Last updated June 4, 2020
Effective from 25th May 2019.
PLEASE READ THIS DOCUMENT CAREFULLY :
FreshLMS Platform can be found at https://freshlms.com, and also includes all of the subdomains, mobile applications, any other media, location, application, etc. owned, managed, operated, etc. by FreshLMS. When referring to the infrastructure in this Agreement, we will be collectively referring to them as the “Platform”.
FreshLMS, Inc. ("FreshLMS") provides an open online content creation platform designed to allow Creators to build, design, publish, and sell courses and services (“Content”) to their Students. FreshLMS offers this Content creation platform along with a number of additional services and tools (e.g. payment gateways, author, and affiliate payouts), and the entire selection of tools and services offered via the Platform will be referred to in this Agreement as “FreshLMS Services”.
By using our Platform in any manner you are expressly agreeing to, and give your consent to be governed by, these Terms. If you do not agree with these Terms or you do not wish to be bound by these Terms, you must not use or access FreshLMS’s Platform in any manner.
FreshLMS is neither a content provider nor an educational institution. Creators and Students are not employees of FreshLMS. FreshLMS is not responsible for interactions between Creators and Students, with the exception of providing the technological means through which Creators may broadcast and otherwise make their Content available and, at each Creator’s election, for processing payments through FreshLMS’s payment gateway(s). FreshLMS is not liable for any disputes, claims, losses, injuries, or damage of any kind that may arise out of the Creator/Student relationship, including but not limited to, any Student’s reliance upon any information provided by a Creator or Creator Content at any time.
Students assume full responsibility for the disclosure and use of any other personal information the Student chooses to disclose to any Creator on the Platform.
II. Age of Access
A. You must be at least 18 years old to use the Platform, or, if you are between the ages of 13 and 18, you must have your parent or guardian’s permission to use the Platform. By using our Platform, you are telling us by your actions that you have obtained that permission (you are ‘representing’ and ‘warranting’ that you have obtained the appropriate permissions to use our Platform). If you are under the age of 13 you may not use our Platform in any manner nor may you register for an account.
III. License to Creators & Students
A. FreshLMS grants You a limited, non-exclusive license to access and use FreshLMS’s Platform for your own personal and commercial purposes. This license is only for Your use and may not be assigned or sublicensed to anyone else, without FreshLMS’s express written consent. Except as expressly permitted by FreshLMS in writing, you will not try to reproduce FreshLMS’s Platform (legally that’s known as engaging in activity that would reproduce, redistribute, sell, create derivative works from, decompile, reverse engineer, or disassemble the Platform). You also agree that in exchange for this license You will not engage in any activity that would interfere with or damage or harm the Platform. All rights not expressly granted by FreshLMS are reserved.
IV. Code of Conduct
A. We have to set up some ground rules. Honestly, most of what we cover here should go without saying. However, it’s better to be upfront about things, rather than just assume everyone knows how they are expected to conduct themselves on our Platform.
- No Illegal Activity: This is about as simple as it gets. Do not use the FreshLMS Platform for any illegal activity. Period. You are not allowed to use our Platform to engage in any kind of conduct that violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the US or other countries)
- No Fraud: Yes, this is probably covered in the No Illegal Activity section above, but we want to make this very clear. Fraud will not be tolerated in any capacity
- No Bad Code: Do not use the FreshLMS Platform to transmit, distribute, send, etc. viruses, worms, or any other code that may be deemed dangerous, harmful, or destructive in any manner
- No Spamming: Seriously. No one likes spam. We don’t like spam. We’re pretty sure that you don’t like your inbox cluttered with spam. You may not use the FreshLMS Platform to engage in any activities that will result in sending spam to anyone on the FreshLMS Platform, including FreshLMS (and its employees), Creators, and Students
- Be Civil: We mean this. We’re an open platform allowing myriad subject matters to be taught. Not all Content is for everyone. But the one thing we can all agree on is that when we use the FreshLMS Platform we are going to be civil and respectful at all times
- No Exploitation: You will not use the FreshLMS Platform to try to gather personal information on anyone, outside of the limited permissible uses for offering your Content
- No Impersonation of FreshLMS or its Employees: Imitation is the sincerest form of flattery, but not when it comes to representing that You are a part of FreshLMS. You will not impersonate FreshLMS or any of its employees
- No Data Mining or Bots: You may not use any data mining, robots, or similar data gathering or extraction methods; and
- No Use Other Than Intended: You may not use the Platform or any content contained on the Platform for any purposes other than intended
B. If You violate this Code of Conduct we reserve the right to remove You and any of Your Content from the FreshLMS Platform. Whether conduct violates our Code of Conduct will be determined in FreshLMS’s sole discretion.
