THIS SOFTWARE SERVICES AGREEMENT (the "Agreement") is entered into and effective as of the day you "ACCEPT" (the "Effective Date") by and between TableTop Science LLC ("TableTop") and you or the entity you represent ("Client" or "You").
THIS AGREEMENT IS A LEGALLY BINDING CONTRACT BETWEEN YOU AND TableTop AND SETS FORTH THE TERMS AND CONDITIONS THAT GOVERN YOUR USE OF THE SOFTWARE SERVICES. BY CLICKING AN "ACCEPT" OR SIMILAR BUTTON, YOU ACCEPT AND AGREE TO ABIDE BY THESE TERMS AND CONDITIONS AS PRESENTED TO YOU ‐ ANY CHANGES, ADDITIONS OR DELETIONS BY YOU TO THESE TERMS AND CONDITIONS WILL NOT BE ACCEPTED BY TableTop AND WILL NOT BE A PART OF THIS AGREEMENT.
TableTop HAS COMPLETE DISCRETION TO UPDATE AND CHANGE THE SOFTWARE SERVICES AGREEMENT FROM TIME TO TIME AND TO CHANGE THE SCOPE OR FEATURES OF THE SOFTWARE SERVICES FROM TIME TO TIME. TableTop MAY MAKE SUCH CHANGES WITHOUT NOTICE. IF YOU CONTINUE TO USE THE SOFTWARE SERVICES AFTER ANY SUCH CHANGES, WITH OR WITHOUT NOTICE, YOU WILL BE CONSIDERED TO HAVE CONSENTED TO THEM.
1. Provision of Software Services
Subject to the terms and conditions of this Agreement, TableTop shall provide certain software services (the "Software Services") to Client and certain individuals or entities that are authorized to use the Software Services ("Authorized Users"). TableTop hereby grants Client a limited, non-exclusive, non-transferable and non-sublicensable license to access and use the Software Services during the Term (defined below) provided Client complies with the terms and conditions of this Agreement.
2. Client's Obligations; License Restrictions
Client will (i) be responsible for its compliance with this Agreement; (ii) be solely responsible for the accuracy, quality, integrity, and legality of Client Data (defined below) and means relating to acquisition of the Client Data; (iii) not provide, make available to, or permit other individuals to use or access the Software Services, except under the terms listed herein, and that Client will responsible for any unauthorized activity of the Software Services; (iv) not sell, resell, rent, or lease the Software Services; (v) not modify, translate, reverse engineer, decompile, disassemble, create derivative works, or otherwise attempt to derive the source code of the Software Services; (vi) not remove any proprietary notices or labels on the Software Services; (vii) not license the Software Services if Client (or any of its Authorized Users) is a direct competitor of TableTop or its affiliated entities for the purposes of monitoring the Software Service's availability, performance, or functionality or for any other benchmarking or competitive purposes; (viii) not use the Software Services to store or transmit malicious code; or (ix) interfere with or disrupt the integrity or performance of the Software Services; (x) only use the Software Services in support of academic coursework at a school, college, or university; (xi) instructors and administrators agree NEVER to reveal or release answers or true values to students or other third parties; (xii) all users agree to NEVER share, post, or upload ANY TableTop materials outside of their classroom environment. Software Services are intended for use by students, instructors, and administrators, in an educational environment. Answers and related data are privileged information available ONLY to faculty and administrators.
3. Fees & Payment
Client's Obligations; License Restrictions. All orders placed will be considered final. Fees will be due and payable as set forth on the web site or otherwise conveyed to you during the order process. Fees for any Renewal Term shall be at TableTop's then standard rates, currently in effect, or if applicable, as otherwise set forth on the web site or otherwise conveyed to you by TableTop. Unless otherwise stated, all payments made under this Agreement shall be in United States dollars. Except as otherwise expressly provided herein, fees are non-refundable.
4. Term & Termination
Term. Unless terminated earlier in accordance with this Section, this Agreement will begin on the Effective Date and, if Client is a student, will continue for an academic-period lasting no more than 365 days.
Termination. TableTop may terminate this Agreement upon thirty (30) days prior written notice, or immediately if the Client infringes or misappropriates TableTop's intellectual property, or breaches the License Restrictions or Confidentiality provision set forth herein.
Effect of Termination. Termination shall not relieve Client of the obligation to pay any fees or other amounts accrued or payable to TableTop through the end of the then-current Term. Client shall not receive a credit or refund for any fees or payments made prior to termination. Sections 3 through 10 shall survive any termination or expiration of this Agreement.
5. Client Data
TableTop agrees that the data and information supplied by Client (or Authorized Users of Client) that is stored or processed via the Software Services (the "Client Data") shall be treated as confidential pursuant to Section 6 by TableTop.
Client agrees that it is responsible for maintaining and protecting backups of all Client Data directly or indirectly processed using the Software Services and that TableTop is not responsible for the failure to store, the loss, or the corruption of Client Data. Client agrees that TableTop and its affiliated entities will collect and track technical and related information about Client and Client's use of the Software Services, including Client's internet protocol address, the hardware and software that Client utilizes, and various usage statistics to assist with the necessary operation and function of the Software Services and for internal purposes only, including without limitation to facilitate in the provision of updates, support, invoicing, marketing by TableTop, its affiliated entities, or its agents, and research and development. In the event that TableTop is required or ordered to disclose Client Data to a third party pursuant to judicial order or other compulsion of law, if legally permitted, TableTop shall take all commercially reasonable steps to provide the Client with prompt notice of any relevant order or basis for disclosure so as to allow Client to take whatever steps it can to object to such compulsory disclosure if Client so chooses.
As used in this Agreement, "Confidential Information" means any information disclosed by either party to the other party, either directly or indirectly, in writing, orally, or by inspection of tangible objects (i) that the disclosing party identifies as confidential or proprietary or (ii) Software Services. Confidential Information may also include confidential or proprietary information disclosed to a disclosing party by a third party. The receiving party will: (i) hold the disclosing party's Confidential Information in confidence; (ii) restrict disclosure of such Confidential Information to those of its employees or agents with a need to know such information and who are bound (i.e., as a condition to their employment or agency) by obligations respecting the protection of confidential information, which are substantially similar to those of this Agreement and which would extend to the disclosing party's Confidential Information; (iii) use such Confidential Information only for the purposes for which it was disclosed, unless otherwise set forth herein; and (iv) to the extent applicable, not modify, reverse engineer, decompile, create other works from, or disassemble any such Confidential Information, unless expressly permitted by applicable law without the possibility of contractual waiver or otherwise specified in writing by the disclosing party. The restrictions will not apply to Confidential Information to the extent it (i) was in the public domain at the time of disclosure; (ii) became publicly available after disclosure to the receiving party without breach of this Agreement; (iii) was lawfully received by the receiving party from a third party without such restrictions; (iv) was known to the receiving party, its employees or agents without such restrictions prior to its receipt from the disclosing party; (v) was independently developed by the receiving party without breach of this Agreement; (vi) was generally made available to third parties by the disclosing party without such restriction; or (vii) is required to be disclosed by the receiving party pursuant to judicial order or other compulsion of law, provided that the receiving party will provide to the disclosing party prompt notice of such order and comply with any protective order imposed on such disclosure. The parties agree that any material breach of Section 2 or this Section will cause irreparable injury and that injunctive relief in a court of competent jurisdiction will be appropriate to prevent an initial or continuing breach of these Sections in addition to any other relief to the applicable party may be entitled.
7. Proprietary Rights
The Software Services are licensed, not sold. Use herein of the word "purchase" in conjunction with licenses of the Software Services shall not imply a transfer of ownership. Except for the limited rights expressly granted by TableTop to Client in Section 1, Client acknowledges and agrees that, as between Client and TableTop, all right, title and interest, including all copyright, trademark, patent, trade secret, intellectual property (including but not limited to algorithms and business processes) and other proprietary rights, arising out of or relating to the provision of the Software Services belong exclusively to TableTop, other than the Client Data. TableTop is hereby granted a royalty-free, fully-paid, worldwide, exclusive, transferable, sub-licensable, irrevocable and perpetual license to use or incorporate into its products and services any information, data, suggestions, enhancement requests, recommendations or other feedback provided by Client or its Authorized Users relating to the Software Services. All rights not expressly granted under this Agreement are reserved by TableTop.
