BY USING TURNING TECHNOLOGIES’ SERVICES AND/OR SOFTWARE, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS SUBSCRIPTION AGREEMENT (HERINAFTER “AGREEMENT”), THAT YOU UNDERSTAND IT, AND THAT YOU AGREE TO BE BOUND UNCONDITIONALLY BY ITS TERMS. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY NOT ACCESS OR USE THE SERVICES OR SOFTWARE.
The following terms apply to this Agreement:
“Turning” means Turning Technologies, LLC, an Ohio limited liability company.
“Software,” “Services,” and “Services and Software” means any Turning Technologies software and/or services provided, or used, as applicable, as well as all media, documentation, and data made available by Turning that is related to such services and software. This includes, but is not limited to, current products, Point Solutions, ExamView, WorkSpace, Knowbly, Bongo and Dojo360 as well as any additional products or enhancements associated with the software and/or services.
“User,” “You,” and “Your” means the individual or individuals using the Services and Software and agreeing to this Agreement.
“We” and “Our” refers to Turning Technologies, LLC.
As a condition of use, User agrees not to use the Turning Services or Software for any purpose that is prohibited by this Agreement or by applicable law.
By using or accessing the Services, you are agreeing to this Agreement, our Copyright Policy, our Acceptable Use Policy and our Data Processing Addendum (collectively, this “Agreement”). If you do not agree to all of the terms in this Agreement, you may not use or access the Services.
Please read this Agreement thoroughly and carefully. It includes important information about your legal rights, and covers areas such as subscriptions, automatic subscription renewals, warranty disclaimers, limitations of liability, resolution of disputes by arbitration and a class action waiver. Please note if you are an EU Consumer (as defined below), some of these provisions may not apply to you and you may be entitled to specific rights under the mandatory laws of the country in which you live.
Subject to this Agreement, for so long as User maintains a valid subscription, Turning grants to User a limited, non-exclusive, non-transferable, revocable subscription to access via the Internet, the Services as hosted by Turning, and/or (b) (if applicable) a limited, personal, non-exclusive, non-transferable, revocable subscription to use the Software provided to User by Turning. User is prohibited from sharing an individual subscription with any other users. User shall not transfer, re-sell, rent, lease, lend, or permit third-party access to, or otherwise transfer rights or assign the Services or Software (in whole or in part), to any individual or third-party.
If User accesses software or services which exceed the scope of what has been purchased (User's subscription) it does not mean that User has the continued right to use that software or service. In that event, Turning may revoke any and all authorization and subscription which may have been granted to User and may block the User from any further use of Turning's software or services. Turning may exercise this right at any time and without notice to the User. Failure to exercise this right upon User's violation of the term of User's subscription, does not waive Turning's right to revoke User's subscription at a later date.
If a User’s authorization to use the Turning Services and/or Software ceases for any reason (e.g., expiration of subscription, termination of employment or termination of the User’s studies at the educational institution that a User attends), then such User’s authority to use the Turning Services and/or Software shall cease, including, without limitation, any use of the Services and/or Software provided by Turning and User shall permanently delete all copies of the Turning Software and User shall no longer access the Turning Services.
Turning makes no guarantee that User will be able to access any Services at any given time nor that it will perpetually support Services associated with perpetual subscriptions, and except as otherwise specifically provided herein, Turning will not be liable to User, for failure of accessibility to, or support for, the Services.
Exhibit A of this Agreement includes the permitted uses of ExamView. To the extent there is any discrepancy, between this Agreement and Exhibit A, then, in that case, the terms of Exhibit A shall control.
Turning does not knowingly collect information about children under 13, or sell products to children under the age of 18 without appropriate parental/guardian consent. If you are under the age of 18, you must have your parent’s or guardian’s consent to this Agreement, and they must enter into this Agreement on your behalf. If you are a User representing an organization using Software and Services with children under the age of 13, you agree to meet your responsibilities related to parental/guardian consent requirements under COPPA.
ACTIVATION OF THE SOFTWARE, SERVICES AND ANY UPDATES MAY BE REQUIRED. USER AGREES THAT COMPLIANCE WITH ANY REQUIRED ACTIVATION IS A CONDITION FOR USER’S SUBSCRIPTION UNDER THIS AGREEMENT BEING EFFECTIVE. USER FURTHER AGREES THAT USER WILL MAKE EVERY REASONABLE EFFORT TO USE THE MOST RECENT VERSION OF THE SOFTWARE FOR WHICH USER IS SUBSCRIBED.
User shall not use any Activation Code other than an Activation Code or Codes generated by Turning for User in accordance with the agreement between Turning and User for activating the Software subscription hereunder. Unless otherwise provided pursuant to a Turning Technologies Services Agreement, User shall register with Turning as a User of the Software as instructed during the installation of the Software or otherwise.