V. Course and Coaching Content
A. While we’re on the subject of ground rules, we should also discuss what content is prohibited on the FreshLMS Platform. For a number of reasons, there are certain subject matter types that we simply will not allow to be published in Your Content on FreshLMS.
- FreshLMS reserves the right to remove You and Your Content should Your Content contain material (determined, in our sole discretion) that is libelous, slanderous, pornographic, obscene, unlawful, threatening, defamatory, or otherwise objectionable or violates any party’s intellectual property or any other part of this Agreement
A. FreshLMS may provide the opportunity for Creators to sell offerings (“Coaching”) to Students in addition to the courses that the Creator sells on the Platform (together Coaching and courses are referred to as Content). All Coaching shall be covered by this Agreement and are included in the definition of Content. Should the Coaching involve any third party content, You agree that FreshLMS is not responsible in any way for such content, and makes no representations or guarantees as to its merchantability or fitness of use. The delivery of Coaching is the sole responsibility of the Creator.
VII. Intellectual Property and Your Content
In operating our Platform, it’s important for us to make it clear who owns what. You are trusting us with your content and consistent with FreshLMS’s genuine belief in transparency we want to make it simple for You to know exactly what You are getting into when You join the FreshLMS community.
A. FreshLMS Content: Content on the Platform, including all information, software, technology, data, logos, marks, designs, text, graphics, pictures, audio and video files, other data or copyrightable materials or content, and their selection and arrangement, is referred to herein as "FreshLMS Content", and is and remains the sole property of FreshLMS. FreshLMS Content, including our trademarks, may not be modified by You in any way
B. Your Content: Content that You upload to the Platform is and remains Your content. FreshLMS does not claim any intellectual property rights over the materials You upload to the FreshLMS Platform by virtue of Your use of our services. By uploading your content to the FreshLMS Platform, You agree that:
- FreshLMS may review Your content for any reason, including compliance with our Code of Conduct and prohibited content requirements, but FreshLMS has no obligation to review anything that You upload
- You are uploading Your content to the FreshLMS Platform at Your direction and that FreshLMS does not in any way certify or provide approval or permission prior to You uploading Your content
- FreshLMS may display Your content to other users (e.g. Your Students) via the FreshLMS Platform
- You agree that by uploading Your content to Our Platform, You are allowing Us to store Your Content
- You agree to provide FreshLMS with all necessary licenses, including a worldwide, non-exclusive, royalty-free, sublicensable and transferable license to use (e.g, to display or transmit) Your Content in furtherance of the FreshLMS Services (In other words, because You own Your Content, You have to give Us permission to display it or to use it for internal operational purposes, like storing it on Our servers)
- You are responsible for and own, or have the rights to use, all of Your Content
C. Content Free of Infringement of Any Third Party Rights
- You agree that Your Content does not infringe upon anyone else’s intellectual property rights and that you have secured or obtained or received all necessary rights and permissions, as necessary, from any third parties who may own the content.
a) In plain language, this means that if you’re using someone else’s work (including videos, text, charts, powerpoints, etc.) in your Content, you’ve gotten the content owner’s permission to use it. You wouldn’t want anyone selling any of Your Content without Your permission. If You are going to use something that You didn’t create, make sure You can demonstrate that You have the right to use it before You make it a part of Your Content
VIII. FreshLMS’s General Rights In Operating Its Platform
A. FreshLMS reserves the following rights over the entire FreshLMS Platform:
- FreshLMS may modify, terminate, or refuse to provide FreshLMS Services at any time for any reason, without notice
- FreshLMS may remove anyone from the FreshLMS Platform at any time for any reason, solely in FreshLMS’s discretion. This right is not modified by any other section of this Agreement
- FreshLMS may, but has no obligation to, monitor any content that appears on the FreshLMS Platform or review any conduct occurring through the Platform, including any interactions between Creators and Students and FreshLMS employees
- FreshLMS reserves the right to modify, suspend, or alter its refund policy, at its sole discretion
- If You close Your account or terminate Your school, FreshLMS may keep a copy of Your Content after termination. You grant us a non-exclusive, perpetual, irrevocable license to maintain such archival copy for compliance with any relevant laws and regulations and for our internal business purposes, subject to applicable law
- FreshLMS reserves the right to remove You and Your Content without warning if You violate any of the provisions of this Agreement
- FreshLMS has, in its sole discretion, an absolute right to modify, change, alter, suspend, or terminate any provision of this Agreement without warning at any time
A. FreshLMS takes a firm stance against anyone who is infringing upon anyone else’s intellectual property. This Platform is all about You transforming Your knowledge into Content. We draw a hard line when the FreshLMS Platform is used to exploit someone else’s intellectual property.
