LEAD by Learner Mobile Terms of Service

TERMS AND CONDITIONS

Last updated on January 10, 2025. These Terms and Conditions are effective immediately for users accessing or using the Website and/or Service on or after January 10, 2025.

Learner Mobile® is a mobile application and online platform, www.learnermobile.com, admin.learnermobile.com, and app.learnermobile.com, (collectively the “Site”) provided by SVI, LLC (SVI, we or us). SVI is an Arkansas limited liability company that exists to provide users of the Site with an education and training resource (“Services”).

LEAD™️ is educational content (the “Licensed Content”) offered by ICA, a nonprofit organization governed by a Board of Directors comprised of retailers and suppliers and managed by a professional staff based in Wheaton, Illinois, and licensed by SVI through ICA’s authorized reseller agreement for use by LEAD subscribers as part of the LEAD Subscription Agreement (“Subscription Agreement”). LEAD™️ and the Licensed Content are the exclusive property of ICA.

The following Terms and Conditions (“Agreement”) govern your ability to use and access any content (including Licensed Content), functionality and services offered through the Site, whether as a viewer of the site or a registered user of the Services.

PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THIS SITE. THIS AGREEMENT GOVERNS YOUR ACCESS TO AND USE OF THE SITE.  THE SITE IS AVAILABLE FOR YOUR USE ONLY ON THE CONDITION THAT YOU AGREE TO THE TERMS OF USE SET FORTH BELOW.  IF YOU DO NOT AGREE TO ALL OF THE TERMS OF USE, DO NOT ACCESS OR USE THE SITE.

PLEASE READ THE TERMS CAREFULLY. THROUGH USE OF THE SITE OR SERVICES MEANS YOU ACKNOWLEDGE AND REPRESENT THAT 1) YOU HAVE READ THESE TERMS, 2) UNDERSTAND THEM, AND 3) AGREE TO BE BOUND BY THEM. YOU MAY NOT USE THE SITE OR SERVICES UNLESS YOU ARE AT LEAST 18 YEARS OLD.

BY ACCESSING, USING OR MERELY BROWSING THE SITE, YOU SIGNIFY YOUR AGREEMENT TO BE BOUND BY THIS AGREEMENT AND ALL TERMS, POLICIES AND GUIDELINES INCORPORATED BY REFERENCE INTO THIS AGREEMENT.

SVI ONLINE SERVICES

Learner Mobile® is a mobile application and online platform that provides the following Services to Users:

All technology, data, information, programs, materials and other Content that we make accessible to you as a User through the Site;

Any other services that we may provide to you, including professional services.

As mentioned above, LEAD™️ is educational content offered by ICA and is made available for users with subscriptions as part of the Subscription Agreement (“Subscribers”).

The Services also include the ability for Admins, as defined below, to create “User Content” – your data, information, templates, content, code, video, images or other materials or information of any type that you upload to the Site or otherwise provide to us. User content is discussed more below.

SVI reserves the right, at any time and from time to time, temporarily or permanently, in whole or in part, to: modify or discontinue the Site with or without notice; limit the Site’s availability to any person, geographic area or jurisdiction we choose; charge fees in connection with the use of the Site; modify and/or waive any fees charged in connection with the Site; and/or offer opportunities to some or all users of the Site. You agree that neither we nor any affiliated entity shall be liable to you or to any third party for any modification, suspension or discontinuance of the Site, in whole or in part, or of any service, software, submission, feature, product or other Content offered through the Site. You agree that this Agreement will apply to any changes or updates to the Services.

Nothing in this section limits SVI’s ability to discontinue any Service or to make changes as required to comply with applicable law, address a material security risk, or avoid a substantial economic or technical burden.Accounts

Users may access areas of the Site without registering, but some features of the Site or Services will require registration for an account with SVI (“Account”).

A “user” is someone who accesses or in any way uses the Site and/or the Services.

Users can be divided into categories, depending on the Content they can access and/or contribute to the Site:

Users: All Users visiting the Site, can browse certain areas of the Site and determine if they wish to become Registered Users.

Registered Users: Registered Users are Users who have a named Account with the Site in order to have access to educational material from Admins as well as to be able to contribute comments on the Site regarding the educational material.

