1. ACCEPTANCE OF TERMS
CASTLE Software, Inc. (hereafter called “CASTLE Software”) provides its service to you, subject to the following Terms of Service (“TOS”), which may be updated by us from time to time without notice to you. When using particular CASTLE Software services, you and CASTLE Software shall be subject to any posted guidelines or rules applicable to such services which may be posted from time to time. All such guidelines or rules are hereby incorporated by reference into the TOS.
2. DESCRIPTION OF SERVICE
CASTLE Software currently provides users with a service to help review course content. Unless explicitly stated otherwise, any new features that augments or enhances the current Service, including the release of new CASTLE Software properties, shall be subject to the TOS. You understand and agree that the Service is provided “AS-IS” and that CASTLE Software assumes no responsibility for the timeliness, deletion, misdelivery or failure to store any user communications or personalization settings.
In order to use the Service, you must obtain access to the Internet, 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 Internet, including a computer and modem or other access device.
3. YOUR REGISTRATION OBLIGATIONS
In consideration of your use of the Service, you agree to: (a) provide true, accurate, current and complete information about yourself as prompted by the Service’s registration form (such information being the “Registration Data”) and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or CASTLE Software has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, CASTLE Software has the right to suspend or terminate your account and refuse any and all current or future use of the Service (or any portion thereof).
5. MEMBER ACCOUNT, PASSWORD AND SECURITY
You will have a password and account designation upon completing the Service’s registration process. You are responsible for maintaining the confidentiality of the password and account, and are fully responsible for all activities that occur under your password or account. You agree to (a) immediately notify CASTLE Software of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session. CASTLE Software cannot and will not be liable for any loss or damage arising from your failure to comply with this Section 5.
A Castle Learning subscription can only be used by one person during the length of the subscription period unless express authorization is given by CASTLE Software, Inc. or the school/district is reassigning the subscription to a new student because the original recipient is no longer enrolled at the school/district during the subscription period.
6. MEMBER CONDUCT
You understand that all information including but not limited to data, text, software, photographs, graphics, illustrations, artwork, video, music, sound, messages, names, logos, trademarks, service marks and other materials (“Content”), whether publicly posted or privately transmitted, are the sole responsibility of the person from which such Content originated. This means that you, and not CASTLE Software, are entirely responsible for all Content that you upload, post, email, transmit or otherwise make available via the Service. CASTLE Software does not control the Content posted via the Service and, as such, does not guarantee the accuracy, integrity or quality of such Content. Under no circumstances will CASTLE Software be liable in any way for any Content, including, but not limited to, for any errors or omissions in any Content, or for any loss or damage of any kind incurred as a result of the use of any Content posted, emailed, transmitted or otherwise made available via the Service.
You understand that the technical processing and transmission of the Service, including your Content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
7. SPECIAL ADMONITIONS FOR INTERNATIONAL USE
Recognizing the global nature of the Internet, you agree to comply with all local rules regarding online conduct and acceptable Content. Specifically, you agree to comply with all applicable laws regarding the transmission of technical data exported from the United States or the country in which you reside.
You agree to indemnify and hold CASTLE Software, and its subsidiaries, affiliates, officers, agents, co-branders or other partners, and employees, harmless from any claim or demand, including reasonable attorneys’ fees, court costs and disbursements made by any third party due to or arising out of Content you submit, post, transmit or make available through the Service, your use of the Service, your connection to the Service, your violation of the TOS, or your violation of any rights of another. CASTLE Software, its subsidiaries, affiliates, officers, agents, co-branders or other partners and employees agree to indemnify and hold you harmless from any claim or demand, including reasonable attorneys’ fees, court costs and disbursements made by any third party due to or arising out of CASTLE Software’s gross negligence or for copyright or intellectual property infringement. In the event a claim of an Indemnifiable nature is made the Indemnitee shall notify the Indemnitor in writing of said claim and not settle any such claim without the written consent of the Indemnitor such consent not to be unreasonably withheld.
9. NO RESALE OF SERVICE
You agree not to reproduce, duplicate, copy, sell, resell or exploit for any commercial purposes, any portion of the Service, use of the Service, or access to the Service.
10. MODIFICATIONS TO SERVICE
CASTLE Software reserves the right at any time and from time to time to modify or temporarily discontinue the Service (or any part thereof) in the event that you violate the terms and conditions of use as set forth herein. If such modification or discontinuance occurs, CASTLE Software will provide you with notice that modification or discontinuance of the Service will be instituted and provide you with a reasonable period in which to correct the violation. If the violation is not remedied or steps to remedy the violation are not taken within the period provided, the Service may be modified or discontinued. You agree that CASTLE Software shall not be liable to you or to any third party for any modification, suspension or temporary discontinuance of the Service. In the event of permanent discontinuance of the Service, caused by CASTLE, liability is limited to the paid subscription price, pro-rated to the amount of time remaining on the subscription. In the event of permanent discontinuance of the Service, due to acts of commission and/or omission by you, you agree that in addition to any other remedy or limitation on behalf of CASTLE you are not entitled to any refund whatsoever.