Signing Up. To use the Services or Software, you must first create a Turning Account (“Account”). You agree to provide us with accurate, complete and updated information for your Account. We may need to use this information to contact you. You further agree to keep the information for your Account updated.
User has no ownership rights in the Services or the Software provided by Turning. The Services and Software (and all related documentation) are protected by worldwide intellectual property laws, including, without limitation, United States copyright and trade secret laws, and by international treaty provisions. All rights not granted to User herein are expressly reserved by Turning. User shall not remove, obscure or alter any copyright notice, trademarks or other proprietary rights notices affixed to or contained within the Services or the Software.
You agree not to change, translate or otherwise create derivative works of the Services or Software or to reverse engineer, decompile or otherwise seek to obtain any source code related to the Services or Software.
Turning welcomes your feedback, ideas or suggestions (“Feedback”), but you agree that we may use your Feedback without any restriction or obligation to you, even after this Agreement is terminated. This Section does not limit or affect any rights you may have under applicable data protection laws.
We may provide templates or other products featuring demo content including without limitation text, photos, images, graphics, audio, video and other materials (“Demo Content”), to provide you with ideas or inspiration. However, Demo Content is for private use only (unless we inform you otherwise, in advance, in writing). You agree that you will not distribute, publicly display, publicly perform or otherwise publish any Demo Content (or any portion thereof).
Turning may release products and features that we are still testing and evaluating (“Beta Software”). Those Services or Software have been marked as “beta,” “preview,” or “early access” (or a similar phrasing). Beta Software has not been commercially released and is not at the level of performance or compatibility of a final product. The Beta Software may not operate correctly and may be substantially modified prior to commercial release or may never be released commercially. Beta software is provided “as is” without warranty of any kind including, but not limited to, warranty as to performance, non-infringement of third-party rights, merchantability, or fitness for a particular purpose. The entire risk of using Beta Software lies with the User. In no event shall Turning be liable for any damage, whatsoever, arising out of the use of, or inability to use, the Beta Software, including without limitation, any direct, indirect, consequential, exemplary, special, incidental, or punitive damages or damages for lost data or lost profits.
Turning may use open-source software. Some of the software used in the Services may be offered under an open-source subscription that we may make available to you. There may be provisions in the open-source subscription that override some provisions of this Agreement.
Turning complies with copyright law, and responds to complaints about copyright infringement in accordance with our Copyright Policy.
We respect the intellectual property of others and ask that you do too. We reserve the right to delete or disable content alleged to be infringing, and to terminate Accounts of repeat infringers without any refunds.
When User uploads content to Turning, User still owns it. User grants Turning permission to use it in the ways necessary to provide our services. For example, when User uploads a photo, User grants Turning the right to save it, and also to display it within User’s work at User’s direction.
Users of the Services or Software may provide Turning with content, including without limitation text, photos, images, audio, video, code and any other materials (“User Content"). User Content remains the property of User. This Agreement does not give Turning any ownership rights to User Content but does grant the limited rights that enable Turning to provide, improve, promote and protect the Services as described in this Agreement.
Featuring User Work. Turning may request User’s permission to feature User Content in promotional pieces where User utilizes the Services to create or publish User Content (“User Work”) inclusive of names, trademarks, service marks or logos included within User Work. Any rights that User grants to Turning will be specific and shall be obtained in advance of any use of User Work. Any request for permission to feature User Work would be for the limited purpose of Turning’s marketing and promotional activities. For example, Turning may request permission to feature User Work on Turning’s website or social media accounts. This Section does not affect any rights User may have under applicable data protection laws.
Review of User Content. Turning has not reviewed, cannot review, and does not review all of the User Content made available via the Services. The Services may contain User Content: (a) that is offensive or objectionable; (b) that contains errors; (c) that violates intellectual property, privacy, publicity or other rights of third parties or Turning; (d) that is harmful to User’s computer or networks; (e) that is unlawful or illegal; or (f) the downloading, copying or use of which is subject to additional terms and policies of third parties or is protected by intellectual property, trade secret, privacy or other laws. By operating the Services, Turning does not represent or imply that Turning endorses User’s or other users’ User Content, or that Turning believes such User Content to be accurate, useful, lawful or non-harmful. Turning is not a publisher of, and is not liable for, any User Content uploaded, posted, published or otherwise made available via the Services by User or other users. User is responsible for taking precautions to protect User, User’s computer or User’s network, from User Content accessed via the Services.
User agrees that User will only use content User is permitted to use. User represent that User owns all rights to User Content or otherwise has (and will continue to have) all rights and permissions to legally use, share, display, transfer and subscribe to User Content via the Services. If Turning uses User Content in the ways contemplated in this Agreement, User represents that such use will not infringe or violate the rights of any third party, including without limitation any copyrights, trademarks, privacy rights, publicity rights, contract rights or any other intellectual property or proprietary rights. Content on the Services may be protected by others' intellectual property or other rights, and User agrees not to copy, upload, download or share content unless User has the right to do so.
