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Updated 1/21/2023
This Eartrainer Customer Terms Agreement is entered into by and between Lion Theory, LLC, d/b/a Eartrainer, a Texas entity (“Eartrainer”) and the organization named below or in one or more order forms expressly governed by this Eartrainer Customer Terms Agreement (such organization, the “Customer” and each such order form, an “Order Form”). This Eartrainer Customer Terms Agreement governs access to and use of the Eartrainer software and services set forth on the applicable Order Form (together, the “Service”). By signing below or on an applicable Order Form incorporating these terms, Customer acknowledges and agrees to the terms and provisions of this Eartrainer Customer Terms Agreement, any addenda attached thereto (each an “Addendum”) and any applicable Order Forms (collectively, the “Agreement”). Any Addenda to this Agreement will govern in the event of a conflict between the terms of this Eartrainer Customer Terms Agreement and the applicable Addendum.
For most uses of the Service, an end user needs to register as a “User” under a Customer’s Service account (“Account”). A “User” is anyone who is registered for the Service, and may include (but is not limited to) a Customer’s employees, students, clients, consultants, contractors and agents. Customer is responsible to ensure that its information is accurate and kept up to date. If a User registers via an invitation from Customer, use of the Service by that User is governed by this Agreement. Each individual User must create their own User account on the Service. Sharing of logins is not permitted under any circumstance in order for Eartrainer to maintain required levels of security and privacy. Customer understands the need for its Users to safeguard their passwords to the Service, to make sure others don’t have access to it, and to log off when finished using the Service. Eartrainer is not responsible for any loss or damage from Customer or its Users not complying with these safeguards. Most of the Service components require a current version browser and a broadband/high-speed Internet connection. Customer and its Users are responsible for accessing these resources and for their performance and reliability.
Eartrainer and Customer (including Customer’s Users) are independent contractors under this Agreement. Neither party is authorized to make statements or commitments on behalf of the other party except as noted herein. Customer will be responsible for ensuring that all access and use of the Service by its Users is in accordance with this Agreement. Any action or breach by any of Customer’s Users is considered an action or breach by Customer and Customer waives any and all defenses that Customer may have as to any resulting liability. Either party may publicize the existence of this Agreement and the general nature of the parties’ relationship, unless directed not to do so in writing by the other party. Fees associated with this Agreement are Confidential Information and may not be disclosed without consent of the other party; notwithstanding the foregoing, Eartrainer explicitly agrees that Fees may be disclosed upon request where applicable open records laws require such disclosure.
(a) Some offerings of the Service allow Customer to download software (“Software”) to a desktop or mobile device which may update automatically. So long as Customer complies with this Agreement, Eartrainer gives Customer a limited, nonexclusive, nontransferable, revocable license to use the Software, solely to access the Service. To the extent any component of the Software may be offered under an open source license, Eartrainer will make that license available to Customer and the provisions of that license may expressly override the terms of this Agreement.
(b) Customer and its Users may not use the Service for any purposes other than those described in this Agreement. Specifically, Customer and its Users must use the Service in compliance with the Eartrainer Acceptable Use Policy, located at eartrainer.io/acceptable. Customer will obtain from Users any consents necessary to allow Customer-authorized administrative Users (“Administrators”) to engage in the activities described in this Agreement and to allow Eartrainer to provide the Service. Customer will comply with laws and regulations applicable to Customer’s use of the Service. Administrators may have the ability to access, disclose, restrict or remove Customer Data (as defined below) in or from the Account. Administrators may also have the ability to monitor, restrict, or terminate access to the Account. Eartrainer' responsibilities do not extend to the internal management or administration of the Service as it relates to Customer. Customer is responsible for: (i) maintaining the confidentiality of passwords and Administrator subaccounts; (ii) managing access to Administrator subaccounts; and (iii) ensuring that Administrators’ use of the Service complies with this Agreement.
