Gilapad Terms of Service
Last Updated: May 31, 2013
The following Terms of Service ("Terms" or "Agreement") constitutes a legal agreement between you, a student, course instructor or other individual end user ( "User") of Tuatara Corp.'s ("Tuatara") service described below. User's use of the Service (as defined below) is subject to all of the terms and conditions set forth in these Terms, so User should take the time to fully understand how these Terms govern User's relationship with Tuatara and User's use of the Service. If you have questions regarding the Terms, please contact Tuatara at email@example.com.
USER'S RIGHT TO USE THE SERVICE IS EXPRESSLY CONDITIONED ON ACCEPTANCE OF THESE TERMS. BY USING THE SERVICE, USER IS AGREEING TO BE BOUND BY ALL OF THE TERMS WITHOUT MODIFICATION. IF YOU DO NOT AGREE TO ALL OF THE TERMS, YOU MAY NOT ACCESS OR USE THE SERVICE IN ANY MANNER FOR ANY PURPOSE.
Service and Licenses
The "Service" is a hosted platform that allows Users to simultaneously take notes, view and/or interact with electronic text books ("eBooks"), capture content from eBooks and other websites and integrate such content into their notes. The Service is provided solely on a hosted basis, and in no event will User be entitled to any software.
The Service may provide access to third party content (other than eBook content) via plugins, widgets or other features of the Service (collectively, "Plugins"). Plugins may be built into the Service or made available as optional features. Use of certain Plugins may be subject to payment of applicable fees, which (if any) will be disclosed at the time of purchase. These Terms, together with any supplemental terms and conditions disclosed to User in connection with User's purchase, activation, registration or use of any Plugins (which supplemental terms and conditions are hereby incorporated by reference), govern User's access to and use of the Plugins. Certain content displayed via the Plugins ("Plugin Content"), including without limitation, Plugin Content originating from Wikipedia, may be subject to additional terms or license restrictions as set forth within the Service or within the Plugin Content. Use of the Plugin Content by User constitutes acceptance of such terms or license restrictions. Tuatara reserves the right discontinue the availability of any Plugin at any time in its sole discretion.
User must be over the age of 13 to use the Service. If User is over the age of 13, but under the age of 18 User must review these Terms with User's parent or guardian and may only use the Service with their permission.
In order to use the Service, User is required to create an account ("Account") and provide certain registration information, including User's full name, school name (if any), valid email address, login ID, and password. User will be responsible for maintaining accurate and complete Account information. User shall not (a) transfer the Account to anyone else, (b) permit others to use the Account, or (c) access any other person's Account. User agrees to notify Tuatara immediately of any unauthorized use of User's login ID and/or password. User will be responsible for the acts or omissions of any person who accesses the Service using User's login ID and/or password. Tuatara shall not be liable for any loss or damage resulting from User's failure to safeguard his or her login ID or password. Tuatara reserves the right to terminate User's Account in the event of any violation of these Terms.
Rights to eBooks.
The eBooks are licensed and not sold, and Tuatara and its licensors grant User only the right to use the eBooks solely in accordance with these Terms and any applicable Publisher Terms. "Publisher Terms" means any and all terms applicable to User's access to or use of any eBook, whether such terms are provided to User in connection with the purchase of any eBook (via the Service, directly from the publisher of such eBook or by other means). The Publisher Terms are hereby incorporated into this Agreement by this reference.
License to User.
Subject to all of these Terms, Tuatara grants User a personal, nonexclusive, nontransferable right and license (without right to sublicense) during the Term to (a) access and use the Service as hosted by Tuatara (including the Background Materials (as defined below) necessary to use the Service), solely for User's personal, noncommercial use via a web browser and (b) access and use the eBooks solely in connection with User's permitted use of the Service and solely as permitted pursuant to the Publisher Terms (including any applicable restrictions on the period of time during which User is authorized to access and use the eBooks).
