Last Updated: August 30, 2024

Attention Contract Administrators: Please note that if Your institution has executed or accepted a services agreement with Echo360, then the terms and conditions of that agreement shall supersede this EULA in the event of any conflict.

Please read all of the terms set forth in this End User Subscription Agreement (“Agreement”). This Agreement is a legally binding agreement between Turning Tech Intermediate, Inc. d/b/a Echo360 (“Echo360”, “We” or “Us”) and “You” as the “User”.

If You are entering into this Agreement on behalf of a company, university, school or other legal entity, You represent that You have the authority to bind such entity and its affiliates to the terms and conditions set forth in this Agreement, in which case the terms “User” or “You”, shall refer to such entity and its affiliates. This Agreement sets forth the terms and conditions that govern Your use and/or access of all applicable Echo360’s software subscription services, as well as all media, documentation, and data made available by Echo360 that is related to such services (the “Software Services”).

By accessing the Software Services, You agree to be bound by the terms and conditions of this Agreement and all applicable laws and regulations including compliance with any applicable local laws. If You or any entity You represent, do not agree to any of the provisions of this Agreement, You may not use or access the Software Services. The Software Services are proprietary to Echo360. Echo360 retains title to and ownership of the Software Services and reserves all rights not expressly granted in this Agreement. User assumes responsibility for the selection of the Software Services to achieve the intended results, and for the results obtained from the Software Services.

ALL USE OF THE SOFTWARE SERVICES SHALL BE SUBJECT TO THE SPECIFICATIONS, FEES, FEATURES, SCOPE, DURATION AND SUCH ADDITIONAL TERMS AND CONDITIONS, WHICH ARE SPECIFIED UNDER A SUBSCRIPTION SERVICES AGREEMENT AND CORRESPONDING ORDER FORM, TRIAL AGREEMENT, AND/OR “TRIAL ORDER FORM” (EACH A “COMMERCIAL AGREEMENT”) WHICH YOU OR YOUR, COMPANY, SCHOOL OR UNIVERSITY HAVE EXECUTED, SIGNED OR OTHERWISE AUTHORIZED IN CONJUNCTION WITH THE PURCHASE OF THE RIGHT TO USE THE SOFTWARE SERVICES. THE TERMS AND CONDITIONS OF THE COMMERCIAL AGREEMENT ARE HEREBY INCORPORATED BY REFERENCE INTO THIS AGREEMENT, AND IN THE EVENT OF CONFLICT BETWEEN THE COMMERCIAL AGREEMENT AND THIS AGREEMENT, THE COMMERCIAL AGREEMENT SHALL CONTROL. IN ABSENCE OF SUCH COMMERICAL AGREEMENT, THE TERMS OF THIS AGREEMENT SHALL CONTROL.

IF YOU HAVE REGISTERED FOR A FREE TRIAL, ECHO360 WILL MAKE THE SOFTWARE SERVICES AVAILABLE TO YOU ON A TRIAL BASIS FREE OF CHARGE UNTIL THE EARLIER OF (A) THE END OF THE FREE TRIAL PERIOD FOR WHICH YOU HAVE REGISTERED TO USE THE APPLICABLE SOFTWARE SERVICES, OR (B) THE START DATE OF ANY PURCHASED SOFTWARE SERVICE SUBSCRIPTION PERIOD. ADDITIONAL TRIAL TERMS MAY APPEAR ON THE TRIAL REGISTRATION WEB PAGE OR TRIAL ORDER FORM, AND ANY SUCH TERMS ARE INCORPORATED INTO THIS AGREEMENT BY REFERENCE AND ARE LEGALLY BINDING. YOUR DATA ENTERED INTO THE SOFTWARE SERVICES DURING THE TRIAL WILL BE DELETED UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SAME SOFTWARE SERVICES BEFORE THE END OF THE TRIAL PERIOD. 

IF YOU ARE A QUALIFIED PUBLIC EDUCATIONAL OR GOVERNMENT INSTITUTION AND ANY PART OF THIS AGREEMENT, SUCH AS, BY WAY OF EXAMPLE, ALL OR PART OF THE INDEMNIFICATION SECTION, IS INVALID OR UNENFORCEABLE AGAINST YOU BECAUSE OF APPLICABLE STATE OR FEDERAL LAW, THEN THAT PORTION SHALL BE DEEMED INVALID OR UNENFORCEABLE, AS THE CASE MAY BE, AND INSTEAD CONSTRUED IN A MANNER MOST CONSISTENT WITH APPLICABLE GOVERNING LAW. IF OHIO, U.S.LAW IS PRECLUDED, THIS AGREEMENT SHALL BE CONSTRUED UNDER THE LAWS OF THE STATE IN WHICH YOUR PUBLIC EDUCATIONAL OR GOVERNMENT INSTITUTION IS LOCATED.

1. Rights Granted and Restrictions.

1.1 Software Services. For the duration of the Term, and subject to the terms of this Agreement, and the timely payment of applicable fees, Echo360 grants to You a non-exclusive, non-transferable, worldwide, revocable, limited right to access and use the Software Services ordered solely for Users’ individual educational purposes. Except as otherwise expressly set forth in the Commercial Agreement, you acknowledge that Echo360 has no delivery obligations for the Software Services and will not deliver copies of such programs to You as part of the Software Services.

1.2 Your Data. To enable Echo360 to provide You with the Software Services, You grant Echo360 the right to use, host, process, display and transmit, in accordance with this Agreement and the Commercial Agreement, Your Data for the duration of the Term plus any additional post-termination period during which Echo360 provides You with access to retrieve Your Data. For the purposes of this Agreement, “Your Data” or “User Data” means information, content, data, and/or documents submitted by either the administration, professor, or students for the class, by way of example, Your Data may include video captures, PowerPoint presentations, course syllabi, and assignment submissions, as well as text, photos, images, audio, code and any other materials. For clarity, Your Data does not include Statistical Viewer Usage Data.