Services are provided to Registered Users solely for Registered User’s internal business operations during the subscription period specified in your Order (Term) and in accordance with any usage restrictions specified in the applicable Order.

Subscribers: Registered Users who have entered into a LEAD Subscription Agreement.

Administrative Users (“Admin Users” or “Admins”) are Registered Users who administer the subscription services of Registered Users and provide educational materials to the Site for viewing by Registered Users.

You promise that any information about yourself or your organization that you provide to us will be true, accurate, complete, and current.  

Username and Password

General access to the Site does not require registering for or logging into the Site, but other portions of the Site may require registration. This Agreement governs use of all portions of the Site, regardless of registration.

Subscribers, Registered Users and Admin Users use of the Site will require you to use a username and password. You may be required to choose a password or change your password. Remember your username and password, and do not share your username or password with anyone. Your username and password will identify you to us when you return to our Site. If you forget your username or password, you may not be able to access certain portions of the Site. You are solely responsible to maintain the confidentiality of your username and password and for all activities when a user is logged into the Site by your username and password.

You agree to immediately notify SVI of any unauthorized use of your username and password or any other security breach and ensure that you log out of the Site at the end of each session. SVI will not be liable for damage or loss from your failure to comply with this Agreement. You may be issued a new password or be required to change your password from time to time. Your username and password combination are not transferable to other users.

SVI reserves the right to restrict, suspend, or terminate access to the Site for any username and password combination (each, an "Account") because of inactivity or fraudulent activity under that Account, or any other reason we deem appropriate. We are available for your questions regarding use of the site at questions@learnermobile.com.

Orders; Billing and Payment

To use the Services and/or Licensed Content as an Admin User or a Subscriber, you must complete an Order providing the following by either completing an acceptable online order located on the Site or by completing an accepted paper-based order provided by us:

The Services being ordered;

The Licensed Content package chosen;

The applicable fees for the Services and Licensed Content (“Fees”);

The number of Registered User accounts associated with your Admin User account;

The frequency of billing (monthly or annually); and

The term for the Services (“Term”).

You must pay all Fees for the Services as detailed in the applicable Order(s). Other than where expressly provided in this Agreement, all Fees are non-refundable, non-cancellable and non-creditable.

You agree that fees will be charged to the provided credit card monthly in arrears. For example, if your account is activated on October 14, the first charge will occur on November 15. Subsequent charges will continue on the 15th of each month thereafter during the Term.

You agree to maintain a valid credit card on file, which may be charged for all applicable Fees during the Term. By providing this information, you authorizes SVI to automatically charge the credit card for any Fees due under the Order.

If you add Registered Users or Subscribers during your Term or exceed any limit on Registered Users or Subscribers specified in the relevant Order, you will be billed the applicable Fees for the increased number of Registered Users or Subscribers at the then-current rates or as otherwise set out in the applicable Order(s) for the remainder of the then-current Term.

You are responsible for any duties, customs fees, or taxes (other than our income tax) associated with the Services or any other services provided by us to you, including any VAT, GST or other applicable sales tax, and any related penalties or interest (“Taxes”), and you will pay us for the Services without any withholding for Taxes. If we are required to collect or pay Taxes, the Taxes will be invoiced to you. You must provide us with any information that we reasonably request to determine whether we are obliged to collect Taxes from you, including your relevant Tax identification number.

PAYMENTS

You will be asked to designate and provide information about your preferred payment method (e.g., credit card, online payment service, or any other payment method made available by SVI) to pay subscription, usage, and other fees for your Account. If you provide your payment information, you authorize us and certain third party service providers, payment card networks and payment processors to receive, store and encrypt your payment information. You may switch to a different payment method or update your information by updating your account information. No refunds or credits will be provided by SVI.

Integrations with Third Party Products

You may choose, in your sole discretion, to integrate the Services with third party products or services (“Third Party Products”). If you choose to use any Third Party Products in connection with the Services, we may provide such third parties access or use of your User Content to the extent required for the operation of the Services with the Third Party Product. Your use of any Third Party Product will be subject to the applicable agreement between you and the relevant third party provider. We are not responsible for any access to or use of your User Content by such third party providers. WE DISCLAIM ALL LIABILITY FOR ANY THIRD PARTY PRODUCTS AND FOR THE ACTS OR OMISSIONS OF ANY THIRD PARTY PROVIDERS OF THIRD PARTY PRODUCTS.

