This is an End-User License Agreement (the “EULA” or “Agreement”) between you (“you” “your” or “User(s)”) and SPED K12, Inc., a Delaware corporation (with its affiliates, “SPED K12” “we” “our” “us” or the “Company”), whichgoverns your use of our Services(as defined below).
We offer the SmartEdPad Tablet Solution, the SmartEdPad Software Solution, and the SmartEdApp (defined below). Please refer to our Solutions page for further details on the offerings and pricing on our Pricings page.
“Apps” means the Company Owned Apps and the Third Party Apps.
"Company Owned Apps" means any applications designed and developed by the Company, including the SmartEdApp.
“Device(s)” means, collectively, the Samsung Tablet and Supported Devices.
“Samsung Tablet” means an electronic device, specifically the Samsung Galaxy Tablet (7" or 10"), which is available for purchase as part of the SmartEdPad Tablet Solution.
"Service(s)" means the Company’s products and/or services that are offered to you, whether it is the SmartEdPad Tablet Solution, the SmartEdPad Software Solution, the SmartEdApp, or a combination thereof, including any Third Party Apps, Samsung Tablet, or Supported Devices that may be offered by the Company.
“SmartEdApp” meansapplication created by SPED K12which features educational programming and tracks student’s progress.
“SmartEdPad Tablet Solution” means Samsung Galaxy Tablet (7" or 10"), and the imbedded SmartEdApp platform.
“SmartEdPad Software Solution” means software created by SPED K12which features educational programming and tracks student’s progress.
"Supported Device" means a mobile, computer or other supported electronic device other than a Samsung Tablet on which you are authorized to operate the SmartEdPad Software Solution or the SmartEdApp, including but not limited to, Android tables, iPads, and Kindles.
"Third Party Apps" means any third-party app downloadable through the Apple App Store or Google Play (including any updates/upgrades to that App), which may be offered through our SmartEdPad Tablet Solution or bundled into our SmartEdPad Software Solution.
The Company grants you a limited, non-exclusive, non-transferable, non-sublicensablelicense to access and make personal and non-commercial use the Services, provided that you access and use the Services in accordance with this Agreement (the “License”).
a. Suitability.You agree and accept that prior to purchase or download of the SmartEdApp, SmartEdPad Tablet Solution, or SmartEdPad Tablet Solution, you have had a full, complete and comprehensive evaluation of the functionality, features and usage of the Device and the Apps and that you have had the fullest opportunity to ascertain the suitability of the Apps for the purpose(s) for which you are purchasing it, including but not limited to its features, usage and compatibility.
b. No refunds.You understand and irrevocably accept that in consideration of the foregoing or otherwise, once the SmartEdApp, SmartEdPad Tablet Solution, or SmartEdPadSoftware Solution is purchased or downloaded and delivered to you, no returns are permitted and you are fully obligated to complete payment of the agreed purchase price. Non-usage or discontinuation of usage of the SmartEdApp, SmartEdPad Tablet Solution, or SmartEdPad Software Solution, either ab initio or otherwise, or termination of this Agreement for any reason whatsoever cannot and will not constitute grounds for non-payment of the agreed purchase price or refund of any amounts already paid. Notwithstanding anything else to the contrary in this Agreement or any other agreement, under no circumstances will the Company be required or obliged to make any refund of the purchase price or annual maintenance charges whatsoever. IT IS CLARIFIED, AND YOU AGREE AND ACCEPT, THAT THE PURCHASE OF THE SMARTEDAPP, SMARTEDPAD TABLET SOLUTION, OR SMARTEDPAD SOFTWARE SOLUTION,INCLUDING THIRD-PARTY APPS IS NOT COVERED BY A MONEY BACK GAURANTEE OR RETURN POLICY.
b. No modification.You shall not modify, adapt or translate the Apps. You shall not reverse engineer, decompile, disassemble or modify any portion of the Apps or merged portion of the Apps, in whole or in part, nor shall otherwise attempt to discover the source code or develop a source code version of the Apps. Copying or distribution of text, pictures, music, barcodes, video, data, hyperlinks, displays and other content provided by the Apps is prohibited.