B. Under the Digital Millennium Copyright Act (17 U.S.C. § 512) ("DMCA"), FreshLMS has set out the following policy:
- If FreshLMS has a good faith belief that any content (including Creator Content) appearing on its Platform violates any copyrights or has been illegally copyrighted, FreshLMS reserves the right to remove, block, or otherwise ‘takedown’ the content. FreshLMS also reserves the right to remove from the Platform any Creators, Students, or other parties, who are repeat offenders of the FreshLMS DMCA policy
- Reporting of Copyright Infringement Under DMCA
a) If you believe that content appearing on the FreshLMS Platform violates your intellectual property, you should send a notice to FreshLMS (either physical mail or email is ok) at the following address:
Attention: Designated Agent/Legal Department
470 Park Avenue South
New York, New York 10016
b) Contents of Notice
If you send FreshLMS a notice regarding any claimed infringements, your notice must contain the following information:
(1) A physical or electronic signature from the owner or a person authorized to act on behalf of the owner of the copyright that has been allegedly infringed
(2) Identification of the copyrighted work claimed to have been infringed
(3) Identification of the material/works/content that is claimed to be infringing that you want to see removed. This identification should include a location (URL) and other details sufficient to allow FreshLMS to find and review this material on the FreshLMS Platform
(4) Your contact information, including your address, telephone number, and email address, so that we may be able to contact you
(5) A statement by you that you have a good faith belief that the use of the material/works/content is not authorized by the copyright owner, its agent, or the law
(6) A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the copyright owner
If any content (including Creator Content) is removed due to the receipt of a DMCA notice, you may send FreshLMS what is known as a Counter-Notice if you believe that your content was wrongly removed. Your
Counter-Notice must contain:
(1) A physical or electronic signature
(2) Identification of what was removed and the location where the material appeared before it was removed
(3) A statement under penalty of perjury that you have a good faith belief that the material was removed as a result of mistake or misidentification
(4) Your name, address, and telephone number, and a statement that you consent to the jurisdiction of Federal District Court for the judicial district of New York and that you will accept service of process from the person who provided notification
d) Please note that a copy of any notices received will be sent to the party who posted the content you report as infringing
e) Repeat Infringements:
(1) As we stated above, FreshLMS really doesn’t look favorably on anyone who is using someone else’s intellectual property without permission. Should FreshLMS receive two or more DMCA complaints regarding any Creator, FreshLMS may simply remove that Creator from the FreshLMS Platform without further warning. Note: as we state in our FreshLMS Rights section, we still reserve the right to remove any school at any time for any reason. This Repeat Infringement section does not change that right in any way
X. Trademark Violations
A. Trademark Infringement
The DMCA (again, the Digital Millennium Copyright Act), only covers copyrights. For claims of trademark infringement, FreshLMS requests that any notices sent to FreshLMS’s Designated Agent contain:
a) Information describing your trademark or service mark
b) The registration number, if applicable
c) Basis for your trademark claim
d) Jurisdiction in which you claim trademark rights, and
e) Class of goods or services and accompanying description for which you assert trademark rights
B. Please note that a copy of any notices received will be sent to the party who posted the content you report as infringing.
XI. Third-Party Communications
A. By using FreshLMS’s Platform, You may receive communications from third parties (e.g. a Creator may communicate with a Student). FreshLMS is not responsible for these communications and shall not have any liability in connection with them. You are solely responsible for assessing and verifying the identity and trustworthiness of the source and content of any such third-party communications. FreshLMS assumes no responsibility for verifying, and makes no representations or warranties regarding the identity or trustworthiness of the source or content of any such third-party communications.
XII. Third-Party Offerings
A. Through the FreshLMS Platform, You will have the ability to access content, links to websites, and services provided by Creators, Students, and other third parties (“Third-Party Offerings”). Your use of any Third Party Offerings provided on this Platform or a third party website is at your own risk. FreshLMS does not monitor or have any control over, and makes no claim or representation regarding Third-Party Offerings and accepts no responsibility for reviewing changes or updates to, or the quality, content, policies, nature or reliability of, Third-Party Offerings. You should review applicable terms and policies, including privacy and data gathering practices, of any third party, and should make whatever investigation You feel necessary or appropriate before proceeding with any transaction with any third party.