User hereby grants Turning and its Affiliates a Subscription to host, copy, transmit, and display User Content including User’s name and logo as necessary for Turning to provide the Products and/or Services in accordance with this Agreement.
User shall guard the confidentiality of User’s login information and shall not share, nor permit anyone else to use, User’s login information.
User is responsible for all activities that occur under User’s Account. User agrees to notify Turning immediately of any unauthorized use of User’s password or any other breach of security. User agrees not to create or access an Account using a false identity or any false information, or on behalf of someone other than User. User agrees to not have more than one Account at any given time. User agrees not to create an Account or use the Services or Software if User has been previously banned from any of the Services or Software.
User shall not copy, use, or exploit the Services and Software other than as permitted by this Agreement. User shall not modify, change, alter, translate, create derivative works from, produce a source listing, decompile, disassemble, or otherwise reverse engineer the Services or the Software, or attempt to do the same or assist another in doing the same. User shall not interfere, or attempt to interfere, with the Services in any way. User shall not engage in any fraudulent, illegal or unauthorized use of the Services or the Software. User shall not introduce into, or transmit through, the Services or Software any virus, worm, trap door, back door, timer, clock, counter or other harmful or limiting routine, instruction or design. User shall not violate, or attempt to violate, any security features of Turning Services or Software.
Without the prior written consent of Turning, User shall not copy, distribute, sub-subscribe, transfer, re-sell, rent, lease, lend, permit third-party access to, sub-subscribe or otherwise transfer rights or assign the Services or Software (in whole or in part), to any third-party.
User shall not use, or permit any third-party to use, the Turning Software or Services for the purpose of developing, selling, distributing, or sub-subscribing any Services or Software that competes with the Turning Services or Software.
User may be able to link to third-party websites for additional content. Third-party websites are not controlled or examined by Turning in any way and Turning is not responsible for the content, availability, advertising, information or use of User information by any such third-party websites, nor does Turning endorse any of the content. Turning accepts no responsibility for them or for any loss or damage that may arise from User accessing third-party websites. By using the Services, User expressly agrees that Turning will have no liability with respect to use of such third-party links or content. User waives any and all claims against Turning regarding the inclusion of links to outside websites or use of those websites and content.
Third-Party Services. The Services are integrated with various third-party services, applications and other websites (collectively, “Third-Party Services”) that may make their content and products or marketplaces available to User to connect customers and vendors. These Third-Party Services may have their own terms and policies, and User’s use of them will be governed by those terms and policies. Turning does not control Third-Party Services and is not liable for Third-Party Services or for any transaction User may enter into with them. User is solely responsible for security when using Third-Party Services. User also agrees that Turning may, at any time and in Turning’s sole discretion, and without any notice to User, suspend, disable access to or remove any Third-Party Services. Turning is not liable to User for any such suspension, disabling or removal, including without limitation for any loss of profits, revenue, data, goodwill or other intangible losses User may experience as a result thereof (except where prohibited by applicable law).
Third-Party Sites. The Services may contain links to third-party sites. When User accesses third-party sites, User does so at User’s own risk. Turning does not control and is not liable for those sites and what those third parties do.
Knowbly Specialists. Certain parts of the Services may provide directories of, and information about, independent third-party Knowbly users ("Knowbly Specialists") who can help User utilize Services. Turning does not employ, is not affiliated with, and does not endorse Knowbly Specialists. Knowbly Specialists are a Third-Party Service, as defined above.
Bongo Specialists and Bongo Service. Certain parts of the Services may provide directories of, and information about, independent third-party Bongo users ("Bongo Specialists") who can help User utilize Services. Turning does not employ, is not affiliated with, and does not endorse Bongo Specialists. Bongo Specialists are a Third-Party Service, as defined above. By using the Bongo Specialists and Bongo Service the User accepts the Bongo Terms of Service. Bongo Terms of Service are available at www.Bongolearn.com/terms.
Developer Terms. Turning may provide you with functionality to connect to, integrate or share information with a Third-Party Service through Developer Tools (as defined in the Developer Terms). By accessing, using, or providing a Third-Party Service with access to or use of, the Developer Tools, User agrees to the Developer Terms. Any access to, or use of, such Third-Party Services is at User’s own risk, is User’s responsibility, and is governed by the terms of Third-Party Services above.
To facilitate troubleshooting and improving functionality, Turning has incorporated analytics in the Services and Software that enable collection and use of certain technical and related non-personal information. Turning may collect “crash reports” from User’s computer or device should the software be interrupted so Turning can ascertain the cause of the interruption or crash and provide appropriate resolution. User agrees that Turning may use this non-personal information provided it is in a form that does not personally identify User.
