PLEASE READ THIS USER AGREEMENT (“AGREEMENT”) CAREFULLY BEFORE USING THE SERVICES OFFERED BY DREAM CLASS LLC, A COMPANY INCORPORATED IN DELAWARE (“Supplier” or “Company”). BY CLICKING THE “I read and accept” BOX, YOU AGREE TO BECOME BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, CLICK ON THE “CANCEL” BUTTON AND YOU WILL NOT HAVE ANY RIGHT TO USE THE SERVICES OFFERED BY COMPANY. COMPANY’S ACCEPTANCE IS EXPRESSLY CONDITIONED UPON YOUR ASSENT TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, TO THE EXCLUSION OF ALL OTHER TERMS; IF THESE TERMS AND CONDITIONS ARE CONSIDERED AN OFFER BY COMPANY, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS.
Services: Supplier’s hosted internet accessible service, under the name Dream Class, made available to Customer on a subscription term basis under this agreement at https://www.dreamclass.io or any other website address as may be notified to Customer (“Portal”).
Subscription Term: Period which Customer will be granted by Supplier online access and use of the Services according to elected subscription plan.
Authorized User: Any Customer employee, contractor, agent or any other individual authorized by Customer to access and use the Services, via Customer’s purchased subscriptions, for the purpose specified herein. Customer is responsible for Authorized Users compliance with this Agreement. For the avoidance of doubt Authorized Affiliates, as defined in the Data Processing Addendum (“DPA”) to this Agreement, are also Authorized Users.
Software: The object code version of Dream Class software and/or any software to which Customer is provided access as part of the Services, including any updates or new versions.
Documentation: The user guides, on line help, training materials and any other documentation made available to Customer regarding use of Services.
Article 1 – Grant
Subject to Customer’s compliance with the terms and conditions set forth herein, Supplier hereby grants to Customer a non-exclusive, non-assignable, limited right to access and use the Services solely for Customer’s internal business operations, and up to the maximum number of Customer’s Authorized Users documented herein, during the whole Subscription Term.
Article 2 – Authorized User Subscriptions
Each user subscription corresponds to a unique Authorized User who will subscribe and use the Services by use of a password protected access to the Portal. Each Authorized User is responsible for maintaining the security of its account and password. Customer shall maintain an up to date list of current Authorized Users and it shall permit, upon Supplier’s written request, the latter to audit the Services for any underpaid subscriptions. Any person performing such audit shall protect the Customer’s confidential information and abide by the Customer’s reasonable security procedures.
Customer shall use all reasonable endeavors to prevent any unauthorized access to, or use of, the Services and/or the Documentation.
Article 3 – Restrictions
Customer shall not:
(a) modify, alter, adapt, copy, translate, perform and display or create derivative works based on Software or the Services or proceed to any action that may be properly characterized as copyright infringement by the applicable law.
(b) decompile, reverse engineer, disassemble or otherwise attempt to obtain the source code for Software.
(c) Merge or bundle Software with other software
(d) Except as permitted under article 1 and 2, sell, license, lease, publish, display (publicly or otherwise), distribute or otherwise transfer or by any means make available –either directly or via another reseller- to a third party the Services.
(f) Access, store, distribute or transmit any viruses or any material during the course of its use of the Services that is unlawful, harmful, defamatory, infringing, facilitates illegal activity, depicts sexually explicit images and/or causes damage or injury to any person or property.
Without prejudice to any other Supplier’s rights and remedies, Supplier reserves the right, without liability to the Customer, to disable Customer’s access to any material that breaches the restriction provisions of this clause.
Article 4 – Customer’s obligations
Customer undertakes to:
provide reasonable information and assistance to Supplier to enable the Services to be rendered.
Comply with all applicable local, state, national and foreign laws in connections with its use of the Services
Notify Supplier immediately of any unauthorized use of the Services
Designate a qualified employee as Customer’s administrator for the Services.
Collect, input, update all Authorized Users data and material provided for use in connection with the Services.
Article 5 – Payment
Customer shall pay subscription fees to the Supplier for the Authorised Users subscriptions and order Services in accordance with this clause and applicable Subscription Plan.
Payment of the amounts due to Supplier shall be made in accordance with the payment schedule set forth on applicable payment schedule. The Customer shall provide to Supplier valid and complete contact and billing details on the Effective Date. Unless expressly provided otherwise, fees are non-refundable.
