Articulate 360 General Terms of Service
Last updated March 31, 2023
As used herein, the term, "you" and "your" refers to the individual or entity that is using the Services, as defined below, and "we" and "our" refers to Articulate Global, LLC (also referred to as "Articulate"). These Articulate 360 General Terms of Service including, if applicable, Exhibit A (the Data Processing Agreement), and any applicable order (collectively the "Terms" or "Agreement"), govern your use of our services, such as Articulate 360, which include the Articulate-proprietary software and third-party licensed software that powers our services, any related software applications, if added by Customer, any Optional Features (defined below), the Content Files (defined below), and user documentation that we provide to all customers (collectively the "Services"). You will have use of and access to our Services for the time period specified in any applicable order.
By using the Services, you agree to these Terms. As discussed more in Section 3 below, you retain all rights and ownership to Your Content (defined below).
1. How this Agreement Works
1.1. Choice of Law.
These Terms, and our provision, and your use of the Services are governed by the laws of New York, U.S.A. You may have additional rights under mandatory law. We do not seek to limit those rights to the extent prohibited by law.
You may only use the Services if you are (a) over 18 years old and (b) allowed by law to enter into a binding contract.
The Privacy Notice at https://articulate.com/trust/privacy and if applicable our Data Processing Agreement at Exhibit A, governs the Services, including any personal data or personally identifiable information you provide to us.
1.4. Entire Agreement; Precedence.
These Terms constitute the entire agreement between Articulate and you regarding your use of the Services and the subject matter hereof, and supersede any prior agreements or understandings (whether written or oral) between Articulate and you relating to the subject matter hereof. Articulate may receive and sign or otherwise execute purchase orders, quotes,orders, order confirmations, or similar documents from you contemporaneously with or after the execution of these Terms (including documents provided in connection with accepting renewal of these Terms). The parties agree that the sole purpose of such documents is for your internal payment processes and execution by us does not constitute an acceptance of any of the terms or conditions of such documents. You further represent, warrant and agree that (i) such documents are solely for compliance with your internal purchasing policies, (ii) such documents are not intended to and shall not add any new terms or conditions, or supersede any conflicting terms and conditions in these Terms, and (iii) you shall not assert any terms or conditions contained in such documents against us.
Services descriptions may be accessible worldwide but for clarity, this does not mean all Services or service features are accessible in all languages or all areas, or that user-generated content available via the Services is legally compliant in all areas. It is your responsibility to make sure your use of the Services is available and legally compliant in your area.
2. Use of Service
2.1. Articulate User ID.
You need to provide your name, email address and password in order to access or use Services (the "Articulate User ID"). We recommend that you use your unique email address provided by your organization. You agree to: (i) provide true, accurate, current, and complete information about yourself as prompted by the sign up process; and (ii) maintain and promptly update the information provided during sign up to keep it true, accurate, current, and complete; and (iii) not share your Articulate User ID with any third party. If you provide any information that is untrue, inaccurate, outdated, or incomplete, or if Articulate has reasonable grounds to suspect that such information is untrue, inaccurate, outdated, or incomplete, after giving you prior notice, Articulate may terminate your user account and refuse current or future use of any or all of the Services.
The Services may require you to take certain steps to activate your license or validate your subscription. If we determine that the Services have been used fraudulently or without authorization, we may reduce the functionality, operability, or availability of the Services, and/or suspend or terminate the license or subscription.
Subject to your compliance with these Terms and the law, we grant you a limited, non-exclusive, non-transferable, non-sublicensable, fee-bearing license to install and use the Services, so long as your applicable license and/or subscription is valid.
2.4. License Limitations.
You may activate the Services on up to two desktop devices and up to two mobile devices at a time (maximum four total activations), provided that these activations are associated with the same Articulate User ID. However, the Services may not be used simultaneously on these devices.
