Terms of Use and End User License Agreement

General Provisions

THIS IS AN IMPORTANT LEGAL DOCUMENT. IT GOVERNS YOUR USE OF THIS WEBSITE AND ANY DIGITAL MEDIA PRODUCT YOU MAY ACCESS OR PURCHASE THROUGH THIS SITE. PLEASE READ IT CAREFULLY.

Tophatmonocle (US) Corp d/b/a Aktiv Learning (“Aktiv Learning”) offers this website, including any Digital Media Product (as defined below), tools, functionality, and/or other features and services available through this site, to you the user, conditioned upon your acceptance of all the terms, conditions, policies, and notices stated here (the “Terms of Use” or “Agreement”). Your continued use of the website constitutes your agreement to all such terms, conditions, policies and notices.

Aktiv Learning respects the privacy of our users. Information collection and use, including the collection and use of personally identifiable information, is governed by our Privacy Notice, which is incorporated into and is a part of these Terms.

Purpose of This Site

This site is operated for the purpose of providing information on the diverse products and services offered by Aktiv Learning, and/or may give you access to certain subscription services, including services that enable you to access online, online course materials, and/or other digital media products (“Digital Media Products”), tools and functionality, subject to these Terms of Use.

Personal Registration for Subscription Services

Certain of our websites, and portions of other of our websites, permit you to browse, access and use content, features and/or functionality without registration. You are required to register, however, in order to access our subscription services and certain of our other digital media products (“Subscription Services”). The first time you sign in to a Subscription Services account, you will be prompted to register. Once registered, you are responsible for maintaining the confidentiality of your password and account, and remain responsible for all activities that occur under your password or account with or without your knowledge. If you knowingly provide your login and password information to another person, or permit another person to pose as you, your account privileges may be suspended or terminated. You may not transfer your account to another party. If you transfer or attempt to transfer your rights to another person, the rights granted hereunder will automatically terminate. You agree to immediately notify Aktiv Learning of any unauthorized use of your password or account or any other breach of security. Aktiv Learning will not be liable for any loss or damage arising from your failure to comply with this section.

Registration and access to certain Subscription Services is without charge if you are a college or high school instructor and have received a complimentary account for such Subscription Service from a BFW or Aktiv Learning Representative. Your access to the Subscription Service will continue in effect for the academic semester for which you adopted it (unless sooner terminated pursuant to this Agreement) and is thereafter terminable at will, but may be extended in Aktiv Learning’s discretion.

If you are a student or other user, you are generally required to purchase access to the Subscription Service for the purchase price and for the duration set forth on the purchase page for the Subscription Service, or alternatively, to purchase an access card for the Subscription Service (in which case the purchase price and duration of access will be set forth on the access card) and validate your account on this site with the activation code printed inside the access card. We may also provide certain free Subscription Services to students, some of which require registration, and some of which do not.

You agree that if you violate these Terms of Use (including by failure to pay the purchase price when required), Aktiv Learning may immediately terminate your account and/or access to this site.

Upon expiration or termination of your account, (i) you will have no further rights in or access to this site (including any User Content you may have uploaded to the site), (ii) Aktiv Learning may delete any User Content (as defined below) you have submitted, and (iii) Aktiv Learning will have no further rights in any User Content, except that we may continue to store back-up copies of User Content.

We use your personal information in accordance with our Privacy Policy and in accordance with applicable data protection laws including, but not limited to, the General Data Protection Regulation 2016/679 (“GDPR”) and any other applicable UK and European data protection laws (together with the GDPR the “European Data Privacy Laws”) and any other applicable data protection laws including in Canada (together with the European Data Privacy Laws, the “Data Privacy Laws”).

Refund Policy

If you are a student or other user that is required to purchase access to the Subscription Service, you are entitled to a 14 day refund policy window from the initial date of purchase. To request a refund within the 14 day window, please email hello@aktiv.com with your account information and we will process your request as soon as possible.