Links

Listings on the Site may contain links to third-party websites and resources (collectively, “Linked Sites”).  These Linked Sites are provided solely as a convenience to you and not as an endorsement by SVI of the content on such Linked Sites.  SVI makes no representations or warranties regarding the correctness, accuracy, performance or quality of any content, software, service or application found at any Linked Site.  SVI is not responsible for the availability of the Linked Sites or the content or activities of such sites.  If you decide to access Linked Sites, you do so at your own risk.  In addition, your use of Linked Sites is subject to any applicable policies and terms and conditions of use, including but not limited to, the Linked Site's privacy policy.

Electronic Communications.

When you visit the Site or send e-mail to SVI, you are communicating electronically. If you submit User Content, SVI will communicate with you by e-mail. We may also communicate by posting notices on the Site. Admin Users may communicate with the Admin’s Registered Users through push notifications. You agree that all notices, disclosures, and other communications that SVI makes electronically satisfy any legal requirement that such communications be in writing. If you want to withdraw this consent, please stop using this Site.

INTELLECTUAL PROPERTY AND OWNERSHIP

Any and all intellectual property rights associated with the Site, and its contents (other than User Content), including all information, data, logos, marks, designs, graphics, pictures, sound files, other files and their selection and arrangement, (collectively, the “Site Content”), are the sole property of SVI, its affiliates or third parties.  The Site Content is protected by copyright and other laws in both the United States and other countries.  Elements of the Site are also protected by trade dress, trade secret, unfair competition, and other laws and may not be copied or imitated in whole or in part. All custom graphics, icons, and other items that appear on the Site are trademarks, service marks or trade dress (“Marks”) of SVI, its affiliates or other entities that have granted SVI the right and license to use such Marks and may not be used or interfered with in any manner without the express written consent of SVI.  Except as otherwise expressly authorized by this Agreement, you may not copy, reproduce, modify, lease, loan, sell, create derivative works from, upload, transmit, or distribute the Intellectual Property of the Site in any way without the prior written permission of SVI or the appropriate third party.  Except as expressly provided herein, SVI does not grant to you any express or implied rights to our or any third party's Intellectual Property.

All right, title, and interest in and to the Licensed Content including, without limitation, all intellectual property rights therein, belongs solely to ICA. You agree that we or ICA may use any feedback, suggestions, comments, information, ideas, concepts, reviews, or techniques or any other material contained in any communication you may send to us ("Feedback"), without any restriction, acknowledgment, or compensation paid to you, for any purpose whatsoever including, but not limited to, developing, manufacturing and marketing products and creating, modifying or improving the Licensed Content and/or Services. All rights in and to any ideas, suggestions, modifications, alterations, concepts, Feedback, or suggestions, made by you as a Subscriber to or about the Licensed Content or the Services, will belong solely to SVI, ICA and/or its applicable suppliers or licensors. In addition, you agree not to enforce any "moral rights" in and to the Feedback, to the extent permitted by applicable law. We are under no obligation to keep your Feedback confidential. Nothing in this Agreement or which may occur by your subscription to or use of LEAD™️ changes ICA’s exclusive ownership of the Licensed Content.

User Content, including Admin User Content and Registered User Content, remains the property of the User. However, we need limited rights from you to operate the Site with your Listing. By submitting User Content, you grant SVI, its affiliates and subsidiaries a non-exclusive, royalty-free, nontransferable right to use, display, perform, reproduce, distribute, publish, modify, adapt, translate, and create derivative works from your User Content submitted by you to the Site to the extent necessary to operate the Site, and provide the services provided by the Site, now and in the future. By providing User Content, you represent and warrant that you own and control all of the rights to the User Content, information and data that you provide to us or you otherwise have the lawful right to post and distribute that User Content, information and data to or through the Site and the use and posting or other transmission of such User Content does not violate this Agreement and will not violate any rights of or cause injury to any person or entity.