(c) Customer will use commercially reasonable efforts to prevent unauthorized use of the Service by its Users and will terminate any unauthorized use of or access to the Service. Customer will not, nor will it permit others to, (i) sell, resell, or lease the Service; (ii) use the Service for activities where use or failure of the Service could lead to physical damage, death, or personal injury; or (iii) modify, translate, disassemble, create derivative works based on, reverse-assemble, reverse-compile or otherwise reverse engineer the Service. This Section 3(c) shall survive the termination of this Agreement.
(d) Eartrainer sometimes releases products and features that it is still testing and evaluating. Those items have been marked beta, preview, early access, evaluation, or with words or phrases with similar meanings (collectively “Beta Services”) and may not be as reliable as Eartrainer' other services. Notwithstanding anything to the contrary in this Agreement or in Schedule 1 (if applicable), the following terms apply to all Beta Services: (i) Customer may use or decline to use any Beta Services; (ii) Beta Services may not be supported and may be changed at any time without notice to Customer; (iii) Beta Services may not be as reliable or available as other Eartrainer Services; (iv) Beta Services have not been subjected to the same security measures and auditing to which the Service has been subjected; and (v) Eartrainer WILL HAVE NO LIABILITY ARISING OUT OF OR IN CONNECTION WITH BETA SERVICES—CUSTOMER USES THE BETA SERVICE SOLELY AT CUSTOMER’S OWN RISK.
(a) Customer and its Users, when using the Service, will provide Eartrainer with musical scores, recordings, files, comments, other content, and so on (“Submissions”). Any Submission posted by Customer or its Users is the property of such party. This Agreement does not give Eartrainer any rights to Submissions except for the limited rights that enable Eartrainer to offer the Service. In the case of our community dictation bank we may only use your dictations when express permission is obtained.
(b) All Submissions must comply with Eartrainer' Acceptable Use Policy located at eartrainer.io/acceptable. Content in or on the Service may be protected by others’ Intellectual Property Rights. Customer agrees to not copy, upload, download or share content unless it has the right to do so. “Intellectual Property Rights” means current and future worldwide rights under patent, copyright, trade secret, trademark, moral rights, and other similar rights.
(c) Customer and its Users are solely responsible for any Submissions posted to the Service. Eartrainer may review Customer conduct and content for compliance with this Agreement; however, Eartrainer has no obligation to do so. Eartrainer is not responsible in any way for any Submissions or related content posted and shared by Users or other third parties via the Service. Eartrainer may remove any Submission at its sole discretion.
(d) Customer and its Users use any Submissions at their own risk. Any User’s interactions with other Users are solely the responsibility of those Users. Eartrainer is not responsible for anything that occurs as a result of those interactions. If there is a dispute between Users, Eartrainer is under no obligation to become involved in such dispute.
(e) Customer hereby gives Eartrainer permission to host Submissions, back them up, and share them at the direction of Customer. The Service provides Customer with features like thumbnails, downloads, document previews, sorting, editing, sharing and searching. These and other features may require Eartrainer systems to access, store and scan Submissions. Customer hereby gives Eartrainer permission to perform such actions, and this permission extends to Eartrainer affiliates and trusted third parties with whom Eartrainer works, solely for the purpose of providing the Service. Posting Submissions over the Internet involves networks not controlled by Eartrainer. Eartrainer is not responsible for Submissions that are delayed, lost, altered, or stored during transmission over those networks.
(f) The Children’s Online Privacy Protection Act applies to the online collection of personal information from children under the age of 13. To provide essential services and support to its users, eartrainer.io collects and stores the FIRST and LAST name of each user. It is possible that the SITE will be used by users under the age of 13, such as in a Middle or High school music program. In these cases, eartrainer.io will work with the teacher(s) at the school to gain verifiable written consent from a parent/guardian of each said user. Until verifiable written consent is obtained and validated, eartrainer.io will immediately destroy ALL incoming data from unvalidated users. If it is discovered that a user under the age of 13 who is outside of an official Middle or High school relationship is using the SITE, all efforts will be made to purge all information relating to this user from the system as soon as possible.
