Last Updated: March 2, 2012
Welcome, and thank you for your interest in edshelf, LLC. (“edshelf”), and our web site located at edshelf.com (the “Site”). We are pleased to offer you access to the Site and any our other web sites, networks, downloadable software, information, features, and services available on the Site (the “Service”) conditioned on your acceptance without modification of the following Terms of Service (the “Terms”).
1. Eligibility. THE SERVICE IS ONLY AVAILABLE TO, AND BY USING THE SERVICE YOU REPRESENT THAT YOU ARE, AN INDIVIDUAL AT LEAST 18 YEARS OF AGE THAT HAS NOT BEEN SUSPENDED OR REMOVED FROM THE SERVICE. Subject to your compliance with these Terms, edshelf grants you permission to access and use the Service solely for your personal informational purposes, as set forth in these Terms and consistent with the intended features of the Service. If you are registering or using the Service on behalf of a school, district, company, entity, or organization, including any Vendor (collectively “Subscribing Organization”), you represent and warrant that you are the Subscribing Organization’s authorized representative with the authority to bind it to these Terms, and you hereby do agree on its behalf to be bound by these Terms. In such a case, references to “you” in these terms shall be construed to mean you, the Subscribing Organization, and any other individual that uses the Service on the Subscribing Organization’s behalf or with the Subscribing Organization’s authority or consent.
2. Registration. In order to use certain features of the Service require registration. For example, you must register for an account to use the service as a third party independent software vendor (a “Vendor”) in order to submit information and content regarding your application(s) (each, an “Application”), or to respond to User reviews of your Applications, or to use the Service as an individual user (a “User”) to create a profile, submit photos, ratings, and reviews, or use certain social and other features of the Service. You agree that the information you provide to edshelf on registration and at all other times, will be true, accurate, current, and complete, and that you will keep this information accurate and up–to–date at all times. When you register, you will be asked to provide a password. You should keep your password confidential, as you will be responsible for all activities that occur under your password. You are solely responsible for maintaining the confidentiality of your account and password and for restricting access to your computer, and you agree to accept responsibility for all activities that occur under your account or password.
3. Additional Policies.
- Terms of Sale. While edshelf does not currently charge directly for any features or service, or process transactions for Applications or any other content or service, we may do so in the future. In such a case, you will be presented with a separate terms of sale at the time of purchase. Such terms of sale will be deemed incorporated by reference into, and made a part of, this Agreement.
- Guidelines. When using the Service, you will be subject to any additional posted guidelines or rules applicable to specific services and features which may be posted from time to time (the “Guidelines”). All such Guidelines are hereby incorporated by reference into the Terms.
4. Third Party Applications.
- Vendors and Applications. All User purchases of Applications or related services are directly between the User and the applicable Vendor, and not with edshelf. Separate terms, policies, and fees apply to such purchase, and the use of Applications, and you should familiarize yourself with such terms, policies, and fees prior to purchasing or using any Applications or other materials identified, discussed, or linked to through the Services. PLEASE NOTE THAT EDSHELF IS NOT AFFILIATED WITH OR ENDORSED BY ANY VENDOR, NOR DOES THE INCLUSION OF ANY CONTENT RELATED TO A VENDOR OR APPLICATION, OR ANY INFORMATION OR STATEMENT ABOUT ANY VENDOR OR APPLICATION AVAILABLE THROUGH THE SERVICE INDICATE OR CONSTITUTE AN ENDORSEMENT OR AFFILIATION OF SUCH VENDOR OR APPLICATION.
- Single Sign-On. edshelf may now or in the future provide “single sign-on” capabilities, allowing you to access some or all of the Applications you subscribe to through the Service using only your username and password for the Service. If you choose to use such features, you will need to provide us with your access credentials for such Applications. By submitting your credentials and using single sign-on features, you are authorizing edshelf to store those access credentials, and you authorize edshelf as your agent to use your access credentials to enable you to log on to such services through edshelf. You agree to indemnify and hold harmless edshelf from any and all harms and liabilities arising in connection with your use of the single sign-on services. If you are a Vendor, by creating a profile for your Application, you are authorizing edshelf to develop and authorize single sign-on features for Users to access the Application, once purchased from you.
