Effective: November 7, 2019
This Terms of Use – User Agreement (this “ Agreement ”) is between You (“ You ” or sometimes “ User ”) and Upper Diamond doing business as The Learning Academy (“ The Learning Academy ”). This Agreement governs Your use of the The Learning Academy web site located at https://TheLearning.Academy (the “ Site ”).
1. Acceptance of Terms.
1. Binding Contract. PLEASE READ THIS ENTIRE AGREEMENT. THIS AGREEMENT IS A CONTRACT CONTAINING LEGAL RIGHTS AND OBLIGATIONS.
2. Use and Assent. Your continued use of the Site indicates that You have read this Agreement in its entirety and You assent without limitation or qualification to be bound by and comply with its terms. You agree that all uses of the terms “ User ,” “ You ” and “ Your ” apply directly to You, independent of Your intent, purpose or status on the Site. If You do not wish to be bound by the terms of this Agreement, please do not use this Site. This Agreement is in addition to, and does not override or supersede, the terms and conditions that apply to the specific services and related products offered by The Learning Academy.
3. Changes to Agreement. The Learning Academy reserves the right to make, at its sole discretion, any changes, modifications, additions or deletions to all or portions of this Agreement at any time. The Learning Academy recommends that You review this Agreement frequently. If The Learning Academy makes a material change to this Agreement, The Learning Academy will notify You by standard mail or e-mail, or by clear notice on The Learning Academy’s home page. The changes will not be effective as to You until notice has been provided and You have assented to the change through continued use of the Site. You agree to be bound by all of the terms of this and all future versions of this Agreement; provided that the notice has been given, and for as long as You use the Site. You agree that Your exclusive remedy in the event that The Learning Academy makes changes to this Agreement will be to terminate Your use of the Site.
2. Description of Services.
1. Services. Through the Site, The Learning Academy currently provides an online Learning Management System and Online Courses (the “ Service ”). Unless explicitly stated otherwise, any new features that augment or enhance the Site or the Service will be subject to the terms and conditions of this Agreement.
2. Responsibility for Access. In order to access the Site and use the Service, You must obtain, at Your own expense, access to the Internet, either directly or indirectly through devices that access web-based content, and pay any service fees associated with such access. In addition, You must provide, at Your own expense, all equipment necessary to make such connection to the Internet, including a computer and modem or other access device.
3. Registration Obligations. In consideration of Your use of the Service, You agree to register as a User of the Service and in connection with such registration process: (a) provide true, accurate, current and complete information about Yourself, as prompted by the Service’s registration form (such information being the “ Registration Data ” and referred to as “ Personal Information ” in The Learning Academy’s Privacy Policy, which is described below in Section 4 of this Agreement), and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You may update Your Registration Data on the Site or through the contact address set forth in the Privacy Policy. If a User provides any Registration Date that is untrue, inaccurate, not current or complete, or The Learning Academy has reasonable grounds to suspect that such Registration Data is untrue, inaccurate, not current or complete, The Learning Academy has the right, in its sole discretion, to suspend or terminate the User’s registration account and refuse any and all current or future use of the Site or the Service (or any portion thereof).
4. Privacy Policy. Registration Data and certain other Personal Information about Users are subject to The Learning Academy’s Privacy Policy. By using the Site, You acknowledge that You have read and consent to the terms and conditions of The Learning Academy’s Privacy Policy. For more information, please see the full Privacy Policy here .
5. Children Under 13. The Learning Academy does not knowingly collect information from children under the age of 13. If You are under the age of 13, please do not provide The Learning Academy with any Registration Data and do not use this Site.
6. Account, Password and Security. Each registered User chooses a password and account username during the registration process. You are responsible for maintaining the confidentiality of Your password and account username, and are fully responsible for all activities that occur in association with Your password or account username. You agree to (a) immediately notify The Learning Academy of any unauthorized use of Your password or account username or any other breach of security, and (b) ensure that You exit from Your account at the end of each session so as to prevent any unauthorized use of Your account by anyone who may use Your computer after You. The Learning Academy will not be liable for any loss or damage arising from Your failure to comply with this policy. The Learning Academy will act as though any communication it received under Your password and account username will have been made by You. The Learning Academy reserves the right to remove or rename any account username that contains offensive or potentially offensive language or meaning.
7. User Content and Conduct. All information, data, text, software, music, sound, photographs, graphics, video, messages or other materials (“ User Content ”), whether publicly posted or privately transmitted, are the sole responsibility of the person from whom such User Content originated. This means that You, and not The Learning Academy, are entirely responsible for all User Content that You upload, post, e-mail or otherwise transmit via the Site. The Learning Academy does not control the User Content posted by registered Users via the Site and, as such, does not guarantee the accuracy, integrity or quality of such User Content. You understand that by using the Site and the Service, You may be exposed to User Content that is offensive, indecent or objectionable. Under no circumstances will The Learning Academy be liable in any way for any User Content, or for any loss or damage of any kind incurred as a result of the use of any User Content posted, e-mailed or otherwise transmitted via the Site.
