Effective: June 7, 2018
Your Purchase Order(s) with Arick LLC, an Illinois limited liability company d/b/a “SpotterEDU”, having a place of business at 500 N. Lake Shore Dr. #3501, Chicago, IL 60611 is governed by these SaaS Subscription Terms and Conditions (collectively, with all Purchase Orders addenda and other documentation, the “Agreement”). You may be referred to herein as “Client” and each of us may be referred to as the “Party” or, collectively, as the “Parties.”
WHEREAS, SpotterEDU operates an online service that provides schools with the tools they need to better track and manage class attendance and other educational obligations by student-athletes; and
WHEREAS, The Parties desire that SpotterEDU make such software available to Client under the terms and conditions of this Agreement;
THEREFORE, in consideration of the mutual promises and covenants set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
“Content” means the audio and visual information, documents, software, products, and services
contained or made available to Client in the course of using the Service.
“Term Start” means the date upon which Client first receives access to the Service as a paid subscriber.
“Client Data” means any data, information, or material provided or submitted by Client and/or User to the Service in the course of using the Service. For the avoidance of doubt, Client Data includes any basic student information.
“Intellectual Property Rights” means any unpatented inventions, patent applications and pending patents, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world.
“iBeacon” means the hardware manufactured by a third party which transmits a Bluetooth low energy signal and/or works with Receivers.
“Receiver” means any third party mobile or fixed device such as mobile phones, tablets, devices plugged into a power source, or other radio frequency devices that are designed to send Client an iBeacon’s broadcast information, including without limitation, the time, signal strength and location of receipt.
“SpotterEDU Technology” means all of SpotterEDU’s proprietary technology (including iBeacon, software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs, and other tangible or intangible technical material or information) made available to Client by SpotterEDU in providing the Service.
“SpotterEDU Web Portal” means the web-based service made available by SpotterEDU to enable Client to set up and manage Client’s SpotterEDU account, and provides Client the ability to manage communications and Receivers, and test, manage and generate data points and in some cases analytics and reports (such data points, analytics and reports hereinafter collectively referred to as “Analytics”).
“Service(s)” means the specific edition of SpotterEDU software, billing, or other services developed, operated, and maintained by SpotterEDU, that are accessible via mobile application on authorized Receivers, https://spotteredu.com or another designated website or IP address, or ancillary online or offline products and services provided to Client by SpotterEDU, to which Client is being granted access under this Agreement, including the SpotterEDU Technology and the Content. For the avoidance of doubt, “Service(s” includes the SpotterEDU Technology and iBeacon software.
“User(s)” means Client employees, representatives, consultants, contractors, agents, or students of Client’s university, who are authorized to use the Service and have been supplied user identifications and passwords by Client (or by SpotterEDU at Client’s request).
License & Limitations.
SpotterEDU hereby grants Client a nonexclusive, nontransferable, worldwide license to use the Service, solely for Client’s own internal non-commercial purposes to manage student class attendance and related academic purposes, subject to the terms and conditions of this Agreement and any associated documentation. All rights not expressly granted to Client are reserved by SpotterEDU and its licensors. Client may not access or use the Service, including the iBeacon technology, for any other purposes or in connection with third party applications, software, or programs not provided by SpotterEDU, except with SpotterEDU’s prior written consent. In addition, Client may not access or use the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes. Client shall not (i) license, sublicense, sell, resell, transfer, assign, distribute, or otherwise commercially exploit or make available to any third party the Service or the Content in any way; (ii) modify or make derivative works based upon the Service or the Content; (iii) create Internet “links” to the Service or “frame” or “mirror” any Content on any other server or wireless or Internet-based device; or (iv) reverse engineer or access the Service in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Service. User licenses cannot be shared or used by more than one individual User but may be reassigned from time to time to new Users who are replacing former Users who have changed job status or function and no longer use the Service.
Client shall not:
Trial Subscription. If Client receives a trial or evaluation subscription to the Service (a “Trial Subscription”), then Client may use the Service in accordance with this Agreement for the period designated in the Purchase Order or otherwise in writing by SpotterEDU (“Trial Period”). Trial Subscriptions are permitted solely for your trial use to determine whether to procure a subscription to the Service. Client’s Trial Subscription and access to the Service will automatically terminate upon expiration of the Trial Period. During the Trial Period, Client may purchase a full subscription to the Service. If Client elects to do so, all of the terms and conditions in this Agreement and the appropriate Purchase Order will apply to such subscription and associated use of the Service.