c. No Assignment.You shall not sell, sublicense, assign, or transfer the License granted hereunder or any part of the Apps, except as expressly provided in this Agreement and that any attempt to do so shall be invalid and will automatically terminate the License and this Agreement. The Apps are licensed as a single product and its component and or parts may not be separated for use.
d. No Distribution.You shall not distribute or make available the SmartEdPad Software Solution over a network to be used by multiple devices or users, and if you purchased the SmartEd Pad Tablet Solution, you may only use the Apps with the Samsung Tablet that you purchased. The SmartEdPad Software Solution are licensed only for Samsung Tablet or Supported Device at a time, and cannot be transferred for use in other electronic devices.The SmartEdApp may be used with other iPads based on the number of users you have purchased the SmartEdApp for (for further details, please see our Pricing pageand under your applicable purchase agreement with us).
This Agreement applies to any updates, supplements, add-on components, or new Apps, or Internet-based services components for the Company Owned Apps, unless they are accompanied by separate terms. The Company shall provide support under the applicable package purchased by you. Please see our Pricing page for further details regarding the support provided by the Company and whether you have new Apps available to you for download as part of your purchased package. The Company reserves the right to discontinue upgrades, updates, supplements, add-on components, provided to you or made available to you through your use of Company Owned Apps.
a. Company Intellectual Property.The Company Owned Apps, this website, the Company name, logo, any and all trademarks, servicemarks, and the content included in the Company Owned Apps are the intellectual property of the Company and are owned by the Company. The structure, organization and code of the Company Owned Apps are the intellectual property, trade secrets, and/or confidential information of the Company which is protected by law. The Company Owned Apps are protected, including without limitation, under the copyright, trademark, trade secret, and patent laws of the United States and other countries, and any applicable international treaty provisions. Except as expressly stated herein, this Agreement does not grant you any intellectual property rights in the Company Owned Apps or any rights to trademarks or service marks of the Company and all rights not expressly granted are reserved by the Company. You and Company acknowledge that, in the event of any third party claim that the Company Owned Apps or your use of the Company Owned Apps infringes any third party’s intellectual property rights, the Company will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim. Should the Company Owned Apps be found to infringe any intellectual property rights of a third party, Your sole remedy shall be either to cease using the Company Owned Apps or to use a non-infringing version of the Company Owned Apps should Company choose to provide you with such a non‐infringing version.
b. Intellectual Property of others.The Company owns the Company Owned Apps and any and all trademarks, service marks and other content included in the Company Owned Apps. The Company Owned Apps, may use trademarks, service marks or other content in connection with the services it provides and such trademarks, service marks or other content remains at all times the property of its respective owner. You have no right or license with respect to any trademarks, service marks and other content owned by Company or any third party that is visible on or provided to you through the Apps.
c. Ownership of your content.When you upload, submit, store, send or receive content to or through our Services, you give SPED K12 (and those we work with) a worldwide license to use, host, store, reproduce, modify, create derivative works (such as those resulting from translations, adaptations or other changes we make so that your content works better with our Services), communicate, publish, publicly perform, publicly display and distribute such content. The rights you grant in this license are for the limited purpose of operating, promoting, and improving our Services, and to develop new ones. This license continues even if you stop using our Services). You may be able to edit, modify, or remove your information or content in the App(s).
You agree and acknowledge that the use of our Services, which include the SmartEdPad Tablet Solution, SmartEdPad Software Solution, and the SmartEdApp, and any and all associated Apps involves the use of Third Party Apps, which are not owned by the Company and are ONLY licensed for your use. You agree that your usage of Third Party Apps, Supported Devices, or the Samsung Tablet, is governed by the terms specified by such third party as available in the respective application. For any support related to such Third Party Apps, Supported Devices, or the Samsung Tablet, you agree to contact such third party directly and acknowledge that the Company is not responsible for providing such support.