1.3 Subscriptions. You are responsible for all activities that occur under Your Account. You agree to notify Echo360 immediately of any unauthorized use of User’s password or any other breach of security. You agree not to create or access an Account using a false identity or any false information or on behalf of other user. You cannot share an individual subscription with any other users. If You access the Software Services in a way that exceeds the scope of what has been purchased under the Commercial Agreement (User’s subscription) it does not mean that You have the continued right to use the Software Services.  In that event, Echo360 may revoke any and all authorization and subscription which may have been granted to You and may block You from any further use of the Software Services. Echo360 may exercise this right at any time and without notice to You.  Failure to exercise this right does not waive Echo360’s right to revoke Your subscription at a later date.

1.4 Restrictions. Without limiting the foregoing, You agree that You may not and may not cause or permit others to:

1. Remove or modify any program markings or any notice of Echo360’s or its licensors’ proprietary rights;
2. Make the programs or materials from the Software Services (except Your Data) available in any manner to any third party for use in the third party’s business operations;
3. Modify or make derivative works of, disassemble, decompile, reverse engineer, reproduce, distribute, republish or download any part of the Software Services, or access or use the Software Services in order to build or support, and/or assist a third party in building or supporting, products or Services competitive to Echo360;
4. License, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Software Services or Echo360 materials or documentations in any way;
5. Introduce to the Software Services (or the servers, networks, and databases associated with the Software Services) any spyware, viruses, Trojan horses, worms, keystroke loggers, rootkits, logic bombs, or other material which is malicious or technologically harmful;
6. Remove, delete, efface, alter, obscure, translate, combine, supplement, or otherwise change any trademarks, copyrights, warranties, disclaimers, or other proprietary notations;
7. Forge headers or otherwise manipulate identifiers in order to disguise the origin of any content transmitted through the Software Services.
8. Upload or transmit information or content that is infringing, defamatory, obscene, indecent, fraudulent or otherwise illegal.
   
   

1.5 EchoExam. Exhibit A of this Agreement includes the permitted uses of EchoExam. To the extent there is any discrepancy, between this Agreement and Exhibit A, the terms of Exhibit A will control.

1.6 Demo Content. We may provide templates or other products featuring demo content including without limitation text, photos, images, graphics, audio, video and other materials (“Demo Content”), to provide you with ideas or inspiration. However, Demo Content is for private use only (unless we inform you otherwise, in advance, in writing). You agree that you will not distribute, publicly display, publicly perform or otherwise publish any Demo Content (or any portion thereof).

1.7 Beta Software.  Echo360 may release products and features that we are still testing and evaluating (“Beta Software”). Those services or software have been marked as “beta,” “preview,” or “early access” (or a similar phrasing). Beta Software has not been commercially released and is not at the level of performance or compatibility of a final product. The Beta Software may not operate correctly and may be substantially modified prior to commercial release or may never be released commercially. Beta software is provided “as is” without warranty of any kind including, but not limited to, warranty as to performance, non-infringement of third-party rights, merchantability, or fitness for a particular purpose. The entire risk of using Beta Software lies with the User. In no event shall Echo360 be liable for any damage, whatsoever, arising out of the use of, or inability to use, the Beta Software, including without limitation, any direct, indirect, consequential, exemplary, special, incidental, or punitive damages or damages for lost data or lost profits.

2. Intellectual Property Ownership.

2.1 Echo360 retains all right, title and interest in and to the Software Services, the documentation and associated intellectual property rights, and User acknowledges that it neither owns nor acquires any intellectual property rights or license to use the Software Services in excess of the scope and/or duration of the Software Services stated in the Commercial Agreement. For clarity, You are not granted any right, title, interest, license (express or implied) to any patent, trademark, service mark, copyright, trade secret or other intellectual property right of Echo360 or the respective intellectual property owners. You can not remove, obscure or alter any copyright notice, trademarks or other proprietary rights notices affixed to or contained within the Software Services.

2.2 You retain all ownership and intellectual property rights in and to Your Data.  Echo360 and its suppliers own and retain all rights, title and interest in and to all intellectual property rights embodied in or associated with the Software Services and derivative works thereof, to Statistical View Usage Data, and to anything developed, delivered by or on behalf of Echo360 under this Agreement. There are no implied licenses under this Agreement, and any rights not expressly granted to You hereunder are reserved by Echo360 and its suppliers. You may be able to access or extract certain Statistical Viewer Usage Data in conjunction with Your use of the Software Services.  You are permitted to access and/or use such Statistical Viewer Usage Data exclusively for Your lawful personal use (or if applicable, the internal business purposes of the university you represent) and may not disclose the Statistical Viewer Usage Data to any third parties.  You shall not engage in any act or omission that would impair Echo360’s intellectual property rights in the Software Services and any other materials, information, processes or subject matter proprietary to Echo360.

3. Software Services Specifications.

3.1. The Software Services are subject to and governed by specifications applicable to the Commercial Agreement. You acknowledge that use of the Software Services in a manner not consistent with the specifications may adversely affect the Software Services performance.

3.2 Echo360 may make changes or updates to the Software Services (such as infrastructure, security, technical configurations, application features, etc.) during the Term, including to reflect changes in technology, industry practices, patterns of system use, and availability of Third-Party Content. The Software Service specifications are subject to change at Echo360’s discretion; however, Echo360’s changes to the Software Service specifications will not result in a material reduction in the level of performance, security or availability of the applicable Software Services provided to You for the duration of the Term. “Third Party Content” means all text, files, images, graphics, illustrations, information, data, audio, video, photographs and other content and material, in any format, that are obtained or derived from third party sources outside of Echo360 and made available to You through, within, or in conjunction with Your use of the Software Services.