SpotterEDU reserves the right to terminate Client’s Trial Subscription at any time for any reason.
iBeacon Terms and Conditions. Client understands that in providing the Service, SpotterEDU may incorporate third-party technology, such as the iBeacon’s, in which SpotterEDU has certain rights and responsibilities. SpotterEDU grants Client a limited license to the iBeacon only pursuant to the terms of this Agreement. Client acknowledges and agrees that SpotterEDU’s ability to provide the Service may be contingent on certain third-party technologies, and that SpotterEDU makes no representations or warranties on behalf of any third-party companies, including Gimbal. Client expressly agrees that Gimbal (or any other third party beacon provider), their affiliates and licensors are not liable to Client. Client understands and agrees that the locations generated are approximate only, and that the proximity locations provided by the Service are approximate based upon several factors including without limitation environmental surroundings, obstructions, orientation between iBeacon and Receiver, accuracy of Receiver’s location, and version of software running on iBeacon and/or Receiver. Client further understands and agrees that the Service may incur data usage charges in varying amounts, based on variable factors.
Service Upgrades, Maintenance and Support.
Client Responsibilities. Client is solely responsible for all activity occurring under Client’s User accounts and shall abide by all applicable local, state, national, and foreign, laws, treaties and regulations in connection with Client’s use of the Service, including those related to data privacy, international communications, and the transmission of technical or personal data. Client shall: (i) notify SpotterEDU immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to SpotterEDU immediately and use reasonable efforts to stop immediately any copying or distribution of Content that is known or suspected by Client or Client Users; and (iii) not impersonate another SpotterEDU user or provide false identity information to gain access to or use the Service.
Account Information and Data. SpotterEDU does not own any Client Data. However, Client grants SpotterEDU a non-exclusive license to the Client Data for purposes of providing the Service. Client, not SpotterEDU, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, or right to display, share, or otherwise use all Client Data, and SpotterEDU shall not under any circumstances be responsible or liable for Client’s upload and use of Client Data on the Service or for the deletion, correction, destruction, damage, loss or failure to store any Client Data. During the term of this Agreement, Client will have access to Client Data, including student-specific data, for a period of one-year following the end of a particular student’s academic career. In the event this Agreement is terminated (other than by reason of Client’s breach), SpotterEDU will make available to Client a file of the Client Data for a period of one year following termination. SpotterEDU reserves the right to withhold, remove, and/or discard Client Data without notice for any breach, including, without limitation, Client’s non-payment. Upon termination for cause, Client’s right to access or use Client Data immediately ceases, and SpotterEDU shall have no obligation to maintain or forward any Client Data.
Intellectual Property Ownership. SpotterEDU (and its licensors, where applicable) shall exclusively own all right, title, and interest, including all related Intellectual Property Rights, in and to the SpotterEDU Technology, the Content, Analytics, and the Service and any suggestions, ideas, enhancement requests, feedback, recommendations, or other information provided by Client or any other party relating to the Service. This Agreement is not a sale and does not convey to Client any rights of ownership in or related to the Service, the SpotterEDU Technology or the Intellectual Property Rights owned by SpotterEDU. SpotterEDU’s name, logo, and the product names associated with the Service are trademarks of SpotterEDU or third parties, and no right or license is granted to use them.
Third Party Interactions. SpotterEDU and its licensors shall have no liability, obligation, or responsibility for any correspondence, purchase, or promotion between Client and any such third party through the Service. SpotterEDU does not endorse any sites on the Internet that are linked through the Service. SpotterEDU provides these links to Client only as a matter of convenience, and in no event shall SpotterEDU or its licensors be responsible for any content, products, or other materials on or available from such sites. SpotterEDU provides the Service to Client pursuant to the terms and conditions of this Agreement.
Charges and Payment of Fees. Client shall subscribe to the Service beginning on the Term Start and as set forth in a Purchase Order. Client shall pay all fees or charges to Client’s account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable.
Downtime. Client acknowledges and agrees that SpotterEDU may need to suspend performance under this Agreement in the event SpotterEDU’s access to necessary third-party technology is interrupted. SpotterEDU will make commercially reasonable efforts to secure an adequate substitute so as to resume providing the Services as quickly as possible, and in any event, SpotterEDU will use commercially reasonable efforts to give notice to Client of any scheduled downtime associated with upgrades and maintenance to the Services via email communication or posted to Client’s account.
Nonpayment and Suspension. In addition to any other rights granted to SpotterEDU herein, SpotterEDU further reserves the right to suspend or terminate this Agreement and Client’s access to the Service if Client’s account becomes delinquent. Delinquent invoices and accounts are subject to interest of one (1.0) percent per month, (12% annum) on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection. Client will continue to be charged for User licenses during any period of suspension. If Client initiates termination of this Agreement, Client will be obligated to pay the Cancellation Fee in accordance with this Agreement. Client agrees that SpotterEDU may bill Client for such unpaid fees. Client agrees and acknowledges that SpotterEDU has no obligation to retain Client Data and that such Client Data may be irretrievably deleted if Client’s account is 30 days or more past due.
Term. This Agreement commences on the Term Start and will continue for the period set forth in the applicable Purchase Order, unless terminated in accordance with this Agreement or an additional purchase order is executed.