5. Software and Widgets
- Software. edshelf may now or in the future supply certain software, plugins, or toolbars that you can download and install on your computer or device. Such downloadable software made available to you by edshelf are expressly a part of the Service, and their use is governed by these Terms and any applicable associated Guidelines, including any end user license that may be made available to you in connection with the download, installation, and operation of the software. You may not modify, reverse engineer, decompile, or otherwise attempt to access or derive the source code to any toolbar, plugin, or other software component made available to you by edshelf in object code form, except as authorized by applicable law or as expressly provided in separate terms governing the use of such component.
- Widgets. edshelf may now or in the future provide you with access to various types of “embeddable widgets”, consisting of snippets of HTML code that enable you to expose certain features of the Service through other web sites (“Widgets”). You may embed Widgets on web sites solely as provided to you by edshelf and without modification of any kind, and in accordance with any applicable additional posted guidelines or restrictions. With the sole exception of the snippet of HTML code provided to you by edshelf for inclusion on your site, you may not reproduce or distribute any edshelf materials (including without limitation any image or other file) on any other website. You must ensure that any logos, branding and other visual interface elements are visible and unmodified, and that any and all links back to the Service included in the Widget are implemented without modification and are functional across browsers. You may not use Widgets in a way that might confuse third parties as to the source or origin of the Widgets or the content they contain, the service the Widget connect to, or the content on the site you embed the Widget on. Further, your rights with respect to what materials you may incorporate into third party services are governed by separate terms, which may prohibit the use of Widgets. It is solely your responsibility to determine whether such use is permitted by a particular third party provider.
6. Prohibited Conduct:You promise not to do or attempt any of the following, and your permission to use the Service is conditioned on your compliance with the following:
- Upload, post, or make available material that (i) is confidential or that you do not own or have the legal right to distribute, display and share with others, such as photos, music, TV shows, or movies, (ii) constitutes slander, libel, defamation, or is false, misleading, or (iii) is submitted for an improper purpose, such as intentionally interfering with another’s business;
- Access or attempt to access content or features of the Service for which you have not registered;
- Rent, lease, loan, sell, resell, sublicense, distribute or otherwise transfer your access to the Service, or any of the permissions granted herein, except that you may copy and paste (without modification) “widgets” provided by edshelf into other web sites or online services, as authorized herein;
- Use the Service on behalf of any third party, or in connection with any type of “service bureau” activity, unless and only to the extent that you have registered and paid for a subscription to premium or professional services that allow such use;
- Use the Service to upload, link, make available, or otherwise send to any other person any pornographic, obscene, illegal, threatening, embarrassing, hateful, racially or ethnically insulting, libelous, or otherwise inappropriate content;
- Impersonate another person or entity, or access another user’s account without that user’s permission;
- Share edshelf passwords with any third party or encourage any other user to do so;
- Misrepresent the source, identity, or content of information transmitted via the Service; or
- Use the Service for any illegal, unethical, fraudulent, misleading, or objectionable purpose or in breach of any law, regulation, or agreement, or without obtaining any and all necessary rights and permissions, including in each case Family Educational Rights and Privacy Act (FERPA) and the Children’s Online Privacy Protection Act (COPPA).
7. User Submissions
- General. The Service provides certain features which enable Vendors and Users to directly and indirectly post content, including text, images, audiovisual and other types of works (such as by creating a profile, uploading your photo, posting reviews, and commenting on posts) (“User Submissions”), and provides for the hosting, reproduction, distribution, transmission, public performance, and public display of such User Submissions. User Submissions are displayed for informational purposes only and are not controlled by edshelf. You understand that all User Submissions are the sole responsibility of the person from whom such User Submission originated. This means that you, and not edshelf, are entirely responsible for all User Submissions that you make available through the Service, and that you, and not edshelf are entirely responsible for the User Submissions of others that you encounter through the Service.
- No Obligation to Publish. edshelf makes no representations that it will publish or make available on the Service any User Submissions, and reserves the right, in its sole discretion, to refuse to allow any User Submissions on the Service, or to remove any User Submission at any time with or without notice. Without limiting the generality of the preceding sentence, edshelf complies with the Digital Millennium Copyright Act, and will remove User Submissions upon receipt of a compliant takedown notice (see “Digital Millennium Copyright Act” below).
- License Grant by You to edshelf. By submitting User Submissions to edshelf, you hereby grant edshelf and its affiliates a worldwide, non-exclusive, fully paid-up, royalty-free, perpetual, irrevocable, sublicensable, and transferable license to use, reproduce, distribute, transmit, publicly display, modify (including to modify the size and format of logos submitted for consistency purposes), and publicly perform your User Submissions and adaptations thereof, and to collect, combine, aggregate, and analyze, data related thereto, in connection with the operation, development, support, and promotion of the Service.