4. Use of the Software Services.

4.1 You shall not use or permit use of the Software Services, including by uploading, emailing, posting, publishing or otherwise transmitting any material, including Your Data, for any purpose that may (a) abuse, menace, stalk, harass, threaten, harm, or otherwise violate the legal rights of any person or cause damage or injury to any person or property, (b) involve the publication of any material that is false, defamatory, indecent, harassing or obscene, (c) violate privacy rights or promote bigotry, racism, hatred or harm, (d) constitute unsolicited bulk e-mail, “junk mail”, “spam” or chain letters; (e) constitute an infringement of intellectual property or other proprietary rights, or (f) otherwise violate applicable federal or international laws, ordinances or regulations, (g) transmit or send unsolicited commercial communications, (h)  conduct any systematic or automated data collection or storage activities (including without limitation scraping, data mining, data extraction and data harvesting) on or in relation to the Software Services, (i) impersonate any person or entity, or otherwise misrepresent your affiliation with a person or entity, (j) access the Software Services through any robot, spider, or other automated means, (k) gain unauthorized access to, interfere with, damage, disrupt, or circumvent any of the security features of the Software Services (l) otherwise interfere with or disrupt the Software Services or servers or networks connected to the Software Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Software Services. In addition to any other rights afforded to Echo360 under this Agreement, Echo360 reserves the right, but has no obligation, to take remedial action if any material violates the restrictions in the foregoing sentence, including the removal or disablement of access to such material. Echo360 shall have no liability to You in the event that Echo360 takes such action. You shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and ownership of all of Your Data. You agree to defend and indemnify Echo360 against any claim arising out of a violation of Your obligations under this section.

4.2 You agree to provide true, accurate, current and complete information about yourself as prompted by the registration and log in process (such information being Your “Account Information”). You may receive a unique username and password in connection with Your account (collectively referred to herein as Your “Username”). You agree not to allow any other person to use User’s Username to access or use the Software Services under any circumstances. You are solely and entirely responsible for maintaining the confidentiality of You Username.

4.3 You may only use the Software Services as expressly permitted under this Agreement and only for lawful purposes; any other use is prohibited. Upon the end of the Software Services term, Your right to access and use the Software Services will terminate.

4.4 You may be able to link to third-party websites for additional content.  Third-party websites are not controlled or examined by Echo360 in any way and Echo360 is not responsible for the content, availability, advertising, information or use of User information by any such third-party websites, nor does Echo360 endorse any of the content.  Echo360 accepts no responsibility for them or for any loss or damage that may arise from You accessing third-party websites.  By using the Software Services, You expressly agree that Echo360 will have no liability with respect to use of such third-party links or content.  You waive any and all claims against Echo360 regarding the inclusion of links to outside websites or use of those websites and content.

4.5 Echo360 may use open-source software. Some of the software used in the Software Services may be offered under an open-source subscription that we may make available to You. There may be provisions in the open-source subscription that override some provisions of this Agreement.

4.6 You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the Software Services (“Feedbacks”) provided by You to Echo360 are non-confidential and hereby grants to Echo360 an non-exclusive, royalty-free, fully paid-up, assignable, transferable, sublicensable, perpetual, irrevocable worldwide right and license to use and exploit such Feedbacks. You hereby assign to Echo360 all exclusive rights, including all intellectual property rights, to Feedbacks and Echo360 shall be entitled to the unrestricted use and dissemination of these Feedbacks for any purpose, commercial or otherwise, without notice, attribution or compensation to You.

5. Your Data

5.1 Featuring User Work.  Echo360 may request Your permission to feature Your Data in promotional pieces where You utilize the Software Services to create or publish content (“User Work”) inclusive of trademarks, service marks or logos included within User Work. Any rights that You grant to Echo360 will be specific and obtained in advance of any use of User Work. Any request for permission to feature User Work would be for the limited purpose of Echo360’s marketing and promotional activities. For example, Echo360 may request permission to feature User Work on Echo360’s website or social media accounts. This Section does not affect any rights You may have under applicable data protection laws.

5.2 End Users. User Work may be consumed by other users (“End Users”). You understand and agree that User Work and User’s End Users are Your responsibility, and You are solely responsible for compliance with any laws or regulations related to User Work and User’s End Users, including without limitation the posting of Your own privacy policy. Echo360 is not liable for, and will not provide You with, any legal advice or representation regarding User Work or User’s End Users.

5.3 Review of User Data. Echo360 has not reviewed, cannot review, and does not review all of the User Data made available via the Software Services. The Software Services may contain User Data that: (a) is offensive or objectionable; (b) contains errors; (c) violates intellectual property, privacy, publicity or other rights of third parties or Echo360; (d) is harmful to User’s computer or networks; (e) is unlawful or illegal; or (f) the downloading, copying or use of which is subject to additional terms and policies of third parties or is protected by intellectual property, trade secret, privacy or other laws. By operating the Software Services, Echo360 does not represent or imply that Echo360 endorses User’s or other users’ User Data, or that Echo360 believes such User Data to be accurate, useful, lawful or non-harmful. Echo360 is not a publisher of, and is not liable for, any User Data uploaded, posted, published or otherwise made available via the Software Services by User or other users. User is responsible for taking precautions to protect User, User’s computer or User’s network, from User Data accessed via the Software Services.

5.4 You agree that You will only use content that You are permitted to use. You represent and warrant that You own all rights to User Data or otherwise has (and will continue to have) all rights and permissions to legally use, share, display, transfer and subscribe to User Data via the Software Services. If Echo360 uses User Data in the ways contemplated in this Agreement, You represent and warrant that such use will not infringe or violate the rights of any third party, including without limitation any copyrights, trademarks, privacy rights, publicity rights, contract rights or any other intellectual property or proprietary rights.

6. Subscription Fees and Activation.

6.1 ACTIVATION OF THE SOFTWARE SERVICES AND ANY UPDATES MAY BE REQUIRED. YOU AGREE THAT COMPLIANCE WITH ANY REQUIRED ACTIVATION IS A CONDITION FOR USER’S SUBSCRIPTION UNDER THIS AGREEMENT BEING EFFECTIVE.  YOU FURTHER AGREE THAT YOU WILL MAKE EVERY REASONABLE EFFORT TO USE THE MOST RECENT VERSION OF THE SOFTWARE FOR WHICH YOU ARE SUBSCRIBED.