(g) Eartrainer will use industry standard or better technical and organizational security measures to transfer, store, and process Submissions and Users’ Account information (collectively, “Customer Data”). These measures include appropriate administrative, physical, and technical safeguards to secure Submissions and other Customer Data from unauthorized access, disclosure, and use. Eartrainer will conduct periodic risk assessments and remediate any identified security vulnerabilities in a timely manner. Eartrainer will promptly notify Customer in the event of a security or privacy incident.
(h) In addition, while Eartrainer stores Submissions and other Customer Data for a length of time (typically at least 3 years), the Service is not an archive. Customer is responsible for maintaining independent archival and backup copies of any Submissions and Customer Data that Customer wishes to preserve.
Subject to payment of the Fees (as defined below) by Customer, Eartrainer will provide commercially reasonable support for the Service as specified in the published online support policy for the Service which may be found at eartrainer.io/support.
Customer will pay, and authorizes Eartrainer to charge using Customer’s selected payment method, all applicable fees related to the Service charged by Eartrainer as indicated on any applicable Order Form (“Fees”). If Fees are invoiced by Eartrainer, such Fees will be due as described on the Order Form, or if not specified, within thirty (30) days after the date of Eartrainer' invoice to Customer. The Fees are exclusive of, and Customer is responsible for, all applicable sales, use, value-added and other taxes, and all applicable duties, tariffs, assessments, export and import fees, or other similar charges, other than taxes based on Eartrainer' income in the United States. All costs and expenses incurred by Customer in connection herewith are Customer’s sole responsibility. An administrative fee of $35.00 per invoice may be charged for any electronic transaction that is declined and for any returned checks. Fees are non-refundable except as required by law and as otherwise expressly stated herein. In addition, any amounts not paid when due shall bear interest at a nominal rate of one and one half percent (1.5%) per month, or the maximum legal rate if less. Eartrainer shall be entitled to withhold performance and discontinue the Service until all Fees due are paid in full.
Eartrainer may change the fees in effect, but will give Customer at least thirty (30) days advance notice of such changes via the email address associated with Customer’s account, and will not apply such fee changes to any current Term. Upon renewal, if Customer chooses not to accept the new Fees, they may cancel without penalty at the next renewal date upon written notice to Eartrainer prior to such renewal date.
(a) This Agreement shall commence upon execution of an Order Form by Customer and remain in effect until Customer’s subscription or access to the Service (as more fully described in an Order Form) expires or terminates, or until the Agreement is otherwise terminated as provided for in this Section 7 or the Order Form (“Term”).
(b) Eartrainer may terminate this Agreement and associated access to the Service at any time and for any reason upon thirty (30) days written notice to Customer. Upon such termination for convenience, Eartrainer will refund to Customer any prepaid and unused Fees. Either party may immediately terminate this Agreement in the event the other party commits a material breach of any provision of this Agreement which is not cured within thirty (30) days of written notice from the non-breaching party. Such notice shall expressly state the reasons for the claimed breach in sufficient detail so as to provide the breaching party a meaningful opportunity to cure such alleged breach.
(c) Upon termination of this Agreement in accordance with this Section, Customer’s Account and right to access and use the Service will terminate immediately. If this Agreement is terminated for any reason other than a termination expressly permitted by this Agreement, Customer agrees that Eartrainer shall be entitled to all Fees due pursuant to this Agreement for the entire Term. However, if this Agreement is terminated as a result of a material breach on Eartrainer' part, Eartrainer shall refund the unused portion of any prepaid subscription Fees pursuant to this Agreement.
