This is a legal agreement (“Agreement”) between you and, if applicable, the organization you represent (“You”) and ALEKS Corporation, a Delaware corporation with an office at 15460 Laguna Canyon Road, Irvine, CA 92618 (doing business in California as ALEKS Educational Systems Corp), its affiliates and subsidiaries (collectively, “ALEKS”).
This Agreement covers:
Your access and use of websites operated by ALEKS (collectively, the “ALEKS Website”);
Your free trial or subscription to online services accessible via the ALEKS Website (the “ALEKS Online Services”);
The ALEKS Plug-in or other executable files that you download from the Website (referred to herein as the “ALEKS Plugin”); and
Any and all ALEKS User’s Manual(s), ALEKS Instructor’s Manual(s) or other written materials provided on the ALEKS Website or in any other way by or on behalf of ALEKS in connection with your access, download and/or use of the Online Services and the ALEKS Plugin (the “ALEKS Documentation”).
The ALEKS Online Services, ALEKS Plugin, and the ALEKS Documentation are collectively referred to in this Agreement as the ALEKS Product. Any patch, update, upgrade, modification or other enhancement provided by ALEKS as part of the ALEKS Website, ALEKS Online Services, ALEKS Plugin, and the ALEKS Documentation shall be included within the meanings of those terms for the purposes of this Agreement, except to the extent expressly provided below.
Please read this Agreement carefully. In this Agreement, among other things, You agree to transact with ALEKS electronically, You consent to the ALEKS Privacy Statement, and You agree to resolve any dispute that may arise between You and ALEKS by arbitration in California. Please note that we only offer the ALEKS Product as available and with the limited warranty stated in this Agreement.
BY PLACING A CHECK MARK IN THE BOX BELOW AND CONTINUING TO USE ANY PART OF THE ALEKS PRODUCT, (1) YOU REPRESENT THAT YOU ARE OVER 18 YEARS OF AGE, HAVE THE AUTHORITY TO ACCEPT AND AGREE TO THE TERMS OF THIS AGREEMENT ON YOUR BEHALF AND, IF APPLICABLE, ON BEHALF OF YOUR MINOR CHILD OR THE ORGANIZATION YOU REPRESENT, (2) YOU ACKNOWLEDGE THAT YOU HAVE READ AND AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, AND THAT YOU UNDERSTAND THAT ONLY ALEKS IS AUTHORIZED TO MAKE ANY REPRESENTATIONS, CONDITIONS OR WARRANTIES, STATUTORY OR OTHERWISE, ON ITS OWN BEHALF OR TO VARY ANY OF THE TERMS OR CONDITIONS OF THIS AGREEMENT.
If You do not agree to the terms of this Agreement, promptly exit the ALEKS Website by closing your Internet browser. ALEKS does not refund any subscription fees paid to third parties. If you have purchased access to the ALEKS Product from a third party, please contact such third party for a refund. If you have subscribed to access the ALEKS Product through the ALEKS Website and wish to cancel your subscription, please call the Customer Support Department of ALEKS at 714.619.7090 between the hours of 7:00 a.m. and 11:00 p.m. Monday through Friday (Eastern Time), and provide your ALEKS Log-in Name and password. All payments are non-refundable except at the discretion of ALEKS.
LIMITED RIGHT OF USE:
You are entitled to use the ALEKS Product for personal use only. You may not sell, offer for sale, distribute copy or transfer reproductions of the ALEKS Product or any portion of the ALEKS Product to other parties in any way.
Except as set forth herein, no rights or licenses, express or implied, are granted to You by this Agreement. This Agreement is Your sole source of any intellectual property interest, including, without limitation, copyrights in the ALEKS Product, and does not represent a sale of a copy of the ALEKS Product. Title to the ALEKS Product, and patents, copyrights and all other property rights therein, shall at all times remain solely and exclusively with ALEKS and its licensors, and You shall not take any action inconsistent with such title. You do not own a copy of the ALEKS Product, nor does your right to use the ALEKS Product constitute a “first sale” under the U.S. Copyright Act. The ALEKS Product is protected by United States, other applicable laws and by international treaty provisions. All trademarks appearing in the ALEKS Product are the property of their respective owners.