6.2 You shall not use any Activation Code other than an Activation Code or Codes generated by Echo360 for You in accordance with the Commercial Agreement for activating the Software Services subscription. Unless otherwise provided pursuant to a Commercial Agreement, You shall register with Echo360 as a User of the Software Services as instructed during the installation of the Software Services or otherwise.

6.3 Signing Up. To use the Software Services, You must first create an Echo360 account (“Account”). You agree to provide us with accurate, complete and updated information for Your Account. We may need to use this information to contact You. You further agree to keep the information for Your Account updated.

6.4 You understand that there will be no refunds or credits of service fees for partial months of Software Service access or for any period of time during which You do not use the Software Services.

7. Echo360’s Rights

7.1 To operate effectively and protect the security and integrity of the Software Services, We must maintain control over the services. Echo360 reserves these rights, which We may exercise at any time and in our sole discretion, and without liability or notice to You (except where prohibited by law): (a) We may change the Software Services and their functionality; (b) we may restrict access to or use of parts or all of the Software Services; (c) We may suspend or discontinue parts or all of the Software Services; (d) We may terminate, suspend or restrict Your access to or use of parts or all of the Software Services; (e) We may terminate, suspend or restrict access to Your Account; and (f) We may change our eligibility criteria to use the Software Services (and if such eligibility criteria changes are prohibited by law where You lives or otherwise operates, We may revoke Your right to use the Software Services in that jurisdiction).

7.1 Sometimes, ownership of an Account is disputed between one or more parties (such as a business and its employee, or a learning designer and their client). We try not to get involved in these disputes. However, Echo360 reserves the right, at any time and in our sole discretion, and without notice to You, to determine rightful Account ownership and to transfer an Account to the rightful owner. You agree that Echo360 shall be the sole arbiter of any such dispute. If we cannot reasonably determine the rightful owner, we reserve the right to suspend an Account until the disputing parties reach a resolution. Echo360 also may request documentation, such as a government-issued photo ID, an invoice or a business subscription, to help determine the rightful owner.

8. Term and Termination.

8.1 The Term of this Agreement will begin on the date that You begin to access and/or use the Software Services until terminated pursuant to the terms of this Agreement. Without prejudice to any other rights, this Agreement shall terminate immediately without notice from Echo360 if You fail to comply with any provision of this Agreement.

8.2 In any event of termination of this Agreement all rights granted hereunder shall immediately expire and You no longer have rights to access or use the Software Services. Prior to termination, You can retrieve or download Your Data at any time. If set forth in the Commercial Agreement, Echo360 may make Your Data available for the purpose of retrieval by You for a set period of time as set forth in Echo360’s data retention and deletion policy.  After said period of time, Echo360 has the right to immediately or, soon thereafter, unless otherwise mutually agreed in advance of termination, to purge all of Your Data from the Echo360 platform.  Upon notification of termination, You agree to destroy or return to Echo360 all copies of the Software (and related documentation, if applicable) and to certify in writing that all known copies, including backup copies, have been destroyed. Termination by Echo360 of partial Software Services will include removal of access to such Software Services and barring further use of such services. Termination of all Software Services will likely include deletion of User’s password and all related information, files and content associated with or inside User’s Account (or any part thereof), including content posted by You.

8.3 Provisions that survive termination or expiration of this Agreement are those relating to limitation of liability, indemnification, and others which by their nature are intended to survive.

9. Confidentiality.

9.1 By virtue of this Agreement, Echo360 may disclose to You certain information that is confidential to Echo360 (the “Confidential Information”). You agree not to disclose the Confidential Information to any third party other than as set forth herein for a period of three (3) years from the date of the disclosure of the Confidential Information to You. You will not use the Confidential Information except (i) as necessary to perform Your duties under this Agreement; and (ii) in any other manner that this Agreement expressly authorizes. Your duties under this section will apply to (a) information which is marked to clearly identify it as the Echo360’s Confidential Information, or, if disclosed orally, which is identified as Confidential Information both at the time of disclosure; and (b) information which, due to its nature or the circumstances surrounding its disclosure, any reasonable person would conclude is intended to be considered confidential and proprietary for purposes of this Agreement.

9.2 For the purposes of this Agreement, Confidential Informational shall mean data or information in any form disclosed by Echo360 to You by any means, if and for so long as the data and information are protectable as trade secrets by Echo360 or are otherwise subject to legal rights that give Echo360, independent of contract, a right to control use and/or disclosure of the data and information.

9.3 Confidential Information shall not include information that (as demonstrated by written evidence): (a) is or becomes a part of the public domain through no act or omission of You; (b) was in Your lawful possession prior to the disclosure and had not been obtained by You either directly or indirectly from Echo360; (c) is lawfully disclosed to You by a third party without restriction on the disclosure; or (d) is independently developed by You without any use or reference to Echo360’s Confidential Information.

9.4 Echo360 will protect the confidentiality of Your Data residing in the Software Services in accordance with the security practices defined as part of the Software Service specifications in the applicable Commercial Agreement.

10. Statistical Viewer Usage Data.

You agree that Echo360 may collect, storage, process, transfer and use technical data and related information, including but not limited to technical information about the system and peripherals that is gathered periodically to facilitate the improvement of the Software Services or to provide services or technologies to You. You understand and acknowledge that, when You use the Software Services, Echo360 may collect or measure data and information regarding Your interaction with content, including, by way of example, counts of views of segments of a presentation or video within certain of Your Data, frequency of views and of student participation in discussion, indications of confusion, bookmarks into content, and statistical analysis of notes and discussion (the “Statistical Viewer Usage Data”). Statistical Viewer Usage Data is owned by Echo360. You understand and agree that the reporting back of Statistical Viewer Usage Data to Echo360’s network is done automatically, and that Statistical Viewer Usage Data is proprietary and confidential information of Echo360. You understand and agree that, to the extent any of Your Data may be part of such aggregated information, Echo360 shall forward the Statistical Viewer Usage Data to Echo360’s network.

