These Terms and Conditions of Use ("Terms”) apply to the entire contents of, and services offered by, the websites operated under the domain names www.Wintellect.com and www.WintellectNOW.com (the “Site” or “Sites”), and which are owned, operated and maintained by Wintellect LLC (“Wintellect”), a limited liability company organized under the laws of the State of Tennessee. All Terms apply to both websites equally, except as may be specifically noted herein. The Site is for use solely by individuals and employees of approved companies who are authorized by Wintellect to use it. You acknowledge that by using the Site, or its related services and mobile applications, you are agreeing to all of the following terms and conditions of this Agreement. Therefore, please read the entire Terms before registering with, or otherwise using, the Site. You also agree to review this Agreement periodically to be aware of modifications to the Agreement. Your continued use of this Site constitutes your binding acceptance of any such amendments, modifications, additions or deletions.
Wintellect grants you the right to use the Site in strict accordance with these Terms. These Terms do not grant you the right to use any Wintellect trademark, service mark, logo, or other intellectual property owned by Wintellect, except as expressly permitted herein.3. Registration and Site Access
4.1. Individual Account Subscriptions. In the case of an individual account subscription for the WintellectNOW online training service, Wintellect grants you a non-exclusive, non-transferable license to use the Site in strict accordance with these Terms and the features included in your subscription. This individual account license is for individual use only and may not be shared in any way. These Terms do not grant you the right to use any Wintellect trademark, service mark, logo, or other intellectual property owned by Wintellect, except as expressly permitted herein.
4.2. Business Account Subscriptions. In the case of a business account subscription for the WintellectNOW online training service, Wintellect grants you or your organization a non-exclusive, non-transferable license to use the Site in strict accordance with these Terms and the features included in your subscription. This business account license is for use by an agreed-upon or pre-determined specific number of users within your organization and may not be shared amongst employees beyond the scope of your business account agreement. These Terms do not grant you the right to use any Wintellect trademark, service mark, logo, or other intellectual property owned by Wintellect, except as expressly permitted herein.5. Proprietary Materials
5.1. The Site contains certain copyrighted material, trademarks, and other proprietary and confidential information owned by Wintellect (collectively, “Proprietary Material”), including, but not limited to, video, text, software, photos, graphics, image, music, and sound. You agree not to modify, publish, download, transmit, participate in the transfer or sale of, create derivative works of, or in any way exploit, in whole or in part, any Proprietary Material. Copyrighted materials may only be accessed through the Site, and not from any other unauthorized website.
5.2. The entire Site and all material set forth therein is Copyright © 2012 - 2018, Wintellect LLC, All Rights Reserved.
5.3. Except as otherwise expressly permitted by these Terms, or as permitted under applicable copyright law, no posting, copying, transmission, retransmission, distribution, redistribution, publication, republication, de-compilation, disassembling, reverse engineering, or other duplication, storage, transmitting, modification, or commercial exploitation of any Proprietary Material in any form or by any means, for any purpose, is permitted without the express written permission of Wintellect.
5.4. Wintellect, WintellectNOW, and the other Wintellect marks and logos constitute the service marks, trademarks and intellectual property of Wintellect LLC. Other third-party trademarks, service marks, and logos used in the Site are the trademarks, service marks, or logos of their respective owners. Third-party content and software required by or made available by or through this Site is the property of its respective owner and use is subject to any applicable license or terms provided by such owner.
Links to third-party websites from this Site are provided solely for your convenience. Use of these links will result in you leaving this Site. Wintellect does not control and is not responsible for any third-party websites or their content or availability. Wintellect therefore does not endorse or make any representations about such websites, or any material contained therein, or any results that may be obtained from using them. Wintellect expressly disclaims any responsibility for such third-party sites, which are provided for your convenience on an “as is” basis without warranties of any kind, express or implied. If you decide to access any of the third-party websites linked from this Site, you do so entirely at your own risk.7. Lawful Use; Prohibited Conduct
7.1. In addition to all Terms set forth herein, you agree to comply with all applicable laws and regulations in connection with your use of the Site. Your use of this Site constitutes a representation and warranty that you will not use the Site for any purpose that is either unlawful or prohibited by this Agreement.