Claims of Infringement

The Digital Millennium Copyright Act (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the internet infringes their rights under U.S. copyright law. If you believe in good faith that Content on the Site infringes your copyright or trademark rights, you (or your agent) may send us a notice requesting that the material be removed, or access to it blocked. The notice must include the following information:

(a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;

(b) identification of the copyrighted work claimed to have been infringed (or, if multiple copyrighted works located on the Site are covered by a single notification, a representative list of such works);

(c) identification of the material that is claimed to be infringing or the subject of infringing activity, and information reasonably sufficient to allow SVI to locate the material on the Site;

(d) the name, address, telephone number, and e-mail address (if available) of the complaining party;

(e) a statement that the complaining party has a good-faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and

(f) a statement that the information in the notification is accurate and, under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

Please be advised that SVI will not respond to complaints that do not meet these requirements. We may share your information with third parties when we forward DMCA compliant notifications, which will be forwarded as submitted to us without any deletions. If SVI determines that the materials alleged to infringe your copyright rights do not require removal, SVI will remove those materials only pursuant to a court order declaring the content or use of the materials unlawful.

If you believe in good faith that a notice of copyright infringement has been wrongly filed against you, the DMCA permits you to send us a counter-notice. Counter-notices must include the following information:

(a) your name, address, and telephone number;

(b) the source of the content that was removed;

(d) a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which your address is located; or, if your address is outside of the United States, for any judicial district in which SVI may be found, and that you will accept service of process from the person who provided the original complaint; and

(e) a physical or electronic signature (for example, typing your full name).

Notices and counter-notices with respect to the Services must meet the then-current statutory requirements imposed by the DMCA (see https://copyright.gov/title17/92appb.html) and should be sent to the agent identified below. We suggest that you consult your legal advisor before filing a notice or counter-notice. Also, be aware that there may be penalties for false claims under the DMCA.

Agent to Receive Notices of Claimed Infringement:

NEED INFO

Confidential Information

Each party may have access to information that is confidential to the other party (“Confidential Information”). For purposes of this Agreement, Confidential Information shall include any information that is clearly identified in writing at the time of disclosure as confidential as well as any information that, based on the circumstances under which it was disclosed, a reasonable person would believe to be confidential. Your Confidential Information shall include, but not be limited to, your data.

Your Confidential Information shall not include User Content or any information that (i) is or becomes a part of the public domain through no act or omission of the other party; (ii) was in the other party’s lawful possession prior to the disclosure without any obligation of confidentiality and had not been obtained by the other party either directly or indirectly from the disclosing party; (iii) is lawfully disclosed to the other party by a third party without restriction on disclosure; (iv) is independently developed by the other party without use of or reference to the other party’s Confidential Information, as established by written records.

The parties agree to use commercially reasonable efforts not to make each other’s Confidential Information available in any form to any third party. Notwithstanding the foregoing, Customer acknowledges and agrees that SVI may disclose Customer’s Confidential Information to its Third Party Product vendors solely to the extent necessary to provide products or services under this Agreement. This Section will not be construed to prohibit disclosure of Confidential Information to the extent that such disclosure is required by law or valid order of a court or other governmental authority, provided that it first uses commercially reasonable efforts to give you written notice prior to disclosure if permitted by law.

LICENSE; ACCESS TO SITE

We grant you a limited, revocable, non-exclusive, license to access the Site and to view, copy and print the portions of the Content available to you on the Site. Such license is subject to this Agreement specifically conditioned upon the following:

you may only view, copy and print such portions of the Content for your own non-commercial use;

you may not modify or otherwise make derivative works of the Site or the Content or reproduce, distribute or display the Site or any Content except at permitted within this Agreement;

you may not remove any trademark, copyright or other proprietary notices placed on Content; and

you may not use data mining, robots or similar data gathering or extraction methods; and

you may not use the Site or the Content other than for its intended purpose.

We grant you a limited, revocable, non-exclusive, license to, during the term, access the Licensed Content. Such license is subject to this Agreement specifically conditioned upon the following:

you may use the Licensed Content for your own internal purposes only and may not permit any user to download the Licensed Content; and

you may not modify or otherwise make derivative works of the Licensed Content or reproduce, distribute or display the Licensed Content except at permitted within this Agreement; and

you may not remove any trademark, copyright or other proprietary notices placed on Licensed Content.