You may not cause or permit the disclosure, copying, renting, licensing, sublicensing, leasing, dissemination or other distribution of the ALEKS Product or any portion of the ALEKS Product by any means or in any form, without the prior written consent of ALEKS. You may not modify, enhance, supplement, create derivative work from, adapt, translate, reverse engineer, decompile, disassemble or otherwise reduce the ALEKS Plugin to human readable form.
GUESTS AND OTHER USERS WHO ARE PERMITTED TO USE THE ALEKS PRODUCT ON A TRIAL OR FREE BASIS USE THE ALEKS PRODUCT AT THEIR OWN RISK, AS AVAILABLE, “AS IS,” “WHERE IS,” AND WITH ALL FAULTS.
For all other users, ALEKS warrants for a period of ninety (90) days following original purchase of a subscription that the ALEKS Plugin will be free from substantial errors or defects that will materially interfere with the user’s ability to access the ALEKS Online Services. This limited warranty: (i) applies to the initial purchaser only and may be relied upon only by the initial purchaser; and (ii) does not apply to any patch, update, upgrade, modification, or other enhancement provided by ALEKS.
Except as stated above in the immediately preceding paragraph THE ALEKS PRODUCT IS PROVIDED ONLY AS AVAILABLE, “AS IS,” “WHERE IS,” AND WITH ALL FAULTS. ALEKS AND ITS LICENSORS MAKE NO OTHER WARRANTY OR CONDITION, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, REGARDING THE ALEKS PRODUCT. EXCEPT AS SET FORTH HEREIN, THE IMPLIED WARRANTY THAT THE ALEKS PRODUCT IS FIT FOR A PARTICULAR PURPOSE, THE IMPLIED WARRANTY OF MERCHANTABILITY, AND ANY AND ALL OTHER IMPLIED WARRANTIES OR CONDITIONS, STATUTORY OR OTHERWISE, ARE HEREBY DISCLAIMED. Some jurisdictions do not allow limitations on how long an implied warranty or condition lasts, so the above limitation may not apply to You. This limited warranty gives You specific legal rights, and you may also have other rights which vary from jurisdiction to jurisdiction.
If you believe you have found any such error or defect in the ALEKS Plugin during the warranty period, contact us at http://support.aleks.com or call the Customer Support Department of ALEKS at 714.619.7090 between the hours of 7:00 a.m. and 11:00 p.m. Monday through Friday (Eastern Time), and provide your ALEKS log-in name and password. If you have a problem resulting from a defect in the ALEKS Plugin, ALEKS’ and its licensors’ entire liability, and Your exclusive remedy for breach of this limited warranty, shall be the replacement of the ALEKS Plugin within a reasonable period of time, and without charge, with a corrected version of the ALEKS Plugin. Some jurisdictions do not allow the exclusion or limitation of relief so the above limitation or exclusion may not apply to You.
LIMITATION OF LIABILITY:
ALEKS AND ITS LICENSORS SHALL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR OTHER INDIRECT DAMAGES, EVEN IF ALEKS OR ITS LICENSORS ARE ADVISED OF OR AWARE OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL ALEKS’ AND ITS LICENSORS’ AGGREGATE LIABILITY EXCEED THE AMOUNT THAT YOU HAVE PAID, IF ANY, TO USE THE ALEKS PRODUCT. Some jurisdictions do not allow the exclusion or limitation of special, incidental, consequential, indirect or exemplary damages, or the limitation of liability to specified amounts, so the above limitation or exclusion may not apply to You.
