These Terms and Conditions govern your use of internet-based learning services and products, including all courses, workshops, labs, tutorials, interactive forums, photographs, audio and video recordings, graphics and information associated therewith (“Content”) to be provided by Graduate America, doing business as Graduate America, and its affiliates (collectively “Graduate America”) and by third party licensors.
March 12, 2017.
1. Acceptance. Your use of the Content is conditioned upon your acceptance of these Terms and Conditions. Your use of the Content, including your enrollment in a class, workshop or lab provided by Graduate America, your download of a tutorial from Graduate America, your participation in Graduate America interactive forums, or your purchase or use of Graduate America’s products, shall constitute your binding acceptance of these Terms and Conditions.
2. Modification. Graduate America reserves the right, in its discretion, to change all or any part of these Terms and Conditions at any time. Such changes shall be effective immediately upon the publication of such modified Terms and Conditions. Your continued use of the Content following any such changes shall constitute your binding acceptance of the modified Terms and Conditions. If at any time, any part of these Terms and Conditions are no longer acceptable to you, you should immediately terminate your use of the Content. In such event, Graduate America is not and will not be obligated to refund any portion of fees paid or to forgive any fees that remain payable by you.
3. Entire Agreement. These Terms and Conditions are the entire agreement relating to its subject matter between you and Graduate America, and it supersedes any prior proposal, representation or understanding between the parties, unless expressed in a formal written contract signed by you and Graduate America, which will be interpreted in a manner consistent with these Terms and Conditions.
4. License Grant. Graduate America hereby grants you a non-exclusive, non-transferable, non-assignable right to view and use the Content solely for your own individual and non-commercial use. You may only access the Content via a standard web browser not supplied by Graduate America or via a secure website or server system that is controlled by an entity that has entered into an agreement with Graduate America to provide Content, and which secure website or server system is accessible only to persons granted access to such entity’s internal networks in the furtherance of such entity’s normal course of business, and which tracks all access to the Content, including, without limitation, each time an authorized end-user launches a course.
5. License Restrictions. You may not: (a) share, publish, transfer, sell, reproduce, distribute, perform, display, rent, lease, assign, sublicense or in any way exploit, any of the Content or any software used in connection with delivery of the Content ("Software"), in whole or in part, except as expressly permitted in these Terms and Conditions; (b) modify, disassemble, translate, abridge, or otherwise create derivative work based on, decompile, reverse engineer or otherwise determine or attempt to determine or have or attempt to obtain access to, the source code or internal design of Software, Content or any other text, multimedia images (graphics, audio and video), data or other information provided by Graduate America in connection with the Content (collectively, the "Licensed Materials"); (c) remove, alter or otherwise modify any copyright or other legal notices contained in the Licensed Materials; or (d) knowingly transmit or distribute the Licensed Materials, or permit the Licensed Materials to be downloaded for use, other than as explicitly permitted herein.
6. Protected Materials. You acknowledge that the Licensed Materials (including the Content and Software) are protected by copyright, trademark, or other proprietary rights of Graduate America or third-party licensors. You agree to comply with any additional copyright notices, information, or restrictions applicable to any Content available on or accessed through Graduate America.
7. No Proprietary Rights To You. Notwithstanding anything to the contrary contained herein, the Licensed Materials are the property of Graduate America or third party licensors. Except as expressly stated herein, Graduate America does not grant you any intellectual property or other rights in the Licensed Materials. Nothing in these Terms and Conditions shall constitute a waiver of the rights of Graduate America or any of its third party suppliers under the U.S. Copyright Act or any other Federal or State law or international treaty.
8. Representations And Warranties. You represent and warrant that you will exercise due diligence to ensure that Graduate America’s rights in the Licensed Materials (including the Content and Software) are protected and respected.
9. Disclaimer Of Warranties And Limitation Of Liability.
A. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE CONTENT, SOFTWARE AND LICENSED MATERIALS ARE PROVIDED TO YOU "AS IS" WITHOUT WARRANTY OF ANY KIND. GRADUATE AMERICA EXPRESSLY DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, NONINFRINGEMENT (EXCEPT AS SET FORTH ABOVE), PERFORMANCE, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, OR ANY IMPLIED WARRANTY ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE. GRADUATE AMERICA DOES NOT WARRANT THAT THE CONTENT IS OR WILL BE ACCURATE OR ERROR-FREE OR MEETS OR WILL MEET YOUR OR ANY USER'S REQUIREMENTS.
B. IN NO EVENT WILL GRADUATE AMERICA OR ANY OF ITS THIRD PARTY CONTENT SUPPLIERS BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA OR OTHER PECUNIARY LOSS), ARISING OUT OF THE USE OR INABILITY TO USE THE CONTENT SERVICES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION SHALL APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN. IN NO EVENT SHALL THE LIABILITY OF GRADUATE AMERICA OR ANY OF ITS THIRD PARTY SUPPLIERS EXCEED THE AMOUNT OF THE CONTENT SERVICE FEES PAID HEREUNDER.