We (and our licensors) remain the sole owner of all right, title, and interest in the Services. We reserve all rights not granted under these Terms. Without limiting the generality of the foregoing, unless permitted in these Terms, you must not (and must not permit any third party to):
- a. modify, port, adapt, or translate any software or other intellectual property elements underlying the Services;
- b. reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code of any software or other intellectual property elements underlying the Services, unless permitted by relevant law and then only within the constraints of that law. Any information supplied to or obtained by you under this Section is the confidential and proprietary information of Articulate, may be used by you only for the purpose described in this Section, and will not be disclosed to any third party or used to create any software which is substantially similar to the expression of the software underlying the Services;
- c. permit timesharing or use, offer the Services on a service bureau basis, or permit the use of a User ID by more than one user;
- d. distribute, display, outsource, republish, frame, host or stream the Services, allow unauthorized access to the Services, or otherwise commercially exploit the Services outside of the terms of this Agreement;
- e. access the Services in order to build a product or service that competes with our Services;
- f. circumvent technological measures intended to control access to the Services or develop, distribute, or use with the Services, products that circumvent the technological measures;
- g. introduce, transmit, re-transmit, or store materials or software code on or through the Services or through Your Content that are harmful to the Services, including our software, firmware or related technology;
- h. rent, lease, sell, sublicense, assign, or transfer your rights in the Services;
- i. make any copy of the software or other intellectual property elements underlying the Services without preserving all copyright and other proprietary notices that appear on or in the Services or such software or other intellectual property elements;
- j. use Articulate's name, logo, trademarks, service marks, or other branding elements without Articulate's prior written consent on a case-by-case basis. Such consent, if granted, is subject to revocation by Articulate at any time. Any use of the foregoing shall be in compliance with Articulate's then-current trademark usage and branding guidelines; and
- k. If you license the multi-user Services commonly referred to as "Articulate 360 Teams" (or such other product or service name that Articulate may designate from time to time, for such purposes, "Articulate 360 Teams" throughout), then the Articulate 360 Teams administrator(s) who you appoint may assign seats pursuant to the applicable documentation for Articulate 360 Teams. If an Articulate 360 Teams user no longer requires use of the Services, your administrator may reassign such usage rights to a new Articulate 360 Teams user, so long: (i) as the maximum number of Articulate 360 Teams users (for whom licenses have been purchased) is not exceeded; and (ii) the transfers are to support employee turnover or user role changes whereby the user no longer requires access to the Services and the number of total user transfers within a 360 Teams account in a 12-month term does not exceed 2X (two-times) the number of purchased seats within the subscription.
2.6. Terms Applicable to Reviewers and/or Commenters.
Any individual(s) whom you select to provide review and comment functions within Review 360 need not be Articulate subscribers or customers for such purpose; however, each such reviewer will need to provide their email address or sign in with their Articulate User ID, depending on the settings you choose. You will be responsible for such reviewers' acts and omissions with regards to their activities in conjunction with Review 360.
The Services may automatically download and install updates from time to time from Articulate. These updates may take the form of bug fixes, new features, or new versions. You agree to receive such updates from Articulate as part of your use of the Services, as applicable.
2.8. Third Party Software.
The Services may contain third-party software which is described at https://articulate.com/thirdparty; no additional licenses or payments are required from you in order for you to use the Services.
2.9. Notice to U.S. Government End Users (if applicable).
For U.S. Government procurements, (i) Technical Data is provided in accordance with FAR 12.211 and Software is a "commercial" computer software as defined in FAR 12.212, and (ii) "commercial" software and documentation are also provided in accordance with DFARS 227.7202, "Rights in Commercial Computer Software or Commercial Computer Software Documentation", as applicable, and any successor regulations. Any use, reproduction release, performance, display, or disclosure of the Software or documentation by the U.S. Government must be in accordance with license rights and restrictions described in these General Terms of Service. Notwithstanding the foregoing, the Government agrees that this software qualifies as "commercial" computer software within the meaning of the acquisition regulations applicable to this procurement. These General Terms of Service shall pertain to the Government's use and disclosure of the software and documentation, and shall supersede any conflicting contractual terms or conditions. If these General Terms of Service fail to meet the Government's needs or are inconsistent in any respect with Federal law, the Government agrees to cease use of the Services.
- COPYRIGHT NOTICE. Copyright © Articulate Global, LLC, 244 5th Ave., Suite 2960, New York, NY 10001. An unpublished work. All rights reserved worldwide.
When the Services provide storage, we recommend that you continue to back up Your Content regularly. We may create reasonable technical limits on Your Content, such as limits on file size, storage space, processing capacity, and other technical limits. We may suspend the Services until you are within the storage space limit associated with your account.
2.11. Content Files.
"Content Files" means Articulate-provided files such as videos, character images, illustrations, templates, interactions or other pre-built content we provide to you in the Services. You may use the Content Files to develop your e-learning end product in our Services (“End Product”), including modifying and embedding the Content Files into your End Product, and reproducing and distributing the Content Files if integrated in your End Product. However, you may not use or distribute the Content Files on a stand-alone basis outside of your End Product. For clarification, you do not have any ownership rights in the Content Files themselves.
2.12. Other License Types.
(a) Pre-release Version.