(d) Following termination of this Agreement and/or Customer’s use of the Service, Eartrainer may immediately deactivate Accounts of Customer and its Users and, following a period of not less than thirty (30) days, shall be entitled to delete such Accounts, including all Submissions and Customer Data therein. During this 30-day period and upon reasonable written request, Eartrainer, in its discretion, will grant Customer limited access to the Service for the sole purpose of retrieving Submissions and Customer Data, provided that all amounts and Fees owed to Eartrainer in connection with this Agreement are paid in full. Eartrainer shall not be liable to Customer or any third party for any termination of access to the Service or deletion of Submissions or Customer Data.
(e) Eartrainer reserves the right to suspend access to any Account and/or use of the Service in its reasonable discretion for any actual or suspected breach of this Agreement and/or any security, performance, or acceptable use-related issues in connection with the Account. Such suspension may apply to the entire Account and/or any sub-accounts. Customer agrees that Eartrainer shall not be liable for any results of suspension of the Service pursuant to this paragraph. Eartrainer will use commercially reasonable efforts to notify Customers of any material modifications or discontinuations of the Service. Any future release, modification, update, or other addition to the functionality of the Service shall be subject to this Agreement.
All rights, title, and interest in the Service (including, but not limited to, the Eartrainer websites, mobile applications, content, and all software, names, logos, trademarks, service marks, brand identities, characters, trade names, graphics, designs, copyrights, trade dress, or other Eartrainer intellectual property appearing on the Service, and the organization, compilation, look and feel of the Service), are owned by Eartrainer and/or its suppliers, licensors, and business partners (“Business Partners”), and are protected by U.S. and international copyright and other intellectual property laws. Eartrainer® and the Eartrainer logo are registered trademarks of Eartrainer. The names of any actual companies and products appearing within the Service may be the trademarks of their respective owners. Eartrainer (and/or its Business Partners) retain all rights with respect to the Service and content except those expressly granted to Customer in this Agreement, and Customer shall not display or use any Eartrainer trademarks, service marks, logos, or product names without Eartrainer' express prior written permission. Customer shall not alter, remove or obscure any copyright notice, digital watermarks, proprietary legends or any other notice included in the Service. Except as expressly provided herein, nothing on the Service shall be construed as conferring to Customer any license under Eartrainer' (and/or its Business Partners’) Intellectual Property Rights, whether by estoppel, implication or otherwise. In addition, Eartrainer shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, and perpetual license to use or incorporate into the Service any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including its Users, relating to the operation of the Service.
The Service may contain links to third party web sites (“Linked Sites”). Eartrainer has no control over these Linked Sites or their content. Eartrainer cannot and does not guarantee, represent, or warrant that the content contained in the Linked Sites, including, without limitation other links, is accurate, legal, and/or inoffensive. Eartrainer does not endorse the content of any Linked Site, nor does Eartrainer warrant that a Linked Site will not contain computer viruses or other harmful code that can impact computer or other web access devices. By using the Service to link to another site, Customer agrees and understands that such use is entirely at Customer’s own risk, and that Customer may not make any claims against Eartrainer for any damages or losses whatsoever resulting from such use. However, if there is a problem with a Linked Site, please let Eartrainer know at support@eartrainer.io, and Eartrainer may investigate the link and take appropriate action in order to improve the Service.
(a) As limited by the terms of this Agreement, Eartrainer warrants to Customer (not to individual Users) that, during the Term, the Service will operate substantially in accordance with the documentation Eartrainer provides to Customer. This limited warranty shall not apply to problems that result from: (i) factors outside of Eartrainer' reasonable control; (ii) any failure by Customer to comply with this Agreement; (iii) any failure by Users to use the Service in accordance with this Agreement or other instructions provided by Eartrainer; (iv) any unauthorized use of the Service; (v) Customer’s, User’s or any third party’s hardware, software, and equipment; (vi) errors in entering, analyzing, or viewing Submissions; (vii) the fault or negligence of Customer, Users, operator error, improper use or misuse of the Service, or any other causes external to the Service or Eartrainer; or (viii) downtime as a result of scheduled maintenance performed by or for Eartrainer. In the event of a material breach of the foregoing warranty, Customer’s sole and exclusive remedy, and Eartrainer' only obligation, at Eartrainer' discretion, will be to repair, modify or replace the nonconforming Service within thirty (30) days after Eartrainer receives Customer’s written notice of the material nonconformity, or if Eartrainer determines that it is not commercially feasible to repair, modify or replace the nonconforming Service in a manner that removes such nonconformity, Eartrainer will refund the amount of any Fees actually paid by Customer to Eartrainer under this Agreement for up to the previous four (4) months of the Service and Customer will have the option to terminate the Agreement without penalty upon written notice to Eartrainer within thirty (30) days of being informed of such determination.