11. Privacy

11.1 In the course or accessing and/or using the Software Services we may obtain information about You or You may be required to provide certain Personal Information (as the term is defined under applicable data protection laws) to us.  All uses of Your Personal Information will be treated in accordance with our Privacy Policy available at https://echo360.com/privacy/. If You use the Software Services, You are consenting to the collection, storage, processing, and transfer of Your information in accordance with our Privacy Policy and accepting the terms and conditions of our Privacy Policy, as may be amended from time to time. If You do not agree to have Your Personal Information used in any of the ways described in the Privacy Policy, You must discontinue use of the Software Services.

11.2. Information We Collect, Monitor, and Track through the Software Services. To facilitate troubleshooting and improving functionality, Echo360 has incorporated analytics in the Software Services that enable collection and use of certain technical and related non-personal information. Echo360 may collect “crash reports” from User’s computer or device should the software be interrupted so Echo360 can ascertain the cause of the interruption or crash and provide appropriate resolution. You agree that Echo360 may use this non-personal information provided it is in a form that does not personally identify You.

11.3 Echo360 does not collect, monitor, or track any Personal Information through Your use of the Software Services itself without Your knowledge and/or consent. Any Personal Information that You voluntarily provide to Echo360 is collected, used and disclosed pursuant to Echo360’s Privacy Policy. Do not voluntarily disclose any Personal Information to Echo360 unless You agree with the Privacy Policy.

11.4 You acknowledge that certain limited Personal Information will be shared with Echo360 in conjunction with the use of the Software Services. Personal Information is generally used to associate You with Your subscription. Any Personal Information collected will be protected with commercially reasonable security protocols following Echo360’s internal security policies.

11.5. You acknowledge that in the use of the Software Services, You are not allowed to use, upload and submit Restricted Information. If You use, upload or submit Restricted Information, it is at Your own risk and the subject information will be treated as regular Personal Information, but Echo360 does not have any additional obligations relating to such Restricted Information, including but not limited to for notifications requirements relating to such information.  “Restricted Information” means an individual’s Protected Health Information (as defined in HIPAA); biometric data; an individual’s financial information or credit history, including account number for a credit card, debit card or bank account; precise location data, children’s data; citizenship or immigration status; trade union membership; any Sensitive Personal Information as defined herein and by applicable laws; and any other highly protected and highly regulated Personal Information, including but not limited to: birth date, social security number or other government issued identification number.  “Sensitive Personal Information” means data consisting of information relating to an individual with regard to racial or ethnic origin, political opinions, religious and philosophical beliefs or other beliefs of a similar nature, trade union membership, physical or mental health or condition, sexual life, sexual orientation, and criminal record, status as a victim of crime, or citizenship or immigration status as defined by applicable law.

11.6 International Users. The availability of Echo360 products and services, as well as associated fees, charges, interest rates, and balance requirements may differ among geographic locations. We make no representation that the Software Services are appropriate or available for use in all locations or by all users.  The information provided through the use of the Software Services is not intended for distribution to, or use by, any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation or which would subject us or our affiliates, employees, directors, officers or agents to any registration requirement within such jurisdiction or country. Note that not every country offers the same level of privacy protection as you may have in your home country. We commit to uphold the privacy protections explained in this Agreement and our Privacy Policy and any data protection laws that apply to the Software Services.

12. Security Measures

12.1 Echo360 will apply reasonable measures to protect the security of nonpublic Personal Information and other data essential for use of the Software Services, such as information You upload or enter when using the Software Services in accordance with applicable industry standards, applicable law, and our Privacy Policy.  You shall protect the confidentiality and security of Your Account Information and credentials, and You shall not allow any person to have access to or to use your credentials.

12.2 Echo360 is entitled (but not required) to apply security measures to protect the Software Services, and Echo360 may block users (or IP addresses) identified or suspected as being used to access the Software Services (i) without authorization, (ii) for unlawful purposes or for purposes of disrupting, or (iii) in any manner that presents a risk of damaging the Software Services.

12.3 You shall immediately notify Echo360 of any activity on the Software Services suspected as being for unlawful purposes including any activity liable to disrupt, gain unauthorized access to, or cause any damage to Echo360.

 13. Mobile Services.

The Software Services may be available via mobile phone, and may provide without limitation the ability to upload content and to send and receive messages, instant messages, and other types of communications that may be developed for the Software Services (collectively the “Mobile Services”). Your mobile carrier’s normal rules, regulations messaging, data and other rates and fees may apply when using the Mobile Services. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your mobile carrier, and not all Mobile Services may work with all mobile carriers or devices.

14. Disclaimer of Warranty.

14.1 THE SOFTWARE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND EXCEPT AS OTHER PROVIDED HEREIN, ECHO360 EXPRESSLY DISCLAIMS, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL OTHER PROMISES, REPRESENTATIONS AND WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS, IMPLIED ORAL OR WRITTEN, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF QUALITY, VALUE, OPERABILITY, CONDITION, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, DATA ACCURACY, SYSTEM INTEGRATION, WORKMANSHIP, SUITABILITY, NON-INFRINGEMENT, AND/OR THE ABSENCE OF DEFECTS THEREIN, WHETHER LATENT OR PATENT (WHETHER OR NOT WE KNOW, HAVE REASON TO KNOW, HAVE BEEN ADVISED, OR OTHERWISE IN FACT ARE AWARE OF ANY SUCH PURPOSE) AND WHETHER ALLEGED TO ARISE BY LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, BY COURSE OF DEALING, OR OTHERWISE. NEITHER US NOR ANY PERSON ASSOCIATED WITH US MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE SOFTWARE SERVICES OR THAT ACCESS TO OR USE OF THE SOFTWARE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. THE FOREGOING DOES NOT AFFECT ANY WARRANTY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

14.2 YOU ACKNOWLEDGE THAT ECHO360’S OBLIGATIONS UNDER THIS AGREEMENT ARE FOR THE BENEFIT OF YOU ONLY.

14.3 WE CANNOT AND DO NOT GUARANTEE OR WARRANT THAT FILES AVAILABLE FOR DOWNLOADING FROM THE SOFTWARE SERVICES WILL BE FREE OF VIRUSES OR OTHER DESTRUCTIVE CODE. YOU ARE RESPONSIBLE FOR IMPLEMENTING SUFFICIENT PROCEDURES AND CHECKPOINTS TO SATISFY YOUR PARTICULAR REQUIREMENTS FOR ANTI-VIRUS PROTECTION AND ACCURACY OF DATA INPUT AND OUTPUT, AND FOR MAINTAINING A MEANS EXTERNAL TO OUR SITE FOR ANY RECONSTRUCTION OF ANY LOST DATA.

14.4 TO THE FULLEST EXTENT PROVIDED BY APPLICABLE LAW, WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, RANSOMWARE, VIRUSES, OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA, OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE SOFTWARE SERVICES OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE ECHO360 SITES OR TO YOUR DOWNLOADING OF ANY CONTENT POSTED ON IT, OR ON ANY SITE LINKED TO IT.

15. Limitation of Liability.

15.1 TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL ECHO360 OR ITS AFFILIATES BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (A) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (B) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (C) LOSS OF GOODWILL OR REPUTATION; (D) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; (E) ERRORS, INACCURACIES, OMISSIONS, OTHER DEFECTS IN, UNTIMELINESS, OR UNAUTHENTICITY OF INFORMATION OR CONTENT PROVIDED BY, CONTAINED WITHIN, OR OBTAINED THROUGH THE SOFTWARE SERVICES; (F) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER WE WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE; (G) USER DATA OR OTHER CONDUCT OR CONTENT OF ANY USER OR THIRD PARTY USING THE SOFTWARE SERVICES, INCLUDING WITHOUT LIMITATION DEFAMATORY, OFFENSIVE OR UNLAWFUL CONDUCT OR CONTENT; OR (H) ANY THIRD-PARTY SERVICES OR THIRD-PARTY SITES ACCESSED VIA THE SOFTWARE SERVICES.

15.2 THE AGGREGATE LIABILITY OF ECH0360 TO USER FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY, SHALL NOT EXCEED THE AMOUNT OF THE SUBSCRIPTION FEES PAID BY, OR ON BEHALF OF, USER TO ECHO360 OVER THE PAST TWELVE (12) MONTH PERIOD FOR THE SOFTWARE SERVICES TO WHICH THE LIABILITY RELATES. THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.

15.3 ECHO360 ASSUMES NO RESPONSIBILITY FOR THE TIMELINESS, DELETION OR FAILURE TO STORE ANY USER DATA (INCLUDING, WITHOUT LIMITATION, CONTENT POSTED BY, OR ON BEHALF OF, USER AND OTHER USER CONTENT), USER COMMUNICATIONS OR PERSONALIZATION SETTINGS. ECHO360 ASSUMES NO RESPONSIBILITY FOR CONTENT POSTED BY, OR ON BEHALF OF, USER OR ANY USER THAT VIOLATES THE RIGHTS OF OTHERS, ALL OF WHICH IS EXPRESSLY PROHIBITED BY THESE TERMS. SUCH PROHIBITED CONTENT INCLUDES CONTENT THAT VIOLATES THE INTELLECTUAL PROPERTY RIGHTS OF OTHERS, OR THAT DEFAMES OTHERS.

15.4 The Software Services are not intended to offer or to promote the offer or sale of securities (“Securities”) in the United States or to U.S. persons (“U.S. Persons”) as defined in Regulation S under the U.S. Securities Act of 1933, as amended (the “Securities Act”). No information should be taken as a recommendation to buy, sell, or hold Securities or the interests of any entity.  Nothing in the Software Services should be construed as investment, tax, legal, or other advice, nor is it to be relied upon in making an investment decision. User should consult a financial advisor regarding the suitability of any of the products referred to on the Software Services. Past performance is not necessarily indicative of future results. Violations of this Agreement may result in civil and/or criminal liability. Echo360 has the right but not the obligation to investigate occurrences, which may involve such violations, and we may provide information to and cooperate with, law enforcement authorities in prosecuting any User who is involved in such violations.

16. Indemnification.

You agree to indemnify, hold harmless and, at Echo360’s option, defend Echo360 (including its affiliates, officers, directors, employees, agents, licensors, suppliers and any third-party information providers) from and against any losses, liabilities, costs (including reasonable attorneys’ fees and court costs) or damages resulting from or relating to: (i) Your negligence or willful misconduct; (ii) a breach of Your obligations, representations or warranties hereunder; and (iii) any claim by any third party that the Software Services infringe such third party’s intellectual property rights, if such alleged infringement arises, in whole or in part, due to modification of the Software Services by You, or on Your behalf, or if such alleged infringement arises, in whole or in part, due to combination or integration of the Software Services with hardware, software, equipment and/or technology not supplied by Echo360 hereunder, if such infringement would have been avoided by use of the Software Services absent such combination or integration, provided that, You shall not settle any claim unless such settlement completely and forever releases Echo360 from all liability with respect to such claim or unless Echo360 provides its prior written consent to such settlement, and further, provided that, Echo360 shall have the right, at its option, to defend itself against any such claim or to participate in the defense thereof by counsel of its own choice. You agree that the provisions in this section will survive any termination of Your Account, this Agreement or Your access to the Echo360 Software Services.

17. Export.

Export laws and regulations of the United States and any other applicable export laws and regulations apply to the Software Services. You agree that such export laws govern Your use of the Software Services (including technical data) and any Software Services deliverables provided under this Agreement, and You agree to comply with all such export laws and regulations (including “deemed export” and “deemed re-export” regulations). You agree that no data, information, software programs and/or materials resulting from the Software Services (or direct product thereof) will be exported, directly or indirectly, in violation of these laws, or will be used for any purpose prohibited by these laws including, without limitation, nuclear, chemical, or biological weapons proliferation, or development of missile technology.

