Terms of Service
Acceptable Use Policy
This Acceptable Use Policy (“AUP”) sets forth guidelines for acceptable use of the Distance Learning Center, Inc (“Distance Learning Center”) network and systems, and its services, software and products. These guidelines are not intended to be comprehensive, but merely illustrative of examples of conduct deemed to be inappropriate, improper or harmful to Distance Learning Center. This AUP may be modified at any time by Distance Learning Center in its sole discretion.
Use
Distance Learning Center’s Internet services may be used only for lawful purposes and in a manner consistent with the permitted use of Distance Learning Center’s network and services. Transmission, distribution or storage of any material in violation of any applicable law or regulation is prohibited. This includes, without limitation, material protected by copyright, trademark, trade secret or other intellectual property right used without proper authorization, and material that is obscene, defamatory, constitutes an illegal threat, or violates export control laws. Distance Learning Center takes no responsibility for any content created, accessible or delivered on or through its network or services. Distance Learning Center does not monitor or exercise any editorial control over such content.
A customer or user may not assign, transfer, distribute, resell, lease or otherwise provide access to any third party to the Distance Learning Center network or services, or use such network or services with or for the benefit of any third party, other than Internet end users. Customers and users are also prohibited from attempting any action designed to circumvent or alter any method of measuring or billing for use of the Distance Learning Center network or services.
Use of the Distance Learning Center network or services to violate or attempt to violate the security of a system or network is strictly prohibited, whether that of the Distance Learning Center network or services or a third party’s network or services. Such behavior may result in civil and criminal liability. Examples of prohibited behavior include:
- Unauthorized access to or use of of data, servers, accounts, databases, etc., including any attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization
- Impersonating Distance Learning Center or third-party personnel
- Interfering, or attempting to interfere with, disrupt or disable service to any user, host or network, including, without limitation, via means of overloading, mailbombing, flowing denial of service (DOS) attacks
- Forging any TCP/IP packet header or any part of the header information in any e-mail or newsgroup posting.
Usenet and E-mail
The Distance Learning Center network and services shall not be used to send unsolicited e-mail messages or USENET postings, including, without limitation, bulk commercial advertising or informational announcements, or the same or similar message to one or more newsgroups or recipients (“spam”). In addition, a user shall not use the service of another provider to send spam, or use another site’s mail server or system to relay e-mail without such site’s express permission.
The Distance Learning Center network and services shall not be used to (a) send e-mail messages or USENET postings that are intended to harass or annoy others, (b) continue to send e-mail messages or USENET postings to a recipient who has indicated that he/she does not wish to receive them, (c) send e-mail messages or USENET postings with forged header information.
The foregoing restrictions also apply to any email or content transmitted by a user or on a user’s behalf that uses Distance Learning Center’s network or services, or which indicates in any way that Distance Learning Center was involved in the transmission of such email or content.
Remedies
If a customer becomes aware of any activity that violates this AUP, it shall take all necessary action to prevent such activity from involving Distance Learning Center. Distance Learning Center may, in its sole discretion, immediately block access to such activity or content that violates this AUP, suspend or terminate any affected services, or take any other actions it deems appropriate. Distance Learning Center shall not be liable for any damages of any nature suffered by any person or entity resulting in whole or in part from Distance Learning Center's exercise of its rights under this AUP. Distance Learning Center may, in its sole discretion, charge a customer or user at its standard rates for the time and expenses involved in handling violations of this AUP.
Reports
Complaints about any violation of the above should be sent to abuse@verticalstreaming.com
Terms and Conditions
1. Scope
(a) Distance Learning Center, Inc. (the “Company”) shall provide the Customer listed below with those services (“Services”) and security software (“Security Software”) set forth in a service order or orders executed (“Service Order(s)”) by the Company and Customer. Unless otherwise agreed in writing, any conflict between the terms of a Service Order and these terms and conditions shall be resolved in favor of the Service Order.
(b) Customer shall not resell the Services or nor enter into any relationship whereby a third party can purchase or use the Services through Customer; provided, that end-users accessing Customer’s website are not considered to be using the Services.
(c) Customer shall at all times comply with the Company’s acceptable use policy (AUP) as then in-effect located at www.Distance Learning Center.com/aup.
2. Term
The term for the provision of Services by the Company shall be as set forth in the applicable Service Order. Termination of an individual Service Order shall not terminate any other Service Order.
3. Termination
(a) Either party may terminate a Service Order if the other materially breaches the terms of such Service Order, and does not cure such breach within thirty days of notice. In addition to any other remedies, the Company may suspend the provision of Services under all Service Orders upon twenty-four hours notice in the event that payment has not been received within ten business days of the due date for such payment.
