FolioBridge Website
End User License Agreement For Users
This Website Application End User License Agreement (the “Agreement”) is a binding agreement between you (“You”) and Stark Educational Solutions, LLC DBA FolioBridge (the “Company”). This Agreement governs your access to and use of the FolioBridge Web Application (including all related documentation, the “App”), which shall be strictly in conformance with the terms and conditions set forth herein. Any capitalized terms not otherwise defined in the section in which such term first appears shall have the meaning ascribed to such term in Section 1 herein.
BY CLICKING THE “AGREE’ BUTTON, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT THAT YOU ARE EIGHTEEN (18) YEARS OF AGE OR OLDER; (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT USE THE APP AND DELETE IT IMMEDIATELY.
Definitions.
“Aggregated Statistics” means data and information related to or generated by your use of the App which is stored and used by the Company in an aggregate manner and deidentified in accordance with the deidentification standards described in 45 CFR § 164.514(a)-(c) and 45 CFR § 164.502(d), including to compile statistical and performance information related to the provision and operation of the App.
“Company IP” means any and all processes, procedures, methodology, patents, copyrights, tradenames, trademarks, design marks (registered or unregistered), content, imagery, documentation, and any and all other intellectual property owned by, or licensed to, the Company. For the avoidance of doubt, “Company IP” includes the App, the Software, Aggregated Statistics, Feedback, and any information, data, or other content derived from the Company’s monitoring of access to or use of the App, but does not include PII or the intellectual property of any third party.
“Electronic Device” means any electronic device owned or otherwise controlled by You and used to download and use the App.
“Feedback” means any communications or materials sent or transmitted by You to the Company by mail, telephone, or electronic transmission (such as email, on or through the App, or otherwise), suggesting or recommending changes to the App, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like.
“Messages” means the messages, notifications and similar prompts which are created or transmitted on or through the Services and sent via email, using the App, or by other electronic transmission.
“Person” means any individual, trustee, corporation, limited liability company, trust, joint venture, association, company, limited or general partnership, unincorporated organization, governmental authority, or other entity.
“PII” means any personally identifiable information that can be used to determine an individual’s identity, either alone or when combined with other information that is linked or traceable to a specific individual.
“Privacy Policy” means the Company’s privacy policy located at: Privacy Policy.
“Services” means the App, the Software and any services that the Company provides in connection with or related to the App.
“Software” means the Company’s proprietary software for purposes of providing You the Services.
“Third–Party Materials” means any and all third-party content, materials and information, in any form or medium, including any open-source or other software, documents, data, content, specifications, services, products, equipment, or components of or relating to the Services that are not proprietary to the Company.
“User Data” means any information, data or other content, in any form or medium, that is submitted, posted, or otherwise transmitted on or through the Services by You or one of your representatives, or automatically by the Software, other than Aggregated Statistics or Feedback.
License.
Subject to the terms of this Agreement, Company grants You a limited non-exclusive, non-transferable license to (a) use the App and, upon receipt of payment for any additional features purchased by You, use such additional features for your use on a single Electronic Device owned or otherwise controlled by You, strictly in accordance with this Agreement and any other agreements between You and the Company or other policies of the Company pertaining to your use of the App or the Services (collectively, the “App Agreements”), and (b) access, stream, and use on such Electronic Device the Services made available in or otherwise accessible through the App, strictly in accordance with the App Agreements.
Use Restrictions.
Except as expressly permitted by this Agreement, You shall not at any time, directly or indirectly: (a) use the App or any other Company IP for any purposes beyond the scope of the limited license granted in this Agreement or in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any Person, or that violates any applicable law; (b) copy, modify, or create derivative works of the App or any other Company IP; (c) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the App or any other Company IP; (d) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the App, or any component or part thereof, or any other Company IP; (e) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the App or any other Company IP, including any copy thereof; (f) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the App or any other Company IP, or any features or functionality of the Services, to any third party for any reason, including by making the App available on a network where it is capable of being accessed by more than one device at any time; (g) remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting the App or other Company IP; (h) use any robot, spider, or other automatic device, process, or means to access the App for any purpose, including monitoring or copying any of the material on the App; or (i) use the App in any manner that could disable, overburden, damage, or impair the App or interfere with any other party’s use of the App.
Reservation of Rights.
