SoftChalk™ Cloud Developer Agreement

Last updated: June 30, 2016

This Developer Agreement ("Agreement") is a legal contract between you, a Public Learning Content developer of at least 13 years of age ("Developer") and SoftChalk, LLC. ("SoftChalk") regarding your registration of Public Learning Content on the SoftChalk Cloud web site ("Cloud Site"). All references to "us," "our" and "SoftChalk" in this Agreement are intended to refer to SoftChalk, LLC. All references to "you," "your" and "Developer" in this Agreement are intended to refer to the Developer. SoftChalk, LLC is located at: 22 S. Auburn Ave, Richmond VA, or through email to info@softchalk.com.

PLEASE READ CAREFULLY THE FOLLOWING TERMS OF USE. BY PUBLISHING SOFTWARE ON THE Cloud SITE, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD AND AGREE TO BE BOUND BY THE FOLLOWING AGREEMENT, INCLUDING ANY FUTURE MODIFICATIONS THERETO. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, THEN PLEASE DO NOT PUBLISH SOFTWARE ON THE Cloud SITE.

1. Modification of this Agreement. SoftChalk reserves the right, at our discretion, to change, modify, add, or remove portions of this Agreement at any time without notice. Any new features that augment or enhance the current site, including the release of new tools and resources, shall be subject to this Agreement. Please check this Agreement periodically for changes. Your maintenance of registered software or your registration of additional software on the Cloud Site after the posting of changes constitutes your binding acceptance of such changes. For any material changes to this Agreement, such amended terms will automatically be effective thirty days after they are initially posted on the Cloud Site.

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2. Terms of Use. Your registration of Public Learning Content is also subject to the general terms of use for the Cloud Site ("Terms of Use"). The Terms of Use is hereby incorporated into this Agreement by reference. Please read this agreement carefully.

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3. Public Learning Content Registration and Publication.
   
   
   1. Definition of Public Learning Content. SoftChalk permits Developers to register software in which Developer has the necessary rights, for other users of the Cloud Site to utilize (“Public Learning Content”).
   2. Ownership, Limited License Grants.
      
      
      1. Limited License Grant to SoftChalk. By registering Public Learning Content on the Cloud Site, you hereby grant to SoftChalk a worldwide, non-exclusive, transferable, assignable, fully paid-up, royalty-free, perpetual, and irrevocable license to use, display, reproduce, distribute (by any means including electronic distribution via the Internet), modify, and exploit the Public Learning Content that you register pursuant to this Agreement.
      2. Limited License Grant to other Cloud Users. By registering a Public Learning Content on the Cloud Site, you also hereby grant to each user of the Cloud Site and any other properties through which SoftChalk distributes your Public Learning Content, a CC By (Creative Commons By Attribution) license to use, display, redistribute and adapt without restriction other than attribution, any Public Learning Content you register.
      3. Required Rights in Public Learning Content. You are solely responsible for your Public Learning Content and the consequences of posting or publishing them. In connection with Public Learning Content, you affirm, represent and/or warrant that you created, own, or have the necessary licenses, rights, consents, and permissions to use and to authorize SoftChalk and users of the Cloud Site to use your Public Learning Content as necessary to exercise the licenses granted by you in this section and in the manner contemplated by SoftChalk and this Agreement.
      4. Developer Representations. In connection with registering Public Learning Content, you further agree, represent and warrant that you will not: (i) submit material that is copyrighted, protected by trade secret laws or is otherwise subject to third-party proprietary rights, including privacy and publicity rights, unless you are the owner of such rights or have permission from their rightful owner to post the material and to grant SoftChalk and the users of the Cloud Site all of the license rights granted herein; (ii) publish falsehoods or misrepresentations that could damage SoftChalk or any third party person or entity; (iii) submit material that is defamatory, unlawful, obscene, libelous, threatening, pornographic, harassing, hateful, racially or ethnically offensive or encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law or is otherwise inappropriate; (iv) submit material that contains computer instructions, circuitry or other technological means whose purpose or effect is to disrupt, damage or interfere with any computer and communications facilities or equipment, including, without limitation, any code containing viruses, Trojan horses, worms or like destructive code or code that self-replicates; (v) post advertisements or solicitations of business; or (iv) impersonate another person.
   3. Advertisements or Solicitations of Business. SoftChalk does not allow the display of advertisements and solicitations of business within Public Learning Content. Developers will not display any advertisements or solicitations of business in their Public Learning Content.