18. Government Use.

The Echo360 Software is a “commercial item,” as that term is defined at 48 C.F.R. 2.101 (OCT 1995), consisting of “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212 (SEPT 1995) and is provided to the U.S. Government only as a commercial end item. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (JUNE 1995), all U.S. Government Users and end users acquire the Echo360 Software with only those rights set forth herein.

19. EchoAuthor (aka Knowbly) Specialists and Third-Party Services and Work.

19.1 Third-Party Services. The Software Services are integrated with various third-party services, applications and other websites (collectively, “Third-Party Services”) that may make their content and products or marketplaces available to You to connect customers and vendors. These Third-Party Services may have their own terms and policies, and Your use of them will be governed by those terms and policies. We do not control Third-Party Services and are not liable for Third-Party Services or for any transaction User may enter into with them. User is responsible for security when using Third-Party Services. User also agrees that We may, at any time and in our sole discretion, and without any notice to You, suspend, disable access to or remove any Third-Party Services. We are not liable to You for any such suspension, disabling or removal, including without limitation for any loss of profits, revenue, data, goodwill or other intangible losses You may experience as a result thereof (except where prohibited by applicable law).

19.2 Third-Party Sites. The Software Services may contain links to third-party sites. When You access third-party sites, You do so at Your own risk. We do not control and are not liable for those sites and what those third parties do.

19.3 EchoAuthor (aka Knowbly) Specialists. Certain parts of the Software Services may provide directories of, and information about, independent third-party Knowbly users (“Knowbly Specialists”) who can help You utilize Software Services. We do not employ, are not affiliated with, and do not endorse Knowbly Specialists. Knowbly Specialists are a Third-Party Service, as defined above.

19.4 Developer Tools. We may provide You with functionality to connect to, integrate or share information with a Third-Party Service through Developer Tools. “Developer Tools” are various tools and documentation, such as APIs, API SDKs, code, software, scripts, buttons, widgets, app keys, access tokens and developer pages and documentation for site developers, application developers, API partners and others who may be integrating Echo360 features or functionality into their sites, products or services. Your use of the Developer Tools is subject to our Developer Terms. Any access to, or use of, such Third-Party Services is at Your own risk, is Your responsibility, and is governed by the terms of Third-Party Services above.

20. Paid Services and Fees

20.1 Certain Echo360 services are paid services. This section explains how We handle payments for those services. For certain paid services, such as subscriptions, We will automatically bill in regular intervals (such as annually) unless You disable auto-renewal or cancel the subscription.

20.2 You can access certain portions of the Software Services by submitting a fee payment for these services (“Paid Services”). For example, to publish User work publicly, will need to pay a subscription fee. Paid Services will remain in effect until cancelled or terminated in accordance with this Agreement. We will tell You about fees for Paid Services before charging You. You may cancel Paid Services at any time via the Software Services or by contacting Echo360 Support. If You do not pay for Paid Services on time, We reserve the right to suspend or cancel Your access to the Paid Services. Transaction fees and additional fees may also apply to certain portions of the Software Services, and We will notify You about those fees before charging You. Our fees will appear on an invoice that We provide via the Software Services, unless otherwise indicated. Please note that different Paid Services have different fees and payment schedules and canceling one Paid Service may not cancel all of User’s Paid Services.

20.3 All fees are exclusive of applicable federal, state, local or other taxes (“Taxes”). You are responsible for all applicable Taxes, and We will charge Taxes in addition to the fees for the Software Services when required to do so. If You are exempt from Taxes, You must provide Echo360 with a current valid tax exemption certificate (we reserve the right to determine whether a certificate is valid). Tax exemption will only apply from and after the date Echo360 receives such documentation. If Echo360 has a legal obligation to pay or collect indirect Taxes (such as value-added tax or goods and services tax) on the sale to You under the laws of Your country (where You are established, has a principal place of business, has a permanent address or usually resides), You shall be liable for payment of any such indirect Taxes. Where Echo360 does not have a legal obligation to pay or collect indirect Taxes on a sale of Paid Services to You, You may be required to self-assess those Taxes under the applicable laws of Your country (where You are established, has a principal place of business, has a permanent address or usually resides).

20.4 To ensure uninterrupted service, we will automatically bill You for certain Paid Services from the date You submit the initial payment and on each renewal period thereafter until cancellation. Renewal periods will be equal in time to the renewal period of the current subscription. Echo360 will automatically charge You the applicable amount using the payment method on file with us. We will let You know in advance if You are purchasing a Paid Service that includes auto-renewal payments. Unless there is a Commercial Agreement in place that provides otherwise, auto-renewals may be disabled at any time via the Services or by contacting Echo360.

20.5 While You may cancel any Paid Services at any time (unless there is a Commercial Agreement in place that provides otherwise), User will not be issued a refund except in our sole discretion, or if legally required. We may offer a free trial for You to try out a website subscription. Please note applicable statutory rights of cancellation will not result in a refund, as we do not charge for this trial period.

20.6 We may change our fees at any time. When applicable, We will give advance notice of these fee changes via the Services. New fees will not apply retroactively. User has the right to reject the change by cancelling the applicable Paid Service before the next payment date.

20.7 If You contact a bank or credit card company to decline, chargeback or otherwise reverse the charge of any payable fees to us (“Chargeback”), we may automatically terminate Your Account. If You have questions about a payment made to Us, We encourage You to contact Us before filing a Chargeback. We reserve our right to dispute any Chargeback.

20.8 We use a third-party payment processor (the “Payment Processor”) to bill You through a payment account linked to Your Account. The processing of payments will be subject to the terms, conditions and privacy policies of the Payment Processor, in addition to this Agreement.  Your payments will be processed in accordance with the Payment Processor’s terms of service and privacy policy.  We do not control and are not liable for the security or performance of the Payment Processor. You agree to pay us, through the Payment Processor, all charges (including, but not limited to, any fees charged by Processor) at the prices then in effect for any purchase in accordance with the applicable payment terms. You agree to make payments using the payment method You provide with the Account. We reserve the right to correct, or to instruct our Payment Processor to correct, any errors or mistakes, even if payment has already been requested or received.