A. Gateway Options: FreshLMS operates two different types of payment options for Creators who use our Platform: FreshLMS Gateways and Custom Gateways. Your use of either type of gateway is covered by the terms of this section.
B. FreshLMS Native Gateways
- For the avoidance of doubt, the term FreshLMS Native Gateways is a reference to both FreshLMS Payments and the Monthly Payments Gateway
- FreshLMS Payments: The FreshLMS Payments gateway allows Creators to process credit or debit card transactions and facilitates faster payout processes. FreshLMS Payments is available to some Creators, based on location. For a list of eligible locations, please see the FreshLMS website.
a) Creators have the option to set up FreshLMS Payments from their school’s Admin page. By setting up FreshLMS Payments, You agree to the terms that appear in this Agreement and/or on the FreshLMS Platform regarding the FreshLMS Payments Gateway
b) Third-Party Agreement: In setting up FreshLMS Payments, You may be instructed to agree to terms of service offered by Stripe. Stripe is an independent party from FreshLMS and FreshLMS is not responsible for the contents of their terms of service. Should Stripe’s terms of service differ from FreshLMS’s terms, such differences shall not modify this Agreement in any manner
c) By using FreshLMS Payments You agree that FreshLMS may place a portion of Your school sales in reserve for a period of time to cover losses, chargebacks, refunds, etc. The current reserve period and amount are located on our Knowledge Base page regarding FreshLMS Payments. The amount of reserves and the length of time in which they are held are subject to change at FreshLMS’s sole discretion. Should the reserve period or the amount withheld change, FreshLMS will make reasonable efforts to update the Knowledge Base page to communicate these changes
d) Fees for FreshLMS Payments may be found on the FreshLMS Knowledge Base page. All FreshLMS Payment gateway fees will be deducted before the funds are sent to the Creator. The fees associated with FreshLMS Payments are subject to change, in FreshLMS’s sole discretion. By using FreshLMS Payments, You agree to the fees as set by FreshLMS
3.Monthly Payment Gateway
a) FreshLMS Creators may also have an opportunity to utilize the Monthly Payments Gateway (MPG) to facilitate credit card or debit card transactions or to utilize PayPal as a payment option. MPG is offered wherever PayPal accounts are available and the availability of MPG is subject to any limitations by PayPal. FreshLMS Payments users will only be able to utilize MPG for PayPal transactions and will not be able to utilize MPG for credit card processing
b) Third-Party Agreement: In setting up MPG, You may need to agree to terms of service offered by Stripe or PayPal. Stripe and PayPal are independent parties from FreshLMS and FreshLMS is not responsible for the contents of their terms of service. Should their terms of service differ from FreshLMS’s terms, such differences shall not modify this Agreement in any manner
c) Funds paid out to Creators via MPG are paid on the first of the month (or first available business day) no earlier than thirty (30) days after the end of the month in which a sale was made. This hold period is to account for any potential losses, chargebacks, refunds, etc. For the avoidance of doubt, this hold may result in funds being paid out more than thirty (30) days after the sale to a Student. The current hold period can be located on our Knowledge Base page regarding MPG. The length of time in which MPG funds are held before a payout is subject to change at FreshLMS’s sole discretion. Should the hold period change, FreshLMS will make reasonable efforts to communicate these changes via the Knowledge Base page
C. Custom Payments Gateway
a) Creators on the Professional, Business, and Enterprise plans may choose to set up a Custom Payment Gateway (CPG) to process Student transactions. These transactions, which are made through a third-party payment gateway, are outside of the scope of your relationship with FreshLMS. You agree that Your CPG service is not a part of the FreshLMS Services
b) Payouts are distributed according to the third-party payment service’s policies and procedures, and are not subject to FreshLMS’s 30-day refund policy or payment hold
c) Transactions made through CPG are not subject to FreshLMS’s transaction fees
d) You acknowledge that FreshLMS does not control any payment processing fees that may be assessed through CPG. Additionally, while FreshLMS may record the amounts that you owe to authors and affiliates in the transaction report, FreshLMS does not have the access or ability to make deductions from transaction fees processed through third-party payment gateways to pay your authors or affiliates. Creators are responsible for making payments to authors and affiliates on their own
e) By using CPG, FreshLMS does not have any responsibility to pay, remit, or otherwise send to any relevant tax authorities, taxes owed, including sales taxes, on Content you sell through CPG processing
a) Creators may be charged a fee for any chargeback on a credit card, debit card, or PayPal transaction that is processed through the FreshLMS Native Gateways. This fee is deducted from Your school’s payout but is returned to You if You win the dispute. Current fees may be found on the FreshLMS Knowledge Base. Fees are subject to change
a) EU Value Added Tax (EU VAT)
(1) Custom Payments Gateway
