CUSTOMER’S RIGHT TO USE THE SERVICES IS EXPRESSLY CONDITIONED ON ACCEPTANCE OF THESE TERMS. BY CLICKING ON THE "ACCEPT" BUTTON AND/OR USING THE SERVICES, YOU ARE UNCONDITIONALLY CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ACCESSING THE SERVICES ON BEHALF OF YOUR EMPLOYER OR ANOTHER ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO AGREE TO THESE TERMS ON ITS BEHALF. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
“Confidential Information” means all trade secrets, know-how, inventions, developments, software and other financial, business or technical information disclosed by or for a party in relation to this Agreement, but not including any information the receiving party can demonstrate is (a) already rightfully known by it without restriction, (b) rightfully furnished to it by a third party without restriction and without breach of any obligation to the disclosing party, (c) generally available to the public without breach of this Agreement or (d) independently developed by it without reliance on the Confidential Information of the disclosing party. All pricing information is Blue Mango Learning System's Confidential Information.
“Content” means all text, software, scripts, graphics, photos, sounds, music, videos, audiovisual combinations, interactive features and other materials that may be viewed on, accessed through, or contributed to the Services.
“Customer Data” means all Customer registration information and other transaction data collected, processed and retained by Blue Mango Learning Systems in connection with providing the Services, including without limitation content submitted by Customer Managers and Contacts.
“Plan” means Blue Mango Learning Systems' free or any paid plans, as applicable and as further described on Blue Mango Learning Systems' website available at: http://www.screensteps.com/pricing.
“Services” means the ScreenSteps services hosted by Blue Mango Learning Systems and provided to Customer under this Agreement as well as all ScreenSteps desktop clients.
“Systems” means modems, servers, software, network and communications equipment and ancillary services that are owned, controlled or procured by Customer.
“Updates” means any patch, revision or update to the Services delivered by Blue Mango Learning Systems.
The Service is web-based and allows users that register for an account on the Service (an “Account Holder”) to create and update an online web site on Blue Mango Learning Systems’ Internet Property (a ScreenSteps Account). Once registered with the Service, each Account Holder receives his or her own ScreenSteps Account to post “Content”. The available features you may use depend on the type of Plan you have. Unless explicitly stated otherwise, any new features that augment or enhance the current Service, including the release of new Blue Mango Learning Systems’ tools and resources, shall be subject to the Terms of Service. In order to use the Service, you must obtain access to the World Wide Web, either directly or through devices that access web-based content, and pay any service fees associated with such access. In addition, you must provide all equipment necessary to make such connection to the World Wide Web, including a computer and modem or other access device. You agree not to access the Service by any means other than through the interfaces that are provided by Blue Mango Multimedia for use in accessing the Service.
Subject to all terms and conditions of this Agreement, Blue Mango Learning Systems will use commercially reasonable efforts to provide the Services. Blue Mango Learning Systems may provide the Services to Customer directly, or indirectly using contractors or other third party vendors or service providers. Use of the Services by Customer shall not unreasonably interfere with use of the Services by other Blue Mango Learning Systems customers.
Customer's use of the Services is limited to the number of administrative or author user (“Admins and Authors”) seats specified in the Customer's Plan. Each Admin may appoint the number of end users (“Authors”) specified in the Plan and determine what feature permissions to grant to such user, provided that the aggregate use of the Services by all Customer Admins and all Customer appointed Authors may not exceed the maximum limits as specified in the Plan. Customer shall be responsible for any breaches of this Agreement by its Admins and/or Authors.
Customer, Customer Admins and Customer appointed Authors may access the Services as Blue Mango Learning Systems instructs through a combination of one or more user names and passwords.
Customer shall take full responsibility and liability for the security of each of its user names and passwords (including, without limitation, those assigned to its Admins and Authors), and shall be solely responsible for all use of the Services through such user names or passwords. Customer agrees to immediately notify Blue Mango Learning Systems of any unauthorized use of the Services or any other breach of security known to Customer.
As a condition of use of the Services, You promise not to use the Services for any purpose that is prohibited by these Terms.
