TERMS AND CONDITIONS OF USE
Introduction
This Non-Exclusive License Agreement (the "Agreement") is a binding agreement between you ("User" or "you") and the American Concrete Pumping Association ("ACPA"). This Agreement governs your use of, or access to, the LMS Services (“Services”) and LMS Course Store (“Store”) and information and materials contained therein, pursuant to the Software as a Service Terms and Conditions entered into on or about December 27, 2023, by ACPA and Epignosis LLC, or as amended after that date (“Service Terms”). You shall access the Services and Store and information and materials contained therein as an Authorized User by logging into a universal resource locator. (‘URL”) ACPA reserves the right to change or modify any of the terms and conditions contained in this Agreement without notice and all such revisions are effective immediately upon posting and apply to all access to and continued use of the Services and Store.
BY ACCESSING THE URL /USING THE SERVICES AND/OR STORE, YOU:
● (A) ACCEPT AND AGREE TO BE BOUND AND COMPLY WITH THIS AGREEMENT;
● (B) REPRESENT AND WARRANT THAT YOU ARE THE LEGAL AGE OF MAJORITY UNDER APPLICABLE LAW TO FORM A BINDING CONTRACT WITH US;
● (C) REPRESENT THAT YOU ARE A CURRENT MEMBER OF ACPA IN GOOD STANDING OR ARE CURRENTLY EMPLOYED BY A CURRENT MEMBER IN GOOD STANDING OF ACPA; OR
● (D) IF NOT AN ACPA MEMBER OR EMPLOYED BY A CURRENT MEMBER IN GOOD STANDING, YOU REPRESENT THAT YOUR ACCESS OF THE URL AND SERVICES/STORE IS FOR THE SOLE PURPOSE OF ACCESSING SAFETY TRAINING MATERIALS;
● (E) YOU AGREE IF YOU ACCESS THE URL FROM A JURISDICTION WHERE IT IS NOT PERMITTED, YOU DO SO AT YOUR OWN RISK.
IF YOU DO NOT AGREE TO THESE TERMS, DO NOT ACCESS THE URL OR USE THE SERVICES OR STORE AND INFORMATION OR MATERIALS CONTAINED THEREIN .
License
Subject to the terms of this Agreement, ACPA grants you a limited, non-exclusive, revocable, non-transferable license to access and use the Services and Store, and information and materials contained therein, as an Authorized User pursuant to the Service Terms strictly in accordance with this Agreement, the Service Terms and the terms and conditions, if any, of the URL. The materials, information, Services and Store contain or may contain copyrighted material, trade secrets and other proprietary material. You shall not, and shall not attempt to, modify, reverse engineer, disassemble or decompile the Store, Services, material, or information or means of accessing same. Nor can you create any derivative works or other works that are based upon or derived from the Store, Services, material, or information in whole or in part. ACPA’s name, logo and graphics shall not be used in any way without the express written permission of ACPA. Copyright law, international copyright treaty and intellectual property law provisions protect all parts of the Store, Services, materials and information products. All rights not expressly granted hereunder are reserved for ACPA.
You shall not:
● (a) copy the materials or information contained in, or make use of, the Services or Store except as expressly permitted by this Agreement;
● (b) modify, translate, adapt or otherwise create derivative works or improvements, whether or not patentable, of the materials or information contained in or obtained from the Services or Store ;
● (c) reverse engineer, disassemble, integrate, modify, remove, decompile, decode, create derivates works or updates of, adapt, or otherwise attempt to derive or gain access to the Services or Store or materials or information contained therein except as provided in this Agreement;
● (d) remove, delete, alter or obscure any trademarks or any copyright, trademark, patent or other intellectual property or proprietary rights notices from the Services or Store or materials or information contained therein, including any copy thereof;
● (e) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the Services or Store or materials or information contained therein or any features or functionality of same, to any third party for any reason, including by making the Services or Store or materials or information contained therein available on a network where it is capable of being accessed by more than one device at any time; or
● (f) remove, disable, circumvent or otherwise create or implement any workaround to any copy protection, rights management or security features in or protecting the Services or Store or materials or information contained therein.
Nothing in this Agreement should be interpreted to restrict third-party terms, if any, including the Service Terms or terms and conditions required by Talent LMS or any third party. You must ensure that you comply with applicable third-party terms and conditions.
You acknowledge and agree that the right to access and make use or the Services or Store or materials or information contained therein is provided under license, and is not sold, to you. You do not acquire any ownership interest in the Services or Store or materials or information contained therein under this Agreement, or any other rights thereto other than to use the Services or Store or materials or information contained therein in accordance with the license granted, and subject to all terms, conditions and restrictions, under this Agreement. ACPA and its licensors and service providers reserve and shall retain their entire right, title and interest in and to the Services or Store or materials or information contained therein, including all copyrights, trademarks and other intellectual property rights therein or relating thereto, except as expressly granted to you in this Agreement.