We reserve all rights not expressly granted to you in and to the Site, the Content, and the Trademarks. The licenses in this section are revocable by us at any time. You represent and warrant that your use of the Site and the Licensed Content will be consistent with this license and will not infringe or violate the rights of any other party or breach any contract or legal duty to any other parties, or violate any applicable law.

Restrictions on Use of the Website
You may not rent, transfer, assign, commercially exploit, resell, or sublicense access to the Services to any third party. You agree not to combine or integrate the Site or Services with hardware, software, or other technology or materials not provided by us. You may not alter or create any derivative product based on the Site or Services. Except as expressly stated in this Agreement, no part of the Site or Services may be copied, reproduced, republished, distributed, displayed, downloaded, posted, or transmitted in any form or by any means. Any future amendments to the Site or Services shall be subject to this Agreement. You agree not to use the Site or Services to violate local, state, national or international law; stalk, harass, or harm anyone; collect or store personal data about other users; impersonate any person or entity, or otherwise misrepresent your affiliation with a person or entity; or interfere with the Services or servers or networks connected to the Services, or disobey any requirements, procedures, policies, or regulations of networks connected to the Services.

In addition to other restrictions set forth in this Agreement, you agree that:

You shall not use the Site in any way that breaches any applicable local, national or international law or regulation.

You shall not disguise the origin of information transmitted through the Site or place false or misleading information on the Site.

You will not use or access any service, information, application or software available via the Site in a manner not expressly permitted by SVI.

You will not input or upload to the Site any information which contains viruses, Trojan horses, worms, time bombs or other computer programming routines that are intended to damage, interfere with, intercept or expropriate any system, the Site or information.

Certain areas of the Site may be restricted to Registered Users, Subscribers, and Admin Users of SVI.

You may not use or access the Site in any way that, in SVI's judgment, adversely affects the performance or function of the Site or interferes with the ability of authorized parties to access the Site.

You will use the Site for lawful purposes only and will not submit or transmit through the Site any material or engage in conduct that (1) violates or infringes the rights of others, including, without limitation, rights in intellectual property such as trademarks, copyrights, patents and trade secrets, (2) is unlawful, threatening, abusive, profane, explicit, harassing, defamatory, fraudulent, constitutes an invasion of privacy or contains explicit, graphic, obscene or pornographic materials; or which otherwise violates any law, rule, regulation or the rights of a third party, (3) impersonates any person, including SVI and its employees, principals, agents, consultants or affiliates or allows you or a third party unlawful access to a third party’s computer or network, (4) is harmful or attempting to harm minors in any way, or (5) violates this Agreement, the Privacy Policy, or any other policy of SVI.

Monitoring

We will have the right, but not the obligation, to monitor Customer’s use of the Learning Platform and the Licensed Content to determine compliance with this Agreement and to satisfy any law, regulation or authorized government request. While SVI reserves the right to monitor activity on the Site, such monitoring will not include the unauthorized collection or use of personal data beyond the purposes of providing the Services or maintaining and improving the Services. SVI will have the right in its sole discretion to remove any material uploaded to the Learning Platform. Without limiting the foregoing, SVI will have the right to remove any material that SVI, in its sole discretion, finds to be in violation of the provisions hereof or otherwise objectionable. If SVI determines, at any time, that the Learning Platform or Licensed Content are being used other than in accordance with this Agreement, it may take responsive action, including, without limitation, issuance of warnings to Customer, or suspension or termination of access to the Learning Platform or Licensed Content.

Compliance with Law

You agree to use the Site in strict compliance with all applicable laws, rulings and regulations and in a fashion that does not, in the sole judgment of SVI, negatively reflect on the goodwill or reputation of SVI and shall take no actions which would cause SVI to be in violation of any laws, rulings or regulations applicable to SVI.