You agree that CASTLE Software, in its sole discretion, may terminate your password, account (or any part thereof) or use of the Service, for any reason, including, without limitation, for lack of use or if CASTLE Software believes that you have violated or acted inconsistently with the letter or spirit of the TOS. CASTLE Software may also in its sole discretion and at any time discontinue providing the Service, or any part thereof, with 30 days notice. You agree that any termination of your access to the Service under any provision of this TOS may be effected provided that prior notice is given and the cure period has expired, and acknowledge and agree that CASTLE Software may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the Service. Further, you agree that CASTLE Software shall not be liable to you or any third-party for any termination of your access to the Service. In the event that a cure cannot be made within 30 days, a reasonable time shall be added, not to exceed 30 additional days. The request for additional time should be communicated in writing, stating the reason for the delay and what actions are being taken to provide a cure.
The Service may provide, or third parties may provide, links to other Internet web sites or resources. Because CASTLE Software has no control over such sites and resources, you acknowledge and agree that CASTLE Software is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any Content, advertising, products, or other materials on or available from such sites or resources. You further acknowledge and agree that CASTLE Software shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such Content, goods or services available on or through any such site or resource.
13. CASTLE SOFTWARE’S PROPRIETARY RIGHTS
You acknowledge and agree that the Service and any necessary software used in connection with the Service (“Software”) contain proprietary and confidential information that is protected by applicable intellectual property and other laws. You further acknowledge and agree that information presented to you through the Service is protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws. Except as expressly authorized by CASTLE Software or advertisers, you agree not to modify, rent, lease, loan, sell, distribute or create derivative works based on the Service or the Software, in whole or in part.
CASTLE Software grants you a personal, non-transferable and non-exclusive right and license to use the Service. You agree that you will not copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, grant a security interest in or otherwise transfer any right in the Software. You agree not to modify the Software in any manner or form, or to use modified versions of the Software, including (without limitation) for the purpose of obtaining unauthorized access to the Service. You agree not to access the Service by any means other than through the interface that is provided by CASTLE Software for use in accessing the Service.
Furthermore, you understand that the Content is protected by copyright and other laws in both the United States and elsewhere. Under the terms of this agreement, it is expressly forbidden to distribute the Content or any portion thereof by any means, including but not limited to electronic and print, to any person or entity who does not have a valid account. CASTLE Software reserves the right to cancel your organization’s license without refund if it is determined that you have violated this portion of the agreement.
14. DISCLAIMER OF WARRANTIES
YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
a. YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. CASTLE SOFTWARE EXPRESSLY
DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
b. CASTLE SOFTWARE MAKES NO WARRANTY THAT (i) THE SERVICE WILL MEET YOUR REQUIREMENTS, (ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS, AND (V) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED.
c. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
d. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM CASTLE SOFTWARE OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TOS.
15. LIMITATION OF LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT CASTLE SOFTWARE SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF CASTLE SOFTWARE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM:
(i) THE USE OR THE INABILITY TO USE THE SERVICE; (ii) THE COST OF PROCUREMENT
OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (v) ANY OTHER MATTER RELATING TO THE SERVICE.
16. EXCLUSIONS AND LIMITATIONS
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS OF SECTIONS 17 AND 18 MAY NOT APPLY TO YOU.
17. TRADEMARK INFORMATION
CASTLE Software, Inc. and Castle Learning are registered trademarks of CASTLE Software Inc.
18. GENERAL INFORMATION
The TOS constitutes the entire agreement between you and CASTLE Software and govern your use of the Service, superseding any prior agreements between you and CASTLE Software. You also may be subject to additional terms and conditions that may apply when you use affiliate services, third-party content or third-party software. The TOS and the relationship between you and CASTLE Software shall be governed by the laws of the State of New York without regard to its conflict of law provisions. The failure of CASTLE Software to exercise or enforce any right or provision of the TOS shall not constitute a waiver of such right or provision. If any provision of the TOS is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the TOS remain in full force and effect.
You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or the TOS must be filed within one (1) year after such claim or cause of action arose or be forever barred.
In the event that CASTLE Software must retain counsel to enforce the terms and conditions of this agreement, you will be responsible for such costs if CASTLE should prevail.
The section titles in the TOS are for convenience only and have no legal or contractual effect.