- User Submissions Representations and Warranties. You are solely responsible for your own User Submissions and the consequences of posting or publishing them. You affirm, represent, and warrant that i) you own, or have the necessary licenses, rights, consents, and permissions to use and authorize edshelf to use your User Submissions in the manner contemplated by these Terms, and to grant the rights and license set forth above, ii) to the extent applicable, your User Submissions (including without limitation User Submissions by Vendors relating to Applications) are accurate, complete, current, and not misleading; and iii) our use of such User Submissions, and our exercise of the license rights set forth above, does not and will not: (a) infringe, violate, or misappropriate any third party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (b) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person, or be fraudulent, inaccurate, incomplete, misleading, or otherwise submitted for any improper purpose; or (c) violate any applicable law or regulation or constitute unfair competition or any unlawful trade practice.
8. Additional Terms for Vendors.
- Prohibited Applications. You may not list any Applications that are prohibited by law, or for which sale through the Service would be prohibited by law, or which contain any obscene, inappropriate, or otherwise objectionable content.
- Listing Information. The description and any other information and materials you provide in connection with your Application listing (including photos or other audiovisual materials, payment methods and pricing plans and policies), must be complete, current, accurate and not misleading, and the Application you provide must conform to the description.
- Transactions, Fees, and Taxes. Edshelf is not a marketplace, and does not process any transactions, and you understand and agree that you are solely responsible for the processing of such transactions, and the collection and payment of any and all applicable taxes, levies, or fees associated with your sales of Applications.
- Automated Access. You agree that edshelf may use automated systems to access web site properties you own or control, in connection with the development and implementation of single sign-on features for Users who have purchased your Applications, and to download, process, and use materials contained on such sites, for purposes of confirming compliance with the terms and conditions of these Terms, and the accuracy, completeness, and currency of any information submitted in connection with your Application listing (and correcting any inaccuracy and/or supplementing your listing with information and materials from your web property). You further agree and understand that edshelf and/or Users may manually or automatically supplement your listing with embeddable content publicly available through third party services, such as YouTube and Vimeo.
- Additional Licenses. If you are a Vendor, you understand and agree that your User Submissions include all descriptions, icons, logos, trademarks, pricing information, links, images, audiovisual content, support information, responses to reviews, and other materials that you may submit through the Service, and that all the rights, licenses, representations, warranties and covenants in these Terms relating to User Submissions apply to such materials, it being understood that any and all goodwill generated through the use of Vendor’s trademarks inures solely to the benefit of Vendor.
- Integration. In connection with the operation of the Service, edshelf will be developing a variety of features oriented around integration of your Applications with the Service, such a single sign-on and payment processing. You agree to provide reasonable support and assistance to edshelf in connection with such integration activities.
- Support. As between edshelf and the Vendor, edshelf shall be responsible for providing support to Users related to such Users’ use of the Service itself. Vendor or its designee shall be solely responsible for providing support, if any, to Users related to the operation of the Application, pursuant to its own support terms and policies, and any applicable fees associated therewith.
9. Ratings and Reviews. Users may submit ratings, reviews, and feedback information regarding Vendors and Applications listed on the Service. Ratings and Reviews are solely based on User input, and do not reflect any endorsement, opinion, view, or position of edshelf.
- Generally. You may only use the rating and feedback features for the bona-fide purpose of submitting feedback regarding the experience you had with the applicable Application or Vendor. Any other use, misuse, or abuse of the rating and feedback systems is strictly prohibited. Without limiting the generality of the foregoing, i) You may not threaten to submit negative feedback or withhold positive feedback in order to receive benefits beyond those to which You are entitled (such as goods or services beyond those listed and purchased by you), ii) You may not condition performance of any obligation you may have to the applicable Vendor (such as the payment of any fees) on submission of positive feedback, and iii) you may not submit feedback or ratings for the purpose of artificially manipulating a Vendor’s or Application’s rating.
- Publicly Available. Rating and feedback information submitted by a User may be made available through the Service to other Users, and are not anonymous. Accordingly we recommend that you think carefully about the information you submit.
- Vendors. If you are a Vendor (including any individual User that is employed by or affiliated with any Vendor), you may not submit reviews or ratings of any Vendor or Application, including yourself and your own Application. Vendors may, however, submit responses to reviews submitted by Users. If you are a Vendor and you believe a review is submitted in violation of any of these policies, please contact edshelf as described in Section 10, below.