(b) EXCEPT AS EXPRESSLY STATED OTHERWISE HEREIN, THE SERVICE (INCLUDING Eartrainer WEBSITES, MOBILE APPLICATIONS, AND ALL OTHER FEATURES ON THE SERVICE) ARE PROVIDED TO CUSTOMER “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, FITNESS FOR A PARTICULAR PURPOSE, TITLE, MERCHANTABILITY, OR NON-INFRINGEMENT. SHOULD APPLICABLE LAW NOT PERMIT THE FOREGOING EXCLUSION OF EXPRESS OR IMPLIED WARRANTIES, THEN Eartrainer HEREBY GRANTS THE MINIMUM EXPRESS OR IMPLIED WARRANTY REQUIRED BY SUCH APPLICABLE LAW. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY CUSTOMER FROM Eartrainer, ITS EMPLOYEES, AGENTS, SUPPLIERS OR ANY OTHER PERSONS SHALL CREATE ANY WARRANTY, REPRESENTATION OR GUARANTEE NOT EXPRESSLY STATED IN THIS SECTION. ADDITIONALLY, Eartrainer DOES NOT MAKE ANY WARRANTIES THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR FREE, OR THAT CUSTOMER’S USE OF THE SERVICE WILL MEET CUSTOMER’S EXPECTATIONS, OR THAT THE SERVICE IS CORRECT, ACCURATE, OR RELIABLE, OR THAT THE OVERALL SYSTEM THAT MAKES THE SERVICE AVAILABLE (INCLUDING BUT NOT LIMITED TO THE INTERNET, OTHER TRANSMISSION NETWORKS, AND CUSTOMER’S LOCAL NETWORK AND EQUIPMENT) WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE CONTENT PROVIDED ON THE SERVICE IS FOR CONVENIENCE ONLY AND Eartrainer DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY USER SUBMISSION, OPINION, STATEMENT, PRODUCT, ADVICE, RECOMMENDATION OR SERVICE MADE, PROMOTED, ADVERTISED OR OFFERED BY ANY Eartrainer USER, THIRD PARTY, OR OTHER ENTITY MADE AVAILABLE THROUGH THE SERVICE OR ANY LINKED SITES OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND Eartrainer WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN CUSTOMER AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
(a) CUSTOMER AGREES THAT THE CONSIDERATION WHICH Eartrainer RECEIVES HEREUNDER DOES NOT INCLUDE CONSIDERATION FOR ASSUMPTION BY Eartrainer OF THE RISK OF CUSTOMER INCIDENTAL OR CONSEQUENTIAL DAMAGES. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO ANYONE FOR LOST PROFITS OR REVENUE OR FOR INCIDENTAL, CONSEQUENTIAL, PUNITIVE, COVER, SPECIAL, RELIANCE OR EXEMPLARY DAMAGES, OR INDIRECT DAMAGES OF ANY TYPE OR KIND HOWEVER CAUSED, WHETHER FROM BREACH OF WARRANTY, BREACH OR REPUDIATION OF CONTRACT, NEGLIGENCE, OR ANY OTHER LEGAL CAUSE OF ACTION FROM OR IN CONNECTION WITH THIS AGREEMENT (AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES TO THE MAXIMUM EXTENT PERMITTED BY LAW) OR OTHERWISE SHALL IN NO EVENT EXCEED THE DIRECT DAMAGE LIMITATIONS AS SET FORTH IN SECTION 11(B) BELOW.