Information and Functionality on the Site

The material that appears on this site is for informational purposes only. Any reliance on the material on this site is at your own risk. This site may contain information provided by other users of the site. Aktiv Learning will not verify the accuracy of any information submitted by users, and the opinions and views expressed by users are not those of Aktiv Learning and are not endorsed by us. Aktiv Learning does not make any representation or warranty regarding rights in materials submitted by users. In the course of using this site, users may provide information about themselves to other users. You understand that Aktiv Learning does not guarantee the identity of any other user with whom you may interact, or the authenticity of any information the user may provide about him/herself.

We reserve the right to modify, add or remove content, features and/or functionality available through the site (including for clarity in our Digital Media Products) in our sole discretion. However, in the case of Subscription Services, we will not remove any user-provided content associated with a user’s account until termination of the applicable subscription period, unless we believe such content violates these Terms of Use.

Use of Materials Accessed or Purchased from This Site

This site and its contents, including but not limited to any Subscription Service available through the site (if applicable, and all other tools, software, files, graphics and data (the “Materials”) are the property of and owned by Aktiv Learning or its licensors and are protected by copyright, trademark and other laws of the United States and other countries. Aktiv Learning grants you a personal, revocable, non-exclusive and non-transferable right to access and display the Materials for your own personal, non-commercial use; in the case of Subscription Services, such license is limited to the period of your subscription; in the case of resources provided to instructors (including Assessment Materials as defined below), such license is restricted to individuals who are instructors who have registered and remain authorized as such by Aktiv Learning (“Authorized Instructors”) and individuals assisting instructors and under their direction (“Instructor Assistants”). You may not access this site through a single account on more than one computer or computer system concurrently. Multiple use configurations and network distribution of this site or any content or features on the site are expressly prohibited. You may not modify or delete any copyright, trademark or other proprietary notice that appears on any Materials on this site. Reproduction of the entirety of the contents available through this site (if applicable) is expressly prohibited. If the functionality of the site permits, you may also create and save bookmarks, highlights and annotations to content on the site. Aktiv Learning does not purport to grant any rights to materials appearing on this site that are not copyrighted in the name of Aktiv Learning or one of its divisions, including material submitted by any user of the site, and does not make any representation or warranty of any kind concerning rights in such materials.

You agree that you will not make any use of the Materials except as expressly permitted by these Terms of Use, including but not limited to the copying, modification, distribution, transmission, performance, broadcast, publication, licensing, reverse engineering, transfer or sale of, or the creation of derivative works from, any part of the Materials. Without limiting the generality of the foregoing, you agree not to use the Material for any commercial purpose, which includes, without limitation, (i) selling access to the Subscription Services or Materials on the site, (ii) including any Materials in any website, widget or printed material to which access is sold, (iii) using the Materials or Subscription Services on the site for the purpose of earning revenue through subscriptions or advertisements, or (iv) obtaining product functionality and/or performance related information for competitive use.

Assessment Materials. The following additional provisions apply with respect to materials consisting of testbanks, questions and answers, quizzes, homework assignments, and other similar materials, whether provided to you through our website or through other means, such as e-mail, CD, print or otherwise (“Assessment Materials”). Aktiv Learning hereby grants Authorized Instructors a personal, revocable, non-exclusive and non-transferable right to use Assessment Materials for non-commercial use solely for the limited purpose of assessing the learning of students enrolled in a class for which the textbook or Digital Media Products to which these Assessment Materials relate has been adopted and is in use, subject to the following limitations: (i) you will not make the Assessment Materials publicly available nor available in any format to anyone other than such students or to your Instructor Assistants, and (ii) you will not post or upload the Assessment Materials, or links thereto, to any website, online location or platform, including without limitation intranets, bulletin boards, content aggregators, instructor and student communities and chat rooms, homework sites, and other social media sites, or otherwise distribute or use the Assessment Materials in digital format, except that you may post the necessary portions of the Assessment Materials to secure, password protected platforms authorized by Aktiv Learning with access limited to such students. In addition, Aktiv Learning hereby grants Authorized Instructors a personal, revocable, non-exclusive and non-transferable right to access and display Assessment Materials for non-commercial use solely for the limited purpose of evaluating whether or not to adopt and use the textbook or Digital Media Products to which these Assessment Materials relate; this grant for evaluation purposes does not include, and explicitly excludes: the right to use the Assessment Materials for the purpose of assessing the learning of students; the right to copy, print, modify, or make derivative works of the Assessment Materials; and/or the right to distribute, transmit, perform, broadcast, publish, or make available the Assessment Materials to anyone, including without limitation students.