You agree to the following:
(a) For the avoidance of doubt, FreshLMS is solely acting as Your agent. By processing Content through CPG, You are agreeing that You are the principal and are appointing FreshLMS as the selling agent for Your Content. The Creator is the supplier of the Content
(b) FreshLMS is not responsible for interactions between Creators and Students and only provides the technological means through which Creators may make available their Content
(c) Creators using CPG are solely responsible for all EU VAT taxes, costs, filings, and any other activities that may arise as a result of their sales of Content using the FreshLMS Platform. Creators using CPG do not have a contractual arrangement, nor an expectation, that FreshLMS will collect and remit EU VAT on behalf of the CPG Creator
(d) When sales of Creator Content are processed through CPG, FreshLMS is not taking part in the supply of the Creator Content. Content is and remains the Creator’s property
(e) CPG sales are never transmitted to FreshLMS and as such FreshLMS does not have an economic relationship to the transaction. Creators set the price of the Content with no input from FreshLMS
(f) All invoices made to Students from Creators using CPG shall indicate that the Creator is the supplier of the Content
(g) Student invoices shall identify the name and nature of the Content that was purchased
(h) All CPG sales are processed and authorized by a third party. FreshLMS is not a party to the authorization process nor is FreshLMS responsible for authorizing credit card charges through CPG
(i) Creators are responsible for their Content’s terms and conditions and are not bound by FreshLMS’s refund policy
(j) FreshLMS has no responsibility to accept or reject Content enrollments should there be any issues with payments through CPG. Creators are responsible for authorizing any applicable delivery of Content to Students. Creators agree that if payments are processed through CPG, such processing serves as an authorization to FreshLMS to deliver the Content materials to Students
(2) FreshLMS Native Gateways
(a) For Content sold through the FreshLMS Native Gateways, FreshLMS is the supplier of the Content and acts as the principal in that transaction. Regardless of whether the Creator is a taxable or non-taxable individual or entity, FreshLMS is taking part in the supply of the Content and as such shall collect and remit EU VAT
(b) As the provider of the gateway responsible for processing the payment for the Content purchased, FreshLMS is responsible for collecting payment
(c) FreshLMS sets the general conditions for all Content sold over the FreshLMS Native Gateways, including adherence to FreshLMS’s refund policy
(d) FreshLMS determines the delivery of the Content to Students, utilizing the payments processed through FreshLMS Native Gateways as a predicate event to delivering the Content to the Student
(e) Invoices issued to Students shall clearly display FreshLMS as the supplier of the Content
(f) Invoices issued to Students shall identify the Content purchased by the Student
(g) FreshLMS is responsible for authorizing the charges made to Students for Content purchased through the FreshLMS Native Gateways
(h) Any EU VAT filings made by FreshLMS shall be the sole responsibility of FreshLMS. FreshLMS will handle all EU VAT which may be levied on the charges made to Students for purchasing Content. Creators should not have to submit the EU VAT tax returns themselves for the sales made through the FreshLMS Payments Gateways. Creators will indemnify, defend, and hold FreshLMS harmless from and against any tax, penalty, and interest arising from the Creator’s personal tax position
b) Otherwise Responsible
1) Unless explicitly mentioned in this Agreement, Creators and Students are otherwise responsible for the payment of any and all applicable taxes that become due from their use of the Platform
A. FreshLMS is not responsible for setting the pricing on a Creator’s Content. Prices for Creator Content are set by the Creator.
XVI. Account Ownership Disputes
A. In the unlikely event that there is a dispute over the ownership of an account, FreshLMS has the right to request additional information from You to determine ownership and settle the dispute. The information that We may request to assist in resolving ownership disputes includes, but is not limited to, the following:
- a copy of Your photo ID;
- Your business documents, including a Charter, Certificate of Incorporation, LLC Agreement, business license, or other documentation showing ownership of Your entity;
- Your billing information and details;
- Certified copies of your tax forms; and
- Other documentation as we deem necessary to settle the dispute
B. Should a dispute arise, FreshLMS reserves the right to determine the account ownership in its sole judgment, and the ability to transfer the account to the rightful owner, unless otherwise prohibited by law
A. FreshLMS also operates the FreshLMS Discover (“Discover”) platform, which is a part of the overall FreshLMS Platform. In order to participate in Discover, the Creator must agree to a Discover platform agreement. As a part of the FreshLMS Platform, Discover is covered by this Agreement. The Discover agreement does not supersede this Agreement. The terms in this Agreement apply in full force to the use of Discover. However, should this Agreement conflict with the Discover agreement, the Discover agreement shall take precedence.