(B) THE MAXIMUM LIABILITY OF EITHER PARTY TO ANY PERSON, FIRM OR CORPORATION WHATSOEVER ARISING OUT OF OR IN THE CONNECTION WITH ANY LICENSE, USE OR OTHER EMPLOYMENT OF THE SERVICE, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON BREACH OR REPUDIATION OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, TORT, OR OTHERWISE, SHALL IN NO CASE EXCEED THE EQUIVALENT OF FOUR (4) MONTHS OF FEES APPLICABLE AT THE TIME OF THE EVENT GIVING RISE TO THE CLAIM. THE ESSENTIAL PURPOSE OF THIS PROVISION IS TO LIMIT THE POTENTIAL LIABILITY OF THE PARTIES ARISING FROM THIS AGREEMENT. THE PARTIES ACKNOWLEDGE THAT THE LIMITATIONS SET FORTH IN THIS SECTION ARE INTEGRAL TO THE AMOUNT OF FEES CHARGED IN CONNECTION WITH MAKING THE SERVICE AVAILABLE TO CUSTOMER AND THAT, WERE Eartrainer TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN, SUCH FEES WOULD OF NECESSITY BE SET SUBSTANTIALLY HIGHER.
THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION SHALL NOT APPLY TO INDEMNITY OBLIGATIONS HEREIN. Certain jurisdictions do not allow the exclusion of implied warranties or limitations of liability for incidental or consequential damages, so the exclusions set forth above may not apply to Customer.
(a) In order to specifically protect Eartrainer from liability arising from the acts of certain third parties not under its control, Customer hereby irrevocably and unconditionally releases and forever discharges Eartrainer (and its officers, employees, agents, successors, and assigns) from, and hereby waives, any and all past, present and future claims, demands, and rights of action, whether known or unknown, which arise from or relate to (i) any app stores, (ii) other Users of the Service including any other customer of Eartrainer, and/or (iii) Linked Sites. IF CUSTOMER IS LOCATED IN CALIFORNIA, CUSTOMER HEREBY EXPRESSLY WAIVES ANY APPLICATION OF CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING. This is a required limited release related to external third parties, and not to any of Eartrainer' obligations hereunder.
(b) Each party hereby agrees that it is responsible for its own acts and behavior and the results thereof. As permitted in accordance with applicable law, and with respect to any claim or action arising out of the activities described or performed under this Agreement, the parties mutually agree that each will also remain responsible for any and all liabilities, claims, damages, charges and expenses (collectively referred to as “Liability”) incurred by reason of the acts or omissions of its employees, governing board members, students, faculty, or agents; and that neither party shall by this Agreement transfer such Liability to the other party.
(c) Each party agrees that before it or any employee, agent or representative of the party files a claim or suit with a federal or state agency or court or other public forum, it shall provide thirty (30) days prior written notice to the other and that, within such thirty (30) day period (or longer, if extended by mutual desire of the parties), authorized representatives of the parties shall meet (or confer by telephone) at least once in a good faith attempt to resolve the perceived dispute.
(a) Eartrainer shall, at its own expense and subject to the limitations set forth in this Section and any limitations of applicable law (including legal restrictions to which Customer may be subject), defend Customer from and against any and all allegations, threats, claims, suits, and proceedings brought by third parties (collectively “Claims”) alleging that the Service, as used in accordance with this Agreement, infringes third party copyrights, trade secrets or trademarks and shall hold Customer harmless from and against liability, damages, and costs finally awarded, including, without limitation, reasonable attorneys’ fees (collectively, “Losses”) to the extent based upon such a Claim. Excluded from the indemnification obligations in this paragraph are Claims to the extent arising from (i) use of the Service in violation of this Agreement or applicable law, (ii) use of the Service after Eartrainer notifies Customer to discontinue use because of an infringement claim, or (iii) modifications to the Service or use of the Service in combination with any software, application or service made or provided other than by Eartrainer.