C. SOME STATES DO NOT ALLOW EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. IN SUCH STATES, THE LIABILITY OF GRADUATE AMERICA, THIRD PARTY CONTENT PROVIDERS AND THEIR RESPECTIVE AGENTS SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
10. Trademarks. Graduate America is a trademark of Graduate America, Inc. Other trademarks used in connection with the Licensed Materials are the property of their respective owners. The use of third party trademarks and of screen capture information in the Licensed Materials should not be construed to imply sponsorship or endorsement of any of the Licensed Materials by any third party, or any affiliation with Graduate America. For information about trademarks and other intellectual property owned by certain third parties, please consult with the relevant owners. Similarly, the Licensed Materials may contain links to sites on the Internet that are owned and operated by third parties (the "External Sites"). You acknowledge that Graduate America is not responsible for the availability of, or the content located on or through, any External Sites. You should contact the site administrator or Webmaster for those External Sites if you have any questions or concerns regarding such links or External Sites.
11. Interactive Forums. You may use Graduate Americas interactive forums (the “Interactive Forums”) for lawful purposes only. You may not upload to, or distribute or otherwise publish through the interactive forums any material that (a) is libelous, defamatory, obscene, pornographic, abusive, harassing or threatening, or otherwise objectionable to Graduate America in its sole and absolute discretion, (b) contains viruses or other contaminating or destructive features, (c) violates the rights of others, such as by infringing any copyright, trademark, patent, or trade secret or by violating any right of privacy or publicity, or (d) otherwise violates any applicable law. You may not use the Interactive Forums for any commercial purpose, including advertising or solicitation of funds, goods, or services. In addition, you may not use the Interactive Forums to solicit subscribers to join other online information services that are competitive with the Licensed Materials.
You grant to Graduate America the perpetual, irrevocable, full-paid, worldwide right to edit, copy, publish, distribute, translate and otherwise use any Content that you place in any medium on the Interactive Forums. You represent and warrant that you are authorized to grant all rights set forth in the preceding sentence.
Graduate America does not and cannot review all material submitted to the Interactive Forums by subscribers ("Subscribers' Content") and is not responsible for such Subscribers' Content. However, Graduate America reserves the right to cancel your access to these areas and/or delete, move, modify, or edit any Subscribers' Content, including messages posted in any forum, that it may determine, in its sole discretion, violates this Agreement. You are and shall remain solely responsible for all Subscribers' Content posted by you or by any other person using your account.
Graduate America does not represent or endorse the accuracy or reliability of any Subscribers' Content displayed, uploaded, posted on any message board, or otherwise distributed through the Interactive Forums. Graduate America expressly disclaims any liability related to Subscribers' Content, and you acknowledge that any reliance by you upon such Subscriber Content shall be at your sole risk.
12. Indemnity. You shall indemnify, defend and hold Graduate America, its third party content providers and each of their respective officers, directors, employees, stockholders and agents harmless from, or at your option settle and/or pay, any and all actions, claims, damages, expenses (including reasonable attorneys' fees and other legal costs) and liabilities that arise from or relate to any third party claim arising out of any breach by you of a representation or warranty herein, or any negligence or willful misconduct by you, or arising out of any use or alleged use of your account or password by any person, whether or not authorized by you; provided, however, that the your right to settle will be subject to Graduate America’s approval, which may be withheld in its sole discretion, if and to the extent the settlement of, or an adverse judgment with respect to, the claim is, in Graduate America’s judgment, likely to establish a precedential custom or practice that could reasonably be expected to have an adverse effect on the continuing business interests of Graduate America. Graduate America reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with Graduate America's defense of such claim.
13. Export. You shall comply with all applicable international and national laws that apply to any content or other products provided under these Terms and Conditions, including the U.S. Export Administration Regulations, as well as end-user, end-use and country destination restrictions issued by U.S. and other governments.
15. Service and System Availability. Graduate America uses reasonable efforts to maximize system availability. Graduate America shall make a reasonable effort to correct any technical difficulties that may arise. However, Graduate America is not responsible for any service down time. Graduate America is not responsible for any technical difficulties resulting from the World Wide Web, Internet access, computer hardware or software.
16. Termination of Service. Graduate America reserves the right, in its sole discretion, to restrict, suspend or terminate your access to all or any part of the Content and service at any time for any reason without prior notice or liability and without any obligation to refund any portion of fees paid. Graduate America may also change, suspend or discontinue all or any aspect of the Service at any time, including the availability of any service feature, database, or content, without prior notice or liability.
17. Governing Law; Construction. These Terms and Conditions shall be governed by the internal laws of the State of New York, without regard to conflicts of law. These Terms and Conditions shall be construed as if both parties had equal say in its drafting, and thus shall not be construed against the drafter.
18. No Waiver. Any waiver of the provisions of these Terms and Conditions or of a party's rights or remedies under these Terms and Conditions must be in writing signed by the waiving party to be effective. Failure, neglect or delay by a party to enforce the provisions of these Terms and Conditions or its rights or remedies at any time will not be construed and will not be deemed to be a waiver of such party's rights under these Terms and Conditions and will not in any way affect the validity of the whole or any part of these Terms and Conditions, or prejudice such party's right to take subsequent action.
19. Severability. If any term, condition or provision herein is found to be invalid, unlawful or unenforceable to any extent, such invalid term, condition or provision will be severed from the remaining Terms and Conditions, which will continue to be valid and enforceable to the fullest extent permitted by law.
20. You agree to pay all amounts that are payable by you to Graduate America including any applicable late charges on overdue accounts. Should it become necessary for Graduate America to sue to enforce payment due from you, you agree to the exclusive personal jurisdiction of the courts of New York, Ontario County and agree to pay all costs of enforcement including attorneys’ fees, plus the statutory judgment interest rate on the judgment amount
P. O. Box 1559