User acknowledges that certain limited personal information will be shared with Turning in conjunction with the use of the Services and Software. Personal information is generally used to associate User with User’s subscription. Any personal information collected will be protected with commercially reasonable security protocols.
Our Data Processing Addendum explains how we handle others’ personal information User collects using the services or any User Content which contains others’ personal information.
User agrees and warrants that User is solely responsible when using a sub-domain to create User Work or the Services for complying with applicable data protection, security and privacy laws and regulations (including, where applicable, the EU General Data Protection Regulation and the EU e-Privacy Directive/Regulation), including any notice and consent requirements. This includes without limitation the collection and processing by User of any personal data, when User uses the Services to send electronic communications to individuals.
To operate effectively and protect the security and integrity of Turning, we must maintain control over what happens on Turning’s services.
Turning reserves these rights, which we may exercise at any time and in our sole discretion, and without liability or notice to User (except where prohibited by law): (a) we may change the Services and their functionality; (b) we may restrict access to or use of parts or all of the Services; (c) we may suspend or discontinue parts or all of the Services; (d) we may terminate, suspend or restrict User’s access to or use of parts or all of the Services; (e) we may terminate, suspend or restrict access to User’s Account or User’s sites; and (f) we may change our eligibility criteria to use the Services (and if such eligibility criteria changes are prohibited by law where User lives or otherwise operates, we may revoke your right to use the Services in that jurisdiction).
Sometimes, ownership of an Account is disputed between one or more parties (such as a business and its employee, or a learning designer and their client). We try not to get involved in these disputes. However, Turning reserves the right, at any time and in our sole discretion, and without notice to User, to determine rightful Account ownership and to transfer an Account to the rightful owner. User agrees that Turning shall be the sole arbiter of any such dispute. If we cannot reasonably determine the rightful owner, we reserve the right to suspend an Account until the disputing parties reach a resolution. Turning also may request documentation, such as a government-issued photo ID, a credit card invoice or a business subscription, to help determine the rightful owner.
TURNING WARRANTS THAT THE SERVICES AND SOFTWARE WILL FUNCTION, IN EACH CASE, SUBSTANTIALLY IN ACCORDANCE WITH ANY DOCUMENTATION ASSOCIATED WITH THE PROVIDED SERVICES AND SOFTWARE. OTHER THAN THE FOREGOING, THE SERVICES AND SOFTWARE ARE PROVIDED “AS IS” AND WITHOUT WARRANTY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, TURNING DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. TURNING DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SERVICES AND/OR SOFTWARE WILL MEET ANY REQUIREMENTS OR NEEDS USER MAY HAVE, OR THAT THE SOFTWARE WILL OPERATE ERROR FREE, OR IN AN UNINTERRUPTED FASHION, OR THAT ANY DEFECTS OR ERRORS IN THE SOFTWARE WILL BE CORRECTED, OR THAT THE SOFTWARE IS COMPATIBLE WITH ANY PARTICULAR PLATFORM. SOME JURISDICTIONS DO NOT ALLOW THE WAIVER OR EXCLUSION OF IMPLIED WARRANTIES SO THEY MAY NOT APPLY TO USER.
IN NO EVENT WILL TURNING BE LIABLE TO USER OR ANY THIRD-PARTY FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, INDIRECT, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, OR LOSS OF BUSINESS INFORMATION) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SERVICES OR SOFTWARE, OR FOR ANY CLAIM BY ANY OTHER PARTY, EVEN IF TURNING HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TURNING’S AGGREGATE LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE WITH RESPECT TO THE SERVICES OR SOFTWARE AND DOCUMENTATION OR OTHERWISE SHALL NOT EXCEED THE AMOUNT OF THE SUBSCRIPTION FEE PAID BY, OR ON BEHALF OF, USER TO TURNING OVER THE PAST TWELVE (12) MONTH PERIOD FOR THE SERVICES OR THE VALUE OF ANY HARDWARE PURCHASED FROM TURNING AND USED BY USER IN CONNECTION WITH THE SERVICES AND THE SOFTWARE. BECAUSE SOME STATES/COUNTRIES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO USER.
TURNING ASSUMES NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS DELIVERY OR FAILURE TO STORE ANY CONTENT (INCLUDING, WITHOUT LIMITATION, CONTENT POSTED BY, OR ON BEHALF OF, USER AND OTHER USER CONTENT), USER COMMUNICATIONS OR PERSONALIZATION SETTINGS. TURNING ASSUMES NO RESPONSIBILITY FOR CONTENT POSTED BY, OR ON BEHALF OF, USER OR ANY USER THAT VIOLATES THE RIGHTS OF OTHERS, ALL OF WHICH IS EXPRESSLY PROHIBITED BY THESE TERMS. SUCH PROHIBITED CONTENT INCLUDES CONTENT THAT VIOLATES THE INTELLECTUAL PROPERTY RIGHTS OF OTHERS, OR THAT DEFAMES OTHERS.