No Framing. Without the prior written permission of Aktiv Learning, you may not frame or establish inline links to any Subscription Services or Materials which require registration to access, nor may you incorporate into another website or other product or service any intellectual property of Aktiv Learning or any of its licensors. Use of manual or automated devices or other processes to “crawl” or “spider” any part of this site is strictly prohibited. Requests for permission to frame, or to establish inline links to, or otherwise incorporate our online content may be sent to: hello@aktiv.com.

Material You Submit

You acknowledge that you are responsible for any submission you make, including the legality, reliability, appropriateness, originality and copyright of any such material. Aktiv Learning does not assure the confidentiality of any submission you make. You may not upload to, distribute or otherwise publish through this site any content that violates any of the Usage Rules, below.

If you are an instructor or student submitting materials for use in connection with a course, you grant Aktiv Learning and its affiliates the right to use, reproduce, distribute, display and perform such materials in connection with the course on this site or any successor site. Whenever you submit materials through this site, you also grant each user of the site a nonexclusive license to access any materials you submit through the site (including content and annotations) in accordance with the terms of this Agreement and to use, reproduce, publish, distribute, display and perform such materials, in accordance with the grant of rights to users set forth above in the section entitled Use of the Materials From This Site. You grant Aktiv Learning and its affiliates the right to use the name or e-mail address you submit in connection with such content. Under applicable Data Privacy Laws, you may have the right to withhold and/or withdraw consent for such uses of your name and email address and we will use your personal information in accordance with such Data Privacy Laws.

With respect to any materials you submit through this site (“User Content”):

You represent and warrant that: you own or otherwise control all necessary rights to grant the rights you grant hereunder; that the User Content is accurate; that you have not violated the section entitled “Usage Rules,” below, and that, if you submit video content through this site, you have written consent or permission of each identifiable individual in such content to use his/her name and likeness and grant the rights you grant in these Terms of Use. You acknowledge that you are solely responsible for any royalties or other payments due for use of the User Content; you acknowledge that if in our opinion the User Content raises any legal risks, we have the right to exclude such User Content from the site without any prior notice to you.

Usage Rules

In connection with your use of this site including any Digital Media Product, you agree:

Not to submit or create any link to material that infringes the copyright, patent, trademark, trade secret, right of publicity or privacy, or any other proprietary or personal right of any third party; and not to submit or create a link to any material that is subject to any such right(s) unless you are the owner of such right(s), or have first obtained from the owner of such right(s) all necessary rights and permissions to grant the rights in such materials you grant under the section entitled “Material You Submit”, above; Not to submit or create any link to material that is unlawful, defamatory, abusive, obscene, indecent, lewd, pornographic, violent, threatening, discriminatory, or otherwise objectionable; Not to make any personal attack on any person, firm or company; Not to submit or create any link to material, or otherwise use this site for any purpose, that constitutes or encourages a criminal offense, including but not limited to conspiring to violate laws; Not to misrepresent your identity, or impersonate any party, including but not limited to misrepresenting your current or previous positions, qualifications, or affiliations; Not to submit any material that you do not have the legal right to disclose; Not to submit or create any link to any material that is intentionally false or misleading, or is potentially damaging or harmful; Not to advertise or engage in any form of marketing on this site or use user information obtained through this site for marketing or other commercial purposes, or use this site to post or transmit “spam”, “chain letters”, “pyramid schemes” or any other form of solicitation; Not to submit or create any link to any material that contains software viruses or any other malicious computer code or programs that might damage, destroy or interfere with the proper functioning of any software, hardware or systems; Not to stalk or harass anyone; Not to take any action that interferes with the proper working of, or places an unreasonable burden on, the infrastructure of this site, or that would damage, compromise the security of, or disrupt this site or any connected network; Not to use this site to collect personal information about individuals; Not to post or make available private information of any third party; Not to use this site as a forwarding service to another website; Not to allow usage by others in such a way as to violate these Terms of Use.

