Software, Inc., doing business as Second Avenue Learning (“Second Avenue,” “us” or “we”) regarding the use of the proprietary Second Avenue software program that you are accessing or installing on your device or personal computer and the services available through that software program (together, the “Software”).
BY USING THE SOFTWARE, YOU ARE AGREEING TO BE BOUND BY AND ARE BECOMING A PARTY TO THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT USE THE SOFTWARE. If you are using the Software on behalf of your employer, you represent that you are authorized to accept these Terms on your employer’s behalf.
In order to use the Software, you may be required by the third party who is distributing or providing you access to the Software (e.g., Learning.com, Edmodo, Inc., Apple, Inc.) (each, a “Distributor”) to create an account. You are solely responsible for maintaining the security of any logins, passwords, or other credentials that you select or that are provided to you to access your account with any Distributor. Your use of any account with a Distributor is subject to any terms, conditions, and policies, including privacy policies, of that Distributor. Second Avenue is not responsible for any act or omission of any Distributor.
License to Software
Subject to your compliance with all terms and conditions set forth in these Terms, Second Avenue hereby grants to you a personal, limited, non-exclusive, non-transferable, non-sublicensable, nonassignable, revocable license to either: (a) access a web browser-based version of the Software; or (b) if available, download, install, and use one object code copy of the Software solely on the mobile device for which that Software was created; in either case for the sole purpose of personally using the Software. This limited license does not include any right to modify, distribute, prepare derivative works of, or grant sublicenses to use the Software. Furthermore, in order to protect the trade secrets and
proprietary know-how contained in the Software, you will not decompile, disassemble, or reverse engineer the Software.
Except for the rights expressly granted under these Terms, Second Avenue reserves all right, title, and interest in and to the Software, including all intellectual property and other proprietary rights, and no other rights are granted, either express or implied, to you.
You must, in connection with your use of the Software, comply with all applicable laws and conduct business in a manner that reflects favorably at all times on the good name, good will, and reputation of Second Avenue. Except as may be expressly permitted by applicable law or authorized by Second Avenue in writing, you will not, and will not permit anyone else to: (a) transmit, provide, or store any
data that Second Avenue, in our sole discretion, deems inappropriate, unlawful, harmful (including without limitation viruses, corrupted data, or other harmful or destructive files), threatening, abusive, tortious, defamatory, invasive of another's privacy, a violation of another’s intellectual property or other proprietary rights, or otherwise objectionable or inappropriate; (b) use any automated tool (e.g., robots, spiders) to use the Software; (c) rent, lease, sublicense, or provide your access to the Software to another person; (d) circumvent or disable any usage rules or other security features of the Software; (e) use the Software in a manner that threatens the integrity, performance, or availability of the Software; or (f) destroy, remove, alter, or obscure any proprietary markings or notices (including copyright, trade secret, trademark, and patent notices) on or contained in any portion of the Software. You also agree not to engage in any deceptive, misleading, or unethical practices, or to make any warranties or performance guarantees concerning any aspect of the Software or any other Second Avenue software solution or service.
Access and Modifications to the Software
Second Avenue does not provide you with the equipment to use the Software. You are responsible for all fees charged by third parties to access and use the Software (e.g., charges by mobile carriers).
Second Avenue reserves the right to modify or discontinue, temporarily or permanently, all or a part of the Software without notice. Second Avenue will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Software.
If you provide feedback to Second Avenue regarding the Software (“Feedback”), you acknowledge that the Feedback is not confidential and you authorize Second Avenue to use that Feedback without restriction and without payment to you. Accordingly, you hereby grant to Second Avenue a nonexclusive, royalty-free, fully-paid, perpetual, irrevocable, transferable, and fully sublicensable right to use the Feedback in any manner and for any purpose.
Changes in Terms
We reserve the right to modify these Terms from time to time. If we modify these Terms, we will [indicate that we have done so on the Second Avenue website at http://www.secondavenuelearning.com or otherwise provide you notice. It is your responsibility to review these Terms regularly. Use of the Software after the effective date of a modification constitutes your acceptance of any modified Terms.
You may terminate your use of the Software at any time by deleting the Software from your device or personal computer or terminating your Distributor account. Deletion of the Software and termination of your account is your sole right and remedy with respect to any dispute with Second Avenue regarding the Software or these Terms. Second Avenue may suspend or terminate these Terms and your access to the Software at any time, for any reason. If Second Avenue suspects that you have violated any provision of these Terms, Second Avenue may also seek any other available legal remedy. Your rights under these Terms will terminate automatically if you fail to comply with any of these Terms. Upon termination, you must destroy or delete any copy of the Software in your possession. You remain solely liable for all obligations related to use of the Software, even after you have stopped using the Software. Neither Second Avenue nor any of its licensors, suppliers, or publishers are liable to you or to any third party for any loss caused by any termination of the Software or termination of your access to the Software.