- Conduct and Etiquette. edshelf strives to create a positive and productive community with an open discourse between Users and Vendors. Users and Vendors that do not maintain reasonable standards of etiquette and decorum in their communications and use of the Service may be removed in edshelf’s discretion.
10. Reporting Objectionable Content. If you encounter any content on the Service that you believe is unlawful or inappropriate or violates these Terms, please contact our support personnel at [email protected], or to the extent that such a feature is made available, “flag” the applicable content as objectionable. Notwithstanding the foregoing, edshelf has no obligation to monitor the Service for content that may violate the Terms, or to remove content that violates the policy or for which we have received a complaint or report, and edshelf reserves the right to determine in its sole discretion what action to take, if any.
11. Disputes with Other Users. edshelf and is not a User or Vendor and does not have any control over the actions of Users and Vendors, nor can we ensure that any User or Vendor will comply with these Terms, or with any separate terms on which Applications are made available. If you have a dispute with another User or Vendor, you release us (and our officers, directors, agents, subsidiaries, joint ventures and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such dispute. If you are a California resident, you waive California Civil Code §1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”
12. Modification of the Terms. From time to time, edshelf may change, modify, add, or remove portions of the Terms on a going forward basis, and reserves the right to do so in its sole discretion. If we modify the Terms, we will make them available through the Service, and indicate the date of the latest revision. We encourage users to review the Terms periodically for changes. In the event that the modifications materially alter your rights or obligations hereunder we will make reasonable efforts to notify you of the change. For example, we may send a message to your email address, if we have one on file, or generate a pop-up or similar notification when you access the Service for the first time after such material changes are made. All amended Terms automatically take effect the earlier of your use of the Service with actual knowledge of the change, or 30 days after they made available through the Service, except that (i) disputes between you and edshelf will be governed by the version of the Terms that was in effect on the date the dispute arose and (ii) if you do not agree with any changes to the Terms, you may terminate these Terms by ceasing use of the Service. Your continued use of the Service after revised Terms have become effective indicates that you have read, understood and agreed to the current version of the Terms.
13. Prohibited Uses.
- Access to the Service from territories where its contents are illegal is prohibited. The Service is designed for customers in the United States. Those who choose to access the Service from other locations do at their own initiative and are responsible for compliance with all local rules including, without limitation, rules about the internet, data, email, or privacy.
- You may not use the Service 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 Service. You may not attempt to gain unauthorized access to the Service, or any part of it, other accounts, computer systems or networks connected to the Service, or any part of them, through hacking, password mining or any other means or interfere or attempt to interfere with the proper working of the Service or any activities conducted on the Service. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available through the Service. You may not modify the Service in any manner or form, nor use modified versions of the Service.
- The Service may contain robot exclusion files. You agree that you will not use any robot, spider, scraper, or other automated means to access the Service for any purpose without our express written permission, or bypass our robot exclusion files or other measures we may use to prevent or restrict access to the Service.
In connection with your use of the Service, you may provide edshelf with information and feedback regarding the features and performance of the Service, and information regarding any and all failures, errors, or other malfunctions in the Service along with any associated error messages (the “Feedback”). All such Feedback is made on a non-confidential basis, regardless of any suggestion to the contrary you may include in any accompanying correspondence, and you hereby grant edshelf a perpetual, irrevocable, worldwide, royalty-free, fully paid, unrestricted right and license to use any and all such Feedback, information, and materials for any purpose.
15. Ownership; Proprietary Rights.
The Service is owned and operated by edshelf, LLC. The visual interfaces, graphics, design, compilation, information, computer code, products, software (including any downloadable software), services, and all other elements of the Service provided by edshelf (“Materials”) are protected by United States copyright, trade dress, patent, and trademark laws, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. Except for your User Submissions, all Materials, including all intellectual property rights therein, belong to edshelf or its affiliates and/or third party licensors. All trademarks, service marks, and trade names are proprietary to edshelf or its affiliates and/or third party licensors. Except as expressly authorized by edshelf, you agree not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of the Materials.