In addition, unless prohibited pursuant to the Publisher Terms, Tuatara hereby grants to User a nonexclusive, nontransferable right and license (without right to sublicense) during the Term to (x) reproduce Excerpts in User's Notes, (y) use Excepts in connection with User's Notes and (z) share Notes containing Excerpts with other users of the Service with valid licenses to the underlying eBook. As used herein "Excepts" means portions of the eBook selected by Users and "Notes" means notes created by User solely within the note-taking function of the Service.
Excerpts shall be solely contained within User's Notes. Notes shall be hosted solely by or on behalf of Tuatara, and are available for access solely through the Service. Notes may be printed via the Service, but User shall not download, copy, or display Notes except in connection with User's authorized use of the Service. All Excerpts shall be removed from the Notes upon the earlier of (a) expiration or termination of User's right to use the underlying eBook content or (b) expiration or termination of the Term of this Agreement.
User's access to the Service shall be restricted to no more than two (2) devices at any one time. User acknowledges and agrees that Tuatara may use geo-location services to verify User's compliance with these Terms. User's access and use of the Service shall comply with all other conditions set forth in all documentation provided by Tuatara, such as the instructions, bulletins, email notices, and other documentation that Tuatara may provide to User in electronic or other form ("Documentation").
User shall not directly or indirectly (a) use any of Tuatara's Confidential Information (as defined below) to create any service, software or documentation that performs substantially the same functionality as the Service, (b) disassemble, decompile, reverse engineer or use any other means to attempt to discover any source code, algorithms or trade secrets underlying the Service, eBooks or Background Materials (except and only to the extent these restrictions are expressly prohibited by applicable statutory law), (c) encumber, sublicense, transfer, distribute, rent, lease, time-share or use the Service or any eBooks or Background Materials in any service bureau arrangement or otherwise for the benefit of any third party, (d) adapt, combine, create derivative works of or otherwise modify the Service or any eBooks or Background Materials, or (e) use or allow the transmission, transfer, export, re-export or other transfer of any product, technology or information it obtains or learns in connection with User's use of the Service in violation of any export control or other laws and regulations of the United States or any other relevant jurisdiction. At the request of any content provider, Tuatara may impose further restrictions on the use of any eBook.
From time to time, Tuatara may solicit from User or User may make, in its sole discretion, suggestions for changes, modifications or improvements to the Service ("Feedback"). All Feedback shall be solely owned by Tuatara (including all intellectual property rights therein and thereto) and shall also be Tuatara's confidential information. User shall and hereby does make all assignments necessary to achieve such ownership.
User hereby grants Tuatara a nonexclusive and royalty-free right and license to access, copy, process and use all information, data and other content provided by User in connection with its authorized use of the Service ("User Data") solely for the purpose of providing the Service, making enhancements to it, and improving performance issues. User Data includes all submissions, questions, suggestions, bug reports, correspondence and findings supplied by User.
User is responsible for providing (a) all equipment, subscriptions and credentials necessary for Tuatara to receive User Data and (b) all modems, servers, devices, storage, software, databases, network and communications equipment and ancillary services needed to connect to, access or otherwise use the Service at its facility (collectively, "User Systems"). User shall ensure that User Systems are compatible with the Service and comply with all configurations and specifications described in the Documentation.
Tuatara will not be liable for any failures in the Service or any other problems which are related to (a) User Data or User Systems or (b) any satellite, telecommunications, network or other equipment or service outside of Tuatara's facilities or control.
Information; User Interactions. The Service allows for exchanges between authorized users of the Service. Tuatara has no obligation and does not screen any Notes or other content generated by a User. Tuatara shall not be responsible or liable to User for any claims or liabilities related to: (a) any Notes shared using the Service or (b) the conduct, whether online or offline, of any other user.
The eBooks and Plugin Content are provided by third party publishers and Tuatara has no control over any content contained in the eBooks or in any Plugin Content. In addition, User may access Notes through the Service generated by third party. Tuatara does not guarantee the accuracy, completeness or usefulness of all or any portion of any eBook, Plugin Content or any Notes. Tuatara will not be liable for any loss or damage caused by User's reliance on any content contained in any eBook, Plugin Content or any Notes.