8. Your Use of the Site. You agree to use the Site for lawful purposes only. You may not use, or allow others to use, Your registration as a User of the Site to either directly or indirectly post, upload, e-mail, promote, facilitate the distribution of, post links to, or otherwise transmit any content (including comments and/or artwork) that:
1. You do not have a right to transmit under law;
2. Can be construed as defamatory, abusive, bigoted, hateful, threatening, harassing, libelous, slanderous, obscene, pornographic, vulgar, obscene, fraudulent, unlawful, harmful to minors in any way, or encouraging cruelty to animals;
3. Includes statements that are intentionally false or misleading, impersonate any person or entity, or misrepresent Your affiliation with any person or entity, including the forging of headers or other manipulation of identifiers in order to disguise the origin of any content or allow any other person or entity to use Your User identity on the Site;
4. Is Spam or that contains links to any commercial or charitable solicitations;
5. Contains computer code, files or programs designed to intercept any data or communication, or inhibit, interrupt or destroy the functionality of computer software, hardware or telecommunications equipment;
6. Offers to sell or purchase any unregistered securities;
7. Violates any applicable local, state, national, international, foreign law or regulation;
8. Collects, stores or transmits personal data (i.e., Registration Date) about other Users of the Site without their express permission; and
9. Attempts to access any other of The Learning Academy’s systems, programs or data that are not made available for public use.
9. Billing Data. You are responsible for keeping Your billing data with The Learning Academy up-to-date and accurate. Furnishing false data on any registration form, contract, or online application, including fraudulent use of credit card numbers, is grounds for immediate termination, and may subject the offender to civil or criminal liability.
10. Transfer. The resale of The Learning Academy services and related products is not permitted, unless specifically permitted and documented in a written agreement. Any attempt to transfer Your registration or allow others to use or make use of the Services shall be null and void and is grounds for immediate termination of Your registration as a User.
11. Unacceptable Conduct. You agree that The Learning Academy may at any time, and at its sole discretion, terminate Your registration without prior notice to You if it suspects You have violated any of the above provisions, the copyright of any party, or for other reasons that The Learning Academy deems to necessitate such termination. You agree that upon termination, The Learning Academy may delete all files and information related to Your account and may bar access to Your account. Further, You agree that The Learning Academy shall not be liable to You or any third party for any termination of Your access to the Site or Service.
12. System and Network Security. In order to protect the security and integrity of the Site or Service, You may not (and You agree that you will not):
1. Circumvention. Attempt to circumvent user authentication or security of any host, network, or account (“ cracking ”). This includes, but is not limited to, accessing data not intended for You, unauthorized use (or attempted unauthorized use) of any machines or networks, logging into a server or account that You are not expressly authorized to access, falsifying header information or User identification information, monitoring or scanning the networks of others without permission, or probing the security of other networks (such as running a SATAN scan or similar tool).
2. Interference. Attempt to interfere with service of any other user, host or network (“ denial of service attacks ”). This includes, but is not limited to “ flooding ” of networks, deliberate attempts to overload a service, and attempts to “ crash ” a host.
3. Use Programs. Use any kind of program, script, or command, or send messages of any kind, designed to interfere with a User’s terminal session, via any means, locally or through the Internet.
4. Violate Law. Use The Learning Academy’s network, machines or services in any manner that violate any applicable law, regulation, treaty or tariff.
13. Liability. Any person who violates the above-listed systems or network security provisions may incur criminal or civil liability. The Learning Academy will cooperate fully with investigations of violations of systems or network security provisions at other web sites, including cooperating with law enforcement authorities in the investigation of suspected criminal violations.
14. Dealings with Advertisers. Your correspondence or business with, or participation in promotions of, third-party advertisers found on or through the Site, including payment and delivery of related goods and services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between You and such advertiser. The Learning Academy shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such advertisers on the Site. The Learning Academy does not represent or endorse the accuracy or reliability of any information, content or advertisements contained on, distributed through, linked to or from, or downloaded or accessed from the Site, nor the quality of any third-party advertisers’ products or services. References to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise, does not constitute or imply endorsement, sponsorship or recommendation thereof by The Learning Academy.
15. Links. The Site may contain links to third-party web sites. These links are provided solely as a convenience to You and not as an endorsement by The Learning Academy of the contents on such third-party web sites. The Learning Academy has no control of third-party web sites and does not make any representations regarding the content, accuracy or reliability of materials on such third-party web sites. If You decide to access linked third-party web sites, You do so at Your own risk. The Learning Academy shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such third-party web site or any goods or services available on or through any such web site or resource.