We may designate the Services as a pre-release, preview, or beta version ("Pre-release Version"). Pre-release Version does not represent the final product and may contain bugs that may cause system or other failure and data loss. We may choose not to commercially release the Pre-release Version. You must promptly cease using the Pre-release Version if we request you to do so. Any separate agreement we enter into with you governing the Pre-release Version will supersede the provisions on Pre-Release Version set out in this Section. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PRE-RELEASE VERSIONS ARE PROVIDED BY ARTICULATE WITHOUT WARRANTY, SUPPORT, OR INDEMNIFICATION.
(b) Academic Version.
If we designate the Services as being for use by educational users ("Academic Version"), then you may only use the Academic Version if you meet the eligibility requirements provided for by Articulate. Articulate or its authorized resellers will determine if you meet the academic requirements and retains the right to verify eligibility as a prerequisite for each renewal term of this Agreement.
(c) Trial Licenses.
Trial licenses are available under a one-time evaluation period. You agree to provide Articulate certain information as indicated on the trial registration form. At the end of the trial period, and unless the trial is converted to a paid subscription, the Services will automatically terminate, and Articulate will delete any content that was uploaded to the Storage provided for as part of the trial. Articulate reserves the right to terminate your trial at its sole discretion. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TRIAL VERSIONS ARE PROVIDED BY ARTICULATE WITHOUT WARRANTY OR INDEMNIFICATION.
2.13. Support Policy.
We will provide support consistent with our then-current Articulate 360 Support Policy: https://articulate.com/support/360/policy.
3. Your Content
You retain all rights and ownership of all content (e.g., text, images, videos, etc.) that you own and upload, import, or develop in or to our Services (“Your Content”). We do not claim any ownership rights to Your Content. For clarification, we and our licensors retain all rights and ownership of our Content Files.
3.2. Licenses to Your Content in Order to Operate the Services.
We require licenses from you to Your Content to operate and enable the Services. When you upload Your Content to our Services, you grant us a non-exclusive, worldwide, royalty-free, sub-licensable, and transferable license to access, use, reproduce, distribute, and translate the content as needed in response to user driven actions for the legal duration of protection of such rights.
This license is granted solely for the purposes of: (a) providing, operating, or improving the Services; (b) responding to support requests; (c) detecting, preventing, or otherwise addressing fraud, security, unlawful, or technical issues; and (d) enforcing these Terms.
3.3. Termination of License.
You may revoke this license to Your Content and terminate our rights at any time. However, some copies of Your Content may be retained as part of our routine backups, which will be protected as required under this Agreement until overwritten on a regularly scheduled basis.
You have no obligation to provide us with ideas, suggestions, or proposals ("Feedback"). However, if you submit Feedback to us, then you grant us a non-exclusive, worldwide, royalty-free license, for the legal duration of protection of rights that is sublicensable and transferrable, to make, use, sell, have made, offer to sell, import, reproduce, publicly display, distribute, and modify the Feedback.
4. Account Information
You are responsible for all activity that occurs via your account. Please notify Articulate Customer Support, or your authorized reseller, immediately if you become aware of any unauthorized use of your account. You and your users may not (a) share your account information (except with an authorized account administrator) or (b) use another person's account. Your account administrator(s) may use your account information to manage your access to the Services. Users may be defined to include but are not limited to learners, seats, subscribers, and end users, for the applicable Services (“Users”).
5. User Conduct
5.1. Responsible Use.
Articulate is committed to protecting its employees, partners, customers, and users from illegal or damaging actions by individuals, either knowingly or unknowingly. Articulate's platform and systems, including but not limited to computer equipment, software, operating systems, storage media, network accounts, websites, and file transfer sites are to be used for lawful and legitimate business purposes, in the course of normal operations. Supporting the above is a team effort involving the participation and support of all individuals and organizations that deal with the Services. The purpose of this Section is to outline the acceptable use of the Services to protect Articulate and all customers and users against risks, including virus attacks, compromise of network systems and services, and legal issues. Articulate does not guarantee that by all users complying with this Section, all risks and potential liability will be eliminated. Risks come from many different sources, and while Articulate has taken reasonable steps to ensure that the likelihood of risk is reduced, it cannot be completely eliminated.