The Company reserves all rights not expressly granted to You in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to You or any third party any intellectual property rights or other right, title, or interest in or to the Company IP. You acknowledge and agree that You do not acquire any ownership interest in the Company IP under this Agreement, or any other rights thereto other than to use the App in accordance with the rights and licenses granted, and subject to all terms, conditions, and restrictions, under this Agreement. You hereby irrevocably and unconditionally assign to the Company your entire right, title and interest in and to any Company IP that You may now have or hereafter acquire, whether held or acquired by operation of law, contract, assignment or otherwise. Company and its licensors and service providers (as applicable) reserve and shall retain their entire right, title, and interest in and to the Company IP, including all copyrights, trademarks, and other intellectual property rights therein or relating thereto, except as expressly granted to You in this Agreement.
Aggregated Statistics.
Company may monitor your use of the App and collect and compile Aggregated Statistics. As between You and Company, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Company. You acknowledge that Company may (i) compile Aggregated Statistics based on any data generated by the App, subject to applicable law, and (ii) use Aggregated Statistics and/or make Aggregated Statistics publicly available to the extent and in the manner permitted under applicable law; provided that such Aggregated Statistics do not identify You.
Feedback.
You hereby assign to Company all right, title, and interest in, and Company is free to use, without any attribution or compensation to You, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Company is not required to use any Feedback.
Intellectual Property.
Company IP. The Company (and its licensors and service providers, as applicable) owns all right, title, and interest, including all intellectual property rights, in and to the Company IP.
User Data. As between the Company and You, You own all right, title, and interest, including all intellectual property rights, in and to your User Data; provided, however, that You hereby grant to the Company a non-exclusive, royalty-free, worldwide license to use such User Data as is necessary for the purposes of providing the Services in accordance herewith, including as may be described in the Privacy Policy and other policies of the Company provided to or made available to You. Notwithstanding anything to the contrary, any data uploaded by a third party shall be the property of such third party for purposes of this Agreement, and Your use of such third party data shall be mutually agreed upon by You and such third party.
Third-Party Materials. As between the Company and any third party, such third party owns all right, title, and interest, including all intellectual property rights, in and to the Third-Party Materials.
Passwords and Access Credentials.
You will be provided with or prompted to create a user ID and password (“Access Credentials”) and a user profile (“Your Account”) that will permit You to access and use the App. You are responsible for keeping your Access Credentials secured and confidential, and You shall not permit anyone else to use your Access Credentials. You agree to promptly notify the Company about any unauthorized use of your Access Credentials. Notwithstanding any of the foregoing, You expressly authorize the Company to have administrative access to Your Account for purposes of facilitating the Services.
Suspension.
The Company, in its sole discretion, may suspend access or use of the App at any time for any reason or no reason at all.
Collection and Use of User Data; Content and Services; Messaging.
You acknowledge that when You download, install, or use the App, the Company may use automatic means (including, for example, cookies and web beacons) to collect information about the Electronic Device You use to access and use the App and about your use of the App. You also may be required to provide certain information about yourself as a condition to downloading, installing, or using the App, or certain of its features or functionality, and the App may provide you with opportunities to share information about yourself with others. All information collected through or in connection with the App is subject to the Privacy Policy. By downloading, accessing, using, and providing information to or through the App, You consent to all actions taken by the Company with respect to your information in compliance with the Privacy Policy and agree that the Company may use such information for any purpose related to any use of the Services by You or your equipment, including but not limited to improving the performance of the Services, developing updates for the Services, and verifying your compliance with the terms of this Agreement and enforcing the Company’s rights. Notwithstanding anything to the contrary in this Agreement, the Company may monitor your use of the App and collect and compile Aggregated Statistics, as set forth in Section 5.
The App may provide you with access to Company’s public facing website located at www.FolioBridge.com (the “Website”) and products and services accessible thereon, and certain features, functionality, and content accessible on or through the App may be hosted on the Website (collectively, “Website Content and Services”). Your access to and use of such Website Content and Services are governed by the Website’s Terms of Use and Privacy Policy located at [Terms of Use Link] and [Privacy Policy Link], which are incorporated herein by this reference. Your access to and use of such Website Content and Services may require you to acknowledge your acceptance of such Terms of Use and Privacy Policy and/or to register with the Website, and your failure to do so may restrict you from accessing or using certain of the Application’s features and functionality. Any violation of such Terms of Use will also be deemed a violation of this Agreement.
In accessing and using the App, You acknowledge and agree that the Company and its representatives may from time to time and in their sole discretion, send You Messages containing or regarding User Data. By accessing and using the App, You acknowledge that the Company and its Representatives may use any User Data for purposes of facilitating the Services provided to You on or through the App.