Third Party Applications

This site or any Subscription Service provided through the site may include applications or websites that are provided by third parties (“Third Party Apps”). The provide of a Third Party App may require to accept additional terms and conditions before you will be granted access to the Third Party App. You agree to comply, and shall in all respects comply, with all Third Party App terms and conditions. Aktiv makes no representation or warranty, and is not responsible for the operation of, any Third Party App.

Trademarks and Copyrights

This site features trademarks, service marks and logos that are the property of Aktiv Learning and its affiliates or licensors. The site also may include trademarks, service marks or logos of other third parties. All of these trademarks, service marks and logos are the property of their respective owners, and you agree not to use them in any manner without the prior written permission of the applicable owner. This site and all of its contents including but not limited to text, design, graphics, interfaces and code, and the selection and arrangement thereof, is protected under the copyright laws of the United States and other countries.

Intellectual Property Rights of Others

We respect the intellectual property rights of others, and we request that our visitors do the same. If you think your work has been copied in a manner that constitutes copyright infringement, you may notify us at:

legal@tophat.com

Please include all of the following in your notification:

A physical or electronic signature of the person authorized to act on behalf of the owner of an exclusive copyright that is allegedly infringed;

a description of the copyrighted work you claim has been infringed;

a description of where the material you claim is infringing is located on the site;

your address, telephone number, email address and all other information reasonably sufficient to permit us to contact you;

a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and

a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

Monitoring and Termination; Repeat Infringers

We may, but are not obligated to, monitor any or all activity and/or content on this site. If we determine, in our sole discretion, that any activity of, or content submitted by, a user violates this policy or is otherwise objectionable, we may take any action we deem appropriate, including without limitation, removing content or terminating accounts. Without limiting the foregoing, it is our policy to terminate the account of any user whom we determine to be a repeat infringer of these Terms of Use or any third-party rights. Nothing in this section in any way limits our right to terminate accounts, as provided in the section entitled “Personal Registration for Subscription Services,” above.

DISCLAIMERS

YOUR USE OF THIS SITE IS AT YOUR SOLE RISK. THE SITE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. AKTIV LEARNING EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTIES THAT MATERIALS ON THE SITE ARE NONINFRINGING; THAT ACCESS TO THE SITE WILL BE UNINTERRUPTED OR ERROR-FREE; THAT THE SITE WILL BE SECURE; THAT THE SITE OR THE SERVER THAT MAKES THE SITE AVAILABLE WILL BE VIRUS-FREE; OR THAT INFORMATION ON THE SITE WILL BE COMPLETE, ACCURATE OR TIMELY. IF YOU DOWNLOAD ANY MATERIALS FROM THIS SITE, YOU DO SO AT YOUR OWN DISCRETION AND RISK. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIALS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM AKTIV LEARNING OR THROUGH OR FROM THE SITE SHALL CREATE ANY WARRANTY OF ANY KIND. AKTIV LEARNING DOES NOT MAKE ANY WARRANTIES OR REPRESENTATIONS REGARDING THE USE OF THE MATERIALS ON THIS SITE IN TERMS OF THEIR COMPLETENESS, CORRECTNESS, ACCURACY, ADEQUACY, USEFULNESS, TIMELINESS, RELIABILITY OR OTHERWISE.

IN CERTAIN JURISDICTIONS, THE LAW MAY NOT PERMIT THE DISCLAIMER OF CERTAIN WARRANTIES, SO THE ABOVE DISCLAIMER MAY, IN WHOLE OR IN PART, NOT APPLY TO YOU.

Limitation of Liability

TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, YOU UNDERSTAND AND AGREE THAT NEITHER AKTIV LEARNING NOR ANY OF ITS AFFILIATES OR THIRD PARTY CONTENT OR TECHNOLOGY PROVIDERS SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL, PUNITIVE OR ANY OTHER DAMAGES OR LOST PROFITS RELATING TO OR RESULTING FROM YOUR USE OF OR INABILITY TO USE THIS SITE OR ANY OTHER SITE YOU ACCESS THROUGH A LINK FROM THIS SITE OR FROM ANY ACTIONS WE TAKE OR FAIL TO TAKE AS A RESULT OF EMAIL MESSAGES YOU SEND US. THESE INCLUDE DAMAGES FOR ERRORS, OMISSIONS, INTERRUPTIONS, DEFECTS, DELAYS, COMPUTER VIRUSES, YOUR LOSS OF PROFITS, LOSS OF DATA, UNAUTHORIZED ACCESS TO AND ALTERATION OF YOUR TRANSMISSIONS AND DATA, AND OTHER TANGIBLE AND INTANGIBLE LOSSES.