(b) If a Claim of infringement is brought or threatened, Eartrainer may, at its sole option and expense, use commercially reasonable efforts either (i) to procure a license that will protect Customer against such Claim without cost to Customer; (ii) to modify or replace all or portions of the Service as needed to avoid infringement, such update or replacement having substantially similar or better capabilities; or (iii) if (i) and (ii) are not commercially feasible, terminate the Agreement and refund to the Customer a pro-rata refund of the prepaid and unused Fees for the terminated portion of the Term. The rights and remedies granted Customer under this paragraph state Eartrainer' entire liability, and Customer’s exclusive remedy, with respect to any claim of infringement of the Intellectual Property Rights of a third party.
(c) In the event of a potential indemnity obligation under this Section, Customer shall: (i) promptly notify Eartrainer in writing of such Claim; (ii) allow Eartrainer to have sole control of its defense and settlement; and (iii) upon request of Eartrainer, cooperate in all reasonable respects, at Eartrainer' cost and expense, with Eartrainer in the investigation, trial, and defense of such Claim and any appeal arising therefrom. The indemnification obligations under this Section are expressly conditioned upon Customer’s compliance with this Section. The indemnification obligations contained in this Section shall survive termination of this Agreement for one year.
The Service and the content made available through the Service is the result of significant investment by Eartrainer in developing, organizing, and presenting various tools and Submissions for the convenience of its Users. By using the Service, Customer hereby acknowledges and recognizes the uniqueness of the services provided by the Service and Eartrainer' substantial investments in such services as described herein, such that a breach of this Agreement by Customer could result in irreparable harm to Eartrainer for which money damages or other legal remedies may not adequately compensate. Accordingly, in the event of a breach of this Agreement, Eartrainer shall be entitled to seek equitable remedies, including without limitation preliminary and permanent injunctive relief, and Customer explicitly agrees that Eartrainer will not be required to make a showing of irreparable harm or to post or secure a bond in order to obtain such relief.
(a) For purposes of this Agreement, “Confidential Information” includes, unless otherwise restricted by applicable law, the terms of this Agreement, Submissions, each party’s proprietary technology, business processes and technical product information, designs, issues, all communication between the parties regarding the Service and any information that is clearly identified in writing at the time of disclosure as confidential. Confidential Information shall not include information which: (i) is known publicly; (ii) is generally known in the industry before disclosure; (iii) has become known publicly, without fault of the receiving party, subsequent to disclosure by the disclosing party; or (iv) is aggregate statistical data regarding Eartrainer' products and services that does not contain any personally identifiable, User-specific or Customer-specific information.
(b) Each party agrees: (i) to keep confidential all Confidential Information; (ii) not to use or disclose Confidential Information to any third party except as directed by the disclosing party and only to the extent necessary to perform its obligations or exercise rights under this Agreement; and (iii) to protect the confidentiality thereof in the same manner as it protects the confidentiality of similar information and data of its own and to make Confidential Information available to authorized persons only on a “need to know” basis. Either party may disclose Confidential Information on a need to know basis to its contractors and service providers who have executed written agreements requiring them to maintain such information in strict confidence and use it only to facilitate the performance of their services in connection with the performance of this Agreement.
(c) Notwithstanding the foregoing, this paragraph will not prohibit the disclosure of Confidential Information to the extent that such disclosure is required by law (specifically including applicable open records and public information laws to which Customer may be subject) or order of a court or other governmental authority or regulation, provided that the receiving party promptly notifies the disclosing party in writing of such required disclosure and cooperates with the disclosing party to seek an appropriate protective order, at disclosing party’s sole expense.