To the fullest extent permitted by law, in no event will Turning be liable with respect to any claims arising out of, or related to, the Services or this Agreement for: (a) any indirect, special, incidental, exemplary, punitive or consequential damages; (b) any loss of profits, revenue, data, goodwill or other intangible losses; (c) any damages related to User’s access to, use of or inability to access or use the Services or any portion thereof, including without limitation interruption of use or cessation or modification of any aspect of the Services; (d) any damages related to loss or corruption of any content or data, including without limitation User Content and eCommerce data; (e) any User Content or other conduct or content of any user or third party using the Services, including without limitation defamatory, offensive or unlawful conduct or content; or (f) any Third-Party Services or third-party sites accessed via the Services. These limitations apply to any theory of liability, whether based on warranty, contract, tort, negligence, strict liability or any other legal theory, whether or not Turning has been informed of the possibility of such damage, and even if a remedy set forth herein is found to have failed its essential purpose. To the fullest extent permitted by law, in no event shall the aggregate liability of Turning for all claims arising out of or related to the Services and this Agreement exceed the amounts paid by User to Turning in the twelve (12) months immediately preceding the event that gave rise to such claim. Some jurisdictions do not allow the types of limitations in this paragraph, so they may not apply to User.
TURNING ASSUMES NO LIABILITY FOR CONDUCT OF THIRD PARTIES OR OTHER USERS. BY USING THE SERVICES OR ANY SOFTWARE, USER ACKNOWLEDGES AND AGREES THAT TURNING IS NOT LIABLE FOR SUCH CONDUCT OR ACTIVITIES, AND USER AGREES NOT TO SEEK TO HOLD TURNING LIABLE FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF DAMAGES FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH USER. USER IS SOLELY RESPONSIBLE FOR ALL OF USER’S COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF TURNING SERVICES OR SOFTWARE. USER UNDERSTANDS THAT TURNING DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF TURNING SERVICES OR SOFTWARE.
User shall not export, or cause to be exported, the Software, documentation, or information about the Software and documentation without the prior written consent of Turning.
User agrees not to use Turning products for any purposes prohibited by United States law or the laws applicable in the country in which User uses the Services or Software, as applicable. Subject to Section 12 above, User further acknowledges and affirmatively agrees that User has the responsibility to obtain any and all necessary subscriptions to export, re-export, or import Turning products and/or Software.
This Agreement shall remain in effect until it is terminated. User may terminate this Agreement at any time by destroying or returning to Turning all copies of the Software and Documentation in User’s possession or under User’s control. Turning may terminate this Agreement, and all related subscriptions granted hereunder to access the Services and Software, at any time for any reason, including, but not limited to, User’s violation of any of these Terms or any other agreement with Turning. Upon notification of termination, User agrees to destroy or return to Turning all copies of the Software (and related documentation, if applicable) and to certify in writing that all known copies, including backup copies, have been destroyed. Termination by Turning of partial Services/Software will include removal of access to such Services and Software and barring further use of such Services and Software. Termination of all Services and Software will likely include deletion of User’s password and all related information, files and content associated with or inside User’s Account (or any part thereof), including content posted by User. Upon termination of any portion of the Services and Software, User’s right to use such Services and Software will terminate immediately. Turning will not have any liability whatsoever to User for any suspension or termination, including for deletion of content posted by User. All provisions relating to confidentiality, proprietary and intellectual property rights, and non-disclosure shall survive the termination of this Agreement.
There will be no refunds or credits of Service Fees for partial months of Service access or for any period of time during which User does not use the Service.
Turning has the right immediately upon termination or, soon thereafter, unless otherwise agreed in advance of termination, to purge all of User’s content from the platform. Prior to termination, User’s content can be downloaded by User at any time.
THIS SECTION SETS FORTH USER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY ALLEGED INFRINGEMENT OR MISAPPROPRIATION RELATING TO THE SOFTWARE.
To the extent permitted by law, or otherwise agreed to in writing, in advance, User agrees to indemnify, defend, and hold Turning, and its parents, subsidiaries, affiliates, officers, directors, employees, agents, partners and licensors, harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of: (a) User’s improper use of the Turning Services and Software; (b) User’s violation of these Terms; (c) User’s violation of any rights of another party, including any other User; and/or (d) User’s violation of any applicable laws, rules or regulations. Turning reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by User, in which event User will fully cooperate with Turning in asserting any available defenses. User agrees that the provisions in this section will survive any termination of User’s Account, these Terms, or User’s access to the Turning Services and Software.