TERM AND TERMINATION

This Agreement will become effective and binding when you use the Site or Service, or when you voluntarily register for an Account (whichever occurs first). We reserve the right to terminate this Agreement, your Account, and your access to the Site and the Service at any time without notice. If we have suspended or terminated this Agreement, your Account, the Site, or the Service other than for your breach of this Agreement, we will refund you a pro-rata share of any amounts you have pre-paid for an Account to the Service (if any). Your rights under this Agreement will automatically and immediately terminate if you fail to comply with your promises and obligations stated in this Agreement. If we have suspended or terminated this Agreement or your Account for your breach of this Agreement, you must pay to us any and all outstanding Fees due for the remaining duration of the Term, which will become immediately due and payable upon termination.

We may suspend your access to the Services or any of your Registered User’s accounts immediately or terminate this Agreement if you have failed to pay any Fees within sixty (60) days after the relevant due date. If we suspend your use of the Services pursuant to our rights in this Agreement, we will continue to charge you Fees during the suspension period and you must pay any outstanding Fees prior to us resuming the provision of the Services. We will only resume the provision of the Services once you have cured to our reasonable satisfaction the matter that caused the suspension.

Unless termination is covered by a separate agreement, you may terminate the Services at any time by written 30-day notice. If you choose to terminate this Agreement, you will not be entitled to any credits or refunds as a result of such termination.

Upon termination of this Agreement, you shall immediately cease use of all Services and/or Licensed Content. You acknowledge and agree that following termination of this Agreement, SVI may immediately deactivate Customer’s account.

Upon termination, SVI shall have the right to maintain one copy of user data, User Content for archival purposes and compliance with state and federal law. Upon request by you made before or within thirty (30) days of the termination of this Agreement, SVI will make available to you the most recent version of historical customer usage data in a format at the discretion of SVI. SVI shall have no obligation to maintain or provide any User Content and shall, unless legally prohibited, delete in such a manner as prevents recovery through normal means, all User Content in its systems or otherwise in its possession or under its control.

Termination of this Agreement will not limit either Party from pursuing any other remedies available to it at law or in equity, including injunctive relief, nor will such termination relieve Customer of Customer’s obligation to pay all Fees that accrued prior to such termination. Sections 2, 5, 6, and 7 shall survive any termination or expiration of this Agreement.

DISCLAIMER OF WARRANTIES; INDEMNIFICATION

SVI MAKES NO REPRESENTATIONS ABOUT THE RESULTS TO BE OBTAINED FROM USING THE SITE OR THE CONTENT.  THE USE OF SAME IS AT YOUR OWN RISK.

THE SITE, THE SERVICES AND THE CONTENT ARE PROVIDED ON AN "AS IS" BASIS.  SVI, ITS LICENSORS, AND ITS SUPPLIERS, TO THE FULLEST EXTENT PERMITTED BY LAW, DISCLAIM ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTIES' RIGHTS, AND FITNESS FOR A PARTICULAR PURPOSE.  SVI AND ITS AFFILIATES, LICENSORS AND SUPPLIERS MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE ACCURACY, COMPLETENESS, SECURITY OR TIMELINESS OF THE CONTENT OR SERVICES PROVIDED ON OR THROUGH THE USE OF THE SITE.  NO INFORMATION OBTAINED BY YOU FROM THE SITE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED BY SVI IN THIS AGREEMENT.

SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTY, SO THE LIMITATIONS AND EXCLUSIONS IN THIS SECTION 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 AGREE AND ACKNOWLEDGE THAT THE LIMITATIONS AND EXCLUSIONS OF LIABILITY AND WARRANTY PROVIDED IN THIS AGREEMENT ARE FAIR AND REASONABLE.

