Terms of Use

Intrepid Platform

Terms of Use

Use of the services and software known as Intrepid Platform Services (the "Intrepid Platform") provided here by VitalSource Technologies LLC ("VitalSource" also "we," "our," and "us") is subject to the following Terms of Use. We are a limited liability company, formed under the laws of the State of Delaware in the United States. Our registered number is 2411480, and our principal office is at 227 Fayetteville Street, Suite 400, Raleigh, NC 27601.

Service Provider Compliance

VitalSource contracts with third parties ("Service Providers") for the provision of certain networking, content distribution, and related products and services (collectively, the "Services"). When using the Intrepid Platform, you may be allowed to input or upload content, such as text ("Inputs"). The Inputs will be used by the Intrepid Platform in combination with Service Providers to generate an output, such as text ("Outputs"). The Inputs and Outputs are your Content (defined as any text or information that you upload, import into, embed for use, or create using the Intrepid Platform). You hereby grant VitalSource and its Service Providers a nonexclusive, perpetual, worldwide, royalty-free, irrevocable, sublicensable, and fully paid-up license to use, reproduce, distribute, modify, sublicense, create derivative works based on, publicly display, publicly perform, or translate both the submitted Inputs and any corresponding Outputs.

You will not alter, steal, corrupt, disable, destroy, trespass or violate any security or encryption of any computer file, database, or network. You will not alter, tamper with, adjust, repair, interfere with or circumvent any aspect of the Services. You will in all ways comply with the Terms of Use of any Service Provider to whose network you are connected as a result of your use of the Intrepid Platform. Acceptable use policies of applicable Service Providers will be made available upon request.

Acceptance

Your use of or registration for the Intrepid Platform constitutes your agreement to comply with the Terms of Use. VitalSource may revise, amend, or modify the Terms of Use from time to time, and the modified Terms of Use will be posted in the Intrepid Platform software with the effective date noted in the posting. Please check the Terms of Use from time to time as your continuing use of the Intrepid Platform or Services after such revisions, amendments, or modifications are effective constitutes your agreement to comply with the effective Terms of Use.

Ownership

You acknowledge and agree that you do not have any title, interest, or right of ownership in the Intrepid Platform, or any internal aspect or component thereof, or to any associated materials or intellectual property or design, or in or to any enhancements, modifications or improvements which may be added thereto from time to time, or to other trade secrets, including but not limited to all copyrights, patents, trademark rights, and other proprietary rights therein. You acknowledge and agree that (a) the Intrepid Platform is the sole property of VitalSource and includes valuable trade secrets of VitalSource; and (b) the Intrepid Platform in source code form remains a confidential trade secret of VitalSource.

Use

Use in violation of these Terms of Use, or use for data collection and/or profit is not allowed. You must only use the Intrepid Platform for lawful purposes (complying with all applicable laws and regulations), in a responsible manner, and not in a way that might damage our name or reputation or that of any of our affiliates.

You remain responsible for:

You agree that you will not:

Registration

If you register for the Intrepid Platform, you will be solely responsible for maintaining the confidentiality of your registration information. Except as may be required or permitted in writing by VitalSource, only you may use your registration information to access the software. You may not authorize others to use your registration information and may not transfer, sell or assign your registration information to any third party without the written approval of VitalSource.

Monitoring

You grant VitalSource the right to monitor your use of the Intrepid Platform by direct or indirect means to collect data regarding your activity on the Intrepid Platform.

Termination of Access

If you fail to comply with the Terms of Use, VitalSource may without warning or notice terminate any rights granted to you under the Terms of Use, including access to the Intrepid Platform.