By way of example, and not as a limitation, You shall not (and shall not permit any Admin or Author to) upload, download, post, submit or otherwise distribute or facilitate distribution of any Content on or through the Services, that:
infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any other person or entity;
is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another's privacy, tortious, obscene, offensive, vulgar, pornographic, profane, contains or depicts nudity, contains or depicts sexual activity, or is otherwise inappropriate, as determined by Blue Mango Learning Systems in its sole discretion; or
contains software viruses or any other computer codes, files, or programs that are designed or intended to disrupt, damage, limit or interfere with the proper function of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any system, data, password or other information of Blue Mango Learning Systems or any third party.
Additionally, You shall not (directly or indirectly) or permit any third party to: (a) interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Services; (b) use any robot, spider, site search/retrieval application or other manual or automatic device to retrieve, index, “scrape”, “data mine” or in any way gather information, content or other materials from Services or reproduce or circumvent the navigational structure or presentation of Services; (c) decipher, decompile, disassemble, reverse engineer or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Services, except to the limited extent applicable laws specifically prohibit such restriction, (d) use any of Blue Mango Learning Systems' Confidential Information to create any software, documentation or service that is similar to the Services or any documentation provided in connection therewith; (e) modify, translate, or otherwise create derivative works of any part of the Services, (f) copy, license, sublicense, sell, resell, encumber, rent, lease, time-share, distribute, transfer or otherwise use or exploit or make available the Services in any service bureau arrangement or otherwise for the benefit of any third party without the prior written consent of Blue Mango Learning Systems. You shall abide by all applicable local, state, national and international laws and regulations, including, without limitation, any export control laws or regulations of the United States of America or any other relevant jurisdiction. Finally, you must be a human. Access to the Services by “bots” or other automated methods is not permitted.
Blue Mango Learning Systems reserves the right to modify or discontinue any Services or Plan (in whole or in part) at any time by giving at least 60 days’ notice to Customer.
Blue Mango Learning Systems will not be responsible or liable for any failure in the Services resulting from or attributable to (a) Customer's Systems, (b) network, telecommunications or other service or equipment failures outside of Blue Mango Learning Systems' facilities, (c) Customer's or third party's products, services, negligence, acts or omissions, (d) any force majeure or cause beyond Blue Mango Learning Systems' reasonable control, (e) scheduled maintenance or (f) unauthorized access, breach of firewalls or other hacking by third parties.
Customer shall obtain and operate all Systems needed to connect to, access or otherwise use the Services, and provide all corresponding backup, recovery and maintenance services. Customer shall ensure that all Systems are compatible with the Services. Customer shall maintain the integrity and security of its Systems (physical, electronic and otherwise).
Blue Mango Learning Systems will use commercially reasonable efforts to provide Customer with support and maintenance services for the Services in accordance with its standard practices (as amended from time to time). Customer agrees that Blue Mango Learning Systems will have the right to charge in accordance with its then current policies for any support services resulting from problems, errors or inquiries relating to Systems or any other network, equipment, service or software not owned, controlled or procured by Blue Mango Learning Systems.
Blue Mango Learning Systems shall have no obligation to provide Updates, except that Blue Mango Learning Systems will provide Customer with any Update that it makes generally available without charge to its similar customers.
As between the parties, Customer shall own all Customer Data. Blue Mango Learning Systems shall not disclose to third parties or use any Customer Data except as reasonably necessary to provide the Services or to comply with any legal, regulatory or similar requirement or investigation. Notwithstanding the foregoing, you agree that Blue Mango Learning Systems and the service providers it utilizes to assist in providing the Services may use, modify, reproduce, distribute, display and disclose Customer Data solely to the extent necessary to provide the Services, including, without limitation, in response to your support requests. Customer agrees to indemnify and hold Blue Mango Learning Systems harmless from all claims, damages, liabilities, losses, costs and expenses (including attorneys' fees) arising out of any use or disclosure of Customer Data in connection with the provision of Services or to comply with any legal, regulatory or similar requirement or investigation. Customer agrees to create archival copies or backup copies of all Customer Data.
Except for the limited rights and licenses expressly granted hereunder, no other license is granted, no other use is permitted and Blue Mango Learning Systems (and its licensors) shall retain all right, title and interest in and to the Services (including all intellectual property and proprietary rights embodied therein). Customer shall not take any action inconsistent with such rights.