User Content
The Services or Store or materials or information contained therein may provide you with the opportunity to create, submit, post, display, transmit, publish, distribute, or broadcast content and materials to us or in the Services or Store or materials or information contained therein, including but not limited to text, writings, video, audio, photographs, graphics, comments, feedback, or personal information or other material (collectively, "Content"). You are responsible for your use of the Services or Store or materials or information contained therein and for any Content you provide, including compliance with applicable laws, rules, and regulations.
By submitting, posting or displaying Content on or through the Services or Store or materials or information contained therein, you grant us a worldwide, non-exclusive, royalty-free license to use, copy, reproduce, process, disclose, adapt, modify, publish, transmit, display and distribute such Content for any purpose, commercial advertising, or otherwise, and to prepare derivative works of, or incorporate in other works, such Content, and grant and authorize sublicenses of the foregoing. The use and distribution may occur in any media formats and through any media channels.
We do not assert any ownership over your Content. You retain full ownership of all of your Content and any intellectual property rights or other proprietary rights associated with your Content. We are not liable for any statements or representations in your Content provided by you in any area in the Services or Store or materials or information contained therein. You are solely responsible for your Content related to the Services or Store or materials or information contained therein and you expressly agree to exonerate us from any and all responsibility and to refrain from any legal action against us regarding your Content.
We have the right, in our sole and absolute discretion, (1) to edit, redact, or otherwise change any Content; (2) to recategorize any Content to place them in more appropriate locations in the Services or Store or materials or information contained therein; and (3) to prescreen or delete any Content at any time and for any reason, without notice. We have no obligation to monitor your Content. Any use of the Services or Store or materials or information contained therein in violation of this Agreement may result in, among other things, termination or suspension of your rights to use the Services or Store or materials or information contained therein .
Certifications
If by accessing the Services and Store and the information and materials contained therein, and upon payment of any required fee and completing any requirement of any course of study provided by ACPA, you obtain or are granted a certification, you retain that certification for the life of the certification regardless of your status as a current member of ACPA or employee of a current member of ACPA.
If a certification is obtained or granted for training or instruction provided other than by ACPA (i.e.by an employer or third party specific entity that provides training and instructions via the URL) the ability to transfer that certification upon change of employment is at the sole discretion of the employer or third party that provided or hosted the training or instruction within the URL.
Collection and Use of Your Information
You acknowledge that when you access or use the Services or Store, ACPA may use automatic means (including, for example, cookies and web beacons) to collect information about your Mobile Device and about your use of the Services or Store. You also may be required to provide certain information about yourself as a condition to accessing or using the Services or Store. All information we collect through or in connection with the Services or Store is subject to our Privacy Policy contained herein. By accessing, using and providing information to or through the Services and Store, you consent to all actions taken by us with respect to your information in compliance with the Privacy Policy.
Privacy
ACPA collects, or may collect, the information of the User of the Store or Services in an effort to improve the Store and Services and to communicate ACPA’s products and services. ACPA does not, or will not, sell or rent User’s personal information to third parties. ACPA will or may share User’s information with third parties that provide services to ACPA or on ACPA’s behalf or with whom ACPA has partnered to offer the Store, Services, material or information. If ACPA privacy policy changes, ACPA shall post an updated version with the date of the revision on ACPA’s website.
ACPA utilizes security measures to protect User information it collects or may collect, and User voluntarily submits to ACPA, certain information, including;:
(i) Identifying information such as User’s name and email address;
(ii) Security information such as User’s username, password, and acceptance of policies;
(iii) Contact information such as User’s company name, mailing address and phone number;
(iv) Billing information;
(v) Site behavior such as pages visited, downloads, or searches requested;
ACPA employs third party vendors, service providers and suppliers to perform various functions on our behalf. Third-party services may include, but are not limited to: customer information management; processing credit card or check card payments; analyzing data; developing, hosting and maintaining our websites and databases. ACPA does not authorize any of these service providers to make any other use of User’s information or to contact User outside the context of these services.
ACP’s site may contain links to other sites. ACPA does not control the privacy practices of those websites. ACPA shall not be responsible for the content and/or practices of any linked websites, and ACPA provides these links solely for User’s convenience and information and not an endorsement of same.
In the event of a security breach of ACPA’s systems, ACPA agrees to use its best and reasonable efforts to notify users via their supplied email address as to the severity of the breach within 1 business day of the breach being identified.