You agree that you will not (directly or indirectly, through a third party):
- (a) copy, modify, host, stream, sublicense, or resell the Services;
- (b) enable or allow others to use the Services using your account information;
- (c) access, attempt to access or authorize others to access the Services by any means other than the interface we provide or authorize, or otherwise enable users or others to access the Services in a manner that has not been expressly authorized by us;
- (d) circumvent any access or use restrictions put into place to prevent certain uses of the Services;
- (e) share content or engage in behavior that violates anyone’s Intellectual Property Right ("Intellectual Property Rights" means copyright, moral rights, trademark, trade dress, patent, trade secret, unfair competition, right of privacy, right of publicity, and any other proprietary rights);
- (f) upload or share any content that is unlawful, harmful, threatening, abusive, tortious, defamatory, libelous, vulgar, lewd, profane, invasive of another's privacy, or hateful;
- (g) introduce, transmit, re-transmit, or store materials or software code on or through the Services that are: (i) harmful to the Services or our software, firmware or related technology; or (ii) in violation of any applicable laws or regulations, including without limitation laws relating to infringement of intellectual property and proprietary rights of others;
- (h) impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;
- (i) attempt to disable, impair, or destroy the Services;
- (j) disrupt, interfere with, or inhibit any other user from using the Services (such as stalking, intimidating, or harassing others, inciting others to commit violence, or harming minors in any way);
- (k) engage in chain letters, junk mails, pyramid schemes, spamming, or other unsolicited messages;
- (l) place advertisements of any products or services in the Services;
- (m) use any data mining or similar data gathering and extraction methods in connection with the Services; or
- (n) violate applicable law.
6. Fees and Payment
You agree to pay any and all applicable charges associated with your account, in advance, regardless of usage. Unless you request preapproval to pay via an invoice, all fees must be prepaid via a credit card that you preregister or otherwise provide to us (which information must be kept updated by you), which credit card will be charged at the rate agreed upon in the relevant order unless and until you, in accordance with Section 11, give us prior notice of your intent to cancel or terminate your subscription. All payments made via a preapproved invoice are due within thirty (30) days following the date of Articulate's invoice, and any amount not paid when due is subject to interest at a rate that is the lower of: (a) one percent (1%) per month or (b) the highest interest rate permissible under applicable law. Without limiting the generality of the foregoing, we reserve the right to suspend and/or terminate any order (and/or license, access, or other rights to the related Services) for which fees are not paid when due.
6.2. Taxes and Third-Party Fees.
Unless otherwise stated in writing, the fees do not include any taxes, levies, duties or other similar government assessments of any nature, including but not limited to value added, sales and use, or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively “Taxes”). You are responsible for timely paying all applicable Taxes associated with this Agreement except for Taxes based on Articulate’s net income, property or employees. If Articulate has the legal obligation to pay or collect Taxes that you are responsible for, Articulate will tax based on the address included in the introductory paragraph of this Agreement or, if not included in the introductory paragraph, the organizational address provided to Articulate at the time you sign up for Services. The appropriate amount shall be paid by you, unless you provide Articulate with a valid tax exemption certificate authorized by the appropriate taxing authority.
6.3. Credit Card and Billing Information.
You agree to keep your credit card and other billing information that is provided to Articulate up to date at all times. If you do not notify us of updates to your payment method, to avoid interruption of your service we may participate in programs supported by your card provider to try to update your payment information, and you authorize us to continue billing your account with the updated information that we obtain.
6.4. Upgrades to Plans and Additional Commercial Terms for Articulate 360 Teams.
The purchaser of an Articulate 360 Teams subscription may purchase additional user subscriptions at any time. Added user subscriptions are priced at the rates available at the time of purchase and are prorated based on the days remaining in your contract. All Articulate 360 Teams subscriptions under a specific plan will have the same scheduled subscription end date, subject to renewal as set forth herein. Further, upon renewal, Articulate will charge you for the number of seats at the time of such renewal.
6.5. Optional Features and Exceeding User Limits.
Optional Features means any new or additional products, services, features, and functionalities, that are not a part of the updates or upgrades to our Articulate 360 services, and are available to Customer with additional cost (“Optional Features”). The number of users you purchase for an Optional Feature applies to the subscription period specified in your order. There are no credits or refunds for any Optional Feature users not utilized during your order. You will be charged at the rates made available at the time of purchase for (a) all users added during your subscription period and (b) all users exceeding the limits permitted in any order. Upon renewal, we will charge you for the total number of users added during your previous subscription.
7. Your Warranty and Indemnification Obligations
By uploading Your Content to the Services, you agree that you have: (a) all necessary licenses and permissions to use and share Your Content and (b) the rights necessary to grant the licenses in these Terms.
You will indemnify us and our subsidiaries, affiliates, officers, agents, employees, partners, and licensors from any third-party claim, demand, loss, or damages, including reasonable attorneys' fees, arising out of or related to Your Content.