Customer shall not alter, obscure or remove any printed or on-screen trademark, patent legend or other proprietary or legal notice.
Except for the specific rights granted by this Agreement, the receiving party shall not use or disclose any of the other's Confidential Information without its written consent, and shall use reasonable care to protect the other's Confidential Information, including ensuring that its employees and contractors with access (a) have a need to know for the purposes of this Agreement and (b) are bound by obligations of confidentiality at least as protective as those provided herein. Each party shall be responsible for any breach of confidentiality by its employees and contractors. Promptly after any termination of this Agreement (or at the disclosing party's request at any other time), the receiving party shall return all of the other's tangible Confidential Information, permanently erase all Confidential Information from any storage media and destroy all information, records and materials developed therefrom. Notwithstanding the foregoing, Blue Mango Learning Systems may retain and use Customer Data, as combined with other Blue Mango Learning Systems customers’ data, solely to improve and/or market the Services, even after termination of the provision of Services to You. Each party may disclose only the general nature, but not the specific terms, of this Agreement without the prior consent of the other party; provided, either party may provide a copy of this Agreement or otherwise disclose its terms in connection with any financing transaction or due diligence inquiry.
Nothing herein shall prevent a receiving party from disclosing any Confidential Information as necessary pursuant to any court order, lawful requirement of a governmental agency or when disclosure is required by operation of law (including disclosures pursuant to any applicable securities laws and regulations); provided, that prior to any such disclosure, the receiving party shall use reasonable efforts to (a) promptly notify the disclosing party in writing of such requirement to disclose and (b) cooperate with the disclosing party in protecting against or minimizing any such disclosure or obtaining a protective order.
Customer agrees to pay Blue Mango Learning Systems the fees, in the amounts and at the times specified in the selected Plan.
In order to set up an account with Blue Mango Learning Systems, Customer must provide Blue Mango Learning Systems with accurate and complete billing information including legal name and a valid credit card unless the customer chooses to pay via a purchase order. Customer's card will never be charged without its authorization. By submitting such credit card information, Customer gives Blue Mango Learning Systems permission to charge all fees incurred through its account to the designated credit card. Blue Mango Learning Systems reserves the right to terminate this Agreement in accordance with Section 9.2 hereto if Customer does not provide a valid credit card for the payment of fees hereunder.
The Services are billed in advance on a monthly basis and such monthly fees are non-refundable. For monthly payment plans, there will be no refunds or credits for partial months of service, upgrade/downgrade refunds, or refunds for months unused with an open account. For annual payment plans, upgrades/downgrades/cancellations will be prorated for the remainder of the term as calculated at the next billing date. For any upgrades or downgrade in connection with annual payment plans, Customer's credit card will automatically be charged the new rate for the next billing cycle.
All payments are exclusive of federal, state, local and foreign taxes, duties, tariffs, levies, withholdings and similar assessments (including without limitation, sales taxes, use taxes and value added taxes), and Customer agrees to bear and be responsible for the payment of all such charges, excluding taxes based upon Blue Mango Learning Systems' net income. All amounts due hereunder shall be grossed-up for any withholding taxes imposed by any foreign government.
Blue Mango Learning Systems warrants that it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof. Notwithstanding the foregoing, the Service may be temporarily unavailable, for example, when deemed reasonably necessary or prudent by Blue Mango Learning Systems to repair, maintain or upgrade the Service or for causes beyond Blue Mango Learning Systems' reasonable control. Blue Mango Learning Systems will notify Customer at least 48 hours in advance of any known planned Service-related outages.
EXCEPT AS SPECIFICALLY PROVIDED HEREIN, THE SERVICES ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. Blue Mango Learning Systems DOES NOT WARRANT THAT THE SERVICES WILL MEET CUSTOMER'S REQUIREMENTS OR THAT THEIR OPERATION WILL BE UNINTERRUPTED OR ERROR-FREE. TO THE FULLEST EXTENT PERMITTED BY LAW, Blue Mango Learning Systems HEREBY DISCLAIMS (FOR ITSELF AND ITS SUPPLIERS) ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE SERVICES INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT, INTEGRATION, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.
EXCEPT FOR DEATH, BODILY INJURY OR FRAUD, AMOUNTS OWED TO THIRD PARTIES PURSUANT TO THE INDEMNIFICATION OBLIGATIONS HEREIN, ANY BREACHES OF SECTION 2.5 (PROHIBITED USES) OR SECTION 6.1 (FEES), OR ANY EXCLUSION OR LIMITATION OF LIABILITY THAT IS VOID, PROHIBITED OR UNENFORCEABLE BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY (OR ITS SUPPLIERS) BE LIABLE CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY (A) MATTER BEYOND ITS REASONABLE CONTROL (INCLUDING ANY ERROR OR DAMAGE ATTRIBUTABLE TO ANY NETWORK OR SYSTEM), (B) LOSS OR INACCURACY OF DATA, LOSS OR INTERRUPTION OF USE, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS OR SERVICES, (C) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, PROFITS OR GOODWILL, OR (D) DIRECT DAMAGES, IN THE AGGREGATE, IN EXCESS OF THE AMOUNTS PAID TO Blue Mango Learning Systems HEREUNDER WITH RESPECT TO THE SERVICES THAT GAVE RISE TO THE CLAIM DURING THE TWELVE-MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION AROSE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THIS AGREEMENT AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN.
This Agreement shall commence on the date that this Agreement is accepted. For paid accounts user, this Agreement shall continue in effect for the initial term specified in the Plan (or if no such term is specified, then for 1 month), unless this Agreement is terminated earlier as permitted in Section 9.2. At the end of such initial term, the Agreement will be extended automatically for additional terms of 1 month each, unless this Agreement is terminated earlier as permitted in this Section 9.1 or in Section 9.2. Either party may elect not to have this Agreement extend automatically by giving written notice of such election to the other party at least 1 month prior to the end of the then current initial or renewal term. Customer is solely responsible for properly notifying Blue Mango Learning Systems of its election not to have this Agreement automatically renew by following the cancellation directions available in Customer’s ScreenSteps account.
9.2 Termination of the Service.
This Agreement may be earlier terminated by either party, in whole or in part, (a) if the other party materially breaches a provision of this Agreement and fails to cure such breach within 10 days (5 days in the case of non-payment) after receiving written notice of such breach from the non-breaching party, or (b) immediately upon written notice, if the other party makes any assignment for the benefit of creditors, or a receiver, trustee in bankruptcy or similar officer is appointed to take charge of any or all of the other party's property, or the other party seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding or such a proceeding is instituted against the other party and is not dismissed within 90 days, or the other party becomes insolvent or, without a successor, dissolves, liquidates or otherwise fails to operate in the ordinary course.
Upon any expiration or termination of this Agreement, all rights, obligations and licenses of the parties shall cease, except that (a) all obligations that accrued prior to the effective date of termination (including without limitation, all payment obligations) and remedies for breach of this Agreement shall survive, (b) Blue Mango Learning Systems may, but shall not be obligated to, delete archived Customer Data and (c) the provisions of Sections 4 (Proprietary Rights), 5 (Confidentiality), 6 (Payments) (only with respect to amounts incurred prior to the effective date of termination), 7.2 (Disclaimers), 8 (Limitation of Liability), 11 (General Provisions) and this Section 9.3 (Effects of Termination) shall survive.
Blue Mango Learning Systems has adopted the following general policy toward copyright infringement in accordance with the Digital Millennium Copyright Act ( http://lcweb.loc.gov/copyright/legislation/dmca.pdf ). The address of Company’s Designated Agent to Receive Notification of Claimed Infringement (“Designated Agent”) is listed at the end of this Section. It is Blue Mango Learning Systems' policy to (a) block access to or remove Content that it believes in good faith to be copyrighted material that has been illegally copied and distributed by any of its affiliates, content providers, or users; and (b) remove and discontinue service to repeat offenders.