At the end of the user’s subscription, ACPA agrees to destroy all User specific data by reasonable means. To the extent reasonably available, ACPA shall make available, at User’s cost, to the extent it exists and is subject to recovery, User’s specific use data.
Updates
ACPA may from time to time in its sole discretion develop and provide updates, which may include upgrades and/or new features or materials (collectively, including related documentation, "Updates"). You agree that ACPA has no obligation to provide any Updates or to continue to provide or enable any particular features, goods or services. All Updates will be deemed part of the Application and be subject to all terms and conditions of this Agreement.
Term and Termination
The term of Agreement commences when you initially access the Services and Store or materials or information contained therein and will continue in effect until terminated as provided herein (the "Term"). ACPA may terminate this Agreement at any time without notice if it ceases to support the Services and Store, which ACPA may do in its sole discretion. In addition, this Agreement and your right to access the Services or Store or information and materials contained therein will terminate immediately and automatically without any notice if you violate any of the terms and conditions of this Agreement or if you shall cease being a current member of ACPA in good standing or employed by a current member in good standing of the ACPA. Upon termination, all rights granted to you under this Agreement will also terminate and you must cease all use of the Services and Store. Termination will not limit any of ACPA's rights or remedies at law or in equity.
Disclaimer of Warranties
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE LICENSED SERVICES AND STORE IS AT YOUR SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES AND STORE AND INFORMATION AND MATERIALS CONTAINED THEREIN ARE PROVIDED TO LICENSEE "AS IS" AND “AS AVAILABLE,” WITH ALL FAULTS AND DEFECTS AND WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, ACPA, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE SERVICES AND STORE OR INFORMATION OR MATERIALS CONTAINED THEREIN, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, ACPA PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE SERVICES OR STORE OR INFORMATION OR MATERIALS CONTAINED THEREIN WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL ACPA OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, BE LIABLE FOR PERSONAL INJURY OR ANY INCIDENTAL, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OF OR INABILITY TO USE THE SERVICES OR STORE OR INFORMATION OR MATERIALS CONTAINED THEREIN, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, OR OTHERWISE) AND EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. IN NO EVENT SHALL COMPANY’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES (OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW IN CASES INVOLVING PERSONAL INJURY) EXCEED THE AMOUNT OF FIFTY DOLLARS ($50.00). THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS STATED PURPOSE.
Indemnification
You agree to indemnify, defend and hold harmless ACPA and its officers, directors, employees, agents, affiliates, successors and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys' fees, arising from or relating to your use or misuse of the Servies or Store or information or materials contained therein or your breach of this Agreement. Furthermore, you agree that Company assumes no responsibility for the Content you submit or make available through the Services or Store.
Export Regulation
The Services and Store and information and materials contained therein may be subject to United States export control laws, including the US Export Administration Act and its associated regulations. You shall not, directly or indirectly, export, re-export or release the Services and Store or information or materials contained therein to, or make them accessible from, any jurisdiction or country to which export, re-export or release is prohibited by law, rule or regulation. You shall comply with all applicable federal laws, regulations and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing or otherwise making the Services and Store and information and materials contained therein available outside the United States.
Severability
If any provision of this Agreement is illegal or unenforceable under applicable law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original term and all other provisions of this Agreement will continue in full force and effect.
Governing Law
This Agreement is governed by and construed in accordance with the internal laws of the state of Ohio without giving effect to any choice or conflict of law provision, principle, or rule and notwithstanding your domicile, residence, or physical location. Any action or proceeding arising out of or relating to this Agreement or use of the Services and Store or materials or information contained therein, will be instituted in the state courts of Ohio located in Franklin County, Ohio, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such action or proceeding. Each party waives trial by jury in any action or proceeding arising out of or relating to this Agreement or use of the Services and Store or materials or information contained therein. You waive any and all objections to the exercise of jurisdiction over you by such courts and to the venue of such courts.
Entire Agreement
This Agreement constitutes the entire and only agreement between the parties in relation to its subject matter and replaces and extinguishes all prior or simultaneous agreements, undertakings, arrangements, understandings or statements of any nature made by the parties or any of them whether oral or written (and, if written, whether or not in draft form) with respect to such subject matter. Each of the parties acknowledge that they are not relying on any statements, warranties or representations given or made by any of them in relation to the subject matter of this Agreement, save those expressly set out in this Agreement, and that they shall have no rights or remedies with respect to such subject matter otherwise than under this Agreement save to the extent that they arise out of the fraud or fraudulent misrepresentation of another party. No variation of this Agreement shall be effective unless it is in writing and signed by or on behalf of ACPA .
Waiver
No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder.