SpotterEDU App Terms of Use

Effective as of: February 6th, 2019

PLEASE CAREFULLY READ THESE SPOTTEREDU APP TERMS OF USE ("Terms") BEFORE USING THE SPOTTEREDU MOBILE APPLICATION ("SpotterEDU App"). THESE TERMS ARE A BINDING LEGAL AGREEMENT BETWEEN EACH USER OF THE SPOTTEREDU APP AND ARICK LLC ("SpotterEDU" or "us"), THE OWNER AND OPERATOR OF THE SPOTTEREDU APP.

The SpotterEDU App is an app that may be utilized by a university, college, learning institution, or other sponsoring organization with whom SpotterEDU has an agreement (each, an "Institution") to help monitor and record your ingress and egress from classroom locations at the Institution. Your use of the SpotterEDU App is optional. You cannot use the SpotterEDU App without first securing login credentials from an Institution and, even if you are given login credentials, there is no guarantee that every class or other attendance based session you attend at the Institution will utilize the SpotterEDU app for monitoring and recording class attendance. If you have not been provided login credentials from an Institution, you must not use the SpotterEDU App.

You agree to these Terms (as well as our Privacy Policy) by accessing, downloading, installing, or using the SpotterEDU App. IF YOU DO NOT AGREE TO BE BOUND BY ALL OF THESE TERMS, DO NOT USE THE SPOTTEREDU APP. Use of the SpotterEDU App is also subject to your Institution’s privacy policy.

ARBITRATION NOTICE/CLASS-ACTION WAIVER: EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE DISPUTE RESOLUTION/CLASS-ACTION WAIVER/ARBITRATION PROVISION BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND SPOTTEREDU WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION, AND YOU WAIVE YOUR RIGHT TO BRING OR RESOLVE ANY DISPUTE AS, OR PARTICIPATE IN, A CLASS, CONSOLIDATED, REPRESENTATIVE, COLLECTIVE, OR PRIVATE ATTORNEY GENERAL ACTION OR ARBITRATION.

License & Limitations. SpotterEDU hereby grants you a limited, personal, nonexclusive, nontransferable, revocable license in the U.S. to use the SpotterEDU App, solely for purposes of reporting attendance and other academic purposes expressly made available in the SpotterEDU App, at all times subject to the terms and conditions of these Terms. All rights not expressly granted to you in these Terms are reserved by SpotterEDU and its licensors. You acknowledge that you do not acquire any ownership rights in the Content (defined below) by using the SpotterEDU App. You may only use the SpotterEDU App as expressly set forth in these Terms. You may not access or use the SpotterEDU App for any other purpose.

You will not use the SpotterEDU App to:

• interfere with or disrupt the integrity or performance of the SpotterEDU App or the data contained therein; or
• attempt to gain unauthorized access to any SpotterEDU services or their systems or networks.

You also agree that you will not: (a) use any robot, spider, rover, scraper, or any other data mining technology or automatic or manual process to monitor, cache, frame, mask, extract data from, copy or distribute any Content, nor will you (b) copy, modify, frame, reproduce, archive, download, sell, lease, rent, exchange, create derivative works from, publish by hard copy or electronic means, publicly perform, display, disseminate, distribute, broadcast, retransmit, circulate to any third party or on any third-party service, or otherwise use the Content in any way except as specifically and expressly permitted by these Terms or with the express written permission of SpotterEDU. Any unauthorized use of the Content is prohibited. "Content" means all materials that are included in or otherwise a part of the SpotterEDU App (including all past, present and future versions of the SpotterEDU App), including, without limitation: graphics, layout, text, instructions, images, trademarks, logos, and service marks; the audio and visual information, designs, technology, artwork, information, documents, data, compilations, domain names, software, products, services, and all copyrightable material (including without limitation the limitation source and object code) contained or made available on the SpotterEDU App and all of the following intellectual property contained within the SpotterEDU App: 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.

Account Registration. The SpotterEDU App will require registration and creation of an account that will ask you for Institution provided login credentials (which may include a unique token) and may ask you to provide information about yourself to access the SpotterEDU App. When you create an account for the SpotterEDU App, you will be asked to choose a password. When you provide information to the SpotterEDU App, you agree to provide only true, accurate, current, and complete information and to update it as necessary to maintain its truth and accuracy. If you create an account with us, you agree that you will not sell, transfer, or assign your account or any rights to the account. You are responsible for maintaining the confidentiality of your password (and token(s) when assigned), if any, and for restricting access to your mobile device so that others may not access the password-protected SpotterEDU App using your login information.