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4. Restrictions. WHEN REGISTERING PUBLIC LEARNING CONTENT OR OTHERWISE USING THE Cloud SITE YOU AGREE NOT TO:
   
   
   1. Register any Public Learning Content that constitutes, promotes, or is used primarily as spyware, adware, or other malicious programs or code
   2. Register any Public Learning Content that constitutes or promotes pornographic, threatening, embarrassing, hateful, racially or ethnically insulting, libelous, or otherwise inappropriate content;
   3. Register any Public Learning Content or use the Cloud Site for any purpose or use that is unlawful or is otherwise prohibited by this Agreement;
   4. Use the Cloud Site in any manner that in our sole discretion could damage, disable, overburden, or impair it or interfere with any other party’s use and enjoyment of the Cloud Site;
   5. Misrepresent the source, identity, or content of Public Learning Content registered on the Cloud Site;
   6. Remove, circumvent, disable, damage or otherwise interfere with security-related features of the Cloud Site, features that prevent or restrict use or copying of any content accessible through the Cloud Site, or features that enforce limitations on use of the Cloud Site;
   7. Register any Public Learning Content intended for use in the operation of nuclear facilities, life support, or other mission critical applications where human life or property may be at stake; or
   8. Register any Public Learning Content intended to derive income, whether for direct commercial or monetary gain or otherwise, without SoftChalk’s prior, express, written permission.

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5. Financial Terms.
   
   
   1. Fees. You must use a current license of SoftChalk to publish and register Public Learning Content on the Cloud site. You may use the free-trial version of SoftChalk for this purpose. No additional fee is required. We may make additional premium Services available to you from time to time and such additional services may be subject to different terms and fees. We will make such additional terms and/or fees known to You before utilizing any additional Services.

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6. Termination.
   
   
   1. By Developer. Developer may terminate this Agreement as to any Public Learning Content at any time by removing such Public Learning Content from the Cloud Site.
   2. By SoftChalk. You agree that SoftChalk, in its sole discretion and for any or no reason, may suspend or terminate any Public Learning Content you may have registered with Cloud or your use of the Cloud Site and remove and discard all or any part of any Public Learning Content at any time. SoftChalk may also in its sole discretion and at any time discontinue providing access to the Cloud Site, or any part thereof, with or without notice. You agree that any termination of your access to the Cloud Site or any account you may have or portion thereof may be effected without prior notice, and you agree that SoftChalk shall not be liable to you or any third party for any such termination, or for any price change, suspension or modification of service. As discussed herein, SoftChalk does not permit copyright infringing activities on the Cloud Site, and reserves the right to terminate access to the Public Learning Content Site, and remove all content (including but not limited to Public Learning Content) submitted, by any Developers who are found to be repeat infringers. Any suspected fraudulent, abusive or illegal activity that may be grounds for termination of your use of the Cloud Site may be referred to appropriate law enforcement authorities. These remedies are in addition to any other remedies SoftChalk may have at law or in equity.

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7. Disclaimers; No Warranties. THE CLOUD SITE AND ANY THIRD-PARTY SOFTWARE, SERVICES, OR APPLICATIONS, INCLUDING BUT NOT LIMITED TO PUBLIC LEARNING CONTENT, APIS AND USER PROVIDED INFORMATION, MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE CLOUD SITE ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, SOFTCHALK, ITS SUPPLIERS, LICENSORS, AND PARTNERS DISCLAIM ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS.
   
   SOFTCHALK, ITS SUPPLIERS, LICENSORS, AND PARTNERS DO NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE CLOUD SITE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE CLOUD SITE OR THE SERVER THAT MAKES IT AVAILABLE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS
   
   SOFTCHALK, ITS SUPPLIERS, LICENSORS, AND PARTNERS DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE CLOUD SITE IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. YOU (AND NOT SOFTCHALK NOR ITS SUPPLIERS, LICENSOR OR PARTNERS) ASSUME THE ENTIRE COST OF ANY NECESSARY SERVICING, REPAIR, OR CORRECTION. YOU UNDERSTAND AND AGREE THAT YOU DOWNLOAD OR OTHERWISE OBTAIN MATERIAL OR DATA THROUGH THE USE OF THE CLOUD SITE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL OR DATA.
   
   CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.

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8. Indemnification Hold Harmless. You agree to indemnify, save, and hold SoftChalk, its affiliated companies, and its suppliers, licensors, and partners harmless from any claims, losses, damages, liabilities, including attorneys’ fees, arising out of SoftChalk’s distribution of your Public Learning Content, your violation of this Agreement, your violation of the rights of any other person or entity, or any breach of the representations, warranties, and covenants made by you herein. SoftChalk reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify SoftChalk, and you agree to cooperate with SoftChalk’s defense of these claims.