If You believe that Content residing on or accessible through the Blue Mango Learning Systems web site or Services infringes a copyright, please send a notice of copyright infringement containing the following information to the Designated Agent listed below:
A physical or electronic signature of a person authorized to act on behalf of the owner of the copyright that has been allegedly infringed;
Identification of works or materials being infringed;
Identification of the Content that is claimed to be infringing including information regarding the location of the Content that the copyright owner seeks to have removed, with sufficient detail so that Blue Mango Learning Systems is capable of finding and verifying its existence;
Contact information about the notifier including address, telephone number and, if available, e-mail address;
A statement that the notifier has a good faith belief that the Content is not authorized by the copyright owner, its agent, or the law; and
A statement made under penalty of perjury that the information provided is accurate and the notifying party is authorized to make the complaint on behalf of the copyright owner.
It is Blue Mango Learning Systems' policy:
to remove or disable access to the infringing Content;
to notify the Content provider or user that it has removed or disabled access to the Content; and
that repeat offenders will have the infringing Content removed from the system and that Blue Mango Learning Systems will terminate such content provider’s or user’s access to the Services.
If the Content provider, or user believes that the Content that was removed or to which access was disabled is either not infringing, or the Content provider or user believes that it has the right to post and use such Content from the copyright owner, the copyright owner’s agent, or pursuant to the law, the Content provider or user must send a counter-notice containing the following information to the Designated Agent listed below:
A physical or electronic signature of the Content provider or user;
Identification of the Content that has been removed or to which access has been disabled and the location at which the Content appeared before it was removed or disabled;
A statement that the Content provider or user has a good faith belief that the Content was removed or disabled as a result of mistake or a misidentification of the Content; and
Content provider’s or user’s name, address, telephone number, and, if available, e-mail address and a statement that such person or entity consents to the jurisdiction of the Federal Court for the judicial district in which the Content provider’s or user’s address is located, or if the Content provider’s or user’s address is located outside the United States, for any judicial district in which Blue Mango Learning Systems is located, and that such person or entity will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by the Designated Agent, Blue Mango Learning Systems may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed Content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the Content provider or user, the removed Content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at Blue Mango Learning Systems' discretion.
Please contact Blue Mango Learning Systems' Designated Agent to Receive Notification of Claimed Infringement at the following address:
Name - Greg DeVore
Address - PO Box 801, McLean, VA 22101
Telephone – 866-275-7856
Email – firstname.lastname@example.org
This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Virginia, USA, without regard to its conflicts of law provisions. Neither the United Nations Convention on Contracts for the International Sale of Goods nor any enactment of the Uniform Computer Information Transactions Act shall apply to this Agreement. The sole jurisdiction and venue for actions related to this Agreement will be the state or federal courts located in Virginia having jurisdiction over Blue Mango Learning Systems' offices, and both parties consent to the jurisdiction of such courts with respect to any such action. In any action or proceeding to enforce or interpret this Agreement, the prevailing party will be entitled to recover from the other party its costs and expenses (including reasonable attorneys' fees) incurred in connection with such action or proceeding and enforcing any judgment or order obtained.
Except as specifically provided otherwise, each right and remedy in this Agreement is in addition to any other right or remedy, at law or in equity. Each party agrees that, in the event of any breach or threatened breach of Section 5, the non-breaching party may suffer irreparable damage for which it may have no adequate remedy at law. Accordingly, the non-breaching party shall be entitled to seek injunctive and other equitable remedies to prevent or restrain such breach or threatened breach, without the necessity of posting any bond.
Except as otherwise provided in Sections 9.1 and 10, any notice or communication hereunder shall be in writing and either personally delivered or sent recognized express delivery courier or certified or registered mail, prepaid and return receipt requested, addressed to the other party at its address specified in the Plan, or at such other address designated in a subsequent notice. All notices shall be in English, effective upon receipt.
This Agreement and the rights and obligations hereunder may not be assigned, in whole or in part, by either party without the other party's written consent (which shall not be unreasonably withheld). However, without consent, either party may assign this Agreement to any successor to all or substantially all of its business which concerns this Agreement (whether by sale of assets or equity, merger, consolidation or otherwise). Any attempted transfer in violation hereof will be void and of no effect. This Agreement shall be binding upon, and inure to the benefit of, the successors, representatives and permitted assigns of the parties hereto.
The parties shall be independent contractors under this Agreement, and nothing herein will constitute either party as the employer, employee, agent or representative of the other party, or both parties as joint venturers or partners for any purpose.
Neither party will make public announcements or issue press releases relating to this Agreement or the terms hereof without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed.