASERS IN THE US: THESE TERMS AND THE SERVICES ARE OFFERED ONLY TO PERSONS WHO ARE NOT CONSUMERS UNDER ANY APPLICABLE LAW. IF YOU ARE A CONSUMER, YOU ARE NOT AUTHORIZED TO ENTER INTO THESE TERMS AND MUST FOLLOW THE RETURN PROCEDURE SET FORTH BELOW. IN PARTICULAR, IF YOU RESIDE WITHIN THE EUROPEAN UNION, YOU ARE A CONSUMER IF YOU ARE A NATURAL PERSON PURPORTING TO ENTER INTO THIS AGREEMENT FOR ANY PURPOSE OUTSIDE YOUR TRADE, BUSINESS, CRAFT OR PROFESSION. IF YOU ARE NOT AUTHORIZED TO ENTER INTO THESE TERMS, OR IF YOU DO NOT AGREE TO ALL OF THE TERMS, THEN YOU MUST NOT INSTALL, ACCESS, COPY OR USE THE SERVICES, AND YOU MUST, WITHIN 3 DAYS, DELETE AND PERMANENTLY ERASE FROM ALL COMPUTER MEMORY AND STORAGE MEDIA ALL COPIES OF THE SERVICES AND RELATED SOFTWARE, AND TO OBTAIN A REFUND, YOU MUST NOTIFY ARTICULATE IN WRITING THAT YOU HAVE COMPLIED WITH THE FOREGOING.
- (b) If you reside in Australia, New Zealand, Japan, mainland China, Hong Kong S.A.R., Macau S.A.R., Taiwan R.O.C., the Republic of Korea, India, Sri Lanka, Bangladesh, Nepal, or a member state of the Association of Southeast Asian Nations (ASEAN), then the Singapore International Arbitration Centre (SIAC) will administer the arbitration in Singapore under its Rules of Arbitration, which rules are deemed to be incorporated by reference in this section. Otherwise, the London Court of International Arbitration (LCIA) will administer the arbitration in London under the LCIA Arbitration Rules. There will be one arbitrator that you and Articulate both select. The arbitration will be conducted in the English language, but any witness whose native language is not English may give testimony in the witness’ native language, with simultaneous translation into English (at the expense of the party presenting the witness). Judgment upon the award rendered may be entered and will be enforceable in any court of competent jurisdiction having jurisdiction over the parties.