This Agreement constitutes the entire understanding between ALEKS and You with respect to subject matter hereof. Any change to this Agreement must be in writing, signed by ALEKS and You. In the event of a conflict between the terms and conditions in any purchase order and this Agreement, the terms of this Agreement shall prevail. You shall be responsible for and shall pay, and shall reimburse ALEKS on request if ALEKS is required to pay, any sales, use, value added (VAT), consumption or other tax (excluding any tax that is based on ALEKS’ net income), assessment, duty, tariff, or other fee or charge of any kind or nature that is levied or imposed by any governmental authority on your use of the ALEKS Website or subscription to the ALEKS Product. ALEKS may assign this Agreement at any time without notice to You. You may not assign this Agreement to any one else.
EXPORT AND IMPORT COMPLIANCE:
In the event You export the ALEKS Plugin or the ALEKS Documentation from the country in which You first received it, You assume the responsibility for compliance with all applicable export and re-export regulations, as the case may be. If you are accessing the ALEKS Product from outside the United States of America, You assume the responsibility for compliance with all applicable import, export and re-export regulations in your country, as the case may be. Your use of the ALEKS Products outside of the United States of America may be restricted by the jurisdiction(s) in which you are located and/or the jurisdiction(s) from which you access the ALEKS Product. By placing a check mark in the box below and continuing to use any part the ALEKS Product, you represent and warrant that you are aware of, and are acting in conformity with, any and all laws, regulations, interpretations, policies, or similar authorities in the country where you are located, including any amendments to such laws, regulations and policies.
GOVERNING LAW; ARBITRATION:
This Agreement shall be governed by, and any arbitration hereunder shall apply, (a) the laws of the State of California, USA, excluding its conflicts of laws principles; (b) the United Nations Convention on Contracts for the International Sale of Goods; (c) the 1974 Convention on the Limitation Period in the International Sale of Goods (the “1974 Convention”); and (d) the Protocol amending the 1974 Convention, done at Vienna April 11, 1980.
Any dispute, controversy or claim arising out of or relating to this Agreement or to a breach hereof, including its interpretation, performance or termination, shall be finally resolved by arbitration. The arbitration shall be conducted by three (3) arbitrators, one to be appointed by ALEKS, one to be appointed by You and a third being nominated by the two arbitrators so selected or, if they cannot agree on a third arbitrator, by the President of the American Arbitration Association (“AAA”). The arbitration shall be conducted in English and in accordance with the commercial arbitration rules of the AAA. The arbitration, including the rendering of the award, shall take place in Irvine, California, USA, and shall be the exclusive forum for resolving such dispute, controversy or claim. The decision of the arbitrators shall be binding upon the parties hereto, and each party shall be responsible for its own costs of arbitration. The decision of the arbitrators shall be executory, and judgment thereon may be entered by any court of competent jurisdiction. Notwithstanding anything contained in this Paragraph to the contrary, ALEKS shall have the right to institute judicial proceedings against You or anyone acting by, through or under You, in order to enforce ALEKS’ rights hereunder through reformation of contract, specific performance, injunction or similar equitable relief.
Your privacy concerns are important to us at ALEKS, and we are committed to protecting your privacy. Please read our Privacy Statement for further details on our privacy practices. When you use this ALEKS Website and the ALEKS Product, you consent to the use of your personal information by ALEKS in the manner specified in our Privacy Statement. You consent that ALEKS and Your current or prospective educational institution may share personal information about You with each other for the purposes of instruction, testing, assessment, and determination of course placement, eligibility, program development and other academic purposes.
Because the use of the ALEKS Product is electronic, you must consent to our providing important information electronically if you wish to proceed. You may print a copy of these terms for your records by clicking on the “Print this document” link above or the “Print” function in your Internet browser. You further consent to receiving all other notices in electronic form. To retrieve this information electronically, access, and retain any disclosures received, you will need a desktop or laptop personal computer with a minimum current generation web browser as well as a software program capable of retrieving and reading email.