Limitation of Liability

TO THE EXTENT PERMITTED BY APPLICABLE LAW AND TO THE EXTENT THAT SVI IS OTHERWISE FOUND RESPONSIBLE FOR ANY DAMAGES, SVI IS RESPONSIBLE FOR ACTUAL DAMAGES ONLY TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL SVI, ITS AFFILIATES, ITS LICENSORS, ITS SUPPLIERS OR ANY THIRD PARTIES MENTIONED AT THE SITE BE LIABLE FOR ANY INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE AND CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION RESULTING FROM THE USE OF OR INABILITY TO USE THE SITE, THE SERVICES OR THE CONTENT WHETHER BASED ON WARRANTY, CONTRACT, TORT, NEGLECT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT SVI IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  TO THE EXTENT PERMITTED BY LAW, THE REMEDIES STATED FOR YOU IN THIS AGREEMENT ARE EXCLUSIVE AND ARE LIMITED TO THOSE EXPRESSLY PROVIDED FOR IN THIS AGREEMENT. YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH SVI IS TO DISCONTINUE YOUR USE OF THE SITE AND THE SERVICES. SVI IS NOT RESPONSIBLE FOR WHETHER ONLINE OR OFFLINE, OF ANY USER OF THE SITE. UNDER NO CIRCUMSTANCES WILL SVI BE RESPONSIBLE FOR ANY LOSS OR DAMAGE, INCLUDING PERSONAL INJURY OR DEATH, RESULTING FROM ANYONE’S USE OF THE SITE, THE CONTENT POSTED ON THE SITE OR TRANSMITTED TO USERS, OR ANY INTERACTIONS BETWEEN OR AMONG USERS OF THE SITE, WHETHER ONLINE OR OFFLINE.

Indemnification

You will indemnify, defend and hold harmless SVI and ICA, their affiliates, successors, and assigns, including the applicable officers, directors, employees, and agents thereof for damages, costs and attorneys’ fees SVI or ICA incur from any unaffiliated third-party claim arising from your User Content or your use of the Services.

We do not have any responsibility or liability for your User Content or for any loss or damage your User Content may cause to you or to other people. We have the absolute discretion to remove any User Content posted or stored on the Site, and we may do this at any time and for any reason, although we have no obligation to do so. You are solely responsible for maintaining copies of and replacing any User Content you post or store on the Site. If you download User Content, the extent permitted by law: (i) your use of User Content is at your own risk; (ii) WE EXCLUDE ALL LIABILITY TO YOU AND ANY THIRD PARTY IN RESPECT OF YOUR USE OF USER CONTENT; (iii) it is your responsibility to assess the suitability of User Content for your purposes.

DISPUTE RESOLUTION; GOVERNING LAW; VENUE

By using the Services, you agree that the Federal Arbitration Act, applicable federal law, and the laws of the state of Arkansas, without regard to principles of conflict of laws, will govern these Terms and any dispute of any sort that might arise between you and us. The parties agree that any disputes shall be resolved by binding arbitration or litigation, as provided herein, in Washington County, Arkansas.

You and SVI agree to attempt in good faith to resolve through negotiation any dispute, claim or controversy (a “Dispute”) relating to this Agreement. Either party may initiate negotiations by providing written notice to the other Party, setting forth the subject of the Dispute and the relief requested. The receiving Party will respond in writing within fourteen (14) calendar days with a statement of its position on, and recommended solution to, the Dispute. If the matter is not resolved within fourteen (14) more calendar days thereafter, either Party may submit the Dispute to binding arbitration under the Commercial Arbitration Rules of the American Arbitration Association and the award shall be enforceable in any court having jurisdiction thereof. Any dispute or claim arising from or relating in any way to your use of the Services provided by SVI or these Terms will be resolved by binding arbitration, rather than in court, except that you may assert claims in small claims court if your claims qualify.

The arbitration will be conducted by the American Arbitration Association (AAA) under its rules, including the AAA's Supplementary Procedures for Consumer-Related Disputes to the extent applicable. The AAA's rules are available at www.adr.org or by calling 1-800-778-7879. Payment of all filing, administration and arbitrator fees will be governed by the AAA's rules. To begin an arbitration proceeding, visit AAA’s website (www.adr.org) for instructions.

We each agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action, unless otherwise agreed by all parties. Class action lawsuits, class-wide arbitrations, private attorney-general actions, and any other proceeding where someone acts in a representative capacity aren’t allowed. Nor is combining individual proceedings without the consent of all parties. Unless we each agree, no arbitrator or judge may consolidate more than one person’s claims or otherwise preside over any form of a representative or class proceeding.

We also both agree that the terms “dispute” and “claim” as used in this section are as broad as they can be and include any claim or controversy between you and us concerning the Services, the software related to the Services, the Services’ or software’s price, or these Terms, under any legal theory including contract, warranty, tort, statute, or regulation, except disputes relating to the enforceability or validity of your, your licensors’, our, or our licensors’ intellectual property rights. You or we may bring suit in court to enjoin infringement or other misuse of intellectual property rights. You and SVI consent to the exclusive jurisdiction of the state and federal courts sitting in Washington County, Arkansas for any non-arbitration actions, suits or other proceedings arising out of, or related to, the enforcement of either party’s rights hereunder. You and SVI agree not to commence any action suit or proceeding in any other court and hereby irrevocably and unconditionally waive any objection to the laying of venue in any such court. The parties each agree to waive their separate rights to a trial by jury.

GENERAL PROVISIONS

You may not assign this Agreement or any of your interests, rights or obligations under this Agreement.

If any provision of this Agreement is found to be invalid by any court having competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect.  No waiver of any of this Agreement shall be deemed a further or continuing waiver of such term or condition or any other term or condition.

You grant SVI and ICA the right and license to use Customer name, trademarks and logos in connection with press releases or marketing materials related to the Services.

You agree to allow SVI or ICA to send communications to Customer’s employees who have accessed or created accounts in the Learning Platform.

You hereby grant SVI and ICA a license to use, copy, and display any and all Learner Data, as such may be modified from time-to-time, as necessary in connection with ICA’s performance of its obligations hereunder and communication with authorized users related to the services including credentialing and in order to alert authorized users of other related products, services, or programs that may be of interest to them. ICA shall not use the Learner Data for any other purpose.

Any delays or failures by either Party hereto in the performance of the obligations hereunder will be excused if and to the extent such delays or failures are caused by occurrences beyond such Party’s control, including, without limitation, acts of God, strikes or other labor disturbances, telecommunications failures, war, whether declared or not, sabotage, and/or any other cause or causes, whether similar or dissimilar to those herein specified, which cannot reasonably be controlled by such Party. Notwithstanding the foregoing, delays or failures by Customer in the payment of money will not be excused for any reason.

The Parties agree that each is performing its obligations hereunder as an independent contractor, and no joint venture, partnership, employment, or other relationship is being created by this Agreement.

No legal action related to this Agreement, regardless of its form, may be brought by either Party more than two (2) years after the cause of action first accrued.

AMENDMENTS

We may amend this Agreement at any time and for any reason. We ask that you stay up-to-date with this Terms. When we make changes to this Agreement, we will notify you of the changes by posting the revised version on our website. Any changes will become effective upon the earlier of thirty (30) calendar days following our e-mail notice to you (if applicable) or thirty (30) calendar days following our posting notice of the changes on our Site. Changes will be effective immediately for new users of our Site or Services. If you object to any such changes, we ask that you cease using the Site and the Services. By continuing to use the website after we have posted modifications or amendments to the Terms, you consent to such amendments and/or modifications. For this reason, we encourage you to review the Terms whenever you use the Site or Services.

PRIVACY POLICY

Our Privacy Policy (“Privacy Policy”) as currently posted on the website may be amended by us and incorporated into this Agreement and provides additional terms and conditions related to our use, collection, and disclosure of your personal information. Any other posted guidelines or rules applicable to any individual use of the website will also form part of this Agreement. Use of our website acknowledges that you agree to abide by all such other guidelines and rules.

COMPLETE AGREEMENT

EXCEPT AS EXPRESSLY PROVIDED IN A SEPARATE LICENSE OR OTHER WRITTEN AGREEMENT BETWEEN YOU AND SVI, THIS AGREEMENT, TOGETHER WITH THE SVI PRIVACY POLICY, CONSTITUTE THE ENTIRE AGREEMENT BETWEEN YOU AND SVI WITH RESPECT TO THE USE OF THE SITE AND SERVICE, INFORMATION OR CONTENT CONTAINED THEREIN, AND SUPERSEDE ALL DISCUSSIONS, COMMUNICATIONS, CONVERSATIONS AND AGREEMENTS CONCERNING THE SUBJECT MATTER HEREOF.

If you have any questions or concerns regarding the Terms of Use, please contact us at info@learnermobile.com.