Neither this Agreement nor any rights under this Agreement may be assigned or otherwise transferred by either party, in whole or in part without the prior written consent of the other party, which consent shall not be unreasonably withheld; provided, however, that Eartrainer may assign, without Customer’s consent, this Agreement, to (i) a wholly owned subsidiary of Eartrainer, or (ii) any entity which acquires all or substantially all of the assets of Eartrainer or into which Eartrainer is merged or consolidated or to any entity controlling or controlled by Eartrainer. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and their respective successors and assigns.
(a) Eartrainer may track web traffic origination and patterns for visitors to its website and Users of the Service, and may analyze this data for trends and statistics in the aggregate, but this information will be maintained, used and disclosed in aggregate form only and it will not contain personally identifiable information. Eartrainer may use this aggregate information to analyze trends, administer the Service, track users’ movement, and gather broad demographic information for aggregate use.
(b) Where Customer is a qualifying educational agency or institution under the U.S. Family Educational Rights and Privacy Act (“FERPA”), Eartrainer acknowledges that for the purposes of this Agreement it is designated as a “school official” with “legitimate educational interests” in Customer data and associated metadata, as defined under FERPA and its implementing regulations, and agrees to abide by the limitations and requirements imposed on school officials under those regulations. As part of Customer’s use of the Service, Eartrainer may collect data that is defined as Personally Identifiable Information (“PII”) by FERPA. Eartrainer agrees to use such PII only for the purpose of fulfilling its duties under the Agreement, and will not monitor, share, or disclose any such PII to any third party except as provided for in this Agreement, as required by law, or as authorized in writing by Customer. Eartrainer specifically agrees not to use any PII for purposes of targeted advertising. Customer agrees that de-identified data, from which all PII-qualifying identifiers have been removed in accordance with FERPA definitions, is not PII and may be used for lawful purposes.
Customer shall comply with all applicable local, state, federal, and foreign laws, treaties, regulations, and conventions in connection with its use of the Service, including without limitation those related to privacy and electronic communications.
(a) The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. If Customer uses the Service outside the United States of America, Customer is responsible for following applicable local laws.
(b) Except for obligations of payment, neither party shall be liable for any delay or failure in performing hereunder if such failure arises, directly or indirectly, out of causes beyond the reasonable control of such party, including acts of strike, shortages, failure of suppliers, riots, insurrection, fires, floods, storms, earthquakes, acts of God, war, government action, labor conditions, lightning, power surges or failures, terrorism, failure of telecommunications services (including the Internet), or acts or omissions of communications carriers. Performance shall be deferred until such cause of delay is removed, provided that the delayed party shall notify the other party of such occurrence.
(c) If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section. Eartrainer' failure to act with respect to a breach by Customer or others does not waive its right to act with respect to subsequent or similar breaches. In the event of any dispute between Customer and Eartrainer arising under or relating to this Agreement or Customer’s use of the Service, in which Eartrainer is the prevailing party, Customer agree that, unless otherwise directed by a court of competent jurisdiction or otherwise prohibited by law, Customer will pay Eartrainer' reasonable attorneys’ fees in connection with Eartrainer' commencement and prosecution of the action, and, if applicable, its defense of claims Customer may bring against Eartrainer.
(d) This Agreement sets forth the entire understanding and agreement between Customer and Eartrainer with respect to the subject matter hereof, and supersedes any prior or contemporaneous understanding whether in written or oral form. Eartrainer may revise this Agreement from time to time and the most current version will always be posted on the Eartrainer website. Eartrainer will notify Customer (by, for example, sending an email to the email address associated with the applicable account) of any such revision. By continuing to access or use the Services after revisions become effective, Customer agrees to be bound by the revised Agreement. If Customer does not agree to the revised Agreement terms, Customer may terminate the Service within 30 days of receiving notice of the change.
(e) In addition to and subject to the Sections noted as surviving above, the following Sections shall survive termination of this Agreement: 6, 7, 8, 10, 11, 12, 14, 15, 16, 18 and 19.
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