THE SOFTWARE SERVICES, AND ALL OTHER PRODUCTS AND SERVICES, INCLUDING THIRD PARTY HOSTING SERVICES, PROVIDED HEREUNDER ARE PROVIDED "AS IS" WITH ALL FAULTS AND WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. TableTop HEREBY DISCLAIMS, ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, RELATING TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. TableTop SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES AS TO THE CONDITION, VALUE OR QUALITIES OF ANY SERVICES, INFORMATION OR MATERIALS PROVIDED HEREUNDER, INCLUDING, BUT NOT LIMITED TO, WHETHER ANY SUCH SERVICES, INFORMATION OR MATERIALS WILL BE ACCURATE, COMPLETE, SECURE, CONTINUOUS, UNINTERRUPTED, NON-INFRINGING OR ERROR-FREE, AND SPECIFICALLY DISCLAIMS ANY REPRESENTATION OR WARRANTY AS TO THE WORKMANSHIP THEREOF, OR THE ABSENCE OF ANY DEFECTS THEREIN, WHETHER LATENT OR PATENT, INCLUDING ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. TableTop ALSO SPECIFICALLY DISCLAIMS RESPONSIBILITY OF THIRD PARTY PRODUCTS AND SERVICES WITH WHICH CLIENT MAY UTILIZE THE SOFTWARE SERVICES, AND CLIENT SPECIFICALLY DISCLAIMS AND WAIVES ANY RIGHTS AND CLAIMS CLIENT MAY HAVE AGAINST TableTop WITH RESPECT TO SUCH THIRD PARTY PRODUCTS AND SERVICES, TO THE MAXIMUM EXTENT PERMITTED BY LAW.
9. Limit of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, (I) IN NO EVENT WILL TableTop OR ITS AFFILIATED ENTITIES HAVE ANY LIABILITY, CONTINGENT OR OTHERWISE, FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, STATUTORY OR EXEMPLARY DAMAGES IN ANY WAY ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE SOFTWARE SERVICES OR ANY PRODUCTS OR SERVICES PROVIDED HEREUNDER, INCLUDING, BUT NOT LIMITED TO LOST PROFITS, LOST OR CORRUPTED DATA, FAILURE TO TRANSMIT OR RECEIVE ANY DATA (INCLUDING WITHOUT LIMITATION COURSE INSTRUCTIONS, ASSIGNMENTS AND MATERIALS), OR ANY OTHER DAMAGES OR LOSSES, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF, AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, STATUTE, INDEMNITY OR OTHERWISE) UPON WHICH ANY SUCH LIABILITY IS BASED; AND (II) THE ENTIRE AGGREGATE LIABILITY OF TableTop AND ITS AFFILIATED ENTITIES AND THE SOLE REMEDY AVAILABLE TO THE CLIENT IN ANY CASE IN ANY WAY ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE SOFTWARE SERVICES OR ANY PRODUCTS OR SERVICES PROVIDED HEREUNDER SHALL BE LIMITED TO TERMINATION OF THIS AGREEMENT AND MONETARY DAMAGES THAT IN THE AGGREGATE MAY NOT EXCEED the amount of fifty dollars (U.S.$50.00). The foregoing limitations will apply even if the above stated remedy fails of its essential purpose.
Compliance with Applicable Laws. The Software Services are protected by intellectual property laws and other laws of the United States and international laws and treaties, including intellectual property and export laws. This includes all materials, coding, layout, presentation, data, and results, produced by the Software Services. Client agrees that it shall use the Software Services and shall perform all obligations under this Agreement in a manner that complies with all applicable laws applicable to Client and its use of the Software Services, including, but not limited to, any and all contractual, statutory, or common law rights and obligations and applicable restrictions concerning intellectual property rights.
Entire Agreement. This Agreement constitutes the final, complete and exclusive agreement among the parties regarding the subject matter hereof and supersedes all prior or contemporaneous agreements or understandings, whether in written, oral, electronic, or other form, relating to the subject matter hereof. Any terms and conditions appearing on a purchase order or similar document issued by the Client do not apply to the Software Services, do not override or form part of this Agreement, and are void.
Waiver. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. The waiver of any breach or provision of this Agreement will not be deemed a waiver of any different or subsequent breach.
Governing Law; Venue. This Agreement is governed by and will be construed using Florida law, without giving effect to conflict of law provisions or to constructive presumptions favoring either party, except that the Uniform Computer Information Transactions Act shall not apply to this Agreement. All actions arising out of or relating to this Agreement will be heard and determined exclusively by the state and federal courts located in Palm Beach County, Florida and the parties hereby consent to and waive any objections with respect to such jurisdiction and venue.
Severability. The provisions of this Agreement are severable. In the event that any provision or portion thereof is found by any court to be invalid or otherwise unenforceable, the remainder of this Agreement will not be affected, and the parties consent to such court's substitution of a valid and enforceable term that approximates the intent and effect of such invalid or unenforceable provision or portion.