AP University Partner EULA for Coursetune
Last updated: January 12, 2022
IMPORTANT — THIS SOFTWARE IS LICENSED, NOT SOLD, AND AVAILABLE FOR USE ONLY UNDER THE TERMS OF THIS END USER LICENSE AGREEMENT (THIS “EULA”).
For purposes of this EULA, the following terms shall have the following meanings:
(a) “Code” means computer programming logic or instructions, including objects, object code, source code, and/or embedded code, whether in human or machine-readable format, compiled or uncompiled, whether created, enhanced, or otherwise modified by Coursetune Inc. (“Coursetune”).
(b) “Documentation” means the user manuals and/or other documentation provided to End User along with the Software, whether in tangible or electronic form.
(c) “Intellectual Property Rights” means all worldwide copyrights, trademarks, service marks, trade secrets, patents, moral rights, contract rights, and other proprietary rights.
(d) “Service Bureau” includes but is not limited to application service providers, hosting companies and Internet portals that would use the software for the benefit of third party to third party transactions.
(e) “Software” means the online Coursetune course design services supported by Coursetune that may be made available to you by Coursetune at no additional charge, which is clearly as beta, pilot, limited release, developer preview, non-production, evaluation, or by a similar description.
2. License Grant
Subject to the terms and conditions of this EULA, Coursetune grants to End User a revocable, non-exclusive, non-transferable, non-sublicensable, object code-only license to use the Software and Documentation solely for End User’s own internal operations.
3. Restrictions of Use
End User acknowledges that the Software and the Software’s code sequence, structure, organization, and Code constitute valuable trade secrets of Coursetune. Accordingly, End User agrees not to:
(a) modify, adapt, alter, translate, or create a derivative work of the Software unless End User has requested, in writing, permission from Coursetune and such permission has been granted to End User in writing from Coursetune;
(b) sell, distribute, transfer, sublicense, lease, rent, or loan the Software to any third party;
(c) reverse engineer, decompile, disassemble, or otherwise attempt to derive any portion of the Software’s Code;
(d) use the Software in connection with the operations of a Service Bureau, in a time-sharing environment, as a subscription service, as part of a software-as-a-service model, or for the benefit of any third party; or
(e) use the Software except as expressly allowed under Section 2 (License Grant).
These restrictions are not intended to restrict End User’s ability to implement the provided interfaces but are intended solely to prohibit improper uses, alterations or modifications, or other changes of the Software.
End User shall be permitted to make a reasonable number of copies of the Documentation and distribute such copies to End User’s internal user community. If a serial number, password, license key or other security device is provided to End User for use with the Software, End User may not share or transfer such security device with any other third party. Any other use of the Software by any third party, except as provided in this EULA, is strictly forbidden and is a breach of this EULA.
5. Delivery, Acceptance, and Installation
The Software and Documentation will be made available to End User within a reasonable time following acceptance of this EULA and the terms and conditions associated herewith, and the submission to Coursetune by End User of any other necessary information. The Software shall be deemed accepted upon the date which the Software is made available to End User (the “Delivery Date”). Coursetune reserves the right, in its sole discretion, to determine on which operating system types and versions it will allow installation and support of the Software and may also, in its sole discretion, determine minimum acceptable levels of hardware and software protection. END USER MUST PROVIDE A RELIABLE AND CONSISTENT INTERNET CONNECTION FOR THE SOFTWARE TO FUNCTION PROPERLY. Coursetune may, in its sole discretion, change these criteria at any time. End User understands that failure to implement any necessary updates, failure to provide a reliable and consistent internet connection, or failure to maintain such minimum acceptable levels of hardware and software protection required by this Section 5, as amended from time to time by written notice to End User, may result in inability to access the Software and/or unrecoverable data corruption and loss, for which Coursetune shall not be liable.
6. Maintenance and Support
After the initial installation, Coursetune may, at its sole discretion, provide assistance concerning the proper use of the Software and the correction of problems via telephone and the Internet during normal business hours. In addition, on-site service and support may, in Coursetune’s sole discretion, be provided for an additional cost.
If End User desires to upgrade their plan or gain access to any new, updated, or improved software platforms that Coursetune currently offers or may offer in the future, End User understands that such upgrades and improvements may require additional cost. Coursetune has no obligation to provide any updates or to continue to provide or enable any particular features and/or functionalities of the Software. Further, Coursetune reserves the right to, in its sole discretion, determine that any particular version of the Software is no longer supportable and must be upgraded at additional cost to the consumer. End User acknowledges that it is solely responsible for any and all data uploaded to the Software. Coursetune may assist with technical issues relating to the Software, but shall have no obligation to do so. Coursetune reserves the right to modify, suspend, or discontinue, temporarily or permanently, the Software or any service to which it connects, with or without notice and without any liability to End User. The Software may display, include, use, or make available third-party content, including, but not limited to data, information, applications, and other product services, or provide links to third-party websites or services (“Third-Party Services”). End User acknowledges and agrees that Coursetune shall not be responsible for any Third-Party Services, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. Coursetune does not assume, and shall not have, any liability or responsibility for any Third-Party Services, which are provided solely as a convenience, and which access and use are entirely at End User’s own risk and are subject to the third-party’s terms and conditions.