The fees set forth in Schedule A are exclusive of all federal, state, municipal, or other government excise, sales, use, value added or other taxes now in force or enacted in the future, and Customer shall pay any such tax (excluding taxes on Supplier’s net income) that Supplier may be required to collect or pay now or at any time in the future with respect to such fees.
Article 6 – Ownership of intellectual property
Software, with all its components, including the source code, documentation, appearance, structure, organization, its preparatory design material etc, is protected by copyright and other intellectual property laws and treaties. Customer acknowledges that Supplier is the exclusive owner and owns all proprietary right of Dream Class application, the Service, the Portal (including URL’s) and all intellectual property rights associated with, including software and copyrights, even if Supplier incorporates into the Portal suggestions made by Customer. Nothing in this Agreement grants Customer any ownership right in the Software or the Service. Customer may not transfer for value or use the Service for any commercial purpose other than that described in this Agreement.
Customer shall report promptly to Company any third party claim relating to the intellectual property rights in the Services or the Software or any associated documentation, or in Supplier’s trade marks that comes to the Customer’s attention.
Article 7 – Customer’s Data
7.1 Customer owns all data provided by Customer and Authorized Users for the purpose of using the Services and is solely responsible for the legality, reliability, accuracy and quality of the above data. Supplier may suspend or terminate use of Services and this Agreement immediately upon receipt of any notice, which alleges that Customer and/or Authorized User has used Services for any purpose that violates any local, state, federal or law of other nations, including but not limited to the posting of information that may violate third party rights, that may defame a third party, that may be obscene or pornographic, that may harass or assault others, that may violate hacking or other criminal regulations, that may violate privacy laws and regulations etc.
Customer hereby acknowledges and agrees that Supplier’s performance of this Agreement requires Supplier to process, transmit and store such data under the documented instructions of the Customer and as further specified in the Data Protection Addendum (DPA), which forms an integral part to this Agreement.
7.2 Customer hereby acknowledges and agrees that Supplier processes data related to the Customer, employees or representatives of Customer supplied or made available to Supplier, by or on behalf of Customer or Authorized User in connection with this Agreement for the purpose of the execution of this Agreement and for billing purposes. Such data may include information about the contractual commitments between Supplier and Customer, whether collected at the time of the initial registration or thereafter in connection with the delivery, operation or management of Services, including billing and collecting of payments. Supplier shall process such data, falling within the ambit of present Article 7.2, for Supplier’s own internal business purposes for as long as it is necessary in relation to the purposes stated above, and at most for the duration of Agreement and until collection of the payments, unless processing is necessary for compliance with an applicable legal obligation or for the establishment, exercise or defense of legal claims.
Customer hereby acknowledges and agrees that Supplier shall process the name and email address of the Customer to communicate with the Customer for the presentation and promotion of the Services or of new services. Customer may at any time, free of charge, unsubscribe from such electronic communication, easily by clicking the button “unsubscribe” contained in the electronic communication or by contacting the Supplier.
Article 8 – Confidential information
Customer understands that Supplier has disclosed or may disclose information that is confidential or proprietary in nature, whether explicitly designated as such or not, relating to Supplier’s business and especially to details of the Services and/or Software, which to the extent previously, presently or subsequently obtained by Customer is hereinafter referred to as “Confidential Information.”
Customer agrees: (a) to hold Confidential Information in strict confidence and to take all reasonable precautions to protect the Confidential Information (including, without limitation, all precautions it employs with respect to its most confidential materials); (b) not to divulge any Confidential Information or any information derived there from to any third party, including, but not limited to, any affiliated entity (even if owned or controlled by Customer); (c) to only use Confidential Information in its performance of the obligations under this Agreement.
Article 9 – Warranty disclaimer
Supplier makes no representations or warranties or conditions of any kind concerning the Service, the products or their use, accuracy, function and shall not be liable in any manner for any representation or warranty or condition of any kind. Specifically, Supplier and third parties disclaim all warranties, express, implied, or statutory, regarding the Services, the Software, including any warranties of merchantability, fitness for a particular purpose, title, and non-infringement. No representation or other affirmation of fact regarding the Portal and the Services shall be deemed a warranty or guarantee for any purpose or give rise to any Supplier’s liability of third parties whatsoever. Customer acknowledges that it relied on no warranties or statements other than as may be set forth herein.