You agree not to provide your password or designated token(s) to any other person or to use the account or designated token(s) of another user of the SpotterEDU App at any time. Login credentials are non-transferable. You agree to notify us immediately if you suspect any unauthorized use of or access to your account. You understand and acknowledge that due to circumstances both within and outside of the control of SpotterEDU, access to the SpotterEDU may be interrupted, suspended or terminated from time to time. You agree to comply with all rules, laws and regulations that are applicable to your use of the SpotterEDU.

Intellectual Property Ownership. SpotterEDU (and its licensors, where applicable) exclusively own all right, title, and interest in and to the Content and the SpotterEDU App and any suggestions, ideas, enhancement requests, feedback, recommendations, or other information provided by you about the SpotterEDU App. SpotterEDU’s name, logo, and the product names associated with the SpotterEDU App are trademarks of SpotterEDU or third parties, and no right or license is granted to use them.

Third Party Interactions. SpotterEDU and its licensors will have no liability, obligation, or responsibility for any correspondence, purchase, or promotion between you and any third party (including, without limitation, any Institution) through the SpotterEDU App. SpotterEDU does not endorse any sites that are linked through the SpotterEDU App. In no event will SpotterEDU or its licensors be responsible for any content, products, or other materials on or available from such sites.

Downtime. You acknowledge and agree that SpotterEDU may need to suspend performance of the SpotterEDU App, including, without limitation, in the event SpotterEDU’s access to necessary third-party technology is interrupted or as a result of a change in law or regulation.

Your Warranties. You represent and warrant that (i) you have the legal right and capacity to enter into these Terms in your jurisdiction and to comply with these Terms; and (ii) all information you provide to SpotterEDU is accurate and complete.

You agree that it is your sole responsibility to verify that your mobile operating system is compatible with the SpotterEDU App, that your mobile device is adequately charged and that the settings in your app and on your mobile device are configured to allow the SpotterEDU App to work properly.

Disclaimer of Warranties. THE SPOTTEREDU APP IS PROVIDED ON AN "AS IS", "AS AVAILABLE" AND "WITH ALL FAULTS" BASIS. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, SPOTTEREDU AND ITS AFFILIATES AND THEIR RESPECTIVE EMPLOYEES, MANAGERS, DIRECTORS, OFFICERS, SHAREHOLDERS, AGENTS, AND CONTRACTORS (COLLECTIVELY, THE "SPOTTEREDU PARTIES") MAKE NO REPRESENTATIONS OR WARRANTIES OR ENDORSEMENTS OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, AS TO: THE SPOTTEREDU APP; THE CONTENT ON OR PROVIDED THROUGH THE SPOTTEREDU APP; THE FUNCTIONS MADE ACCESSIBLE ON OR THROUGH THE SPOTTEREDU APP; OR SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION TRANSMITTED TO SPOTTEREDU APP OR OTHERWISE VIA THE SPOTTEREDU APP.

TO THE FULLEST EXTENT PERMISSIBLE BY LAW, THE SPOTTEREDU PARTIES HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION, AND FREEDOM FROM VIRUS.

IN ADDITION, TO THE FULLEST EXTENT PERMISSIBLE BY LAW, THE SPOTTEREDU PARTIES DO NOT REPRESENT OR WARRANT THAT THE SPOTTEREDU APP OR ANY OF THE FUNCTIONS CONTAINED THEREIN WILL BE ERROR-FREE OR UNINTERRUPTED; THAT DEFECTS WILL BE CORRECTED; THAT THE SPOTTEREDU APP OR THE SERVER THAT MAKES THE SPOTTEREDU APP AVAILABLE IS FREE FROM ANY HARMFUL COMPONENTS, INCLUDING, WITHOUT LIMITATION, VIRUSES; OR THAT THE INFORMATION (INCLUDING ANY INSTRUCTIONS) ON THE SPOTTEREDU APP IS ACCURATE, COMPLETE, CORRECT, ADEQUATE, USEFUL, TIMELY, RELIABLE OR OTHERWISE. YOU ACKNOWLEDGE, BY YOUR USE OF THE SPOTTEREDU APP, THAT YOUR USE IS AT YOUR SOLE RISK.