8. Our Warranty and Indemnification Obligations
8.1. TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE DISCLAIM ALL WARRANTIES EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. WE MAKE NO COMMITMENTS ABOUT THE CONTENT WITHIN THE SERVICES. TO THE EXTENT PERMITTED BY LAW WE FURTHER DISCLAIM ANY WARRANTY THAT: (A) THE SERVICES WILL MEET YOUR REQUIREMENTS OR WILL BE CONSTANTLY AVAILABLE, UNINTERRUPTED, TIMELY, OR ERROR-FREE; OR (B) THE QUALITY OF THE SERVICES WILL MEET YOUR EXPECTATIONS.
8.2. Indemnification by Us.
If a third party initiates a claim against you, claiming that the Services directly infringe any Intellectual Property or misappropriate any Confidential Information (defined below), we will pay the costs and damages that a court (having final jurisdiction) awards against you in the lawsuit, to the extent that the costs and damages directly relate to the claim. Alternatively, we will pay the costs and damages that we agree to in a written settlement of the lawsuit. Our obligations under this Section apply only if you: (a) promptly notify us of the lawsuit in writing, (b) allow us to control the defense of the lawsuit and any related settlement negotiations, and (c) cooperate with us and, at our request and expense, assist us in the defense or settlement of the lawsuit. Also, our obligations under this Section do not apply to the extent that any infringement claim is based upon: (i) any use of the Services not in accordance with this Agreement; (ii) any use of the Services in combination with other products, equipment, or software that we do not supply; (iii) any use of any release of the Services other than the most current release made available to you; or (iv) any modification of the Services by anyone other than us. To the maximum extent permitted by law, this Section states our entire liability and your sole and exclusive remedy for infringement claims and actions against you.
8.3 Our Options for Infringement Claims.
If any party is enjoined from using the Services, or if we believe that the Services may become the subject of a claim of intellectual property infringement or misappropriation of Confidential Information, we, at our option and expense, may: (i) procure the right for you to continue to use the Services; (ii) replace or modify the Services so as to make the Services non-infringing; provided, however, that the Services continue to conform to applicable descriptions and/or specifications; or (iii) terminate this Agreement, in which case we shall refund to you any and all subscription fees paid in advance by you for those Services not provided by us. Our exercise of any of the foregoing options constitutes our entire liability and your sole and exclusive remedy for infringement and misappropriations claims and actions against you.
9. Limitation of Liability
9.1. WE ARE NOT LIABLE TO YOU OR ANYONE ELSE FOR: (A) ANY LOSS OF USE, GOODWILL, OR PROFITS, WHETHER OR NOT FORESEEABLE; AND (B) ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, OR PUNITIVE DAMAGES WHATSOEVER (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF THESE DAMAGES), INCLUDING THOSE: (1) RESULTING FROM LOSS OF USE, OR PROFITS, WHETHER OR NOT FORESEEABLE, (2) BASED ON ANY THEORY OF LIABILITY, INCLUDING BREACH OF CONTRACT OR WARRANTY, NEGLIGENCE OR OTHER TORTIOUS ACTION, OR (3) ARISING FROM ANY OTHER CLAIM ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF OR ACCESS TO THE SERVICES. NOTHING IN THESE TERMS LIMITS OR EXCLUDES OUR LIABILITY FOR CLAIMS RELATING TO DAMAGE TO TANGIBLE PROPERTY AND INJURY OR DEATH TO PERSONS.
9.2. EXCEPT AS PROVIDED IN SECTION 8.2 (INDEMNIFICATION BY US) AND SECTION 10 (CONFIDENTIAL INFORMATION), OUR TOTAL LIABILITY IN ANY MATTER ARISING OUT OF OR RELATED TO THESE TERMS IS LIMITED TO THE AGGREGATE AMOUNT THAT YOU PAID FOR ACCESS TO THE SERVICES, PRO-RATED FOR THE PAYMENTS ATTRIBUTABLE TO THE SIX-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY. THIS LIMITATION WILL APPLY EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF THE LIABILITY EXCEEDING THE AMOUNT AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
9.3. SUBJECT TO AND WITHOUT LIMITING OUR EXPRESS OBLIGATIONS SET FORTH IN THESE TERMS, (A) WE SPECIFICALLY DISCLAIM ANY LIABILITY FOR ANY ACTIONS RESULTING FROM YOUR USE OF ANY SERVICES; (B) YOU MAY USE AND ACCESS THE SERVICES AT YOUR OWN DISCRETION AND RISK; AND (C) YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE USE AND ACCESS OF ANY SERVICES.