The warranties for the Samsung Tablet or the Supported Devices shall be governed by the terms specified by the manufacturer of the Samsung Tablet or the Supported Devices, as applicable. The replacement or repair to the Samsung Tablet or Supported Devices in the event of any damage shall be your responsibility and are governed by the terms specified by the manufacturer of the Samsung Tablet or the Supported Devices. However, the Company may assist you, the User, in configuring the Samsung Tablet or other Support Devices with the necessary Apps, if requested by you,provided the User bears the cost of such configuration, if any. THE COMPANY IS NOT RESPONSIBLE FOR ANY DAMAGES ARISING OUT THE USE OF THE SAMSUNG TABLET OR SUPPORTED DEVICES, INCLUDING BUT NOT LIMITED, TO PHYSICAL DAMAGE, DAMAGES ARISING OUT OF INSTALLATION OF ANYAPPS AND OTHER DAMAGES.
The Company represents and warrants that it has the right to grant you all rights and licenses granted under this Agreement. THE COMPANY DOES NOT AND CANNOT WARRANT THE PERFORMANCE OR RESULTS YOU MAY OBTAIN BY USING OUR SERVICES. YOU ACCEPT THE SERVICES “AS IS”, WITH NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS OF ANY KIND, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. THE COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WITH RESPECT TO ANY THIRD PARTY APPS OR DEVICES. To the extent permitted by Company’s agreement with the owner of any such Third Party Apps or Devices, the Company will assign to you any rights that the Company may have under such owner's warranty.
You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; (ii) you are not listed on any U.S. Government “watch list” of prohibited or restricted parties, including the Specially Designated Nationals list published by the Office of Foreign Assets Control of the U.S. Treasury or the Denied Persons List published by the U.S. Department of Commerce; (iii) you comply with the age or consent restrictions of this Agreement; and (iv) you agree to all terms of this Agreement.
TO THE FULLEST EXTENT ALLOWABLE UNDER APPLICABLE LAW, (A) IN NO EVENT SHALL WE BE LIABLE TO YOU WITH RESPECT TO THE USE OF THE DEVICE AND THE APPS OR DEVICES; AND (B) IN NO EVENT SHALL WE BE LIABLE TO YOU FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR IN ANY WAY RELATING TO THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE APPS OR THE DEVICES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OR CORRUPTION OF DATA OR FAILURE OR MALFUNCTION OF YOUR DEVICE. YOUR SOLE REMEDY UNDER THIS AGREEMENT IS TO CEASE USE OF THE APPS OR THE DEVICE(S). The foregoing limitations will apply even if the above stated remedy fails of its essential purpose.
You agree to defend, indemnify, and hold harmless the Company and its employees, contractors, officers, and directors from any and all claims, suits, damages, costs, lawsuits, fines, penalties, liabilities, expenses (including attorney's fees) that arise from your use or misuse of the Apps or Devices (as applicable),collectively, the Services,or your violation of this Agreement or the violation of any rights of a third party. We reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will cooperate in asserting any available defenses.
The usage of our Services may require transmission of information provided by you including usernames/passwords, your name, address, e‐mail addresses and financial information, including your credit card information (collectively “User Information”) in order to settle, pay for or “close‐out” a check, bill, tab or to make any payment to us for the purchase of any one of our Services offered. You consent to the transmission of User Information to Company and its agents, including any payment processor, to process User Information as may be necessary for the performance of the Apps, SmartEdPad Tablet Solution, SmartEdPad Software Solution, or the SmartedApp,You acknowledge that User Information will be stored by the Apps in your Device and the Company makes no warranty that a third party cannot decrypt User Information should a third party come into possession of Device. We suggest and request that you use all security features of your Device to protect Device and the confidentiality of User Information. Should you lose your Device, or reasonably conclude that another person may access or have accessed User Information on your Device, You shall be responsible for taking necessary steps for securing, backing up the data, and/or contact the respective person or agency to report such instance based on the criticality or sensitivity of the information.
If any part of this Agreement is found void and unenforceable, it will not affect the validity of the remainderof this Agreement, which shall remain valid and enforceable according to its terms. This Agreement shall not prejudice the statutory rights of any party dealing as a consumer.