Limitation of Liability; Waiver. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES WILL THE SPOTTEREDU PARTIES BE LIABLE TO YOU FOR ANY LOSS OR DAMAGES FOR ANY DIRECT, INDIRECT, ECONOMIC, EXEMPLARY, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL LOSSES OR DAMAGES THAT ARE DIRECTLY OR INDIRECTLY RELATED TO: (A) THE SPOTTEREDU APP; (B) YOUR USE OF, INABILITY TO USE, OR THE PERFORMANCE OF THE SPOTTEREDU APP; (C) ANY ACTION TAKEN IN CONNECTION WITH AN INVESTIGATION BY THE SPOTTEREDU PARTIES OR LAW ENFORCEMENT AUTHORITIES REGARDING YOUR USE OF THE SERVICE OR THE SPOTTEREDU APP; (D) ANY ERRORS OR OMISSIONS IN THE APP’S TECHNICAL OPERATION; OR (E) ANY DAMAGE TO ANY USER'S DEVICE, HARDWARE, COMPUTER SOFTWARE, CELLULAR PHONE, MODEM OR OTHER EQUIPMENT OR TECHNOLOGY INCLUDING, WITHOUT LIMITATION, DAMAGE FROM ANY SECURITY BREACH OR FROM ANY VIRUS, BUGS, TAMPERING, FRAUD, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER LINE OR NETWORK FAILURE OR ANY OTHER TECHNICAL OR OTHER MALFUNCTION, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, LOSS OF DATA, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, EVEN IF FORESEEABLE OR EVEN IF THE SPOTTEREDU PARTIES HAVE BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE, STRICT LIABILITY OR TORT (INCLUDING, WITHOUT LIMITATION, WHETHER CAUSED IN WHOLE OR IN PART BY NEGLIGENCEACTS OF GOD, TELECOMMUNICATIONS FAILURE, OR THEFT OR DESTRUCTION OF THE APP).

IN NO EVENT WILL THE SPOTTEREDU PARTIES BE LIABLE TO YOU OR ANYONE ELSE FOR LOSS, DAMAGE OR INJURY, INCLUDING, WITHOUT LIMITATION, DEATH OR PERSONAL INJURY (HOWEVER, ONLY IF REQUIRED BY LAW IN YOUR JURISDICTION, THIS RELEASE DOES NOT APPLY TO CASES OF BODILY INJURY OR LOSS OF LIFE OR TO THE EXTENT THAT ANY DEATH OR PERSONAL INJURY IS CAUSED BY THE NEGLIGENCE OF SPOTTEREDU OR OTHER THIRD PARTY, WHERE LIABILITY TO THE INJURED PARTY CANNOT BE EXCLUDED BY LAW). TO THE MAXIMUM EXTENT ALLOWABLE BY LAW, IN NO EVENT WILL THE SPOTTEREDU PARTIES’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED TEN UNITED STATES DOLLARS ($10.00).

BY ACCESSING THE SPOTTEREDU APP, YOU UNDERSTAND THAT YOU MAY BE WAIVING RIGHTS WITH RESPECT TO CLAIMS THAT ARE AT THIS TIME UNKNOWN OR UNSUSPECTED, AND IN ACCORDANCE WITH SUCH WAIVER, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND, AND HEREBY EXPRESSLY WAIVE, THE BENEFITS OF SECTION 1542 OF THE CIVIL CODE OF CALIFORNIA, AND ANY SIMILAR LAW OF ANY STATE OR TERRITORY, WHICH PROVIDES AS FOLLOWS:

"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."

Indemnification. To the fullest extent permitted by law, you agree to indemnify, defend and hold each of the SpotterEDU Parties harmless from and against any and all claims, demands, damages, losses, investigations, liabilities, judgments, settlements, costs (including attorneys' fees), or other expenses that directly or indirectly arise from or are otherwise directly or indirectly connected to: (a) your breach or anticipatory breach of these Terms; (b) your use of the SpotterEDU App; (c) any misrepresentation made by you; or (d) the SpotterEDU Parties' use of your information as permitted under these Terms, the Privacy Policy, or any other written agreement between you and SpotterEDU. You will cooperate as fully required by the SpotterEDU Parties in the defense of any claim. SpotterEDU reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and you will not in any event settle any claim without the prior written consent of a duly authorized employee of SpotterEDU.