(b) Except for a termination of a Service Order by Customer (i) based upon a breach of such Service Order or these terms and conditions by the Company, or (ii) pursuant to Section 3(c), 4(b) or 6(c) below, in the event a Service Order is terminated prior to the end of its term, Customer shall pay the Company a termination charge equal to 100% of the fees that would have become due for the remainder of such term, in addition to all unpaid fees outstanding as of the date of termination. Customer agrees that such termination charge is a reasonable measure of the damages incurred by the Company and is not a penalty.
(c) The Company may modify components of, or the method of providing, its Services, upon thirty days notice, or a shorter period if such change is due to compliance with applicable laws or regulations. In such case, the terms and conditions and applicable Service Order(s) shall be modified solely to the extent necessary to reflect such modification(s); provided, that if such modification results in a material decrease in the functionality of the Services, then Customer may terminate the applicable Service Order if such material decrease is not remedied within thirty days notice from Customer.
4. Payment
(a) All payments shall be made in U.S. dollars. Payment for Services is due within thirty days after the date of invoice. Late payments hereunder will accrue interest at a rate of one and one-half percent (1-1/2%) per month, cumulated daily, or the highest rate allowed by applicable law, whichever is lower. The Company reserves the right to have Customer complete a credit application to determine Customer’s creditworthiness.
(b) The Company may, as part of a general increase in fees, increase the fees for the Services; provided, that (i) it shall provide thirty days notice of such increase, and (ii) Customer shall have the right to terminate receipt of the applicable Services by providing notice to the Company within thirty days after the effectiveness of the fee increase.
5. Confidentiality
(a) This Section 5 shall not apply at such times as the Company and Customer are parties to a non-disclosure agreement that governs the disclosure of confidential information by either party to the other.
(b) Each party acknowledges that it will have access to certain confidential information of the other party, including the term, fees and commissions and other terms and conditions of this Agreement (“Confidential Information”), and . agrees that it will not use in any way, for its own account or the account of any third party, such Confidential Information, nor disclose to any third party (except to that party’s attorneys, accountants and other advisors as necessary), any of the other party's Confidential Information. Information will not be deemed Confidential Information if it (a) is or becomes known to the receiving party from a source other than one having an obligation of confidentiality to the disclosing party; (b) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the receiving party; (c) is independently developed by the receiving party without reference to the Confidential Information; or (d) is required to be disclosed by law, a court, governmental agency or any applicable rules and regulations.
(c) The Company may, with the prior written consent of Customer, refer to Customer by name and trademark in the Company’s marketing materials and web site, and in press releases, customer references and case studies, with a description of the relationship.
6. Indemnification
(a) The Company shall indemnify and hold harmless Customer from and against any and all claims and suits, (including reasonable attorney’s fees and costs) brought against Customer alleging that a Service infringes or misappropriates any intellectual property rights in a country in which such Service is provided by the Company to Customer.
(b) If a Service is held to infringe and injunction against its use finally adjudicated, the Company may, at its expense and in its sole discretion, either (i) obtain the right for Customer to continue using such Service, or (ii) modify or replace in its entirety such Service so that it is no longer infringing.
(c) If the Company is unable to provide one of the foregoing remedies, Customer may terminate its use of the infringing Service without payment of the termination fee provided in Section 3(b).
(d) The Company shall have no liability for any infringement or misappropriation of intellectual property rights resulting from Customer’s content, improper use of the Service in violation of the AUP or not in accordance with applicable documentation, or from products or services not supplied by the Company.
(e) Customer shall indemnify and hold harmless the Company from and against any and all claims and suits, (including attorney’s fees and costs) brought against the Company (i) alleging that Customer content infringes or misappropriates any intellectual property right, or (b) resulting from non-compliance with the AUP.
(f) When a claim is made against a party who is thus entitled to be indemnified, such party shall promptly notify the indemnifying party, and allow the indemnifying party to assume sole control of the defense of such claim or suit; provided, that the indemnifying party shall not enter into a settlement imposing liability on the indemnified party without the indemnified party’s prior written consent.
7. Warranty Disclaimer; Limitation of Liability.
EXCEPT AS SPECIFICALLY PROVIDED HEREIN, CUSTOMER’S USE OF THE SERVICES IS “AS-IS,” AND THE COMPANY DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS AND IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. EXCEPT AS PROVIDED IN A SERVICE ORDER, THE COMPANY DOES NOT WARRANT THAT THE USE OF THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE. EXCEPT WITH RESPECT TO THE INDEMNIFICATION PROVISIONS OF SECTION 6, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS OR INCOME, WHETHER OR NOT SUCH PARTY HAD KNOWLEDGE, THAT SUCH DAMAGES MIGHT BE INCURRED.
8. Miscellaneous
(a) Notices under these terms and conditions and under any Service Order shall be in writing and shall be deemed given if delivered personally or by commercial messenger or courier service, or mailed by registered or certified mail (return receipt requested) or sent via facsimile (with acknowledgment of complete transmission) to the parties at the addresses set forth above such other address for a party as shall be specified by like notice.