9.4. THE LIMITATIONS AND EXCLUSIONS IN THIS SECTION 9 APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW.
10. Confidential Information
“Confidential Information” means all confidential and/or non-public proprietary information disclosed by one party (“Disclosing Party”) to the other (“Receiving Party”) including information disclosed by or to either party's Affiliates, such information including without limitation: Articulate's Services, the terms of the Agreement, personal data, know-how, designs, plans, processes, computer programs, software (including both source code and object code), documentation, algorithms, marketing plans and business plans and all other technical, scientific, financial or business data, and such information shall be presumed to be Confidential Information whether the communication of the information was in written, electronic, oral, tangible or intangible form when transmitted to receiving party, and regardless of whether or not such information is labeled or identified as “confidential,” “proprietary” or the like.
Except as expressly provided in the Agreement, Receiving Party shall not disclose Disclosing Party's Confidential Information to any third party (other than to its personnel who have a need to know and who are subject to binding written confidentiality obligations at least as protective as those set forth herein) without Disclosing Party's prior written consent. Disclosing Party's Confidential Information may be used by Receiving Party solely for the purposes of performing its obligations under the Agreement. Receiving Party shall take all reasonable measures to avoid disclosure, dissemination or unauthorized use of Disclosing Party's Confidential Information, including, at a minimum, those measures taken to protect its own confidential information of a similar nature, but in no event less than a reasonable degree of care.
Confidential Information shall not include any information that: (a) is or becomes publicly available through no fault of Receiving Party; (b) is independently developed by Receiving Party without utilizing Disclosing Party's Confidential Information; (c) is approved in writing by Disclosing Party for release by Receiving Party; or (d) is disclosed without restriction to Receiving Party in good faith by a third party who is in lawful possession thereof and who has the right to make such disclosure.
If, on the advice of legal counsel, Receiving Party is compelled by court order or law (“Legal Order”) to disclose Disclosing Party's Confidential Information, Receiving Party, unless prohibited by law, shall promptly notify Disclosing Party of such fact, provide a copy of the Legal Order and reasonably cooperate at Disclosing Party's request in: (a) opposing the Legal Order or seeking to limit the disclosure to the minimum extent necessary to comply with the Legal Order; (b) seeking a protective order; or (c) appealing the Legal Order. Failing any of the above, Receiving Party shall disclose only such Disclosing Party Confidential Information to the minimum extent required to comply with the Legal Order. Receiving Party shall continue to be bound under this Agreement with respect to Disclosing Party's Confidential Information disclosed under the Legal Order unless the Disclosing Party's Confidential Information becomes a matter of public record in connection with the legal process.
11. Term; Termination
The term of this Agreement and any order made under it will commence in accordance with the applicable order, and will continue unless and until you or Articulate give the other notice of an intent to terminate or not renew your account and/or subscription, which notice must be provided within thirty (30) days before your current term expires. Unless otherwise mutually agreed upon, the fees for your subscription to our Services for each subsequent term will be Articulate's standard, then-current charges for the applicable Services.
11.2. Termination by You for No Reason/Termination for Convenience.
While you may stop using the Services at any time, unless otherwise expressly set forth in the Terms, termination of your account for no reason or convenience does not relieve you of any obligation to pay any outstanding fees or require Articulate to refund any prepaid fees.
11.3 Termination by You for Cause.
You may terminate for cause a subscription of twelve (12) months or greater for Articulate's material breach of these Terms, so long as you give Articulate prior written notice and afford Articulate not less than thirty (30) days to cure such breach. If after such cure period the breach is not resolved, you will receive a prorated refund of your prepaid fees for the remainder of the term, so long as you send us a written request (at Articulate Customer Support) within thirty (30) days of the termination effective date.
11.4 Termination by Us.
We may terminate these Terms for cause and/or for the reasons detailed below (to the extent permissible under applicable law), and will make reasonable effort to notify you at least 30 days prior to termination via the email address if:
- (a) you breach any provision of these Terms (or act in a manner that clearly shows you do not intend to, or are unable to, comply with these Terms);
- (b) you fail to make the timely payment of fees for the Services;
- (c) we are required to do so by law (for example, where the provision of the Services to you is, or becomes, unlawful);
- (d) we elect to discontinue the Services, in whole or in part, (such as, if it becomes impractical for us to continue offering Services in your region due to change of law); or
- (e) there has been an extended period of inactivity (of thirty (30) days or more) in your free or trial account.
11.5. Effect of Termination.
Other than as provided in Section 11.3, no refunds or credits for subscription charges, fees, or other payments will be provided to you if you elect to terminate your subscription to the Services prior to the end of your then-effective subscription term, or cancel, downgrade, or reduce your Services plan, scope of license, access, or other rights during the Term, or cancel your account; or if we terminate or cancel your account because of your breach of these Terms or as otherwise provided under 11.4. Additionally, in these cases you must immediately pay any amounts then due to Articulate, including unpaid fees and charges associated with the remainder of the term. Following the termination or cancellation of your subscription to the Services and/or related account, we retain Your Content for up to six (6) months. After six months, we permanently delete Your Content from our servers and cannot restore it. We can, upon request, delete Your Content as soon as your subscription ends, in which case it will not be retrievable.
Upon expiration or termination of these Terms, the following Sections will survive: 1.1 (Choice of Law), 1.3 (Privacy), 1.4 Entire Agreement, Precedence, 2.3 (License), 2.5 (Restrictions), 2.9 (Notice to U.S. Government End Users), 3 (Your Content), 4 (Account Information), 5 (User Conduct), 6 (Fees and Payment), 7 (Your Warranty and Indemnification Obligations), 8 (Our Warranty and Indemnification Obligations), 9 (Limitation of Liability), 10 (Confidential Information), 11 (Term; Termination), 11.6 (Survival), 12 (Investigations), 13 (Export Control Laws), 14 (Dispute Resolution), and 15 (Miscellaneous), and Exhibit A (if applicable). Upon the expiration or termination of the Services, the Services may cease to operate without prior notice.
We are not obligated to monitor content uploaded to the Services.
We may access or disclose information about you, or your use of the Services, (a) when it is required by law (such as when we receive a valid subpoena or search warrant); (b) to respond to your requests for customer service support.
13. Export Control Laws
The Services and your use thereof are subject to U.S. and international laws, restrictions, and regulations that may govern the import, export, and use of the Services. You agree to comply with all such laws, restrictions, and regulations.
14. Dispute Resolution
For any concern or dispute you may have, you agree to first try to resolve the dispute informally by contacting us. If a dispute is not resolved within 30 days of submission, then except as otherwise set forth in Section 17.2, you or Articulate may initiate a claim in the state and/or federal courts in New York County, New York, USA. However, either party may initiate a claim before the expiration of such thirty (30) day period, if the claim relates to intellectual property, or to preserve either party's rights under applicable statutes of limitations. THE UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT (“UCITA”) OR ANY VERSION THEREOF, ADOPTED BY ANY STATE, IN ANY FORM WILL NOT APPLY TO THIS AGREEMENT. TO THE EXTENT THAT UCITA IS APPLICABLE, THE PARTIES HEREBY AGREE TO OPT OUT OF THE APPLICABILITY OF UCITA PURSUANT TO THE OPT-OUT PROVISION(S) CONTAINED THEREIN.
14.2 Injunctive Relief.
Notwithstanding the foregoing, in the event of your or others' unauthorized access to or use of the Services or content in violation of these Terms, you agree that we are entitled to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.
The English version of these Terms will be the version used when interpreting or construing these Terms. Section headings are provided for convenience only and will not affect the interpretation of these Terms. Any words following the terms "including", "in particular", "for example", "such as", or any similar expression, shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
15.2 Notice to Articulate.
You may send notices to us to at the following address: Articulate Global, LLC, Attn: Legal, 244 5th Avenue – Suite 2960, New York, NY 10001, USA.
15.3 Notice to You.
To the extent permitted under applicable law, we may notify you by email, postal mail, postings within the Services, or other legally acceptable means.
You may not assign or otherwise transfer these Terms or your rights and obligations under these Terms, in whole or in part, without our written consent and any such attempt will be void. We may freely assign or transfer our rights and/or obligations under these Terms to a third party. In addition, if you are purchasing through a reseller, distributor, or similar third party, you acknowledge and agree that Articulate reserves the right, upon notice, to require such third party to assign the relationship directly to Articulate (or to another third party that Articulate may specify), and in such event, you agree to fully comply and cooperate with such transfer and to do all things reasonably necessary to effect the same.
If at any time any provision of these Terms is or becomes illegal, invalid or unenforceable in any respect under the law of any jurisdiction, neither the legality, validity or enforceability of the remaining provisions hereof nor the legality, validity, or enforceability of such provision under the law of any other jurisdiction will in any way be affected or impaired thereby, and the remainder of the provisions of these Terms will remain in full force and effect. Articulate and you agree to endeavor in good faith negotiations to replace any illegal, invalid or unenforceable provision with a valid, legal and enforceable provision, the economic effect of which comes as close as possible to the illegal, invalid or unenforceable provision.
15.6 No Waiver.
Our failure to enforce or exercise any provision set forth in these Terms is not a waiver of that provision.
17. Jurisdiction-Specific Terms (if applicable).
This Section applies to specific jurisdictions. If there is any conflict between this Section and other Sections, then this Section governs in relation to the relevant jurisdiction:
- (a) NOTHING IN THIS AGREEMENT IS INTENDED TO LIMIT YOUR NON-EXCLUDABLE RIGHTS UNDER THE COMPETITION AND CONSUMER ACT 2010 (CTH).