16. Proprietary Rights to Software. You acknowledge and agree that the Service and any necessary software used in connection with the Service (“ Software ”) contain proprietary and confidential information that is protected by applicable intellectual property and other laws. The Learning Academy grants a personal, non-transferable and non-exclusive right and license to use the object code of the Software on a single computer or computing device; provided that You do not (and do not allow any third party to) copy, modify, create derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, grant a security interest in or otherwise transfer any right in the Software. You agree not to modify the Software in any manner or form, or to use modified versions of the Software, including, without limitation, for the purpose of obtaining unauthorized access to the Service. You agree not to access the Service by any means other than through the interface that is provided by The Learning Academy for use in accessing the Service.
17. Disclaimer of Warranties. The Learning Academy MAKES NO REPRESENTATIONS ABOUT THE RESULTS TO BE OBTAINED FROM USING THE SITE OR THE SERVICE. THE USE OF THE SITE OR THE SERVICE IS AT YOUR OWN RISK. THE SITE AND THE SERVICE ARE PROVIDED ON AN “ AS IS ” AND “ AS AVAILABLE ” BASIS. The Learning Academy, TO THE FULL EXTENT PERMITTED BY LAW, DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OF IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. The Learning Academy MAKES NO WARRANTY THAT: (a) THE SITE OR THE SERVICE WILL MEET YOUR REQUIREMENTS, (b) THE SITE OR THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, (c) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SITE OR THE SERVICE WILL BE ACCURATE OR RELIABLE, (d) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SITE OR SERVICE WILL MEET YOUR EXPECTATIONS, AND (e) ANY ERRORS IN THE SOFTWARE RELATING TO THE SERVICE WILL BE CORRECTED. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SITE OR THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM The Learning Academy OR THROUGH OR FROM THE SITE OR THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
18. Limitation of Liability. UNDER NO CIRCUMSTANCES SHALL The Learning Academy BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR ANY OTHER DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF PROFITS, LOSS OF DATA, LOSS OF GOODWILL OR OTHER INTANGIBLE LOSS, OR LOSS OF DAMAGE TO ANY SOFTWARE OR HARDWARE, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE), OR OTHERWISE, EVEN IF The Learning Academy OR The Learning Academy’S AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE, MISUSE, INABILITY TO USE OR RELIANCE ON THE SITE OF THE DESTINATIONS REACHABLE THROUGH OR BECAUSE OF THE SITE OR SERVICE OR THE INFORMATION, MATERIALS, CONTENT OR PRODUCTS CONTAINED IN, ACCESSED THROUGH, OR AVAILABLE ON THE SITE OR SERVICE. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF The Learning Academy WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER LEGAL THEORY ARISING OUT OF OR RELATING TO THE USE OF THE SITE OR SERVICE EXCEED THE COMPENSATION, IF ANY, YOU PAID The Learning Academy FOR ACCESS TO THE SITE OR SERVICE OR ANY PORTION THEREOF. IMPORTANT NOTE: SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR HOW LONG THEY LAST, OR THE EXCLUSIONS OR LIMITATIONS OF INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, SO THAT SUCH LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. IF YOU ARE DEALING AS A CONSUMER, YOUR STATUTORY RIGHTS THAT CANNOT BE WAIVED, IF ANY, ARE NOT AFFECTED BY THESE PROVISIONS. YOU ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS AND EXCLUSIONS OF LIABILITY AND WARRANTY PROVIDED IN THIS AGREEMENT ARE FAIR AND REASONABLE.
19. Force Majeure. Without limiting any of the foregoing, under no circumstances shall The Learning Academy be liable for any delay or failure in performance which is directly or indirectly caused by or arises from forces beyond its reasonable control, including but not limited to, acts of God or nature (such as fires, floods, earthquakes or storms), accidents, war, explosions, riots, civil disturbances, labor shortages, labor strikes, labor disturbances, non-performance of third parties, governmental action, governmental interference, embargoes, orders of foreign or domestic courts or tribunals, Internet failures, power failures, computer equipment failures, telecommunications equipment failures or unsatisfactory performance by heating, ventilation or air conditioning systems.
20. Indemnity. By using the Site and the Service, You agree to indemnify The Learning Academy and its parents, subsidiaries, affiliates, directors, officers, consultants, agents, and employees and hold them harmless from any and all claims and expenses, including attorneys’ fees arising from Your use of the Site or Service or from Your breach of this Agreement.
21. Intellectual Property.
1. Trademarks. The Learning Academy, The Learning Academy logo, and the names and content of The Learning Academy’s products and services referenced in this Site are either trademarks or registered trademarks of The Learning Academy and may not be copied, imitated or used, in whole or part, without the prior written permission of The Learning Academy. In addition, all page headers, custom graphics, button icons, and scripts are service marks, trademarks, and/or trade dress of The Learning Academy and may not be copied, imitated, or used, in whole or in part, without the prior written permission of The Learning Academy. All other trademarks, registered trademarks, product names of The Learning Academy and other company names or logos mentioned on the Site or Service are the property of their respective owners.