VitalSource Indemnification

Defense

Except to the extent a claim arises from your gross negligence, willful misconduct or breach of this Agreement, VitalSource will, at its expense, defend you from any actual or threatened third party claim, proceeding or suit that alleges that your use of the Intrepid Platform infringes or misappropriates any copyright, patent, trademark, trade secret or other intellectual property right of any third party during the term of these Terms of Use, in each case if: (i) you give VitalSource prompt written notice of the claim; (ii) VitalSource has full and complete control over the defense and settlement of the claim; (iii) you provide assistance in connection with the defense and settlement of the claim as VitalSource may reasonably request; and (iv) you comply with any settlement or court order made in connection with the claim (e.g., relating to the future use of any infringing materials).

Indemnification

VitalSource will indemnify you against and pay (i) all damages, costs, and attorneys' fees finally awarded against you in any proceeding under the above Section; (ii) all out-of-pocket costs (including reasonable attorneys' fees) reasonably incurred by you in connection with the defense of such proceeding (other than attorneys' fees and costs incurred without VitalSource's consent after VitalSource has accepted defense of such claim); and (iii) if any proceeding arising under this Section is settled, all amounts paid to any third party that VitalSource agrees to in settlement of any such claims.

Exclusions

VitalSource will have no obligation under this Section for any infringement claim to the extent that it arises out of or is based upon (i) the combination, operation, or use of the Intrepid Platform with any software, services, tools, hardware, equipment, supplies, accessories, or any other materials or services not furnished by VitalSource or recommended in writing by VitalSource if such infringement would have been avoided but for such combination, operation, or use; (ii) designs, requirements, or specifications for the Intrepid Platform that you required or provided, if the alleged infringement would not have occurred but for such designs, requirements, or specifications; (iii) use of the Intrepid Platform outside of the scope of the usage rights granted to you; (iv) any modification of the Intrepid Platform not made or authorized in writing by VitalSource where such infringement would not have occurred absent such modification; (v) your Content; or (vi) unauthorized use of the Intrepid Platform. You will reimburse VitalSource for any costs or damages that result from these actions.

Exclusive Remedy

This Section states VitalSource's sole and exclusive liability, and your sole and exclusive remedy, for the actual or alleged infringement of any third party intellectual property right by the Intrepid Platform.

Your Indemnification

Defense

Except to the extent a claim arises from VitalSource's gross negligence, willful misconduct or breach of this Agreement, you will, at your expense, defend VitalSource and VitalSource's employees, directors, officers, agents, and representatives (collectively, "VitalSource Indemnified Parties") from any actual or threatened third party claim arising out of or based upon (i) your use of the Intrepid Platform in violation of this Terms of Use, or (ii) VitalSource's use of your Content to provide the Intrepid Platform to you in compliance with this Agreement, if: (i) the applicable VitalSource Indemnified Party gives you prompt written notice of the claim; (ii) you have full and complete control over the defense and settlement of the claim; (iii) the applicable VitalSource Indemnified Party provides assistance with the defense and settlement of the claim as you may reasonably request and at your expense; and (iv) the applicable VitalSource Indemnified Party complies with any settlement or court order made in connection with the claim.

Indemnification

You will indemnify each of the VitalSource Indemnified Parties against and pay: (a) all damages, costs, and attorneys' fees finally awarded against VitalSource in any proceeding under this Section; (b) all out-of-pocket costs (including reasonable attorneys' fees) reasonably incurred by any of them in connection with the defense of such proceeding (other than attorneys' fees and costs incurred without your consent after you have accepted defense of such claim); and (c) if any proceeding arising under this Section is settled, you will pay any amounts to any third party that you agree to in settlement of any such claims.