Consent to Electronic Communications.
PLEASE READ THIS CAREFULLY. BY INDICATING YOUR ACCEPTANCE AND/OR USING THE SERVICES, YOU EXPRESSLY CONSENT TO ALL OF THE TERMS AND CONDITIONS SET FORTH HEREIN, WHICH INCLUDES YOUR CONSENT TO RECEIVE MESSAGES FROM THE COMPANY. USE OF THE APP IS CONDITIONED UPON YOUR CONSENT TO RECEIVE ELECTRONIC COMMUNICATIONS.
You grant the Company the right to use certain PII, as well as any and all other information collected by the Company or provided by You, in each case in accordance with and as described by the Company’s Privacy Policy, for purposes of providing Messages to You and to enable your access the App. Such information may include but is not limited to your driver’s license information, teacher/educational certificates, name, telephone number, email address and other contact information. You represent that You are the account holder or authorized user for the Electronic Device You use to access the App and any number(s) and/or email address(es) associated with the same. You agree to maintain accurate, complete, and up-to date contact information on the App for so long as You use the App.
By indicating your acceptance of these terms and/or using the App, You also consent to allowing the Company to use your PII to communicate with You for the purposes of informing You of applicable offers, changes or additions to the App, and changes to this Agreement or the other App Agreements.
You also consent to the Company using your PII to suggest or recommend other products or services of the Company or other third-parties, subject to the terms and conditions of the Company’s Privacy Policy.
Geographic Restrictions.
The Services are based in the United States and are provided for access and use only by Persons located in the United States. You acknowledge that You may not be able to access all or some of the Services outside of the United States and that access thereto may not be legal by certain Persons or in certain countries. If You access the Services from outside the United States, You are responsible for compliance with all local laws and the Company disclaims all liability with respect thereto.
Updates; Service Levels and Support.
The Company may from time to time in its sole discretion develop and provide updates to the Services, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates”). Updates may also modify or delete in their entirety certain features and functionality. You agree that the Company has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. Based on your Electronic Device settings, when your Electronic Device is connected to the internet either: (i) the App will automatically download and install all available Updates; or (ii) You may receive notice of or be prompted to download and install available Updates.
You shall promptly download and install all Updates and acknowledge and agree that the App or portions thereof may not properly operate should You fail to do so. You further agree that all Updates will be deemed part of the App and be subject to all terms and conditions of this Agreement.
The Company shall use commercially reasonable efforts to make the Services available 24/7 but there will be downtime after hours and as needed to perform maintenance and Updates, and there may be unexpected downtime and unavailability from time to time. The access rights granted hereunder entitle You to support services provided by the Company in its sole discretion, which may be requested by email to support@FolioBridge.com.
Third-Party Materials.
The Services may display, include, or make available or provide links to Third-Party Materials, including through third-party advertising. You acknowledge and agree that the Company is not responsible for Third-Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. The Company does not assume and will not have any liability or responsibility to You or any other Person for any Third-Party Materials. Third-Party Materials and links thereto are provided solely as a convenience to You, and You access and use them entirely at your own risk and subject to such third parties’ terms and conditions.
Term and Termination.
The term of this Agreement is effective as of the time You download and/or access the App and will continue in effect until terminated by You or the Company as set forth in this PAGEREF a665452\# “‘Section ‘” \hSection .
You may terminate this Agreement by discontinuing your use of and/or deleting the App (and all copies thereof from your Electronic Device), as applicable.
The Company may terminate this Agreement at any time without notice. In addition, this Agreement will terminate immediately and automatically without any notice if You violate any of the terms and conditions of this Agreement; provided, however, that any provision which, in order to give proper effect to its intent, should survive such expiration or termination, will survive the expiration or earlier termination of this Agreement for the period specified therein, or if nothing is specified for a period of twelve (12) months after such expiration or termination.
Upon termination: (i) all rights granted to You under this Agreement will also terminate; and (ii) You must cease all use of the App and delete all copies of the App from your Electronic Device and account. Termination will not limit any of the Company’s rights or remedies at law or in equity. No expiration or termination shall affect Your obligation to pay all fees for any additional features purchased by You that may have become due before such expiration or termination.
Disclaimer of Warranties.