The Service, Plugin Content or the eBooks may contain links to other Internet sites and third party resources. Tuatara does not assume any responsibility or liability for communications or materials available through such linked sites. These links are provided for the convenience of User. Tuatara does not control the actions of any such third party sites and resources, so be sure to review the privacy policies of any third party before providing any personal information.
"Confidential Information" means all financial, business or technical information disclosed by or for Tuatara in relation to these Terms that is of a nature that should reasonably be considered to be confidential and proprietary. Except for the specific rights granted by these Terms, User may not use, copy or disclose any Confidential Information without Tuatara's written consent, and shall use reasonable care to safeguard Tuatara's Confidential Information. The foregoing obligations shall not apply to any Confidential Information that User can demonstrate is already known by User without restriction, rightfully furnished to User without restriction by a third party not in breach of any obligation to Tuatara or generally available to the public without breach of these Terms. Promptly upon Tuatara's request at any time, User shall return all of Tuatara's tangible Confidential Information, permanently erase all Confidential Information from any storage media and destroy all information, records, copies, summaries, analyses and materials developed therefrom.
As used in these Terms: "Background Materials" means all ideas, concepts, inventions, systems, platforms, software, interfaces, tools, utilities, templates, forms, Report Formats, techniques, methods, processes, algorithms, know-how, trade secrets and other technologies and information that are used by Tuatara in providing the Service (including any correction, improvement, extension or other modification to the Service made, created, conceived or developed by or for Tuatara, including as a result of feedback provided by User to Tuatara).
User hereby grants and agrees to grant to Tuatara a royalty-free, fully paid up, non-exclusive, perpetual, worldwide right and license to (a) use User Data for purposes of providing the Service to User, (b) to create aggregate measures of Service usage and performance and (b) use the individual and aggregated User Data to improve the Service generally and for other business purposes.
General Learning; Aggregate Data.
User agrees that Tuatara is free to disclose aggregate measures of Service usage and performance, and to reuse all general knowledge, experience, know-how, works and technologies (including ideas, concepts, processes and techniques) acquired during provision of the Service (including without limitation, that which it could have acquired performing the same or similar services for another User).
Reservation of Rights.
Except for the limited rights and licenses expressly granted hereunder, no other license is granted, no other use is permitted and (a) Tuatara (and its licensors) shall retain all right, title and interest (including all intellectual property and proprietary rights embodied therein) in and to the Service, Documentation, Background Materials, and Aggregate Data, (collectively, "Tuatara Properties") and (b) the eBook publishers (and their licensors) shall retain all right, title and interest (including all intellectual property and proprietary rights embodied therein) in and to the eBooks and all content contained therein.
THE TUATARA PROPERTIES AND eBOOKS ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, TUATARA MAKES NO WARRANTY (A) THAT THE SERVICE OR eBOOKS WILL MEET USER'S REQUIREMENTS OR BE UNINTERRUPTED, ERROR-FREE OR BUG-FREE, (B) REGARDING THE RELIABILITY, TIMELINESS, OR PERFORMANCE OF THE SERVICE OR eBOOKS, OR (C) THAT ANY ERRORS IN THE SERVICE OR eBOOKS CAN OR WILL BE CORRECTED. TUATARA HEREBY DISCLAIMS (FOR ITSELF AND ITS LICENSORS) ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.
LIMITATION OF LIABILITY
IN NO EVENT SHALL TUATARA BE LIABLE CONCERNING THE SUBJECT MATTER OF THESE TERMS, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY (A) LOSS OR INACCURACY OF DATA (INCLUDING LOSS, CORRUPTION OR DESTRUCTION OF NOTES), LOSS OR INTERRUPTION OF USE, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS OR SERVICES, (B) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, PROFITS AND GOODWILL, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR (C) DAMAGES, IN THE AGGREGATE, IN EXCESS OF FIFTY DOLLARS ($50.00). THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THESE TERMS AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN.