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9. Limitation of Liability and Damages. UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, WILL SOFTCHALK OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD-PARTY PARTNERS, LICENSORS, OR SUPPLIERS BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE, OR EXEMPLARY DAMAGES THAT RESULT FROM YOUR USE OR YOUR INABILITY TO USE THE MATERIALS ON THE CLOUD SITE, OR ANY OTHER INTERACTIONS WITH SOFTCHALK, EVEN IF SOFTCHALK OR A SOFTCHALK AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, SOFTCHALKS LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
   
   IN NO EVENT WILL SOFTCHALK OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD-PARTY PARTNERS, LICENSORS, OR SUPPLIERS TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR YOUR USE OF THE CLOUD SITE, INCLUDING WITHOUT LIMITATION YOUR INTERACTIONS WITH OTHER CLOUD SITE USERS, (WHETHER IN CONTRACT, TORT INCLUDING NEGLIGENCE, WARRANTY, OR OTHERWISE) EXCEED THE AMOUNT PAID BY YOU, IF ANY, FOR ACCESSING THE CLOUD SITE DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DAY THE ACT OR OMISSION OCCURRED THAT GAVE RISE TO YOUR CLAIM OR ONE HUNDRED DOLLARS, WHICHEVER IS GREATER.
   
   THESE LIMITATIONS WILL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF ANY PRODUCTS OR SERVICES SOLD OR PROVIDED BY THIRD PARTIES OTHER THAN SOFTCHALK AND RECEIVED THROUGH OR ADVERTISED ON THE CLOUD SITE OR RECEIVED THROUGH ANY LINKS PROVIDED ON THE CLOUD SITE.
   

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10. Miscellaneous.
    
    
    1. Notice. Except as explicitly stated otherwise, legal notices will be served on SoftChalk’s national registered agent or to the email address you provide to SoftChalk during the registration process. Notice will be deemed given twenty-four hours after email is sent, unless the sending party is notified that the email address is invalid. Alternatively, we may give you legal notice by mail to a postal address, if provided by you through the Cloud Site. In such case, notice will be deemed given three days after the date of mailing.
    2. Waiver. The failure of SoftChalk to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision. Any waiver of any provision of this Agreement will be effective only if in writing and signed by SoftChalk.
    3. Relationship of the Parties. The parties are independent contractors with respect to each other. This Agreement does not constitute and shall not be construed as constituting a partnership or joint venture among the parties hereto, or an employee-employer relationship. Developer agrees that SoftChalk has no special relationship with or fiduciary duty to Developer.
    4. Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of Virginia, without giving effect to any principles of conflicts of law.
    5. Jurisdiction. You agree that any action at law or in equity arising out of or relating to this Agreement or SoftChalk will be filed only in the state or federal courts in and for Richmond, Virginia, and you hereby consent and submit to the personal and exclusive jurisdiction of such courts for the purposes of litigating any such action.
    6. Severability. If any provision of this Agreement shall be unlawful, void, or for any reason unenforceable, then that provision will be deemed severable from this Agreement and will not affect the validity and enforceability of any remaining provisions.
    7. Assignment. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by SoftChalk without restriction.
    8. Survival. Sections 3.2.4, 4 and 7 through 10 will survive any termination of this Agreement.
    9. Force Majeure. Without limiting the foregoing, under no circumstances shall SoftChalk or its licensors be held liable for any delay or failure in performance resulting directly or indirectly from acts of nature, forces, or causes beyond its reasonable control, including, without limitation, Internet failures, computer equipment failures, telecommunication equipment failures, other equipment failures, electrical power failures, strikes, labor disputes, riots, insurrections, civil disturbances, shortages of labor or materials, fires, floods, storms, explosions, acts of God, war, governmental actions, orders of domestic or foreign courts or tribunals, non-performance of third parties, or loss of or fluctuations in heat, light, or air conditioning.
    10. US Dollars. Any payments hereunder will be made or payable in United States dollars.
    11. Headings. The heading references herein are for convenience purposes only, do not constitute a part of this Agreement, and will not be deemed to limit or affect any of the provisions hereof.
    12. Entire Agreement. This is the entire agreement between you and SoftChalk relating to the subject matter herein and will not be modified except in a writing, signed by both parties, or by a change to this Agreement made by SoftChalk as set forth in Section 1 above.

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