THE SERVICES ARE PROVIDED TO YOU “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, THE COMPANY, 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, 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, THE COMPANY MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES, OR ANY RESULTS OF THE USE THEREOF, WILL MEET YOUR REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT (FINANCIAL OR OTHERWISE), BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
Limitation of Liability.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE COMPANY, ITS OWNERS OR THEIR AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE THE SERVICES OR THE CONTENT AND SERVICES FOR:
PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION, OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES.
DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED ONE (1) TIMES THE TOTAL AMOUNT OF FEES PAID BY YOU WITH RESPECT TO YOUR INDIVIDUAL USE OF THE SERVICES, AS APPLICABLE, TO THE COMPANY IN THE SIX (6) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR $100, WHICHEVER IS LESS.
THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR THE COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.
Indemnification.
The Company shall indemnify, defend, and hold harmless You from and against any and all losses, damages, liabilities, costs (including reasonable attorneys’ fees) (“Losses”) finally awarded against You resulting from any third-party claim, suit, action, or proceeding that the Services, or any use of the Services in accordance with this Agreement, infringes or misappropriates such third party’s US patents, copyrights, or trade secrets, provided that You promptly notify the Company in writing of the claim at HYPERLINK “mailto:admin@FolioBridge.io”admin@FolioBridge.io, cooperate with the Company, and allow the Company sole authority to control the defense and settlement of such claim.
You agree to indemnify, defend, and hold harmless the Company and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all Losses arising from or relating to: (i) User Data, including any processing of User Data by or on behalf of the Company in accordance with this Agreement; (ii) any other materials or information (including any documents, data, specifications, software, content, or technology) provided by You or on your behalf, including the Company’s compliance with any specifications or directions provided by You or on your behalf to the extent prepared without any contribution by the Company; (iii) allegation of facts that, if true, would constitute your breach of any of your representations, warranties, covenants, or obligations under this Agreement; (iv) negligence or more culpable act or omission (including recklessness or willful misconduct) by You or any Person on your behalf, in connection with this Agreement; (v) acts or omissions which may result in any liability or damages due to violations of applicable laws or any other act or omission that results in damages to Persons or to property; (vi) use or misuse of the Services, including any modifications not made by the Company; and (vii) failure to comply with any applicable laws or regulations.
Payment of Fees.
In the event You elect to purchase additional features to be used in connection with the App, fees for such additional features are payable in advance in the manner set forth in the applicable order form or similar order document and are non-refundable. Any renewal of the license or maintenance and support services for such additional features shall not be effective until the fees for such renewal have been paid in full.
Export Regulation.
The Services may be subject to US export control laws, including the Export Control Reform Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release the Services to, or make the Services 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 available outside the US.
US Government Rights.
The Software and App are commercial computer software, as such term is defined in 48 C.F.R. §2.101. Accordingly, if You are an agency of the US Government or any contractor therefor, You receive only those rights with respect to the Software and App as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other US Government licensees and their contractors.
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 Florida without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Florida. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of Florida in each case located in the city of Tampa and County of Hillsborough, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
Mutual Waiver of Jury Trial.
BECAUSE DISPUTES ARISING IN CONNECTION WITH COMPLEX BUSINESS ARRANGEMENTS AND SOFTWARE PLATFORMS ARE MOST QUICKLY AND ECONOMICALLY RESOLVED BY AN EXPERIENCED EXPERT AND THE PARTIES WISH APPLICABLE STATE AND FEDERAL LAWS TO APPLY (RATHER THAN ARBITRATION RULES), THE PARTIES DESIRE THAT THEIR DISPUTES BE RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS. THEREFORE, TO ACHIEVE THE BEST COMBINATION OF THE BENEFITS OF THE JUDICIAL SYSTEM AND OF ARBITRATION, EACH PARTY TO THIS AGREEMENT HEREBY WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, SUIT, OR PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE BETWEEN OR AMONG ANY OF THE PARTIES HERETO, WHETHER ARISING IN CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF, CONNECTED WITH, RELATED OR INCIDENTAL TO THIS AGREEMENT, THE TRANSACTIONS CONTEMPLATED HEREBY AND/OR THE RELATIONSHIP ESTABLISHED AMONG THE PARTIES HEREUNDER.
Limitation of Time to File Claims.
ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICES MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES OTHERWISE SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
Entire Agreement.
This Agreement (and any other applicable App Agreements) constitutes the entire agreement between You and Company with respect to the Services and supersede all prior or contemporaneous understandings and agreements, whether written or oral, with respect to the Services.
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. In the event of a conflict between this Agreement and any applicable purchase or other terms, the terms of this Agreement shall govern.