EDTECH SOFTWARE, LLC END USER LICENSE AGREEMENT


Last Updated 01/01/2014

 

This End User License Agreement (“EULA”) is a legal agreement between you and EDTECH SOFTWARE, LLC, also referred to as “Educational Sales” or “ESCO” or “EdTech” or “ShelfIt” for the software application provided by EdTech to view Digital Content (“Shelf It Application”).

THIS EULA REQUIRES THE USE OF ARBITRATION (SECTION 12) ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMITS THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.

1. License. Subject to the terms of this EULA, EdTech grants to you a limited, nontransferable, and nonexclusive license (without the right to sublicense) to execute one (1) copy of the Shelf It Application and its content, in executable object code form only, solely (a) on your device that you own or control, and (b) for your use of the EdTech Service, in each case for your personal, non-commercial purposes.

2. Restrictions. You agree not to, and you will not permit others to, (a) license, sell, rent, lease, transfer, assign, distribute, transmit, host, outsource, disclose or otherwise commercially exploit the Shelf It Application or make the Shelf It Application available to any third party, (b) copy or use the Shelf It Application for any purpose other than as permitted in Section 1, (c) use any portion of the Shelf It Application on any device other than your device that you own or control, or (d) modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Shelf It Application.

3. Updates. Any future release, update, or other addition to the functionality of the Shelf It Application, if any, provided by EdTech (collectively, “Updates”) will be subject to the terms of this EULA, unless EdTech states otherwise in writing. To keep your Shelf It Application up-to-date, EdTech may automatically provide you with and install on your device Updates to the Shelf It Application, and you hereby consent to such automatic provision and installation.

4. Ownership. The Shelf It Application and all worldwide copyrights, trade secrets, and other intellectual property rights therein, are the exclusive property of EdTech and its licensors. EdTech and its licensors reserve all rights in and to the Shelf It Application not expressly granted to you in this EULA. The Shelf It Application is licensed to you, not sold, under this EULA. There are no implied licenses in this EULA.

5. Open Source. Certain items of software included with the Shelf It Application are subject to “open source” or “free software” licenses (“Open Source Software”). Some of the Open Source Software is owned by third parties. The Open Source Software is not subject to the terms and conditions of this EULA. Instead, each item of Open Source Software is licensed under the terms of the end user license that accompanies such Open Source Software. Nothing in this EULA limits your rights under, or grants you rights that supersede, the terms and conditions of any applicable end user license for the Open Source Software. If required by any license for particular Open Source Software, EdTech makes such Open Source Software, and EdTech’s modifications to that Open Source Software, available by written request at support@EdTech.com.

6. Third Party Applications. EdTech may allow third parties to develop applications for use on the Shelf It Application and to provide services for use with such applications (“Third Party Apps”). You agree that no Third Party App is subject to the terms and conditions of this EULA. Instead, each Third Party App is licensed under the terms of the end user license that accompanies it. EdTech is not a party to that end user license, and the Third Party App developer is exclusively responsible for that Third Party App and any associated warranties.

7. Term and Termination. This EULA and the license granted hereunder are effective on the earlier of the date you first download or use the Shelf It Application and shall continue unless this EULA is terminated under this section. This EULA will terminate automatically without notice from EdTech if you fail to comply with any term(s) of this EULA. You may terminate this EULA effective immediately upon written notice to EdTech. Upon termination of this EULA, the license granted hereunder will terminate and you must stop all use of the Shelf It Application, but the terms of Sections 2 and 4 through 14 (inclusive) will remain in effect, after any such termination.

8. Warranty Disclaimer. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, EdTech PROVIDES THE Shelf It Application “AS-IS” AND DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. EdTech DOES NOT GUARANTEE ANY SPECIFIC RESULTS FROM THE USE OF THE Shelf It Application. EdTech MAKES NO WARRANTY THAT THE Shelf It Application WILL BE UNINTERRUPTED, FREE OF VIRUSES OR OTHER HARMFUL CODE, TIMELY, SECURE, OR ERROR-FREE.

9. Limitation of Liability. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, (A) EdTech WILL NOT BE LIABLE TO YOU, OR ANY THIRD PARTY, FOR ANY LOSS OF USE, LOST DATA, LOST PROFITS OR INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES RELATING TO THE Shelf It Application OR THIS EULA, EVEN IF EdTech HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (B) EdTech’s TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THE Shelf It Application AND THIS EULA, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL AT ALL TIMES BE LIMITED TO FIFTY U.S. DOLLARS (U.S. $50). THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT. EdTech DISCLAIMS ALL LIABILITY OF ANY KIND OF EdTech’s SUPPLIERS.

10. For U.S. Government End Users. The Shelf It Application is a “commercial item,” as that term is defined at 48 C.F.R. 2.101 (OCT 1995), and more specifically is “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212 (SEPT 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (JUNE 1995), the Shelf It Application is provided to U.S. Government End Users only as a commercial end item and with only those rights as are granted to all other customers pursuant to the terms and conditions herein.