- (b) DESPITE ANY OTHER PROVISION OF THESE TERMS, IF THE COMPETITION AND CONSUMER ACT 2010 (CTH) OR ANY OTHER LEGISLATION STATES THAT THERE IS A GUARANTEE IN RELATION TO THE SERVICES SUPPLIED BY ARTICULATE IN CONNECTION WITH THESE TERMS, AND ARTICULATE'S LIABILITY FOR FAILING TO COMPLY WITH THAT GUARANTEE CANNOT BE EXCLUDED BUT MAY BE LIMITED, SECTIONS 9.1, 9.2 AND 9.3 DO NOT APPLY TO THAT LIABILITY. INSTEAD, ARTICULATE'S LIABILITY FOR THAT FAILURE IS LIMITED TO (AT THE ELECTION OF ARTICULATE), IN THE CASE OF A SUPPLY OF GOODS, ARTICULATE REPLACING THE GOODS OR SUPPLYING EQUIVALENT GOODS OR REPAIRING THE GOODS, OR IN THE CASE OF A SUPPLY OF SERVICES, ARTICULATE SUPPLYING THE SERVICES AGAIN OR PAYING THE COST OF HAVING THE SERVICES SUPPLIED AGAIN.
- (c) If for any reason the provision of the Services under or in connection with these Terms constitutes a "Taxable Supply" in Australia (or similar term under the laws of other jurisdictions) for GST or similar purposes, then at or before the time the Services fees are payable, you must pay Articulate an amount equal to the GST or similar tax or withholding for the Services (in addition to the fees otherwise payable for the Services), and Articulate will give you a Tax Invoice (or similar receipt or acknowledgement) for the Service. For the purpose of this Section, GST means the goods and service tax under the Good and Services Tax Act 1999 (Cth) and capitalised terms have the meaning given in that Act.
- (a) THE FOLLOWING PARAGRAPH DOES NOT APPLY TO PURCHASERS IN THE US: THESE TERMS AND THE SERVICES ARE OFFERED ONLY TO PERSONS WHO ARE NOT CONSUMERS UNDER ANY APPLICABLE LAW. IF YOU ARE A CONSUMER, YOU ARE NOT AUTHORIZED TO ENTER INTO THESE TERMS AND MUST FOLLOW THE RETURN PROCEDURE SET FORTH BELOW. IN PARTICULAR, IF YOU RESIDE WITHIN THE EUROPEAN UNION, YOU ARE A CONSUMER IF YOU ARE A NATURAL PERSON PURPORTING TO ENTER INTO THIS AGREEMENT FOR ANY PURPOSE OUTSIDE YOUR TRADE, BUSINESS, CRAFT OR PROFESSION. IF YOU ARE NOT AUTHORIZED TO ENTER INTO THESE TERMS, OR IF YOU DO NOT AGREE TO ALL OF THE TERMS, THEN YOU MUST NOT INSTALL, ACCESS, COPY OR USE THE SERVICES, AND YOU MUST, WITHIN 3 DAYS, DELETE AND PERMANENTLY ERASE FROM ALL COMPUTER MEMORY AND STORAGE MEDIA ALL COPIES OF THE SERVICES AND RELATED SOFTWARE, AND TO OBTAIN A REFUND, YOU MUST NOTIFY ARTICULATE IN WRITING THAT YOU HAVE COMPLIED WITH THE FOREGOING.
- (b) If you reside in Australia, New Zealand, Japan, mainland China, Hong Kong S.A.R., Macau S.A.R., Taiwan R.O.C., the Republic of Korea, India, Sri Lanka, Bangladesh, Nepal, or a member state of the Association of Southeast Asian Nations (ASEAN), then the Singapore International Arbitration Centre (SIAC) will administer the arbitration in Singapore under its Rules of Arbitration, which rules are deemed to be incorporated by reference in this Section. Otherwise, the London Court of International Arbitration (LCIA) will administer the arbitration in London under the LCIA Arbitration Rules. There will be one arbitrator that you and Articulate both select. The arbitration will be conducted in the English language, but any witness whose native language is not English may give testimony in the witness' native language, with simultaneous translation into English (at the expense of the party presenting the witness). Judgment upon the award rendered may be entered and will be enforceable in any court of competent jurisdiction having jurisdiction over the parties.
FOR CUSTOMERS SUBJECT TO REGIONAL PRIVACY LAW(S), CLICK HERE TO REVIEW AND AGREE TO EXHIBIT A, DATA PROCESSING AGREEMENT