A. Pricing for the FreshLMS Platform is described on our pricing page (https://freshlms.com/pricing/)
B. Depending on the processing method, FreshLMS may charge transaction fees. You agree to pay all fees and charges that are made to Your account and that You are solely responsible for payment of these fees and charges
C. Paid plans are automatically charged at the beginning of each billing period. Unless You submit a cancellation request to us in writing via email (firstname.lastname@example.org) or directly through Your account prior to the start of the billing period, Your plan will be charged upon the anniversary of its billing period. You agree that FreshLMS may charge any recurring service to the credit card or debit card that you provide
D. Should You not authorize payment or are otherwise not current on Your payments for FreshLMS Services, FreshLMS may restrict Your Platform access until Your account becomes current and paid in full
E. FreshLMS reserves the right to pursue fees owed using collection methods which may include charging other payment methods on file with FreshLMS and/or retaining collection agencies or legal counsel
F. FreshLMS reserves the right to offer custom plans and pricing in addition to what is offered on the pricing page. Custom plans may also include custom billing and payment terms, including billing periods and renewals, that are different from our standard terms
XIX. Refund Policy
We want You to be happy with FreshLMS’s Platform. If You’re not feeling excited about joining the FreshLMS community, we have some options for You regarding Your plan.
1. Monthly Plans a) Creators on monthly paid plans are entitled to a full no-questions-asked refund within thirty (30) days of first signing up for a paid plan, or upgrading to a higher-priced plan. Simply let us know in writing that You’re canceling the plan within thirty (30) days of Your sign-up
2. Annual Plans
a) Creators on annual plans are entitled to a full no-questions-asked refund within thirty (30) days of first signing up for an annual plan. Simply let us know in writing that You’re canceling the plan within thirty (30) days of Your sign-up
3. Abuse of the Refund Policy
a) FreshLMS reserves the right to refuse refunds to Creators who abuse this Refund Policy. Examples of abuse include, but are not limited to, requesting refunds for multiple schools or requesting refunds in consecutive months
- In general, all Students purchasing Content that are a part of the FreshLMS Native Gateways are entitled to a thirty (30) day refund from the date of purchase. Unless authorized by FreshLMS in FreshLMS’s sole discretion, no Creator on the FreshLMS Native Gateways may offer a refund policy for a period of less than thirty (30) days to Students.
- If a Creator has been allowed to offer a refund period that differs from FreshLMS’s general policy, the Creator must provide notice to Students prior to the purchase of the Content
- It is the Student’s responsibility to understand the refund policy for Content prior to purchasing such Content from a Creator
- FreshLMS reserves the right to refuse refunds to Students who abuse this Refund Policy. Examples of abuse include, but are not limited to, requesting refunds for multiple schools or requesting refunds in consecutive months
- FreshLMS reserves the right to provide a refund to any student at any time in FreshLMS’s sole discretion
- FreshLMS does not establish, maintain, or control refunds or a refund policy for any Content that was processed through CPG.
C. Sole Discretion
Any requests for a refund, whether by a Creator or a Student, will be ultimately determined in FreshLMS’s sole discretion
Regardless of any other section to the contrary in this Agreement, FreshLMS’s refund policy does not cover the provision of live Coaching provided by Creators to Students.
XX. Cancellation and Deletion
- If You cancel a paid plan, the cancellation will become effective at the end of the then-current billing cycle. When You cancel a paid plan, Your account will revert to a free account and FreshLMS may disable access to features available only to paid plan users
- You may delete Your account at any time
- Any account on the free plan may be deleted if it remains inactive (e.g., the user fails to log in) for a continuous period of at least six (6) months. Activity will be determined by FreshLMS in its sole discretion
- Accounts on paid plans will be considered active accounts unless You explicitly ask us to delete Your account.
