Echo360 End User Agreement

Please read all of the rights and restrictions set forth in this Echo360 End User Agreement (“AGREEMENT”). This AGREEMENT is a legally binding agreement between Echo360, Inc. and “You” as the “User”.

If you are entering into this AGREEMENT on behalf of a company, university 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 Echo360’s active learning platform (the “Software Services”).

By accessing the Software Services You agree to be bound by the terms and conditions of this AGREEMENT. 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 CORRESPONDING ORDER FORM & SOFTWARE SUBSCRIPTION SERVICES AGREEMENT, RISK FREE TRIAL AGREEMENT, AND/OR “FREE TRIAL ORDER FORM” (EACH A “COMMERCIAL AGREEMENT”) WHICH YOU OR YOUR 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 FREE 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 FREE TRIAL WILL BE LOST 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 VIRGINIA 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

1.1 For the duration of the Term, and subject to the terms of this AGREEMENT, and the timely payment of applicable fees specified under the Commercial Agreement, Echo360 grants to You a non-exclusive, non-transferable, worldwide, limited right to access and use the Software Services ordered under the Commercial Agreement solely for Users’ individual educational purposes.

1.2 Echo360 hereby 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. Upon the end of the Software Services ordered, Your right to access and use the Software Services will terminate.

1.3 To enable Echo360 to provide You with the Software Services, You grant Echo360 the right to use, process, 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” shall mean information, data, and/or documents submitted by either the administration, professor, or students for the class, by way of example, Your Data includes video captures, PowerPoint presentations, course syllabi, and assignment submissions. For clarity, Customer Data does not include Statistical Viewer Usage Data.

1.4 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.

2. Ownership and Restrictions

2.1 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 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.

2.2 You may not and may not cause or permit others to:
a. Remove or modify any program markings or any notice of Echo360’s or its licensors’ proprietary rights;
b. 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;
c. 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;
d. 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.

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) menace or harass any person or cause damage or injury to any person or property, (b) involve the publication of any material that is false, defamatory, 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 laws, ordinances or regulations. 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”). User agrees 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 acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the Software Services (“Submissions”) 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 Submissions.. You hereby assign to Echo360 all exclusive rights, including all intellectual property rights, to Submissions and Echo360 shall be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without notice, attribution or compensation to You.

5. Term and Termination

5.1 The Term of this AGREEMENT shall 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.

5.3 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. If set forth in the Commercial Agreement, Echo360 may make Your Data available for the purpose of retrieval by You for a period of time set forth therein.

5.4 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.

6. Confidentiality

6.1 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 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 (i) 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 (ii) 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.

6.2 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.

6.3 Confidential Information shall not include information that: (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.

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.

7. Consent to Collection of Usage Data

You agree that Echo360 may collect 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 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 Echo360You 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 authorize Echo360, to the extent any of Your Data may be part of such aggregated information, to forward the Statistical Viewer Usage Data to Echo360’s network. BY USING THE ECHO360 SOFTWARE AND/OR RELATED SERVICES, USER CONSENTS TO THE COLLECTION, USE AND REPORTING OF STATISTICAL VIEWER USAGE DATA. ANY COLLECTION AND USE OF PERSONAL INFORMATION AND DATA SHALL BE GOVERNED BY THE TERMS AND CONDITIONS outlined in Echo360’s Privacy Policy available at http://echo360.com/echo360-online-privacy-policy.

8. 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.

9. Disclaimer of Warranty

THE SOFTWARE SERVICES ARE PROVIDED “AS IS” 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 OR STATUTORY, 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. YOU ACKNOWLEDGE THAT ECHO360’S OBLIGATIONS UNDER THIS AGREEMENT ARE FOR THE BENEFIT OF YOU ONLY.

10. Limitation of Liability

IN NO EVENT SHALL ECHO360 BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.

THE CUMULATIVE 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 LESSER OF (I) FIFTY DOLLARS (U.S. $50.00) OR (II) THE TOTAL AMOUNT OF ALL FEES HAVING BEEN PAID TO ECH0360 BY USER 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.
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.

11. Indemnification

You agree to indemnify, hold harmless and, at Echo360’s option, defend Echo360 from and against any losses, liabilities, costs (including reasonable attorneys’ fees) or damages resulting from (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.

12. Export

Export laws and regulations of the United States and any other relevant local 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.

13. Force Majeure

Echo360 shall not be responsible for failure or delay of performance if caused by: an act of war, 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 reasonable efforts to mitigate the effect of a force majeure event.

14. 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.

15. 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.

16. Controlling Law and Complete Agreement

This AGREEMENT shall be construed and interpreted under the laws of the Commonwealth of Virginia, 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.

17. Assignment

You may not assign this AGREEMENT or give or transfer the Software Services or an interest in them to another individual or entity.

18. 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.