11. Export Compliance. The Shelf It Application and related technology are subject to U.S. export control laws and may be subject to export or import regulations in other countries. You agree to strictly comply with all such laws and regulations and acknowledges that you have the responsibility to obtain authorization to export, re-export, or import the Shelf It Application and related technology, as may be required. You will indemnify and hold EdTech harmless from any and all claims, losses, liabilities, damages, fines, penalties, costs and expenses (including attorney’s fees) arising from or relating to any breach by you of your obligations under this section.

12. Dispute Resolution. PLEASE READ THIS CAREFULLY. IT AFFECTS YOUR RIGHTS.

12.1 Any and all controversies, disputes, demands, counts, claims, or causes of action (including the interpretation and scope of this clause, and the arbitrability of the controversy, dispute, demand, count, claim, or cause of action) between you and the EdTech and our employees, agents, successors, or assigns, regarding or relating to these the Shelf It Application or this EULA, shall exclusively be settled through binding and confidential arbitration.

12.2 Arbitration shall be subject to the Federal Arbitration Act and not any state arbitration law. The arbitration shall be conducted before one commercial arbitrator with substantial experience in resolving commercial contract disputes from the American Arbitration Association (“AAA”) or JAMS. As modified by this EULA, and unless otherwise agreed upon by the parties in writing, the arbitration will be governed by the AAA’s or JAMS’s rules for commercial arbitration and, if the arbitrator deems them applicable, the procedures for consumer-related disputes.

12.3 You are thus GIVING UP YOUR RIGHT TO GO TO COURT to assert or defend your rights EXCEPT for matters that may be taken to small claims court. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. You are entitled to a FAIR HEARING, BUT the arbitration procedures are SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT. Arbitrator decisions are as enforceable as any court order and are subject to VERY LIMITED REVIEW BY A COURT.

12.4 You and we must abide by the following rules: (1) ANY CLAIMS BROUGHT BY YOU OR US MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (2) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND MAY NOT AWARD CLASS-WIDE RELIEF, (3) in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to costs of litigation, we will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation, (4) we also reserve the right in our sole and exclusive discretion to assume responsibility for all of the costs of the arbitration; (5) the arbitrator shall honor claims of privilege and privacy recognized at law; (6) the arbitrator’s award shall be final and may be enforced in any court of competent jurisdiction; (7) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law; and (8) each side pays its own attorneys’ fees and expenses unless there is a statutory provision that requires the prevailing party to be paid its fees’ and litigation expenses, and then in such instance, the fees and costs awarded shall be determined by the applicable law.

12.5 Notwithstanding the foregoing, either you or we may bring an individual action in small claims court. Further, claims of infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret shall not be subject to this arbitration agreement. Such claims shall be exclusively brought in the state or federal courts located in Maricopa County, Arizona. Additionally, notwithstanding this agreement to arbitrate, either party may seek emergency equitable relief before the state or federal courts located in Maricopa County, Arizona in order to maintain the status quo pending arbitration, and hereby agree to submit to the exclusive personal jurisdiction of the courts located within Maricopa County, Arizona for such purpose. A request for interim measures shall not be deemed a waiver of the right to arbitrate.

12.6 With the exception of subparts (1) and (2) in the paragraph 12.4 above (prohibiting arbitration on a class or collective basis), if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the EULA, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, either subparts (1) and (2) in the paragraph 12.4 (prohibiting arbitration on a class or collective basis) is found to be invalid, unenforceable or illegal, then the entirety of this arbitration provision shall be null and void, and neither you nor we shall be entitled to arbitration. If for any reason a claim proceeds in court rather than in arbitration, the dispute shall be exclusively brought in state or federal court in Maricopa County, Arizona.

12.7 Notwithstanding any provision in this EULA to the contrary, if we seek to terminate the Dispute Resolution section as included in the EULA, any such termination shall not be effective until 30 days after the version of the EULA not containing the agreement to arbitrate is posted to the Site, and shall not be effective as to any claim of which you provided the EdTech with written notice prior to the date of termination.

12.8 For more information on AAA, its Rules and Procedures, and how to file an arbitration claim, you may call AAA at 800-778-7879 or visit the AAA website at http://www.adr.org. For more information on JAMS, it’s Rules and Procedures, and how to file an arbitration claim, you may call JAMS at 800-352-5267 or visit the JAMS website at http://www.jamsadr.com.

12.9 Any and all controversies, disputes, demands, counts, claims, or causes of action between you and the EdTech and our employees, agents, successors, or assigns, regarding or relating to these the Site, Services or this EULA, shall exclusively be governed by the internal laws of the State of Arizona, without regard to its choice of law rules and without regard to conflicts of laws principles except that the arbitration provision shall be governed by the Federal Arbitration Act.