7.2. In addition to the foregoing, you agree not to do any of the following:
7.3. This Site and any associated services are to be used for non-competitive purposes only. Use of the Site or associated Services by competing businesses, affiliates, employees, or other associates is absolutely prohibited and constitutes a breach of this contract, giving rise to substantial damages. If you are an owner, employee, or other associate of a competing site (other than simply a member), you hereby agree that damages from the unlicensed visitation of this Site are difficult to compute. Damages from breach of this competitor use provision shall therefore be set at $100 per unauthorized Site visit. You hereby agree that such damages are a reasonable estimate of actual damages and you waive your right to contest these damages in a court of law or other proceeding.8. Indemnification
You agree to indemnify, defend, save, and hold harmless Wintellect, together with its contractors, employees, agents, third-party suppliers, members and partners, from any claims, losses, damages, liabilities (including, without limitation, attorney’s fees, paralegal fees, courts costs or other legal fees and expenses), arising out of your use or misuse of the Site, any violation by you of these Terms, or any breach of the representations, warranties, and covenants made by you herein. Wintellect reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify, defend or hold harmless Wintellect, and you agree to cooperate with Wintellect’s defense of these claims. Wintellect will use reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it.9. Warranties and Limitation of Liability
9.1. Wintellect does not warrant that the content or functions of the Site will meet your specific requirements or that the operation of the Site will be uninterrupted or error-free.
9.2. WINTELLECT SHALL NOT BE RESPONSIBLE FOR ERRORS OR OMISSIONS CONTAINED IN THIS SITE. THE SITE IS PROVIDED ON AN AS-IS AND AS-AVAILABLE BASIS, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, TO ANY WARRANTY AS TO THE ACCURACY, COMPLETENESS, CURRENCY, RELIABILITY, ABSENCE OF ANY VIRUSES OR CONTENT OF ANY INFORMATION, SOFTWARE, OR MATERIAL PROVIDED BY OR THROUGH THE SITE, AND WITHOUT ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE ENTIRE RISK AS TO THE QUALITY, ACCURACY, ADEQUACY, COMPLETENESS, CURRENCY, CORRECTNESS, OR VALIDITY OF ANY INFORMATION, SOFTWARE, MATERIAL OR CONTENT PROVIDED BY OR THROUGH THE SITE RESTS WITH THE USER.
9.3. WINTELLECT SHALL NOT BE LIABLE TO YOU FOR ANY DAMAGES RESULTING FROM USE OF THIS SITE. THE INFORMATION HEREIN MAY NOT PROVE VIABLE OR CORRECT IN EVERY SITUATION. WINTELLECT SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY FAILURE OF THE SITE OR ANY SERVICE PROVIDED HEREIN TO OPERATE, FOR ANY ERRORS IN OR IN CONNECTION WITH THE SITE, OR FOR ANY LACK OF ACCESS TO THE SITE OR SERVICE. WINTELLECT MAY INTERRUPT THE SITE OR SERVICE AT ANY TIME TO PERFORM MAINTENANCE, TO ADDRESS SECURITY BREACHES, OR FOR ANY OTHER REASON, OR NO REASON AT ALL, WITH NO LIABILITY TO YOU WHATSOEVER. IN NO EVENT SHALL WINTELLECT BE LIABLE TO YOU FOR ANY INDIRECT, EXTRAORDINARY, EXEMPLARY, PUNITIVE, SPECIAL, RELIANCE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, ANY LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE, ANY DAMAGES ARISING FROM ANY UNSUCCESSFUL COURT ACTION OR LEGAL DISPUTE, OR ANY OTHER PECUNIARY OR NON-PECUNIARY LOSS OR DAMAGE OF ANY NATURE WHATSOEVER), HOWEVER ARISING, EVEN IF WINTELLECT KNOWS OR HAS BEEN ADVISED THERE IS A POSSIBILITY OF SUCH DAMAGES. THE LIABILITIES LIMITED BY THIS SECTION INCLUDE, WITHOUT LIMITATION, LIABILITY FOR NEGLIGENCE.