Turning will defend or settle, at its option and expense, any action brought against User alleging that the Services or Turning Software infringes or misappropriates any third-party intellectual property rights. Turning will pay any costs incurred by User that are attributable to the infringement action. User understands and agrees that as conditions to Turning’s obligations under this section User must (a) notify Turning promptly in writing of the action; (b) provide to Turning all reasonable information and assistance to defend or settle the action; and (c) grant Turning sole authority and control of the defense or settlement of the action. If an infringement claim is made, Turning may, at its option and expense (a) replace or modify Software so that it becomes non-infringing; (b) procure for User the right to continue using Software; or (c) require the return of the Software and refund to User any Subscription Fees paid, less a reasonable amount for use. Turning has no liability to User if the infringement claim is based upon the combination of the Services and Software with any product not furnished by Turning or modification of the Services and Software other than by Turning.
Certain Turning services are paid services. This section explains how we handle payments for those services. For certain paid services, such as subscriptions, we will automatically bill User in regular intervals (such as annually) unless User disables auto-renewal or cancels User’s subscription. User can do that anytime.
User can access certain portions of the Services by submitting a fee payment for these services (“Paid Services”). For example, to publish User Work publicly, User will need to pay a subscription fee. Paid Services will remain in effect until cancelled or terminated in accordance with this Agreement. We will tell User about fees for Paid Services before charging User. User may cancel Paid Services at any time via the Services or by contacting Support. If User do not pay for Paid Services on time, we reserve the right to suspend or cancel User’s access to the Paid Services. Transaction fees and additional fees may also apply to certain portions of the Services, and we will notify User about those fees before charging User. Our fees will appear on an invoice that we provide via the Services, unless otherwise indicated. Please note that different Paid Services have different fees and payment schedules and canceling one Paid Service may not cancel all of User’s Paid Services.
All fees are exclusive of applicable federal, state, local or other taxes (“Taxes”). User is responsible for all applicable Taxes, and we will charge Taxes in addition to the fees for the Services when required to do so. If User is exempt from Taxes, User must provide Turning with a current valid tax exemption certificate (we reserve the right to determine whether a certificate is valid). Tax exemption will only apply from and after the date Turning receives such documentation at [email protected]. If Turning has a legal obligation to pay or collect indirect Taxes (such as value-added tax or goods and services tax) on the sale to User under the laws of User’s country (where User is established, has a principal place of business, has a permanent address or usually resides), User shall be liable for payment of any such indirect Taxes. Where Turning does not have a legal obligation to pay or collect indirect Taxes on a sale of Paid Services to User, User may be required to self-assess those Taxes under the applicable laws of User’s country (where User is established, has a principal place of business, has a permanent address or usually resides).
To ensure uninterrupted service, we will automatically bill User for certain Paid Services from the date User submits the initial payment and on each renewal period thereafter until cancellation. Renewal periods will be equal in time to the renewal period of the current subscription. Turning will automatically charge User the applicable amount using the payment method on file with us. We will let User know in advance if User is purchasing a Paid Service that includes auto-renewal payments. Auto-renewals may be disabled at any time via the Services or by contacting [email protected].
While User may cancel any Paid Services at any time, User will not be issued a refund except in our sole discretion, or if legally required. We offer a free trial so User can try out a website subscription. Please note applicable statutory rights of cancellation may not result in a refund, as we do not charge for this trial period.
We may change our fees at any time. When applicable, we will give advance notice of these fee changes via the Services. New fees will not apply retroactively. User has the right to reject the change by cancelling the applicable Paid Service before the next payment date.
If User contacts a bank or credit card company to decline, chargeback or otherwise reverse the charge of any payable fees to us (“Chargeback”), we may automatically terminate User’s Account. If User has questions about a payment made to us, we encourage User to contact [email protected] before filing a Chargeback. We reserve our right to dispute any Chargeback.
Third-Party Services purchased via the Services may be subject to different refund policies determined by those Third-Party Services, and they may be non-refundable. The purchase terms and conditions for such Third-Party Services will be displayed during the purchase process, such as through a link to the purchase terms and conditions. It is User’s responsibility to verify User’s ability to purchase, cancel or obtain a refund for a Third-Party Service. We do not offer refunds for purchases of Third-Party Services.
Creating an account may cause the creation of a sub-domain, where it is acknowledged and agreed that Turning is and shall be the exclusive owner of all rights, title and interest in and to such sub-domain. The creation of User’s sub-domain extends no rights of ownership or other interest to the sub-domain.
This Section 18 may not apply to you. If it does, before filing a claim against Turning, User agrees first to try to resolve any dispute informally with us.
All formal disputes must be resolved through arbitration following the procedure described below. Finally, claims can only be brought individually, and not as part of a class action. This Dispute Resolution Section shall only apply to: (a) US Users; (b) Non-US Users who are not EU Consumers; or (c) EU Consumers who bring any claim against Turning in the US (to the extent not in conflict with Controlling Law paragraph).