Article 10 – Limitation of liability
Except as provided in the indemnity section herein below, Supplier shall not be liable to Customer or any third party for any incidental, indirect, exemplary, special or consequential damages, under any circumstances, including, but not limited to, lost profits, revenue or savings, loss of goodwill, even if licensor had been advised of, knew, or should have known, of the possibility thereof. Under no circumstances shall Supplier’s aggregate cumulative liability hereunder, whether in contract, tort, or otherwise, exceed the total amount of fees actually paid by Customer under this agreement during current. Customer acknowledges that the fees paid reflect the allocation of risk set forth in this agreement and that Supplier would not enter into this Agreement without these limitations on its liability.
Article 11 – Indemnification
Supplier shall defend, indemnify and hold Customer harmless, from and against any and all claims of infringement of a US patent, copyright or trademark, asserted against Customer by a third party, and arising out of Customer’s use of Services in accordance with the terms of this agreement provided that Supplier shall receive by Customer: a) prompt written notice of such claim, b) the exclusive right to control and direct the investigation, defence and settlement of any such claim and c) all reasonable necessary Customer’s cooperation. If Customer’s use of Services is enjoined due to the type of infringement specified above, or if required by settlement, Supplier may: a) substitute Services with similar, b) make such necessary modifications/replacements to Services to permit non infringing usage by Customer, c) procure the right to continue use. However, Supplier shall have no liability whatsoever for any claim based on or arising out of: (i) use of Services in a manner or modification otherwise than as contemplated by this Agreement; or (ii) unauthorized Services use or use after notice of alleged or actual infringement.
Article 12 – Termination
Unless sooner terminated, the term of this Agreement will continue for whole term of elected Subscription Plan. Either party shall have the right at any time, by giving notice in writing, to terminate this Agreement without liability to the other on the occurrence of any of the following events:
a. if the other party commits a breach of any of the terms and conditions of this Agreement and such breach has not been rectified within thirty (30) days after receipt of notice to rectify served on the defaulting party by the other party;
b. if the other party becomes insolvent, makes a general assignment for the benefit of creditors, suffers or permits an appointment of a receiver for its business or assets, becomes subject to any proceedings under any bankruptcy or insolvency law, whether domestic or foreign, is liquidated, voluntarily or otherwise, or suffers any similar action in consequence of debt;
c. if Customer engages in illegal activities; or
In the event of the expiration or termination of this Agreement for any reason:
a. all license granted shall immediately terminate;
b. each party shall return and make no further use of any equipment, property or other’s party’s items
c. Supplier may destroy or otherwise dispose of any of the Customer Data in its possession
Article 13 – Notices
Any notice, request, instruction or other document to be given under this Agreement to any party hereunder in the English language.
Article 14 – Waiver
No waiver by either party of any default shall be deemed as a waiver of any prior or subsequent default of the same or other provisions of this agreement.
Article 15 – Counterparts
This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument. The Schedules and the Data Protection Addendum to this Agreement constitute an integral part hereof.
Article 16 – Authentic text
The English language text of this Agreement shall be the only authentic text.
Article 17 – Force Majeure
Neither party is liable for any failure or delay in performance due to any cause beyond its control and has no obligation arising out of the abnormal use of any items, site conditions nonconforming to specifications, or any cause external to any item, including but not limited to accident, acts of God, fire or water damage, criminal conduct, neglect, acts of war, riots, strikes, lightening, electrical disturbances or other similar causes. Such events, occurrences or causes do not include inability to meet financial obligations. The time of performance hereunder is extended by a period of time lost because of such delay.
Article 18 – Assignment
Customer may assign or transfer this Agreement in whole or part only with the prior written consent of Supplier, which consent shall not be unreasonably withheld or delayed. Upon written notification, Supplier may assign or transfer this Agreement in whole or part and all or part of the payments to the extent that Supplier’s obligations to Customer are not affected.
Article 19 – Governing law, Jurisdiction
Any dispute arising hereunder shall be exclusively construed in accordance with the laws of the State of Delaware without regard to principles of conflict of laws. For the purpose of this agreement, Customerconsents to the personal jurisdiction and venue of the court located in Chancery, State of Delaware. If any provision of this Agreement is prohibited by law or held to be unenforceable, the remaining provisions hereof shall not be affected.
Article 20 – Other Documents
The following Other Documents attached hereto are incorporated and made a part of the Agreement:
Data Protection Addendum
BOTH PARTIES ACKNOWLEDGE READING THIS AGREEMENT INCLUDING ITS OTHER DOCUMENTS, AND AGREE TO BE BOUND THEREBY.