COURSETUNE DOES NOT WARRANT THAT END USER’S USE OF THE SOFTWARE WILL BE ERROR-FREE OR UNINTERRUPTED. THE SOFTWARE AND DOCUMENTATION ARE PROVIDED “AS IS” AND COURSETUNE MAKES NO WARRANTIES, EITHER EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER, AND DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. COURSETUNE DOES NOT WARRANT THAT THE SOFTWARE WILL MEET END USER’S REQUIREMENTS, OR THAT OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE. END USER SHALL HAVE SOLE RESPONSIBILITY FOR THE ACCURACY AND ADEQUACY OF THE INFORMATION FURNISHED FOR PROCESSING AND ANY USE MADE BY END USER OF THE DATA OUTPUT BY THE SOFTWARE AND ANY RELIANCE THEREON.
8. Term and Termination
(a) Term. The term of this EULA will begin upon the Delivery Date and shall be perpetual until the earlier of (i) termination by End User or Coursetune in accordance with the terms of Section 8(b), (ii) the term of any University Partner Agreement by and between you and Coursetune, (iii) the suspension, termination, or cancellation of the Software, or (iv) two (2) years from the Delivery Date.
(b) Termination. Coursetune may terminate this EULA and may revoke all licenses at any time and for any reason or no reason at all without Coursetune incurring any liability to End User for any consequences arising therefrom. End User may terminate this EULA not less than fifteen (15) days after receipt by Coursetune of written notice thereof. Termination of this EULA shall neither limit any of Coursetune’s rights or remedies at law or in equity in case of breach by End User nor relieve End User of any duties, obligations, or liabilities under this EULA.
(c) Effects of Termination. Upon termination or expiration of this EULA for any reason, any amounts owed to Coursetune before such termination or expiration will be immediately due and payable. All licensed rights granted in this EULA will immediately cease to exist. Coursetune’s obligation, if any, to provide maintenance and support shall immediately cease. End User must promptly discontinue all use of the Software, erase all copies of the Software from End User’s computers, and return to Coursetune or destroy all copies of the Software and Documentation in End User’s possession or control, and certify in writing to Coursetune that End User has fully complied with these requirements.
(a) Disclosure. Except as expressly allowed under this EULA, End User will not use or disclose any Software, Documentation, or any idea, algorithm, Code, or trade secrets of Coursetune, except to the extent that End User can document that any such item:
(i) becomes generally available for use and disclosure by the public without any license or charge;
(ii) has been otherwise publicly disclosed by Coursetune or a third party without breach of any confidentiality obligation;
(iii) was independently developed by End User without use of or reference to the Software or Documentation; or
(iv) is required to be disclosed by End User by law or any governmental authority, provided that End User shall notify Coursetune as soon as possible of any such compelled disclosure and give Coursetune the opportunity to defend against such disclosure or obtain a protective order in connection therewith.
(b) Protection. End User shall use commercially reasonable efforts, which shall be no less stringent than those efforts that End User uses to protect End User’s own software or other similar proprietary property, to prevent the Software or Documentation from being used by any employee, agent, consultant or other person in any manner that would violate this EULA.
(c) Prevention. End User further agrees to use commercially reasonable efforts to assist Coursetune in identifying and preventing any use or disclosure of any Code of the Software, any Documentation, or any of the ideas, algorithms, or trade secrets contained therein.
(d) Unauthorized Access. Without limiting the foregoing obligation, End User shall advise Coursetune immediately in the event that End User learns or has reason to believe that any person who has had access to the Software or Documentation or any portion thereof, as a result of this EULA, has violated or intends to violate the terms of this EULA.
10. Proprietary Rights
End User has no ownership rights in the Software or Documentation. The Software and Documentation, and all Intellectual Property Rights associated therewith, are and will remain at all times the sole and exclusive property of Coursetune. End User has no right, title, or interest in or to the Software or Documentation, or any Intellectual Property Rights associated therewith, except as expressly set forth in this EULA. Any feedback, comments, ideas, improvements, or suggestions provided by End User with respect to the Software or Documentation shall be and remain the sole and exclusive property of Coursetune, which shall be free to use, copy, modify, publish, or redistribute the feedback, comments, ideas, improvements, or suggestions for any purpose and in any way without any credit or compensation to End User. Coursetune shall have the right to collect and compile statistics regarding your, and other users’, use of the Software. Such aggregated statistics shall be the sole and exclusive property of Coursetune. Upon Coursetune’s request, End User agrees, at Coursetune’s expense, to take such actions as Coursetune may reasonably request to perfect Coursetune’s ownership in the Software and Documentation.