- If Your account is deleted (regardless of the reason), Your Content may no longer be available. FreshLMS is not responsible for the loss of such content upon deletion
- Upon deletion of Your account (regardless of the reason), all licenses granted by FreshLMS will terminate
C. Effect of Cancelation/Deletion
- Should a school, course, Creator account, or Student account be canceled or deleted, the Creator or Student may no longer have access to FreshLMS Content and Content may be irrecoverable. FreshLMS shall not be liable to any party in any way for the inability to access Content arising from any cancelation or deletion, including any claims of interference with business or contractual relations
XXI. Errors and Corrections
- FreshLMS does not guarantee that the Platform or any services offered through the Platform will be error-free or otherwise reliable, nor does FreshLMS guarantee that defects will be corrected or that any offerings through the Platform will always be accessible. FreshLMS may make improvements and/or changes to the Platform and their features and functionality at any time, and will use commercially reasonable efforts to avoid disrupting peak hours, though some downtime may occur. Errors in Content are the responsibility of the Creator who owns the Content.
- We reserve the right to amend the Platform, and any service or material we provide on the Platform, in our sole discretion without notice. We will not be liable if for any reason all or any part of the Platform is unavailable at any time or for any period. From time to time, we may restrict access to some or all of the Platform to Creators and Students.
XXII. Limitations of Liability
In running the Platform, we require that You understand and agree that FreshLMS is not liable for a number of things, including Your breach of this Agreement and losses that may result from Your use of the Platform. We also require that You understand and agree that the Platform is offered As-Is and may not always be 100% perfect or reliable and that FreshLMS doesn’t warrant or guarantee that it will always be free of errors or defects. Any claims for damages against FreshLMS will be limited to a portion of the fees You have paid us.
Our limitations of liability are as follows:
A. You agree that FreshLMS, including its employees, officers, directors, and agents, shall not be liable for any kind of loss, injury, claim, or damages resulting from Your use of the FreshLMS Platform
B. You agree that FreshLMS shall not be liable for any injuries, losses, claims, or damages that result from Your use or engagement with third-party content, downloads, or communications
C. FreshLMS is not liable for any losses or damage caused by any viruses, distributed denial of service attacks, and any and all other malicious computer code. Malicious computer code means computer code or other mechanisms of any kind designed to disrupt, disable or harm in any manner the operation of any software or hardware or other business processes or to misuse, gain unauthorized access to or misappropriate any business or personal information, including worms, bombs, backdoors, clocks, timers, or other disabling device code, or designs or routines that cause software or information to be erased, inoperable, or otherwise incapable of being used, either automatically or with the passage of time or upon command
D. FreshLMS does not guarantee that any files available for downloading from the Platform will be completely free from viruses or other harmful computer code
E. The FreshLMS Platform is provided to You on an “As Is, As Available” basis. As such, You agree to have an external method of recovering any lost data that may be uploaded to the FreshLMS Platform
F. FreshLMS disclaims any warranties to the Platform and the content contained therein, including warranties for merchantability, fitness for a particular purpose, non-infringement, or title
G. FreshLMS shall not be liable for any special, direct, indirect, incidental, punitive, or consequential damages, resulting from the use of or inability to use the Platform
H. You agree that FreshLMS shall not be liable for any losses, injuries, claims, or damages from Your violation or breach of this Agreement. You agree to indemnify, defend, and hold harmless FreshLMS, its present and future officers, directors, employees, agents, licensors, suppliers, and any third party information providers to the Platform from and against all claims, losses, expenses, damages, and costs, including reasonable attorneys’ fees, resulting from any violation of this Agreement by You or arising from or related to Your use or misuse of the Platform (including, without limitation, use in contravention of this Agreement, other FreshLMS policies, and copyright and other intellectual property law)
I. You are solely responsible for ensuring that Your use of the Platform complies with applicable law and does not violate the rights of any third party, including, without limitation, intellectual property rights. You assume all liability for any claims, suits or grievances filed against You, including, but not limited to, all damages related to Your use of the Platform.
J. You may not assign Your rights under this Agreement without FreshLMS's prior written consent
K. Should FreshLMS’s limitation of liability is not applicable, FreshLMS’s sole obligation to You, or any third party, for damages shall not exceed the amounts paid by You to FreshLMS over the prior twelve (12) months directly preceding your claim, unless otherwise required by law
L. You agree that FreshLMS shall not be liable for any content that appears on the Platform
M. Except as set forth herein, nothing express or implied in this Agreement is intended or implied to confer, and nothing herein shall confer, any rights, remedies, liabilities, or obligations whatsoever upon any person or entity
N. You agree that any cause of action or claim that You may have against FreshLMS must be brought against us within one (1) year after the cause of action or claim arises. Should You not commence such cause of action or claim within this time period, it shall be barred
XXIII. Remedies for Violations
A. FreshLMS reserves the right to seek all remedies available at law and in equity for violations of this Agreement, including but not limited to removing Creators and Students from the Platform, the right to block access to the Platform from a particular IP address or another user identifier, or to refer the violation to the appropriate law enforcement authorities.