Special Terms Regarding Apple
If you download the Software from Apple, Inc.’s App Store: (a) your use of the Software must at all times be in accordance with the Usage Rules set forth in the Apple, Inc. App Store Terms of Service; and (b) you acknowledge that these Terms are entered into solely between you and Second Avenue. These Terms are not intended to provide for usage rules for the Software that are less restrictive than the Usage Rules set forth for Licensed Applications in, or otherwise conflict with, the App Store Terms of Service as of the date that you accept the App Store Terms of Service (which you acknowledge you have had the opportunity to review). You also acknowledge and agree that:
in the event of any third party claim that your possession or use of the Software infringes any third party’s intellectual property rights, Second Avenue is solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim;
Apple has no responsibility for addressing any claims relating to the Software, including but not limited to: (a) product liability claims; (b) maintenance and support; (c) any claim that the Software fails to conform to any applicable legal or regulatory requirement; and (d) any claim arising under consumer protection or similar legislation; and
Apple and its subsidiaries are intended third-party beneficiaries of these Terms, and that, upon your acceptance of these Terms, Apple and its subsidiaries will have the right (and will be deemed to have accepted the right) to enforce these Terms against you.
Disclaimer of Warranties
YOUR USE OF THE SOFTWARE IS AT YOUR SOLE RISK. THE SOFTWARE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. SECOND AVENUE, ITS AFFILIATES, LICENSORS, SUPPLIERS, AND DISTRIBUTORS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. SECOND AVENUE DOES NOT WARRANT UNINTERRUPTED USE OR OPERATION OF THE SOFTWARE OR THAT ANY DATA SENT BY OR TO YOU WILL BE ACCURATE, COMPLETE, TRANSMITTED IN UNCORRUPTED FORM, OR TRANSMITTED WITHIN A REASONABLE AMOUNT OF TIME. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DELAY OR LOSS OF ANY KIND THAT RESULTS FROM YOUR ACCESS OR USE OF THE SOFTWARE, INCLUDING LOSS OF ANY LOSS OR HARM TO YOUR MOBILE DEVICE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM SECOND AVENUE, THROUGH OR FROM THE SOFTWARE, WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS. SOME STATES MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE.
Limitation of Liability
NEITHER SECOND AVENUE NOR ITS AFFILIATES, LICENSORS, SUPPLIERS, OR DISTRIBUTORS WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES EVEN IF ADVISED OF THE POSSIBILITY OF THESE DAMAGES, RESULTING FROM YOUR ACCESS OR USE OF THE SOFTWARE. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
THE MAXIMUM TOTAL LIABILITY OF SECOND AVENUE, ITS AFFILIATES, LICENSORS, SUPPLIERS, AND DISTRIBUTORS TO YOU FOR ANY CLAIM RELATED TO THE SOFTWARE OR THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS THE LESSER OF THE AMOUNT RECEIVED BY SECOND AVENUE FOR YOUR USE OF THE SOFTWARE OR $10. EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
You will defend, indemnify and hold Second Avenue, its affiliates, directors, officers, agents, employees, and its licensors, suppliers, and Distributors harmless from any costs, damages, expenses, and liability caused by your use of the Software, your violation of these Terms, or your violation of any rights of a third party through use of the Software.
These Terms, and any rights or licenses granted under these Terms, may not be transferred or assigned by you, but may be assigned by Second Avenue without restriction. Any assignment attempted in violation of these Terms is void.
Governing Law and Forum
These Terms will be governed by and construed in accordance with the laws of the State of New York, excluding its conflict of law provisions. You and Second Avenue agree to submit to the exclusive jurisdiction of the state and federal courts in Rochester, New York.
YOU AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SOFTWARE MUST COMMENCE WITHIN ONE YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, THAT CAUSE OF ACTION IS PERMANENTLY BARRED.
Waiver and Severability of Terms
The failure of Second Avenue to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision. Any waiver of any provision of these Terms will be effective only if in writing and signed by Second Avenue. If any provision of these Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these Terms remain in full force and effect.
These Terms are the entire agreement between you and Second Avenue regarding your use of the Software.
Second Avenue Software, Inc. does not authorize you to make copies of the materials published by Second Avenue on our web site. Nothing contained in the website shall be construed as conferring by implication, estoppels or otherwise any license or right under any patent, trademark or copyright of Second Avenue or any third party. All content on the site is protected by copyright. Except as specifically permitted herein, no portion of the information on our web site may be reproduced in any form, or by any means, without express written permission from Second Avenue or the copyright holder. Visitors or users are not allowed to modify, distribute, publish, transmit, or create derivative works of any material found on our site for any private, public or commercial purposes.
The trademarks and logos on our web site are the property of Second Avenue or other third parties. Users are not permitted to use these marks without the express written consent of Second Avenue or such third party who may own the mark.
Second Avenue has attempted to provide accurate information on our website; however, Second Avenue assumes no responsibility of the accuracy of the information. Mention of non-Second Avenue products or services is for informational purposes and does not constitute an endorsement. All information on the web site is provided "as is" with all faults without warranty of any kind. Second Avenue and its suppliers disclaim all warranties including, but not limited to, those of merchantability, fitness for a particular purpose and non-infringement or arising from a course of dealing, usage or trade practice. Second Avenue and its suppliers shall not be liable for any indirect, special, consequential, or incidental damages including, but not limited to, loss or damage to data arising out of the use of or inability to use the site or any Second Avenue product.