9.4. THIS LIMITATION OF LIABILITY ALSO APPLIES WITH RESPECT TO DAMAGES INCURRED BY YOU BY REASON OF ANY PRODUCTS OR SERVICES SOLD OR PROVIDED ON ANY REFERENCED SITES OR OTHERWISE BY THIRD PARTIES OTHER THAN WINTELLECT AND RECEIVED THROUGH OR ADVERTISED ON THE SITE, OR RECEIVED THROUGH ANY REFERENCED OR LINKED SITES.
9.5. CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY ALSO HAVE ADDITIONAL RIGHTS WHICH VARY FROM STATE TO STATE.10. Service Access
10.1. Wintellect attempts to ensure that this Site is normally available 24 hours a day, seven days a week. However, Wintellect cannot guarantee the continuous operation or availability of the Site without interruption, and shall not be liable if for any reason this Site is unavailable at any time or for any period. Access to this Site may be suspended temporarily and without notice in the case of system failure, maintenance or repair, or other reasons beyond the control of Wintellect.
10.2. Wintellect shall not be liable for any loss or injury related to, arising out of, or caused, in whole or in part, by any negligent act or omission in obtaining compiling, collecting, interpreting, reporting, communicating, or delivering any information contained in the Site.11. Mobile and Other Devices
If you use a mobile device to access the Site, you agree that you are solely responsible for all message and data charges that apply to use of your mobile device to access the Site. You also understand that wireless service may not be available in all areas at all times, and may be affected by product, coverage, or service changes made by your service provider or otherwise.12. User-Provided Content
12.1. The Site from may provide you with the ability to upload, post, submit, publish, or transmit information or content to other users or persons via online forums, chat, discussion groups, blogs, online profiles, or other online forums (“User Content”). Much of this content is provided by third-party users, and not Wintellect. The third-party user (including you, if applicable) is solely responsible for the User Content and for complying with applicable laws relating thereto.
12.2. All User Content you submit or that is otherwise made available to Wintellect will be considered non-confidential and non-proprietary, and by so doing, you hereby grant us and our affiliates and service providers, and our respective licensees, successors, and assigns the right to use, reproduce, modify, display, distribute, and otherwise disclose to third parties any such material.
12.3. To the extent that you provide any User Content, you represent and warrant that (a) you have all necessary rights, licenses and/or clearances to provide the User Content, (b) the User Content is accurate to the best of your knowledge, (c) you are responsible for third-party fees, if any, related to the provision and use of such User Content, (d) such User Content does not infringe or misappropriate any third-party rights, or constitute a fraudulent statement or misrepresentation or unfair business practice, and (e) you agree to comply with all applicable rules regarding online conduct and acceptable content we may post on the Site, or that are indicated as part of these Terms.
12.4. Monitoring and Enforcement. We have the right to:
Notwithstanding anything to the contrary, we have no obligation to review any User Content or other materials before they are posted on the Site, and we cannot ensure prompt removal of objectionable material after it has been posted. Accordingly, we assume no liability for any action or inaction regarding transmissions, communications, or content provided by any user or third party, and we have no liability or responsibility to anyone for performance or nonperformance of the activities described in this Section.13. Termination of Access
Wintellect reserves the right to terminate the access of any user to access the Site at any time, with or without cause, in Wintellect’s sole and absolute discretion, and with or without notice. Any recital in this Agreement of specific grounds for termination of a user’s ability to access the Site shall in no manner whatsoever limit Wintellect’s absolute right to terminate any user’s access to the Site under this paragraph.14. Modification of Agreement or Service
14.1. Wintellect reserves the right to modify these Terms in any manner and at any time, by posting updated Terms on the Site and/or by sending registered users or subscribers email notification of the change. Any modification shall be effective immediately upon posting on the Site or delivery of said email notification, as applicable. Your continued use of the Site following any modification of these Terms shall be conclusively deemed an acceptance of all such modification(s). Your only right with respect to any dissatisfaction with any modifications made pursuant to this provision, or any policies or practices of Wintellect in maintaining and operating the Site, shall be to cease use of the Site.