A. FreshLMS may notify You of relevant information regarding the Platform and FreshLMS Services in any of the following ways: (a) by emailing You at the contact information You provide in Your account registration, (b) by posting a notice in dashboard areas of the Platform, and (c) by posting the notice elsewhere on the Platform in an area suitable to the notice. It is Your responsibility to periodically review the Platform for such notices.
XXV. Governing Law and Jurisdiction; Disputes and Arbitration
A. This Agreement shall be governed in accordance with the laws of the State of New York without regard to its conflicts of law principles. Any action arising out of or relating to this Agreement shall be filed only in the state or federal courts located in the County of New York in the State of New York. You consent and submit to the exclusive personal jurisdiction of such courts for the purpose of litigating any such action
B. Any dispute, controversy, proceeding, or claim arising out of or in connection with or relating to this Agreement, shall be resolved by binding confidential arbitration by JAMS pursuant to its Optional Expedited Arbitration Procedures then in effect for JAMS, except as provided herein
C. The arbitration will be conducted in New York County, New York, unless You and FreshLMS agree otherwise. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this section shall be deemed as preventing FreshLMS from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, dilution, or violation of our data security, intellectual property rights, or other proprietary rights
D. You and FreshLMS agree to waive the right to trial by jury. You further agree that any proceedings to resolve any disputes shall be done solely on an individual basis and that You will not seek to have any dispute heard as a class action, a representative action, a collective action, a private attorney general action, or in any proceeding in which You act or propose to act in a representative capacity
E. You also agree that no proceeding will be joined, consolidated, or combined with another proceeding without the prior written consent of FreshLMS and all parties to any such proceeding
XXVI. California Civil Code Section 1789.3
A. California websites users are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 400 R Street, Suite 1080, Sacramento, California, 95814, or by telephone at (916) 445-1254 or (800) 952-5210
B. Complaints or requests for further information can be sent to the address listed in the Contact Us section of this Agreement
XXIII. Entire Agreement; Severability of Provisions; No Waiver
B. If any provision of this Agreement is deemed unlawful, void, or unenforceable by a court of law exercising proper jurisdiction, that provision shall be deemed severed from the remaining provisions and shall not affect their validity and enforceability
C. No waiver of any provision hereof shall be valid unless in writing signed by the parties. Any failure to enforce any right or remedy hereunder shall not operate as a waiver of the right to enforce such right or remedy in the future or of any other right or remedy
A. You represent and warrant that You are not, nor are You owned or controlled directly or indirectly by, any person, group, entity or nation named on any list issued by the Department of the Treasury’s Office of Foreign Asset Control (“OFAC”), or any similar list or by any law, order, rule or regulation or any Executive Order of the President of the United States, including Executive Order 13224, as a "Specially Designated National and Blocked Person”, terrorist, or other banned or blocked person (any such person, group, entity or nation being hereinafter referred to as a (“Prohibited Person”); (ii) You are not (nor are You owned or controlled, directly or indirectly, by any person, group, entity or nation which is) acting directly or indirectly for or on behalf of any Prohibited Person; (iii) You (and any person, group, or entity which You control, directly or indirectly) have not conducted nor will conduct business nor have engaged nor will engage in any transaction or dealing with any Prohibited Person in violation of the U.S. Patriot Act or any OFAC rule or regulation, including, without limitation, the making or receiving of any contribution of funds, good or services to or for the benefit of a Prohibited Person in violation of the U.S. Patriot Act or any OFAC rule or regulation; (iv) You are not prohibited by any sanctions program as maintained by OFAC from transacting with FreshLMS, including those sanctions programs currently in effect with respect to Cuba, Iran, North Korea, Syria, Venezuela, or Crimea. In connection with the foregoing, it is expressly understood and agreed that the representations and warranties contained in this subsection shall be continuing in nature.
A. The headings and titles of sections to this Agreement have been inserted for the convenience of reference for the parties and are for informational purposes only and shall not be deemed to be a part of the language of this Agreement. Neither You nor FreshLMS shall rely on, or interpret substantively, the headings when construing the meaning of each section of the Agreement as a whole.
A. Whenever such wording may appear in this Agreement, words in the singular shall mean and include the plural and vice versa, and words in the feminine shall mean and include the masculine and vice versa.
XXXIII. Contact Us
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