UNDER NO CIRCUMSTANCES WILL AKTIV LEARNING OR ANY OF ITS AFFILIATES BE LIABLE TO YOU FOR MORE THAN THE AMOUNT IT RECEIVED FOR YOUR SUBSCRIPTION TO THIS SITE. THIS LIMITATION APPLIES REGARDLESS OF WHETHER THE DAMAGES ARE CLAIMED UNDER THE TERMS OF A CONTRACT, AS THE RESULT OF NEGLIGENCE OR OTHERWISE ARISE OUT OF OR IN CONNECTION WITH THE USE, INABILITY TO USE, OR PERFORMANCE OF THE INFORMATION, SERVICES, PRODUCTS OR MATERIALS AVAILABLE FROM THIS SITE, AND EVEN IF WE OR OUR REPRESENTATIVES HAVE BEEN NEGLIGENT OR HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, ALL OR A PORTION OF THE ABOVE LIMITATION MAY NOT APPLY TO YOU.

Indemnification

You agree to indemnify, defend and hold harmless Aktiv Learning, its affiliates and licensors and licensees, and its and their officers, directors, members, employees, contractors, other agents and customers from any loss, damage, payment, settlement, judgment or other expense (including reasonable attorneys’ fees and disbursements) arising out of or resulting from (i) any violation of these Terms of Use, (ii) any claim that you have violated any third-party right or that any material submitted by you caused harm or damage to a third party. If you cause a technical disruption of the site or the systems transmitting the site to you or others, you agree to be responsible for any and all loss, damage, payment, settlement, judgment or other expense (including reasonable attorneys’ fees and disbursements) arising out of or resulting from that disruption.

Links

This site may contain links to other Web sites. These links are provided as a convenience to you and as an additional avenue of access to the information contained therein. We have not necessarily reviewed all the information on those other sites and are not responsible for the content of those or any other sites or any products or services that may be offered through other sites. Inclusion of links to other sites should not be viewed as an endorsement of the content of linked sites. Different terms and conditions may apply to your use of any linked sites.

Jurisdiction

If You reside in Canada and use the Services in Canada, this Agreement is to be construed under the laws of the Province of Ontario. If You reside in Australia or New Zealand and use the Services in Australia or New Zealand, this Agreement is to be construed under the laws of New South Wales.  Otherwise, this Agreement is to be construed under the laws of the State of New York, excluding any body of law governing conflicts of law. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods is hereby excluded in its entirety from application to this Agreement. In the event of a dispute arising out of or in connection with the terms of this Agreement between you and us, then you agree to attempt to settle the dispute by engaging in good faith negotiations with us in a process of mediation before commencing arbitration or litigation.  TO THE MAXIMUM EXTENT PERMITTED BY LOCAL LAW, YOU AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SERVICES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED. 

Changes to These Terms of Use

We reserve the right, in our sole discretion, to change these Terms of Use at any time by posting revised terms on the site. It is your responsibility to check periodically for any changes we may make to these Terms of Use. Your continued use of this site following the posting of changes to these terms or other policies means you accept the changes.

Miscellaneous

If any provision of this agreement is unlawful, void or unenforceable, the remaining provisions of the agreement will remain in place. These Terms of Use constitute the entire agreement and understanding between you and Aktiv Learning with respect to use of the Web site and the contents thereof, superseding all prior or contemporaneous communications. A printed version of these Terms of Use shall be admissible in judicial or administrative proceedings based on or relating to use of the Web site to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.

How to Contact Us

If you have any questions or comments about these Terms of Use or want to report a violation of these Terms of Use, please please contact us at legal@tophat.com