Term and Termination. SpotterEDU reserves the right to terminate your access to and use of the SpotterEDU App and any of its features in its sole discretion, without notice and liability, including, without limitation, if SpotterEDU believes your conduct fails to conform to these Terms or our Privacy Policy. SpotterEDU also reserves the right to investigate suspected violations of these Terms. Any violation of these Terms may be referred to law enforcement authorities and your Institution.

Upon termination of your access to the SpotterEDU App, or upon demand from SpotterEDU, all rights granted to you under these Terms will cease immediately, and you agree that you will immediately discontinue use of and delete the SpotterEDU App.

SpotterEDU also reserves the exclusive right to modify, withdraw, suspend or discontinue, temporarily or permanently, at any time and from time to time, any or all Content, with or without notice. You agree that SpotterEDU will not be liable to you or to any third party for any modification, suspension or discontinuance of the SpotterEDU App or any part thereof.

Governing Law. THESE TERMS AND THE INTERPRETATION OF THESE TERMS WILL BE GOVERNED BY AND CONSTRUED UNDER THE LAWS OF THE STATE OF ILLINOIS, WITHOUT REGARD TO ITS CONFLICTS OF LAWS PRINCIPLES AND WILL SPECIFICALLY NOT BE GOVERNED BY THE UNITED NATIONS CONVENTIONS ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS, IF OTHERWISE APPLICABLE.

Dispute Resolution/Class-Action Waiver/Arbitration. BOTH YOU AND SPOTTEREDU WAIVE THE RIGHT TO A TRIAL BY JURY AND THE RIGHT TO BRING OR RESOLVE ANY DISPUTE AS A CLASS, CONSOLIDATED, REPRESENTATIVE, COLLECTIVE, OR PRIVATE ATTORNEY GENERAL ACTION. BOTH YOU AND SPOTTEREDU WAIVE THE RIGHT TO PARTICIPATE IN A CLASS, CONSOLIDATED, REPRESENTATIVE, COLLECTIVE, OR PRIVATE ATTORNEY GENERAL ACTION RELATED ANY DISPUTE THAT IS BROUGHT BY ANYONE ELSE. NOTWITHSTANDING ANY PROVISION IN THE JAMS (DEFINED BELOW) RULES TO THE CONTRARY, THE ARBITRATOR SHALL NOT HAVE THE AUTHORITY OR ANY JURISDICTION TO HEAR THE ARBITRATION AS A CLASS, CONSOLIDATED, REPRESENTATIVE, COLLECTIVE, OR PRIVATE ATTORNEY GENERAL ACTION OR TO CONSOLIDATE, JOIN, OR OTHERWISE COMBINE THE CLAIMS OF DIFFERENT PERSONS INTO ONE PROCEEDING.

You and SpotterEDU each agree to finally settle all disputes only through arbitration; provided, however, SpotterEDU will be entitled to seek injunctive or equitable relief in the state and federal courts in Cook County, Illinois and any other court with jurisdiction over the parties. In arbitration, there is no judge or jury and review is limited. The arbitrator’s decision and award is final and binding, with limited exceptions, and judgment on the award may be entered in any court with jurisdiction. The parties agree that, except as set forth above, any claim, suit, action or proceeding arising out of or relating to this Program will be resolved solely by binding arbitration before a sole arbitrator under the streamlined Arbitration Rules Procedures of JAMS Inc. ("JAMS") or any successor to JAMS. In the event JAMS is unwilling or unable to set a hearing date within fourteen (14) days of the filing of a "Demand for Arbitration", then either party can elect to have the arbitration administered by another mutually agreeable arbitration administration service who will hear the case. If an in-person hearing is required, then it will take place in Chicago, IL, New York City, NY, Los Angeles, CA, Atlanta, GA or Dallas, TX (whichever is closest to your residence) or in your hometown, but only if JAMS rules so require. The federal or state law that applies to these Terms will also apply during the arbitration. Disputes will be arbitrated only on an individual basis and will not be consolidated with any other proceedings that involve any claims or controversy of another party, including any class actions or class arbitrations; provided, however, if for any reason any court or arbitrator holds that this restriction is unconscionable or unenforceable, then the agreement to arbitrate does not apply and the dispute must be brought in a court of competent jurisdiction in Cook County, Illinois. SpotterEDU agrees to pay the administrative and arbitrator's fees in order to conduct the arbitration (but specifically excluding any travel or other costs incurred by you to attend the arbitration hearing). Either party may, notwithstanding this provision, bring qualifying claims in small claims court. In no event will you seek or be entitled to rescission, injunctive or other equitable relief or to enjoin or restrain the operation or exploitation of the SpotterEDU App.