This EULA does not grant End User any rights in the trademarks or service marks of Coursetune, all of which remain the exclusive property of Coursetune. End User may not alter or remove trademarks, service marks, or other markings from the Software or Documentation, or their associated packaging. This EULA does not grant Coursetune any rights in your trademarks, service marks, course syllabi and objectives, module and program objectives, course mapping documents, institutional goals and objectives, regulatory standards, and workforce competencies; provided, however, that you grant Coursetune a limited license to use your intellectual property for the purposes of this Agreement and that Coursetune has the right to display your name and any user stories, experiences, presentations, and research that users elect to share as contributions to their field(s) in connection with the Software.
The Software and Documentation contain material that is protected by patent laws, copyright laws, and international treaty provisions. Accordingly, End User may not make copies of the same, except as expressly allowed under this EULA. End User shall maintain at all times all patent and/or copyright notices provided on the Software and Documentation, and their associated packaging. End User shall ensure that any permitted copy of the Software and Documentation is produced only for End User’s own benefit and that it is clearly marked on the copy that such copy is subject to copyright and confidentiality. End User shall further ensure that a written list is maintained of the number of copies of the Software and the place of storage of each copy. Copies of the Software and Documentation constitute Coursetune’s property. All terms and conditions of this EULA shall also apply to such copies.
11. Third-Party Infringement Claims
If the Software becomes, or in Coursetune’s opinion is likely to become, the subject of an infringement claim, Coursetune may, at its option and expense, either (a) procure for End User the right to continue using the Software; (b) replace or modify the Software so that it becomes non-infringing; or (c) require and accept your return of the Software.
12. Limitation of Liability
IN NO EVENT WILL COURSETUNE BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES, INCLUDING LOST PROFITS OR ANY DAMAGES ARISING FROM ANY INABILITY TO ACCESS THE SOFTWARE OR ANY DATA LOSS OR CORRUPTION OF ANY KIND, ARISING FROM OR RELATING TO THIS EULA INCLUDING THE USE OF THE SOFTWARE PROVIDED HEREUNDER. COURSETUNE’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS EULA AND THE SOFTWARE, WHETHER IN CONTRACT OR TORT OR OTHERWISE, SHALL NOT EXCEED $1,000. END USER ACKNOWLEDGES THAT COURSETUNE WOULD NOT ENTER INTO THIS EULA WITHOUT THESE LIMITATIONS ON ITS LIABILITY.
Notwithstanding anything to the contrary contained herein, End User agrees to indemnify and hold Coursetune and its officers, employees, members, parents, subsidiaries, affiliates, agents, suppliers, partners, and licensors (if any) and their respective officers and employees harmless from and against any expenses and related costs, including, but not limited to, court costs and reasonable attorneys’ fees, in connection with any threatened or actual lawsuits, actions, investigations, damages, judgments, or claims by any third party, arising out of or relating to End User’s use of the Software and/or Documentation.
(a) Assignments. End User may not assign or transfer, by operation of law or otherwise, any of End User’s rights under this EULA to any third party without Coursetune’s prior written consent. Any attempted assignment or transfer in violation of the foregoing will be void. Coursetune may, in its sole discretion and without notice to or consent of End User, assign or transfer any or all of its rights and obligations under this EULA.
(b) Export. End User agrees not to use or export the Software outside the United States without Coursetune’s prior written consent. End User further agrees to comply in all respects with the applicable export laws and regulations of the United States and not distribute or transfer the Software in contravention of those laws and regulations, including, but not limited to, exporting or re-exporting into or to a nation or a resident of any U.S. embargoed countries or to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. End User will defend, indemnify and hold harmless Coursetune from and against any violation of such laws or regulations by End User or any of End User’s agents, officers, directors, or employees.
(c) Taxes. End User will be responsible for payment of, and shall not withhold from, all applicable sales, use, ad valorem, and excise taxes; duties; and assessments based on End User’s use or possession of the Software. End User shall hold Coursetune harmless from all claims and liability arising from End User’s failure to pay such taxes.
(d) Notices. All notices or other communications to Coursetune shall be addressed to: Coursetune Inc., 600 North Pearl Street, Suite 900, Dallas, Texas 75201, ATTN: General Counsel. All notices, consents and approvals under this EULA must be delivered in writing by courier or by certified or registered mail, (postage prepaid and return receipt requested), and will be effective upon the earlier of receipt or when delivery is refused.
(e) Governing Law and Venue. All matters arising out of or relating to this EULA shall be governed by and construed in accordance with the internal laws of the State of Texas without giving effect to any choice or conflict of law provision or rule (whether of the State of Texas or any other jurisdiction).