THIRD-PARTY TRADEMARKS, REGISTERED TRADEMARKS, COMPANY NAMES, PRODUCT NAMES, BRAND NAMES AND LOGOS ON THE EDSHELF WEBSITE ARE THE PROPERTY OF THEIR RESPECTIVE OWNERS. THE USE OF ANY THIRD-PARTY TRADEMARKS, LOGOS OR BRAND NAMES IS FOR INFORMATIONAL PURPOSES ONLY, AND DOES NOT IMPLY AN ENDORSEMENT BY EDSHELF OR VICE VERSA OR THAT SUCH TRADEMARK OWNER HAS AUTHORIZED EDSHELF TO PROMOTE ITS PRODUCTS OR SERVICES.
16. Third Party Sites, Products and Services; Links.
The Service may include links to other web sites or services, including those of Vendors, third party application marketplaces, and content distributors, solely as a convenience to users (“Linked Sites”). edshelf does not endorse any such Linked Sites or the information, material, products or services contained on other linked sites or accessible through other Linked Sites, whether or not associated with any Application or Vendor. Furthermore, edshelf makes no express or implied warranties with regard to the information, material, products, or services that are contained on or accessible through linked sites. ACCESS AND USE OF LINKED SITES, INCLUDING THE INFORMATION, MATERIAL, PRODUCTS, AND SERVICES ON LINKED SITES OR AVAILABLE THROUGH LINKED SITES, IS SOLELY AT YOUR OWN RISK.
Your correspondence or business or other dealings with advertisers or other third party service providers encountered on or through the Service is solely between you and such third party. YOU AGREE THAT EDSHELF WILL NOT BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGE OF ANY SORT INCURRED AS THE RESULT OF ANY SUCH DEALINGS OR AS THE RESULT OF THE PRESENCE OF SUCH THIRD PARTIES ON THE SERVICE.
Except as explicitly stated otherwise, legal notices will be served on edshelf at [email protected]. Legal notices will be served on you at either the email or physical address you provide to edshelf during the registration process. Notice by email will be deemed given 24 hours after email is sent, unless the sending party is notified that the email address is invalid. Notice given by either party by mail will be deemed given three days after the date of mailing.
- By edshelf. You agree that edshelf, in its sole discretion and for any or no reason, may terminate any account (or any part thereof) you may have with edshelf or use of the Service and remove and discard all or any part of your account or any content uploaded by you, at any time. edshelf may also in its sole discretion and at any time discontinue providing access to the Service, or any part thereof, with or without notice. You agree that any termination of your access to the Service or any account you may have or portion thereof may be affected without prior notice, and you agree that edshelf will not be liable to you or any third party for any such termination. edshelf does not permit copyright infringing activities on the Service and reserves the right to terminate access to the Service and remove all content submitted by any persons 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 Service may be referred to appropriate law enforcement authorities. These remedies are in addition to any other remedies edshelf may have at law or in equity.
- By You. You may terminate your account, this Agreement and your right to use the Service at any time and for any reason or no reason, by contacting edshelf customer support at [email protected]helf.com, and immediately discontinuing all use of the Service, including any and all embedded widgets, plugins, or other software components.
- Survival. Sections 3, 7, and 14 through 24 will survive any termination of these Terms.
19. Disclaimers; No Warranties.
TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, EDSHELF AND ITS AFFILIATES, LICENSORS AND SUPPLIERS EXPRESSLY DISCLAIM ANY WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, AND NON-INFRINGEMENT. EDSHELF DOES NOT WARRANT THE DATA, CONTENT, ANALYTICS, FEATURES, OR INFORMATION PROVIDED THROUGH THE EDSHELF SERVICE, INCLUDING WITHOUT LIMITATION USER SUBMISSIONS OR OTHER DATA PROVIDED BY OTHER USERS, TO BE UNINTERRUPTED, ACCURATE, USEFUL, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS. YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR EQUIPMENT, LOSS OF DATA, OR OTHER HARM THAT RESULTS FROM YOUR USE OF THE EDSHELF SERVICE. EDSHELF MAKES NO WARRANTIES ABOUT ANY VENDOR OR APPLICATION THAT MAY BE REFERENCED ON THE SERVICE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. YOU MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE AND JURISDICTION TO JURISDICTION.
20. Limitation of Liability and Damages.
UNDER NO CIRCUMSTANCES WILL EDSHELF OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD PARTY PARTNERS OR SUPPLIERS BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OR RELATED TO THE EDSHELF SERVICE, EVEN IF EDSHELF OR AN EDSHELF AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL EDSHELF’S OR ITS AFFILIATES’, CONTRACTORS’, EMPLOYEES’, AGENTS’, OR THIRD PARTY PARTNERS’ OR SUPPLIERS’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THESE TERMS OR YOUR USE OF THE SERVICE (WHETHER IN CONTRACT, TORT INCLUDING NEGLIGENCE, WARRANTY, OR OTHERWISE) EXCEED FIFTY DOLLARS ($50 USD).