This Agreement is effective until terminated.
a. Termination by the User:You may terminate this Agreement at any time by providing Company with written notice, provided that you have made all payments due to the Company including but not limited to license fees, maintenance fees, early termination fees, if any, and other fees as applicable. In the event of your termination of this Agreement, the Company will not be liable to refund any amount paid by you during the use of the Device and the Apps or such other fees or expenses incurred for such termination.
b. Termination by the Company:This Agreement may be terminated by the Company if you fail to comply with any of the terms and conditions set forth in this Agreement including non-payment and youdo not remedy such failure within fifteen (15) days after receiving notice of non-payment thereof. Upon termination of this Agreement by Company, you agree toimmediately cease all use of the Apps.In such instances of termination, the Company will not be liable to refund any amount paid by you during the use of the Device and the Apps or such other fees or expenses incurred for such termination.
The provisions of Section 1, 4,8, 9, 10, 15, 16, 17 and 18 shall survive the termination of this Agreement.
This Agreement will be construed in accordance with and governed by the laws of the State of California and the United States of America that would be applied to contracts entered into between California residents to be performed entirely within California without regard to the conflicts or choice of law rules of such state or of any other jurisdiction, except that the arbitration provision shall be governed by the Federal Arbitration Act. Your use of our Services may also be subject to other local, state, national, or international laws.
Any and all controversies, disputes, demands, counts, claims, or causes of action (including the interpretation and scope of this clause), legal suit, action or proceeding arising out of, or related to, this Agreement or the Site between you and the Company and our employees, agents, successors, or assigns, shall exclusively be settled through binding and confidential arbitration. Arbitration shall be subject to the Federal Arbitration Act and not any state arbitration law. The arbitration shall be conducted before one commercial arbitrator with substantial experience in resolving commercial contract disputes from the American Arbitration Association (“AAA”) or JAMS. As modified by this Agreement, and unless otherwise agreed upon by the parties in writing, the arbitration will be governed by the AAA’s or JAMS’s rules for commercial arbitration and, if the arbitrator deems them applicable, the procedures for consumer-related disputes. Claims shall be exclusively brought in the state or federal courts located in Santa Clara County, California.
Notwithstanding any provision in this Agreement to the contrary, if we seek to terminate the Dispute Resolution section as included in the Agreement, any such termination shall not be effective until 30 days after the version of the Agreement not containing the agreement to arbitrate is posted to our website, located at www.smartedtech.com, and shall not be effective as to any claim of which you provided the Company with written notice prior to the date of termination.
You agree that the Appsor Devices will not be shipped, transferred or exported to any country or used in any manner prohibited by any export laws, restrictions or regulations (collectively the "Export Laws"). In addition, if the Apps or Devices are identified as export controlled items under the Export Laws of the your country, you represent and warrant that you are not a citizen, or otherwise located within, an embargoed nation (including without limitation Iran, Iraq, Syria, Sudan, Libya, Cuba, North Korea, and Serbia) and that you are not otherwise prohibited under the Export Laws from receiving the Apps or Devices. All rights to use the Apps or Devices are granted on condition that such rights are forfeited if you fail to comply with the terms and conditions of this Agreement.
The Apps are "Commercial Terms," 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 defined in 48 C.F.R. §252.227-7014(a)(1) and 48 C.F.R. §252.227-7014(a)(5), respectively, and used in 48 C.F.R. §12.212 and 48 C.F.R. §227.7202, as applicable, and as amended from time to time. Consistent with 48 C.F.R. §12.212 and 48 C.F.R. §227.7202, and other relevant sections of the Code of Federal Regulations, as applicable, and all as amended from time to time, all U.S. Government entities acquire this Software only with those rights set forth herein.
Should you wish to contact us with any questions, complaints or claims with respect to our Services(with the exception of excluding Third Party Appsor electronic devices, such as the Samsung Tablet, provided by the Company), please contact us at:
SPED K12, Inc.
1290 Kifer Road, Suite 301
Sunnyvale, CA 94806