Disclaimers of Warranties & Duties

TO THE MAXIMUM EXTENT POSSIBLE UNDER APPLICABLE LAW, VITALSOURCE HEREBY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OR WARRANTIES FOR INFORMATION, SERVICES, AND PRODUCTS PROVIDED THROUGH OR IN CONNECTION WITH THE INTREPID PLATFORM, EXCEPT AS OTHERWISE AGREED UPON IN WRITING. NEITHER PARTY SHALL BE LIABLE TO THE OTHER OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES ALLEGEDLY SUSTAINED ARISING OUT OF THE USE OF THE INTREPID PLATFORM, EXCEPT AS OTHERWISE AGREED UPON IN WRITING; PROVIDED HOWEVER, THAT THIS EXCLUSION OF DAMAGES WILL NOT APPLY TO THE FOLLOWING: (A) A PARTY'S INDEMNIFICATION OBLIGATIONS SET FORTH IN THESE TERMS OF USE, AS APPLICABLE, (B) EITHER PARTY'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OR (C) EITHER PARTY'S INFRINGEMENT OR MISAPPROPRIATION OF THE OTHER PARTY'S INTELLECTUAL PROPERTY RIGHTS.

Limitation of Time to File Claims

ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES OR OTHERWISE SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED. SOME JURISDICTION DO NOT ALLOW LIMITATIONS OF TIME TO BE CONTRACTUALLY IMPOSED IN SOME CIRCUMSTANCES SO THIS LIMITATION MAY NOT BE APPLICABLE.

General

No Assignment: You may not transfer or assign any or all of your rights or obligations under these Terms of Use.

No Modifications: These Terms of Use may not be modified except with our express written consent.

Entire Agreement: These Terms of Use represent the entire agreement between you and us in relation to their subject matter.

Severability: If any provision of the Terms of Use shall be found by a court to be void, invalid or unenforceable, the same shall be reformed to comply with applicable law or stricken if not so conformable, so as not to affect the validity or enforceability of the Terms of Use.

Waiver: Failure of VitalSource to enforce a right or remedy under the Terms of Use shall not act as a waiver of that right or the ability to later assert that right or remedy.

Conflict: In the event of a conflict between the provisions of the Terms of Use and the provisions of any other written and executed agreement between you and VitalSource, the provisions of said written and executed agreement shall control and supersede the provisions of the Terms of Use.

Arbitration

These Terms of Use shall be governed by the laws of the State of Delaware without giving effect to any conflicts of laws principles. You agree that any claim, dispute, suit, action, controversy or proceeding ("Dispute") arising out of or relating to these Terms of Use or the breach, termination, enforcement, interpretation or validity thereof (collectively, "Disputed Claim(s)") will be resolved, upon notification by you or us, exclusively and finally by binding arbitration. The Arbitration of the Dispute will be conducted by the American Arbitration Association pursuant to its Commercial Arbitration Rules (including, without limitation, the Supplementary Procedures for Consumer-Related Disputes, if applicable). Neither you nor we will have the right to litigate arbitrated Disputed Claims in court or to have a jury trial on Disputed Claims or to engage in pre-arbitration discovery, except as provided for in the applicable arbitration rules or by written agreement of the parties involved. The arbitration may be conducted by telephone, online, or based solely upon written submissions.

A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of Delaware and will be selected by the parties from the AAA's roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within ten (10) business days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules. An award of damages, if any, must be consistent with these Terms of Use as to the types and the amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant's individual claim.

Further, you will not have the right to participate as a representative or member of any class of claimants pertaining to any Disputed Claim. Notwithstanding any choice of law provision included in these Terms of Use, this arbitration is subject to the Federal Arbitration Act (9 U.S.C. §§ 1-16) and not by any state arbitration law. The arbitration will take place exclusively in Wilmington, Delaware. In connection with any arbitration proceeding, each party must submit or file any Disputed Claim that would constitute a compulsory counterclaim (as defined by Rule 13 of the Federal Rules of Civil Procedure) within the same proceeding as the Dispute to which it relates. Each party involved will bear its own cost of any legal representation, discovery or research required to conduct and complete arbitration. The existence or results of any arbitration will be treated as confidential. The arbitrator will not have the authority to award exemplary or punitive damages.

This Section shall survive any expiration or termination of your relationship with VitalSource and/or your use of the Intrepid Platform.

Contacting Us

If you have any questions, comments, or requests regarding these Terms of Use, please contact us:

227 Fayetteville Street
Suite 400
Raleigh, NC 27601