Modifications. SpotterEDU reserves the right to modify or add to these Terms as described in this section ("Updated Terms"). You agree that we may notify you of the Updated Terms by making them available via the SpotterEDU App, and that your use of the SpotterEDU App after we have posted the Updated Terms (or engaging in such other conduct as we may reasonably specify) constitutes your agreement to the Updated Terms. Therefore, you should review these Terms before using the SpotterEDU App. The Updated Terms will be effective as of the time of posting, or such later date as may be specified in the Updated Terms, and will apply to your use of the SpotterEDU App from that point forward.

Special Terms for Apple iOS Users. Notwithstanding any other provision within these Terms, the following additional terms are applicable to those using the SpotterEDU App on Apple’s iOS platform: You understand that these Terms are between you and us only, and not with Apple. SpotterEDU, not Apple, is solely responsible for the SpotterEDU App and there content thereof. You further understand that the SpotterEDU App may not be used in any manner inconsistent with the Apple App Store Terms of Service as of the Effective Date. You are granted a license to use the SpotterEDU App on any iOS device that you own or control and as permitted by the "Usage Rules" set forth in the Apple App Store Terms of Service. We are solely responsible for providing maintenance and support for the SpotterEDU App, as specified in these terms or as required under applicable law. You understand that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the SpotterEDU App. We are solely responsible for any warranties, whether express or implied by law, to the extent not effectively disclaimed. In the event of any failure of the SpotterEDU App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for such SpotterEDU App to you (if any); and that, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the SpotterEDU App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of us. We, not Apple, are responsible for addressing any claims by you or any third party relating to the SpotterEDU App or your possession and/or use of the SpotterEDU App, including, but not limited to: (i) product-liability claims; (ii) any claim that the SpotterEDU App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. Our liability is limited so far as permitted by applicable law. In the event of any third-party claim that the SpotterEDU App or your possession and use of such SpotterEDU App infringes that third party’s intellectual property rights, we, not Apple, are solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim. You and we acknowledge and agree that Apple will have the right (and will be deemed to have accepted the right) to enforce the Terms against you as a third-party beneficiary thereof. If you have any questions or concerns regarding the SpotterEDU App, please contact SpotterEDU as described below.

Miscellaneous. The failure of SpotterEDU to act with respect to a breach of these Terms by you or others does not constitute a waiver and will not limit SpotterEDU’s rights with respect to such breach or any subsequent breaches. No waiver by SpotterEDU of any of these Terms will be of any force or effect unless made in writing and signed by a duly authorized officer of SpotterEDU. Neither the course of conduct between the parties nor trade practice will act to modify these Terms. SpotterEDU may assign its rights and duties under these Terms to any party at any time without any notice to you. These Terms may not be assigned by you without SpotterEDU’s prior written consent. If any provision of these Terms will be unlawful, void, or for any reason unenforceable, then that provision will be deemed severable from these Terms and will not affect the validity and enforceability of any remaining provisions. The Section titles are inserted only as a matter of convenience and have no legal or contractual effect. You agree that these Terms will not be construed against SpotterEDU by virtue of SpotterEDU having drafted them.

SpotterEDU will not be liable to you or be deemed to be in breach of its obligations under these Terms for any delay or failure in performance caused by acts beyond SpotterEDU’s reasonable control, including, without limitation, acts of God, war, terrorism, accidents, fires, floods, hurricane, tornado, severe weather, strikes, labor disputes, mechanical breakdown, shortages or delays in obtaining supplies, materials, labor, or transportation, interruption of utility services or the Internet, acts of any unit of government or any governmental agency, or any similar or dissimilar cause.

Contact Us. If you have any questions about the terms of these Terms, you may contact Arick LLC at: sam@spotteredu.com.