20.9 Third-Party Services purchased via the Software Services may be subject to different refund policies determined by those Third-Party Services, and they may be non-refundable. The purchase terms and conditions for such Third-Party Services will be displayed during the purchase process, such as through a link to the purchase terms and conditions. It is Your responsibility to verify Your ability to purchase, cancel or obtain a refund for a Third-Party Service. We do not offer refunds for purchases of Third-Party Services.

 21. Governing Law.

This Agreement shall be construed and interpreted under the laws of the State of Ohio, without regard to the conflict of laws principals thereof or to the United Nations Convention for the International Sale of Goods. If any provision of this Agreement, or portion thereof, is found to be unenforceable, such provision shall be enforced to the maximum extent possible and the remainder of this Agreement shall continue in full force and effect.

22. Changes.

Echo360 may amend this Agreement from time to time. If We make material changes to this Agreement, We may notify You by posting the change(s) on Echo360’s website, or in the Software, or by sending You an email at Your primary email address as specified in Your Account. Any changes to this Agreement will be effective immediately for new users of our Software Services; otherwise, such changes will be effective upon the earlier of fourteen (14) calendar days following our dispatch of a notice to You or fourteen (14) calendar days following our posting of a notice through the Software Services whichever is earlier. You are responsible, at all times, for updating Your Account to provide to Echo360 with Your most current email address. If the last email address that You have provided to Echo360 is not valid, or for any reason is not capable of delivering the notice described above, our dispatch of the email containing such notice will nonetheless constitute effective notice of the changes. Continued use of our Software Services following notice of such changes will indicate Your acknowledgement of, and Your agreement to be bound by, such changes.

 23. Force Majeure.

Echo360 shall not be responsible for failure or delay of performance if caused by an act of war, terrorism, hostility, or sabotage; act of God; pandemic; electrical, internet, or telecommunication outage that is not caused by Echo360; government restrictions (including the denial or cancelation of any export, import or other license); or other event outside the reasonable control of Echo360.  Echo360 will use commercially reasonable efforts to mitigate the effect of a force majeure event.

24. Severability.

If any provision of this Agreement is invalid or unenforceable for any reason in any jurisdiction, such provision shall be construed to have been adjusted to the minimum extent necessary to cure such invalidity or unenforceability. The invalidity or unenforceability of one or more of the provisions contained in this Agreement shall not have the effect of rendering any such provision invalid or unenforceable in any other case, circumstance or jurisdiction, or of rendering any other provisions of this Agreement invalid or unenforceable whatsoever.

25. Entire Agreement.

You agree that this Agreement (as may be amended by time to time) and the information which is incorporated into this Agreement by written reference (including reference to information contained in a URL or referenced policy), together with the Commercial Agreement, if applicable, is the complete agreement for the Software Services and supersedes all prior or contemporaneous agreements or representations, written or oral, regarding such Software Services.

EXHIBIT A

ECHOEXAM USERS

This Exhibit A supplements the Agreement. User’s installation and use of the Software Services constitutes User’s acceptance of these terms and conditions (hereinafter “Terms”), which apply to User’s version of the Software Services, in their entirety. 

ECHOEXAM PUBLISHER (TEXTBOOK EDITION) VERSIONS. If User is using EchoExam then: (a) User has adopted and continues to use text in User’s class which is specified for use with EchoExam; and (b) User accepts all of the terms as set out in the Agreement and this Exhibit A to the Agreement. This subscription does not apply to any publisher content included with EchoExam, EchoExam Assessment Suite, or EchoExam Pro software products (i.e., tests, test banks, and other content files). User may install and use the EchoExam Test Player (but not the entire EchoExam Assessment Suite) on more than one computer or network (including to allow concurrent access from or on multiple computers) solely for use at a single building or campus provided that each Instructor who accesses and uses the Software must have adopted and be using the specified text in his or her class. User may copy the Software for backup and archival purposes only, provided that the original and each copy are kept in User’s possession.

ECHOEXAM RETAIL VERSIONS. If User is using EchoExam (Retail Version), User may install and use the EchoExam Test Player (but not the entire EchoExam Assessment Suite) on more than one computer or network (including to allow concurrent access from or on multiple computers). User may copy the Software for backup and archival purposes, provided that the original and each copy are kept in User’s possession. 

ECHOEXAMVIEW LEARNING SERIES.  Echo360 owns all the intellectual property associated with the Software, including all files/questions contained in User’s EchoExam Learning Series package. If User is installing and using EchoExam data files on behalf of a third-party (including, without limitation, User’s employer), then User represents and warrants that User has the authority to accept this subscription (and all of its terms and conditions) on such third-party’s behalf, that such third-party will be bound by this Agreement. User may install and use the files contained in User’s EchoExam package and any files that User is authorized by this Agreement to make (also referred to herein as “Data Files”) on the hard disks of a single standalone computer (User may install them on both an office and a home computer provided that both are for User’s personal use and will not be used simultaneously by other instructors). If User has acquired Data Files pursuant to a multiple-user site subscription, User may install and use the Data Files on the hard disks of standalone computers up to the number of computers specified on the invoice. User may use the Data Files (a) within Echo360’s programs, (b) within third-party software, and (c) to create tests. In any case, the Data Files and tests derived from them may only be used by individuals at the building or in the district or campus as specified by the multiple-user site subscription. User acknowledges and agrees that the Data Files, as they may be altered by User, and the tests composed by User through the use of the Data Files shall constitute “derivative works” for copyright purposes and as such term is understood under the Copyright Act of 1976 (codified in Title 17 of the United States Code). Use of said derivative works based on Data Files shall be subject to the permission set forth in this Agreement and all of the restrictions set forth in this Agreement.