18.1. Informal Resolution. Before filing a claim against Turning, you agree to try to resolve the dispute by first emailing [email protected] with a description of your dispute. We will try to resolve the dispute informally by following up via email, phone or other methods as determined by us. If we cannot resolve the dispute within thirty (30) days of our receipt of your first email, you or Turning may then bring a formal proceeding in accordance with the procedures outline in this Dispute Resolution Section.
18.2. Confidentiality. All offers, promises, conduct and statements, whether oral or written, made in the course of the Informal Resolution process by any of the parties, their agents, employees, experts and attorneys are confidential, privileged and inadmissible for any purpose, including impeachment, in arbitration or other proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the negotiation.
18.3. Informal Resolution Required. At no time prior to the initiation of the Informal Resolution process shall either side initiate an arbitration or litigation related to this Agreement except to pursue a provisional remedy that is authorized by law or by JAMS Rules or by agreement of the parties.
18.4. User and Turning agree that any dispute, claim or controversy arising out of or relating to this Agreement (including without limitation its existence, formation, operation and termination) and/or the Services (including without limitation non-contractual disputes and matters) or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in Mahoning County, Ohio, or virtually if agreed to by both parties, before one arbitrator. User and Turning expressly waive the right to formal court proceedings (including without limitation trial by jury). The parties agree that arbitration will be conducted in English.
18.5. Governing Law. This Agreement and the rights of the parties hereunder shall be governed by and construed in accordance with the laws of the State of Ohio, exclusive of conflict or choice of law rules.
18.6. Federal Arbitration Act. The parties acknowledge that this Agreement evidences a transaction involving interstate commerce. Notwithstanding the provision in the preceding paragraph with respect to applicable substantive law, any arbitration conducted pursuant to the terms of this Agreement shall be governed by the Federal Arbitration Act (9 U.S.C., Secs. 1-16).
18.7. Arbitration - Time for Filing. Any arbitration must be commenced by filing a demand for arbitration within one year after the date the party asserting the claim first knows or reasonably should know of the act, omission or default giving rise to the claim. If applicable law prohibits a one (1) year limitation period for asserting claims, any claim must be asserted within the shortest time period permitted by applicable law.
18.8. Arbitration Procedures. The arbitration shall be administered by JAMS pursuant to its Streamlined Arbitration Rules and Procedures. The parties agree that the arbitrator must follow this Agreement and can award the same damages and relief as a court (including without limitation reasonable attorneys' fees and costs), except that the arbitrator may not award declaratory or injunctive relief benefiting anyone but the parties to the arbitration. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction.
Judgment on the Award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.
18.9. Arbitrator Selection. The parties agree that a single arbitrator will be selected in accordance with the JAMS Arbitrator Selection, Disclosures and Replacement procedures.
18.10. Arbitration Fees. The JAMS Rules will govern payment of all arbitration fees.
18.11. Exceptions to Arbitration Agreement. Either User or Turning may assert claims, if they qualify, in small claims court in Mahoning County, Ohio. Either User or Turning may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the Services, or intellectual property infringement or misappropriation (for example, trademark, trade secret, copyright or patent rights) without first engaging in arbitration or the informal dispute resolution process described above.
18.12. NO CLASS ACTIONS. User may only resolve disputes with Turning on an individual basis and may not bring a claim as a plaintiff or a class member in a class, consolidated or representative action. Class actions, class arbitrations, private attorney general actions and consolidation with other arbitrations are not allowed.
User acknowledges that User’s failure to comply with any of the provisions of this Agreement relating to confidentiality, proprietary and intellectual property rights, and non-disclosure will irreparably harm Turning and its affiliates, and that Turning and its affiliates will not have an adequate remedy at law. Therefore, User acknowledges and agrees that Turning and its affiliates will be entitled to injunctive relief in addition to any and all other remedies it may have, at law or in equity.
This Agreement shall be governed by the laws of the State of Ohio, without giving effect to principles of conflict of laws. Any dispute between the parties connected with this Agreement shall be submitted to the sole jurisdiction of the courts of the State of Ohio, County of Mahoning, or, if it has or can acquire jurisdiction, in the United States District Court for the Northern District of Ohio. Each of the party’s consent to the jurisdiction of such courts (and of the appropriate appellate courts) in any such action or proceeding and waives any objection to venue laid therein.
This Agreement, including any referenced documents, (and, if applicable, the Turning Technologies Services Agreement) contains the complete agreement between Turning and User with respect to the subject matter hereof, and supersedes all prior or contemporaneous agreements or understandings, whether oral or written. User agrees that any varying or additional terms contained in any purchase order or other written document issued by, or on behalf of, User (whether issued by User or Turning) in relation to the Software shall be of no effect (with the exception of the Turning Technologies Services Agreement, if applicable). The failure or delay of Turning to exercise any of its rights under this Agreement shall not be deemed a waiver of those rights. If any provision of this Agreement shall be held by a court of competent jurisdiction to be contrary to applicable law, that provision will be enforced to the maximum extent permissible and the remaining provisions of this Agreement will remain in full force and effect. In the event and to the extent that any part or provision of this Agreement is invalid or unenforceable in any particular state or jurisdiction, such part or provision shall be interpreted both to be valid and enforceable and to conform to the greatest extent possible to the intent and purpose of such part or provision as set forth in this Agreement.
Turning may amend this Agreement from time to time. If we make material changes to this Agreement, we may notify User by posting the change(s) on Turning’s website, or in the Software, or by sending User an email at User’s primary email address as specified in User’s Account. Any changes to this Agreement will be effective immediately for new users of our Application; otherwise such changes will be effective upon the earlier of fourteen (14) calendar days following our dispatch of a notice to User or fourteen (14) calendar days following our posting of a notice on the Services whichever is earlier. User is responsible at all times for updating User’s Account to provide to Turning with User’s most current email address. If the last email address that User has provided to Turning is not valid, or for any reason is not capable of delivering the notice described above, our dispatch of the email containing such notice will nonetheless constitute effective notice of the changes. Continued use of our Services and Software following notice of such changes will indicate User’s acknowledgement of, and User’s agreement to be bound by, such changes.
We are not in breach of this Agreement or liable to User if there is any total or partial failure of performance of the Services resulting from any act, circumstance, event or matter beyond our reasonable control. This may include (but is not limited to) where such results from any act of God, fire, act of government or state or regulation, war, civil commotion, pandemic, terrorism, insurrection, inability to communicate with third parties for whatever reason, failure of any computer dealing or necessary system, failure or delay in transmission of communications, failure of any internet service provider, strike, industrial action or lock-out or any other reason beyond our reasonable control.
This Agreement was originally written in English (US). We may translate this Agreement into other languages. In the event of a conflict between a translated version and the English version, the English version will control.
If User has questions regarding this Agreement, wants to address any copyright issues, or wishes to obtain additional information, please send an e-mail to [email protected] or write to Turning at:
ATTN: Subscription Agreement/Legal Services
255 West Federal St.
Youngstown, OH 44503
This Exhibit A supplements the Agreement. User’s installation and use of the Software constitutes User’s acceptance of these Terms and Conditions (hereinafter “Terms”), which apply to User’s version of the Software, in their entirety.
EXAMVIEW® PUBLISHER (TEXTBOOK EDITION) VERSIONS. If User is using ExamView® then Turning Subscriptions ExamView® software to User only on the conditions that: (a) User has adopted and continues to use text in User’s class which is specified for use with ExamView; and (b) User accepts all of the Terms as set out in the Agreement and this Exhibit A to the Agreement. This Subscription does not apply to any publisher content included with ExamView®, ExamView® Assessment Suite, or ExamView® Pro software products (i.e., tests, test banks, and other content files). User may install and use the ExamView® Test Player (but not the entire ExamView® Assessment Suite) on more than one computer or network (including to allow concurrent access from or on multiple computers) solely for use at a single building or campus provided that each Instructor who accesses and uses the Software must have adopted and be using the specified text in his or her class. User may copy the Software for backup and archival purposes, provided that the original and each copy are kept in User’s possession.
EXAMVIEW® RETAIL VERSIONS. If User is using ExamView® (Retail Version), User may install and use the ExamView® Test Player (but not the entire ExamView® Assessment Suite) on more than one computer or network (including to allow concurrent access from or on multiple computers). User may copy the Software for backup and archival purposes, provided that the original and each copy are kept in User’s possession.
TURNING’S EXAMVIEW® LEARNING SERIES. Turning owns all the intellectual property associated with the Software, including all files/questions contained in User’s ExamView® Learning Series package. If User is installing and using ExamView® data files on behalf of a third-party (including, without limitation, User’s employer), then User warrants and represents that User has the authority to accept this Subscription (and all of its terms and conditions) on such third-party’s behalf, that such third-party will be bound by this Agreement. User may install and use the files contained in User’s ExamView® package and any files that User is authorized by this Agreement to make (also referred to herein as “Data Files”) on the hard disks of a single standalone computer (User may install them on both an office and a home computer provided that both are for User’s personal use and will not be used simultaneously by other instructors). If User has acquired Data Files pursuant to a multiple-user site subscription, User may install and use the Data Files on the hard disks of standalone computers up to the number of computers specified on the invoice. User may use the Data Files (a) within Turning’s programs, (b) within third-party software, and (c) to create tests. In any case, the Data Files and tests derived from them may only be used by individuals at the building or in the district or campus as specified by the multiple-user site subscription. User acknowledges and agrees that the Data Files, as they may be altered by User, and the tests composed by user through the use of the Data Files shall constitute “derivative works” for copyright purposes and as such term is understood under the Copyright Act. Use of said derivative works based on Data Files shall be subject to the permission set forth in this Agreement and all of the restrictions set forth in this Agreement.