14.2. Wintellect may at any time, without notice or liability, change or eliminate any content or feature of the Site, or restrict the use of any portion of the Site, including limiting the time of its availability, the amount of use permitted, or the persons who are permitted to use it. Your only right with respect to any dissatisfaction with any such change or elimination shall be to cease use of the Site.15. WintellectNOW-Specific Fees, Refunds & Cancellations
15.1. Full access to the WintellectNOW Site under these Terms will be granted only upon payment of the applicable subscription fees. All monthly or annual subscriptions shall automatically renew on or near the same day of each month, unless terminated by the Subscriber. Wintellect may increase subscription fees for subsequent periods at any time and for any reason, upon notice to the user.
15.2. Disabling any auto-renewal option will cause us to stop automatically charging you at the end of each subscription term. You will still be able to use your subscription until the end of the current subscription term. Disabling the auto-renewal option will not entitle you to a refund, as subscriptions are non-refundable.
15.3. All subscriptions are non-refundable. If you are dissatisfied for any reason with your subscription, your sole right and exclusive remedy is to terminate your subscription. No refund of all or any portion of your subscription fee will be given, except as specifically provided herein. Wintellect may terminate your subscription if renewal of the subscription is prevented due to inaccurate or outdated payment information.16. Miscellaneous Provisions
16.2. Authority. Both parties (you and Wintellect) represent that they have the full power and authority to: (i) enter into an agreement subject to these Terms; (ii) perform their obligations hereunder, and that the performance hereunder does not conflict with, limit, or is contrary to any other agreement; (iii) and that by so doing, they do not violate any applicable laws or any contractual relationship.
16.3. Waiver. Wintellect’s failure to enforce any of these Terms shall not constitute or be deemed a waiver of any such term.
16.4. Survival. Upon termination of these Terms, any provision which, by its nature or express terms should survive, will survive such termination or expiration, including, but not limited to, sections regarding proprietary rights, disclaimer of warranties, representations made by you, indemnities, limitations of liability and damages and all general provisions shall survive any termination of these Terms of Service.
16.5. Severability. If any provision of these Terms or any Guidelines is held to be unlawful, void, or for any reason unenforceable, then that provision will be limited or eliminated from these Terms to the minimum extent necessary and will not affect the validity and enforceability of any remaining provisions hereof.
16.6. Assignment. These Terms and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Wintellect without restriction. Any assignment attempted to be made in violation of these Terms of Service shall be void.
16.7. Headings. The heading references herein are for convenience purposes only, do not constitute a part of these Terms, and will not be deemed to limit or affect any of the provisions hereof.
16.8. No Agency. No agency, partnership, joint venture, employee-employer or franchisor-franchisee relationship is intended or created by these Terms.
16.9. Governing Law and Jurisdiction. Governing Law and Jurisdiction. These Terms, and your use of the Site, shall be governed by and construed in accordance with the laws of the State of Tennessee, without regard to conflicts of laws principles. Jurisdiction and venue for any actions or proceedings for any dispute or matter which in any manner is related to this Site or concerning the enforcement, construction or interpretation of these Terms of Service, shall be exclusively in the state or federal courts located in Knox County, Tennessee. You expressly submit and consent to the jurisdiction of the aforesaid courts and waive any defense of forum non conveniens.
16.10. Claims. YOU AND WINTELLECT AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THESE TERMS OR THE SITE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.