(f) Remedies. End User acknowledges that the Software contains valuable trade secrets and proprietary information of Coursetune, that any actual or threatened breach of Section 3 (Restrictions of Use) or Section 9 (Confidentiality) will constitute immediate, irreparable harm to Coursetune for which monetary damages would be an inadequate remedy, that Coursetune shall, in the event of such a breach, be entitled to equitable relief, including injunctive relief, without the posting of any bond, in addition to any other remedies. If any legal action is brought to enforce this EULA, the prevailing party, as determined by a final, non-appealable judgment or order, will be entitled to receive its attorneys’ fees, court costs and other collection expenses, in addition to any other relief it may receive.
(g) Waivers. All waivers must be in writing. Any waiver or failure to enforce any provision of this EULA on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
(h) Severability. If any provision of this EULA is unenforceable, such provision will be changed and interpreted in a manner that causes it to be enforceable and to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect. Without limiting the generality of the foregoing, End User agrees that Section 12 (Limitation of Liability) and Section 13 (Indemnification) will remain in effect notwithstanding the unenforceability of any provision in Section 7 (Warranties).
(i) Confidentiality of EULA; Announcements. Neither party shall disclose any terms of this EULA to anyone, other than disclosure on a confidential basis to its attorneys, accountants and other professional advisors who need to know such information except as required by law. Coursetune shall be allowed to use End User’s name on its customer lists, so long as such lists are not available to the general public and Coursetune discloses the same to its present and potential customers after execution of this EULA. “Potential customer” in this section means a specific prospective customer that is contemplating Coursetune’s products and services. For any other use of End User’s name, Coursetune shall obtain written permission from End User.
(j) Construction. The headings of Sections of this EULA are for convenience and are not to be used in interpreting this EULA. As used in the EULA the word “including” means “including but not limited to.”
(k) Counterparts. This EULA may be executed in counterparts, each of which will be considered an original, but all of which together will constitute the same instrument.
(l) Force Majeure. Neither party shall be liable for any delay in delivery or nonperformance in whole or in part of its obligations under this EULA if prevented from doing so by a cause or causes beyond its reasonable control, including, but not limited to, acts of God or public enemy, failure of suppliers to perform, fire, floods, storms, earthquakes, riots, strikes, war, cyber and electronic attacks, changes in law or regulations, epidemics, pandemics and other public health emergencies, and restraints of government (including, but not limited to, restrictions imposed by governmental authorities in response to COVID-19 or other public health emergencies). The suspension of performance shall be of no greater scope and no longer duration than is reasonably required and the non-performing party shall use reasonable efforts to remedy its inability to perform.
(n) Malware. Coursetune and End User agree that neither party will, negligently, knowingly, intentionally, or otherwise, upload data containing malware to the Software or otherwise damage the Software.
(o) For U.S. Government End Users. The Software and Documentation are “Commercial Items” as defined under 48 C.F.R. § 2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation” as such terms are used under 48 C.F.R. § 12.212 or 48 C.F.R. § 227.7202, as applicable. In accordance with 48 C.F.R. § 12.212 or 48 C.F.R. §§ 227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions provided herein.
(p) No Further Obligations. End User understands and acknowledges that Coursetune has no further obligations other than those contained in this EULA. End User is solely responsible for maintenance of End User’s business, including, but not limited to, payment of all governmental fees and taxes, proper credit reporting disclosures, and compliance with all laws, rules, and regulations.
(q) Survival. Section 1 (Definitions), Section 3 (Restrictions of Use), Section 7 (Warranties), Section 8 (Term and Termination), Section 9 (Confidentiality), Section 10 (Proprietary Rights), Section 11 (Third-Party Infringement Claims), Section 12 (Limitation of Liability), and Section 14 (General – with the exception of the “Inspections” paragraph, which will survive for the period stated therein) will survive expiration or termination of this EULA for any reason.
(r) Entire Agreement; Amendments. This EULA constitutes the entire agreement between the parties regarding the subject hereof and supersedes all prior or contemporaneous agreements, understandings, and communication, whether written or oral. This EULA may be amended by Coursetune at any time, in Coursetune’s sole discretion, without notice to End User. The date of the most recent amendment to this EULA shall be posted at the beginning of this EULA. It is solely End User’s responsibility to periodically check this EULA for any updates. End User’s continued use of the Software and Documentation shall constitute End User’s acknowledgement and acceptance of any amendments to this EULA. End User shall not have the ability to amend or modify this EULA in any respect. If End User issues or responds to a purchase order, or similar document, in connection with this EULA, any preprinted terms and conditions appearing thereon shall not apply to or become part of this EULA regardless of any statement to the contrary contained therein.