Effect of Termination.
Upon any expiration or termination of this Agreement, or upon expiration of the Term, the rights granted hereunder will automatically terminate, and Client may not continue to use the Service. In the event this Agreement is terminated (other than by reason of Client’s breach), SpotterEDU will make available to Client a file of the Client Data for a period of one year following termination. SpotterEDU reserves the right to withhold, remove, and/or discard Client Data without notice for any breach, including, without limitation, Client’s non-payment. Upon termination for cause, Client’s right to access or use Client Data immediately ceases, and SpotterEDU shall have no obligation to maintain or forward any Client Data. SpotterEDU will have no liability for any costs, losses, damages, or liabilities arising out of or related to termination of this Agreement.
Return of iBeacons. If Client terminates this Agreement for any reason at any time (except for breach by SpotterEDU), Client agrees at its sole expense, to remove all iBeacons from any and all locations where iBeacons are installed and ship them to SpotterEDU.
Representations & Warranties. Each party represents and warrants that it has the legal power and authority to enter into this Agreement. SpotterEDU represents and warrants that it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof and that the Service will perform substantially in accordance with the online SpotterEDU help documentation, if available, under normal use and circumstances. Client represents and warrants that Client has not falsely identified Client nor provided any false information to gain access to the Service and that Client’s billing information is correct. Client represents and warrants that it has all rights and permissions from all users of the SpotterEDU Service to whom Client makes it available. Client further represents and warrants that its use, rollout and the use by its users will not violate any laws or regulations.
Indemnification. Client shall indemnify, defend and hold SpotterEDU, its licensors and each such party’s parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys, and agents harmless from and against any and all claims, costs, damages, losses, liabilities, and expenses (including attorneys’ fees and costs) arising out of or in connection with: (i) a claim alleging that use of the Client Data infringes the rights of, or has caused harm to, a third party; (ii) a violation by Client of Client’s representations and warranties; or (iii) a claim arising from the breach by Client or Client Users of this Agreement.
Disclaimer of Warranties. THE SOFTWARE/SERVICE IS PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. USE OF THE SOFTWARE/SERVICE IS AT USER'S SOLE RISK. SpotterEDU NEITHER WARRANTS THAT THE SOFTWARE/SERVICE WILL BE UNINTERRUPTED OR ERROR FREE, NOR DOES SpotterEDU MAKE ANY WARRANTY AS TO ANY RESULTS THAT MAY BE OBTAINED BY USE OF THE SOFTWARE/SERVICE. SpotterEDU MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE IN RELATION TO THE SOFTWARE/SERVICE. SpotterEDU MAKES ABSOLUTELY NO WARRANTIES WITH REFERENCE TO THIRD PARTY SOFTWARE AND/OR SERVICES USED ALONG WITH THE SOFTWARE.
Limitation of Liability. IN NO EVENT SHALL SpotterEDU’S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM CLIENT IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. UNDER NO CIRCUMSTANCES SHALL SpotterEDU, DIRECTLY OR INDIRECTLY, BE LIABLE TO CLIENT OR ANY OTHER PERSON, ENTITY, PARTNERSHIP, ORGANIZATION, ASSOCIATION OR OTHERWISE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES FOR ANY MATTER ARISING FROM OR RELATING TO THIS AGREEMENT, THE SOFTWARE/SERVICE OR THE INTERNET IN GENERAL, INCLUDING, WITHOUT LIMITATION, USER'S USE OR INABILITY TO USE THE SOFTWARE/SERVICE, ANY CHANGES TO OR INACCESSIBILITY OF THE SOFTWARE, DELAY, FAILURE, UNAUTHORIZED ACCESS TO OR ALTERATION OF ANY TRANSMISSION OR DATA, ANY MATERIAL OR DATA SENT OR RECEIVED OR NOT SENT OR RECEIVED, ANY CLIENT DATA UPLOADED BY CLIENT, ANY TRANSACTION OR AGREEMENT ENTERED INTO THROUGH THE SOFTWARE/SERVICE, OR ANY DATA OR MATERIAL FROM A THIRD PARTY ACCESSED ON OR THROUGH THE SOFTWARE/SERVICE, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT OR OTHERWISE AND EVEN IF SpotterEDU HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH.
Notice. Any notices, consents or approvals required or permitted to be given hereunder shall be deemed to be given and sufficient (i) three (3) days after deposit in the United States mails, if sent via certified or registered letter, return receipt requested or (ii) one (1) day after deposit with a reputable overnight delivery or courier service in each case, to the respective addresses set forth above or such other address provided by either party to the other.
Assignment; Change in Control. This Agreement may not be assigned by Client without the prior written approval of SpotterEDU but may be assigned without Client’s consent by SpotterEDU to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger. Any purported assignment in violation of this section shall be void.