Term and Termination
Unless earlier terminated as set forth below, User's right to use the Service shall commence when User consents to these Terms and shall terminate at the end of the 2012-2013 academic year (such period, the "Term").
User's use of the Service may be terminated by Tuatara at any time, effective immediately upon notice to User. User's use of the Service may be terminated by User at any time, effective immediately upon notice to Tuatara.
Effects of Termination.
Upon any expiration or termination of these Terms, all rights, obligations and licenses of the parties shall cease, except that (a) all obligations that accrued prior to the effective date of termination and all remedies for breach of these Terms shall survive, and (b) the provisions titled Feedback, Confidentiality, Proprietary Rights, Disclaimers, Limitation of Liability, Effects of Termination and General Provisions shall survive.
These Terms (which includes any ordering form completed by User) constitute the entire agreement, and supersedes all prior negotiations, understandings or agreements (oral or written), between the parties about the subject matter of these Terms.
Waivers, Consents and Modifications.
No waiver, consent or modification of these Terms shall bind Tuatara unless in writing and signed by Tuatara. Tuatara may modify these Terms at any time upon notice to User (which may be by posting a notice on Tuatara website or otherwise through the Service); provided, however, if User does not agree to the modified terms, User shall notify Tuatara in writing within thirty (30) days, after which User's right to use the Service shall immediately terminate and Tuatara shall have no further responsibility or liability to User. The failure of either party to enforce its rights under these Terms at any time for any period will not be construed as a waiver of such rights.
If any provision of these Terms is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that these Terms will otherwise remain in full force and effect and enforceable.
These Terms shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, without regard to its conflicts of law provisions. Neither the United Nations Convention on Contracts for the International Sale of Goods nor any implementation of the Uniform Computer Information Transactions Act in any jurisdiction shall apply to these Terms. Except that Tuatara may seek equitable or similar relief from any court of competent jurisdiction to prevent or restrain any breach or threatened breach of these Terms by User, exclusive jurisdiction and venue for actions related to these Terms or User's use of the Service will be the state and federal courts located in Massachusetts having jurisdiction over Tuatara's offices, and both parties consent to the jurisdiction of such courts with respect to any such actions. In any action or proceeding to enforce or interpret these Terms, the prevailing party will be entitled to recover from the other party its costs and expenses (including reasonable attorneys' fees) incurred in connection with such action or proceeding and enforcing any judgment or order obtained.
In the event that either party is prevented from performing, or is unable to perform, any of its obligations under these Terms (except payment obligations) due to any cause beyond its reasonable control, the affected party shall give written notice thereof to the other party and its performance shall be extended for the period of delay or inability to perform due to such occurrence.
Any notice or communication hereunder shall be in writing and either personally delivered or sent via confirmed facsimile, recognized express delivery courier or certified or registered mail, prepaid and return receipt requested, addressed to the other party, which, in the case of User, shall be the address provided to Tuatara upon signing up for the Service, and, in the case of Tuatara, shall be 1 Mifflin Pl Cambridge, MA 02138 or, if different, the address set forth in the contact section of Tuatara's website, or at such other address for either party as is designated in a subsequent notice. All notices shall be in English, effective upon receipt.
These Terms and the rights and obligations hereunder may not be assigned, in whole or in part, by User without Tuatara's prior written consent. These Terms shall be binding upon, and inure to the benefit of, the successors, representatives and permitted assigns of the parties hereto.
The parties shall be independent contractors under these Terms, and nothing herein will constitute either party as the employer, employee, agent or representative of the other party, or both parties as joint venturers or partners for any purpose.
USER'S RIGHT TO USE THE SERVICE IS EXPRESSLY CONDITIONED ON ACCEPTANCE OF THESE TERMS. BY USING THE SERVICE, YOU ARE AGREEING TO BE BOUND BY THE TERMS. IF YOU DO NOT AGREE TO ALL OF THE TERMS, YOU MAY NOT ACCESS OR USE THE SERVICE IN ANY MANNER FOR ANY PURPOSE.