13. General. Neither the rights nor the obligations arising under this EULA are assignable by you, and any such attempted assignment or transfer shall be void and without effect. EdTech may freely assign this EULA. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this EULA. Any notice to you may be provided by email to the address that you registered with EdTech. The Shelf It Application is deemed irrevocably accepted upon your use of the Shelf It Application. EdTech will have no responsibility to provide maintenance or support services with respect to the Shelf It Application. The parties are independent contractors. You agree and acknowledge that each supplier of third party software included in the Shelf It Application is a third party beneficiary of this EULA and will have the right to enforce this EULA directly against you. If any provision of this EULA is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect. All waivers by EdTech will be effective only if in writing. Any waiver or failure by EdTech to enforce any provision of this EULA on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. You acknowledge that the Shelf It Application contains valuable trade secrets and proprietary information of EdTech, that any actual or threatened breach of Section 2 (Restrictions) of this EULA will constitute immediate, irreparable harm to EdTech for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach. The headings of Sections of this EULA are for convenience and are not to be used in interpreting this EULA. “Includes” and “including” are not limiting. This EULA constitutes the final, complete, and exclusive agreement between the parties regarding the subject hereof and supersede all prior or contemporaneous agreements, understandings, and communication, whether written or oral. Except as otherwise provided in the EULA, no amendment to this EULA will be valid unless in a writing hand-signed by the parties.

14. Changes We may amend this EULA from time to time. Except as otherwise provided in this EULA, if we make material changes to this EULA, we will notify you by posting the change on the EdTech Service or sending you an e-mail at your primary email address, as specified in your Account. Except as otherwise provided in this EULA, any changes to this EULA will be effective immediately for new users of our Shelf It Application; otherwise these changes will be effective upon the earlier of fifteen (15) calendar days following our dispatch of an e-mail notice to you or fifteen (15) calendar days following our posting of a notice on the EdTech Service. You are responsible at all times for updating your Account to provide to us your most current e-mail address. If the last e-mail address that you have provided to us is not valid, or for any reason is not capable of delivering to you the notice described above, our dispatch of the e-mail containing such notice will nonetheless constitute effective notice of the changes described in the notice. Continued use of our Shelf It Application following notice of such changes shall indicate your acknowledgement of, and EULA to be bound by, such changes. Except as otherwise provided in this EULA, no amendment to this EULA will be valid unless in a writing hand-signed by the parties.

15. Questions or Additional Information. If you have questions regarding this EULA, or wish to obtain additional information, please send an e-mail to customersfirst@edtechsoftware.com or write us at: EDTECH SOFTWARE, LLC., P.O. Box 7130, Tempe AZ 85281.

iTunes Addendum.

1. General. The following additional terms and conditions apply to you if you are using the Shelf It Application from iTunes. To the extent the other terms and conditions of this EULA are less restrictive than, or otherwise conflict with, the terms and conditions of this Addendum, the more restrictive or conflicting terms and conditions in this Addendum apply, but solely with respect to the Shelf It Applications from iTunes

2. Acknowledgement: EdTech and you acknowledge that this EULA is concluded between EdTech and you only, and not with Apple, and EdTech, not Apple, is solely responsible for the Shelf It Application and the content thereof. To the extent this EULA provides for usage rules for the Shelf It Application that are less restrictive than the Usage Rules set forth for the Shelf It Application in, or otherwise is in conflict with, the iTunes Terms of Service, the more restrictive or conflicting Apple term applies.

3. Scope of License: The license granted to you for the Shelf It Application is limited to a non-transferable license to use the Shelf It Application on an iOS Product that you own or control and as permitted by the Usage Rules set forth in the iTunes Terms of Service.

4. Maintenance and Support: EdTech is solely responsible for providing any maintenance and support services with respect to the Shelf It Application, as specified in this EULA (if any), or as required under applicable law. EdTech and you acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Shelf It Application.

5. Warranty: EdTech is solely responsible for any product warranties, whether express or implied by law, to the extent not effectively disclaimed. In the event of any failure of the Shelf It Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Shelf It Application to you; and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Shelf It Application, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be EdTech’s sole responsibility.

6. Product Claims: EdTech and you acknowledge that EdTech, not Apple, is responsible for addressing any claims of you or any third party relating to the Shelf It Application or your possession and/or use of the Shelf It Application, including, but not limited to: (i) product liability claims; (ii) any claim that the Shelf It Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. This EULA does not limit EdTech’s liability to you beyond what is permitted by applicable law.

7. Intellectual Property Rights: EdTech and you acknowledge that, in the event of any third party claim that the Shelf It Application or your possession and use of the Shelf It Application infringes that third party’s intellectual property rights, EdTech, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.

8. Legal Compliance: You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.

9. Developer Name and Address: EDTECH SOFTWARE, LLC., P.O. Box 7130, Tempe AZ 85281.

10. Third Party Terms of Agreement: You must comply with applicable third party terms of agreement when using the Shelf It Application.

11. Third Party Beneficiary: EdTech and you acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of this EULA, and that, upon your acceptance of the terms and conditions of this EULA, Apple will have the right (and will be deemed to have accepted the right) to enforce this EULA against you as a third party beneficiary thereof.