2. Copyright and Content. By accepting this Agreement, You agree that all Company Content (defined below) is the sole property of The Learning Academy who shall retain all right, title and interest in and to the Company Content, which may not be reproduced without prior written consent of The Learning Academy. The Site and Company Content are protected by U.S. and international copyright law and conventions. The Learning Academy reserves all rights not expressly granted to You by this Agreement. All Company Content on the Site is the sole and exclusive property of The Learning Academy or its licensors. You agree that You will preserve and honor any copyright or other notices included in any Company Content that You may download from or through this Site. Under no circumstances are You allowed to copy (other than temporary copies that may appear in or be created by Your browser and one copy You may make for Your personal use), distribute, publish, perform, display, transmit, modify, create derivative works of, sell, license or transfer in any way, exploit for any commercial purposes any of the Company Content by any means now known or later developed or incorporate or display such in any form, medium or technology by any means now known or later developed.
3. Rights of Others. The Learning Academy respects the intellectual property rights of others, and The Learning Academy asks Users to do the same. If You believe the Site contains any work that infringes on the copyright of another, please provide The Learning Academy with a notice containing the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (b) a description of the copyrighted work that You claim has been infringed upon; (c) a description of where the material that You claim is infringing is located on the Site; (d) Your address, telephone number and e-mail address; (e) a 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; and (f) a statement made 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.
4. Copyright Agent. The Learning Academy’s Copyright Agent for notice of claims of copyright infringement on the Site is listed below:
Copyright Agent
dwarren@upperdiamond.com
5225 Wilshire Blvd #1212
Los Angeles, CA 90036
United States of America
(310) 862-9252
5. Company Content. For purposes of this Agreement, “ Company Content ” means any and all data, information, compilations, text, forms, articles, messages, chat, code, files, software, programs, digital downloads, photographs, pictures, graphics, images, logos, videos, music, sounds, audio clips, material, content, products, services, functionality, and any other materials be they digital, analog, and any other material, be it tangible or intangible, or services found in or through any Internet resource, and all proprietary information on the Site that belongs to The Learning Academy or its licensors.
22. General Information.
1. Entire Agreement. This Agreement constitutes the entire Agreement between You and The Learning Academy and governs Your use of the Site and Service, superseding and replacing any and all prior or contemporaneous understandings or agreements between the parties regarding the subject matter of this Agreement.
2. Severability. If any provision in this Agreement or the documents it incorporates by reference is invalid or unenforceable under applicable law, it will be enforced to the furthest extent possible and the remaining provisions will continue in full force and effect.
3. Survival. All provisions of this Agreement which impose obligations continuing in their nature shall survive the termination or expiration of this Agreement, including but not limited to, provisions for indemnity, limits on liability and licenses.
4. Assignment. At The Learning Academy’s sole discretion this Agreement and all documents it incorporates may be assigned to a third party in the event of a merger or acquisition. Subject to the The Learning Academy Privacy Policy, You agree that all information provided by You to The Learning Academy, including personal information, may be transferred to The Learning Academy’s successor or assign.
5. Governing Law. This Agreement, Your rights and obligations and all actions contemplated by this Agreement will be governed by the laws of the United States of America and the State of Oregon (without regard to its conflict of law provisions), as if the Agreement were a contract wholly entered into and wholly performed in Multnomah County, Oregon, independent of Your actual state or country of residence. Any dispute, controversy or claim arising out of or relating to this Agreement whether at law or in equity will be resolved exclusively in the federal or state courts located in Los Angeles, California and You hereby irrevocably and unconditionally consent to the exclusive jurisdiction and venue of such courts.
6. Waiver. The failure of The Learning Academy to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. For any waiver to be effective between the parties it must be in writing and signed by the parties.
7. Time Limitation on Actions. You agree that any claim or cause of action arising out of or related to use of the Site or Service must be filed within one year after such claim or cause of action arose or be forever barred.
8. Violations. Any User who violates this Agreement will have their access to the Site and the Service terminated without any refund, at The Learning Academy’s sole and absolute discretion. Any payments due will become due immediately. The Learning Academy reserves the right, at The Learning Academy’s sole and absolute discretion, to suspend and/or terminate User’s access to the Site or the Service at any time for any material failure to comply with this Agreement. Please report any violations of this Agreement to dwarren@upperdiamond.com
Definitions
The following definitions are used in these Terms:
"Terms" means these terms and conditions as now in effect or as may be modified from time to time by The Learning Academy.
"User Account" means your password protected account with The Learning Academy, which is associated with your verified email address.
"You" means the person associated with your User Account.