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
You agree to indemnify, defend, and hold edshelf, its affiliates, contractors, employees, agents and its affiliates, suppliers, licensors, and partners harmless from any claims, losses, damages, liabilities, including legal fees and expenses, arising out of your use or misuse of the Service, your User Submissions, your violation of these Terms or any law or regulation, or any breach of your your representations and warranties in these Terms. Vendor further agrees to indemnify, defend, and hold edshelf, its affiliates, contractors, employees, agents and its affiliates, suppliers, licensors, and partners harmless from any claims, losses, damages, liabilities, including legal fees and expenses, arising out of or in connection with Vendor’s Applications. edshelf reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify edshelf, and you agree to cooperate with our defense of these claims. edshelf will use reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it.
22. Digital Millennium Copyright Act Compliance.
If you are a copyright owner or an agent thereof, and you believe that any content hosted on the Service infringes your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing our Designated Copyright Agent with the following information in writing (see 17 U.S.C. § 512(c)(3) for further detail):
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works on the Service are covered by a single notification, a representative list of such works at the Service;
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit edshelf to locate the material;
- Information reasonably sufficient to permit edshelf to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;
- A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
- A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
The edshelf Designated Copyright Agent to receive notifications of claimed infringement can be reached as follows: Copyright Agent at [email protected]. For clarity, only DMCA notices should go to the edshelf Designated Copyright Agent. Any other feedback, comments, requests for technical support or other communications should be directed to edshelf customer service through [email protected]. You acknowledge that if you fail to comply with all of these requirements, your DMCA notice may not be valid.
23. Dispute Resolution and Arbitration
- Generally. In the interest of resolving disputes between you and edshelf in the most expedient and cost effective manner, you and edshelf agree that any and all disputes arising in connection with this Agreement shall be resolved by binding arbitration. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Our agreement to arbitrate disputes includes, but is not limited to all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, and regardless of whether the claims arise during or after the termination of these Terms. You understand and agree that, by entering into these Terms, you and edshelf are each waiving the right to a trial by jury or to participate in a class action.
- Exceptions. Notwithstanding subsection (a), we both agree that nothing herein shall be deemed to waive, preclude, or otherwise limit either of our right to (i) bring an individual action in small claims court, (ii) pursue enforcement actions through applicable federal, state, or local agencies where such actions are available, (iii) seek injunctive relief in a court of law, or (iv) to file suit in a court of law to address intellectual property infringement claims.
- Arbitrator. Any arbitration between you and edshelf will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting edshelf.
- Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail or Federal Express (signature required), or in the event that we do not have a physical address on file for you, by electronic mail (“Notice”). The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). We agree to use good faith efforts to resolve the claim directly, but If we do not reach an agreement to do so within 30 days after the Notice is received, you or edshelf may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or edshelf shall not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any; provided that if our dispute is finally resolved through arbitration in your favor, edshelf shall pay you the greater of (i) the amount awarded by the arbitrator, if any, and (ii) the greatest amount offered by edshelf in settlement of the dispute prior to the arbitrator’s award.
- Fees. In the event that you commence arbitration in accordance with these Terms, edshelf will reimburse you for your payment of the filing fee, unless your claim is for greater than $10,000, in which case the payment of any fees shall be decided by the AAA Rules. Any arbitration hearings will take place at a location to be agreed upon in Santa Clara County, California, provided that if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a non-appearance based telephonic hearing, or by an in-person hearing as established by the AAA Rules. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In such case, you agree to reimburse edshelf for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
- No Class Actions. YOU AND EDSHELF AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and edshelf agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
- Modifications. In the event that edshelf makes any future change to this arbitration provision (other than a change to the edshelf’s address for Notice), you may reject any such change by sending us written notice within 30 days of the change to edshelf’s address for Notice, in which case your account with edshelf shall be immediately terminated and this arbitration provision, as in effect immediately prior to the amendments you reject shall survive.
- Enforceability. If only Subsection (f) of this Section 23 or the entirety of this Section 23 is found to be unenforceable, then the entirety of this Section 23 shall be null and void and, in such case, the parties agree that the exclusive jurisdiction and venue described in Section 24 shall govern any action arising out of or related to these Terms.