(b) Neither party may assign its rights or obligations under this Agreement either in whole or in part without the prior written consent of the other party; provided, that such consent shall not be required if the Company assigns its rights and obligations to an assignee that acquires all or substantially all of the Company’s stock or assets. Any attempted assignment in violation of the foregoing shall be void. The rights and obligations of the parties shall be binding upon and inure to the benefit of the parties and their respective heirs, representatives, successors and permitted assigns.
(c) These terms and conditions and all Service Orders shall be governed by the English language and by the laws of the state of California. The parties consent to the jurisdiction of the courts of the county of San Mateo, California.
(d) All prior agreements and understandings are hereby superseded by these terms and conditions and the applicable Service Orders. If any provision is held unenforceable, these terms and conditions and Service Order(s) shall be deemed to be modified so as to render the remainder of the parties’ agreement enforceable. Section 3-8 of these terms and conditions shall survive termination. These terms and conditions and Service Orders may only be amended in writing by both parties. No failure or delay of either party to exercise or enforce is rights shall operate as a waiver. Time is of the essence in the performance of obligations. If either party’s performance is delayed to a force majeure event, such party’s performance shall be excused during the appropriate period due to such event. Section 3-8 of these terms and conditions shall survive termination.
Security Software Addendum
This Security Software Addendum (“Software Addendum”) is issued as a part of the Service Order(s) for the Distance Learning Center, Inc. (“Distance Learning Center”) Security Software (the “Software”) and does not constitute a separate agreement. Capitalized terms not defined herein shall have the meaning as set forth in the Terms and Conditions and/or Service Order(s).
1. License
Distance Learning Center hereby grants Customer a limited, non-exclusive, non-transferable, non-sublicensable (except as provided below in this Section 1) license to the Security Software, to:
(a) use the Security Software solely in conjunction with the Services provided by Distance Learning Center to Customer;
(b) copy the Security Software as provided in Section 2 below;
(c) modify and create derivative works of the Security Software for the purpose of integrating the Security Software with Customer’s Flash-based media player in conjunction with the Services provided by Distance Learning Center to Customer; and
The Security Software may not be enabled for use, operation or interaction with any software, hardware or any other application other than Customer’s Flash-based media player or those provided by Distance Learning Center, except as specifically authorized in writing by Distance Learning Center. Customer may grant sublicenses to the Security Software to users of Customer’s website(s) along with licenses to Customer intellectual property pursuant to Customer’s standard end-user license agreement, website terms of use, or similar agreement; provided, that such sublicenses shall only grant rights as to compiled versions of the Security Software. Customer shall not provide access to the source versions of the Security Software to any third party.
2. Proprietary Rights
The Security Software is the Confidential Information of Distance Learning Center, and Distance Learning Center retains all right, title and interest in and to the Security Software. Except as expressly provided in this Software Addendum, the Terms and Conditions and/or Service Order(s), all rights to Distance Learning Center’s intellectual property are specifically reserved, and in no event shall Customer acquire any other rights or licenses, implied or otherwise, by virtue of this Software Addendum. Without restricting the previous sentence, nothing herein shall be construed as a right or license to make, have made, use, sell, offer to sell, import, lease or distribute any products or technology related to the Security Software, or to use any name, identifier, trademark, trade name, service mark or other designation of Distance Learning Center.
Customer may copy the Security Software only to the extent necessary for its authorized use, and for archival and backup purposes, provided that Customer will at all times and in each instance, reproduce all copyright notices and proprietary legends on each copy in the same manner as such notices and legends appear on the original. Customer shall not (and shall not allow any third party to) copy (except as provided in the preceding sentence), modify, create a derivative work of, reverse engineer, reverse assemble, disassemble, or decompile the Security Software or any portion thereof or otherwise attempt to discover any source code, or sell, assign, sublicense, grant a security interest in or otherwise transfer any right in or to the Security Software. The foregoing restriction on discovery does not apply to the extent that Customer can view the source code provided to Customer as part of the Security Software without undue effort.
3. Exceptions to Other Documents
The Security Software is not included within the provisions of the Service Level Agreement, nor is the Security Software subject to Section 6 (Indemnification) of the Terms and Conditions, regardless that it is a “Service” for the other portions of the Terms and Conditions.
Notwithstanding Section 3(a) of the Terms and Conditions, Distance Learning Center may terminate the Service Order(s) governing the Security Software upon any breach of this Software Addendum upon immediate written notice. Upon such notice, Customer shall cease all use of the Security Software.
4.Termination
Upon any termination of the Service Order(s) governing the Security Software, Customer shall cease all use of the Security Software, and promptly certify in writing to Distance Learning Center that it has deleted all instances of the Security Software and no copies of the Security Software provided to Customer are in existence.
Copyrights and Trademarks
Copyright ©2008 Distance Learning Center| All rights reserved
