Date of Last Revision: March 1, 2019
WELCOME TO www.trophecase.com. TropheCase, Inc. (“TropheCase”) provides a service through its website and would like you to access or otherwise use the applications, scripts, instruction sets, and any related documentation provided by this website (collectively, the “Software”), subject to the following:
This Agreement not only governs your use of the Software, but also governs the use of the Software of any person, entity, organization, or otherwise, to which you provide access to the use of the Software. If you do not wish to agree to be bound by this Agreement, you are not permitted to access or use the Software. If you access or use the Software, this Agreement will apply to you unless TropheCase otherwise agrees in writing that some or all of the terms of this Agreement will not apply to you.
2. Access to the Software.
2.1 Non-Exclusive; Non-Commercial Use. Subject to your acceptance of and compliance with this Agreement, TropheCase grants you a non-exclusive, non-transferable, revocable limited license to use the Software for your personal non-commercial, private use. You agree not to use the Software for any commercial purposes, or to download, save, copy, transmit, or distribute the content of the Software, including without limitation, the following restrictions:
(a) You may not modify, alter, or otherwise change the content of this Software in any way or reproduce or publicly display, perform, distribute, or otherwise use the content of this Software for any public, educational, or commercial purpose; and
(b) You may not use any of the content of this Software on any other website or networked computer environment for any purpose, unless specifically approved in writing by TropheCase.
Your use of the Software is conditioned upon your compliance with this Agreement; any use of the Software in violation of this Agreement will be regarded as an infringement of TropheCase’s copyrights, trademarks, or other rights in and to the Software. If TropheCase has any belief or reason to believe you may have violated this Agreement, TropheCase may terminate your authorization to use the Software and you must immediately cease any use of the Software and destroy any and all downloaded or printed content. Any rights not expressly granted herein are reserved to TropheCase.
2.2 Eligibility. You may only use this Software if you are allowed by law to enter into a binding contract, and you are in compliance with all applicable federal, state, and local laws (and all regulations and rules thereunder).
2.3 Passwords/Account. You are responsible for all actions on the Software by you or under your Software password or account and for taking all reasonable steps to ensure that no unauthorized persons shall have access to your Software password or account. Without limiting the foregoing: (a) it is your sole responsibility to control the dissemination and use of any login code and password; (b) authorize, monitor, and control access to and use of your Software account and password; and (c) promptly inform TropheCase of any need to deactivate a password. You grant TropheCase and all other persons or entities involved in the operation of the Software the right to transmit, monitor, retrieve, store, and use any information recorded and/or stored in your account in connection with the operation of the Software.
2.4 Compliance with Family Educational Rights and Privacy Act (“FERPA”). By using the Software, any Educational Institutions or Educational Agencies, as those terms are defined under FERPA (“Educational Institution” or Agency”), certify that they are in full compliance with FERPA. If we determine, in our sole discretion, that an Educational Institution or Agency is in violation of any of the provisions of FERPA, we reserve the right to immediately terminate such Educational Institution or Agency’s right to use and access the Software. However, the failure to terminate shall not shall not be construed as an endorsement of the Educational Institution or Agency’s compliance with FERPA.
2.5 Compliance with Children’s Online Privacy Protection Act (“COPPA”). If you are an Entity authorizing a student under the age of thirteen (13) to access, or providing such a student with access to, or use of, the Software, you hereby represent and warrant that such student’s parents or guardians have agreed to the terms of this Agreement and the Privacy Policies on behalf of such student, that you have obtained all parental consents and permissions in connection with the access to, and use of, the Software, and you will otherwise comply with all federal, state, and local laws (and all regulations and rules thereunder) governing such student accessing and using the Software, including without limitation, COPPA. If we determine, in our sole discretion, that an Entity is in violation of any of the provisions of COPPA, we reserve the right to immediately terminate such Entity’s right to access or use the Software.
3. Your Content.
3.1 You may own any unique or novel information or material (the “Content”) that you transmit, post, or otherwise upload in connection with your use of the Software. As between you and TropheCase, you grant TropheCase a worldwide, irrevocable, royalty-free, perpetual, transferable, and sublicensable right to copy, disclose, distribute, incorporate, translate, and otherwise use the Content and all related data, images, sound, and text for any and all purposes without any further consent, notice, and/or compensation to you or others. Content is considered non-confidential and TropheCase has no obligations with respect to the Content. You may terminate this license for Content by deleting such Content from your account or terminating your account, provided, however, that this license shall remain in effect for the Content copied, re-uploaded, or stored by other users of the Software. You agree to allow for deletion of your Content from the Software as provided herein for a reasonable period after termination of your account.
3.2 TropheCase reserves the right, in its sole discretion on a case-by-case basis, to remove, reject, or otherwise modify, any Content or any portion(s) thereof. TropheCase is not a storage service, therefore, you agree that TropheCase may delete any Content and has no obligation to store, maintain, or provide you with a copy of any Content that you or others provide, except to the extent required by applicable law.
3.3 TropheCase may, but is not obligated to, monitor or review any Content, including, but not limited to, discussion groups, bulletin boards, blogs or other user forums. By transmitting any Content in connection with your use of the Software, you warrant that:
(a) you have full authority to transmit the Content;
(b) you are the sole owner of the Content and/or the Content constitutes material in the public domain; and
(c) neither the Content nor any part(s) of the Content will:
(i)infringe any copyright or other intellectual property rights or violate any proprietary rights or rights of publicity or privacy;
(ii) contain any scandalous, libelous, or unlawful matter; or
(iii) contain any formula, process, instruction, or other material that is injurious to a person or property.
5. Your Conduct.
5.1 TropheCase does not tolerate content that is objectionable, abusive, or harmful to other users or the Software. Therefore, you are prohibited from:
(a) Uploading files that contain software or other material protected by intellectual property laws (or by rights of privacy or publicity) unless you own or control the rights thereto or have received all necessary consents;
(b) Uploading files that contain viruses, Trojan Horses, bots, crawlers, cookies, corrupted files, or any other similar software or programs that may damage the operation of another's computer;
(c) Overriding any security feature used on the Software;
(d) Placing an unreasonable load on the Software’s servers;
(e) Creating an account using a false identity, misrepresenting your identity, creating an account for anyone other than you, or using anyone else’s account;
(f) Implying any affiliation with TropheCase;
(g) Advertising or offering to sell or buy any goods or services;
(h) Falsifying or deleting any author attributions, legal or other proper notices or proprietary designations or labels of the origin or source of software or other material contained in a file that is uploaded;
(i) Restricting or inhibiting any other user from transmitting or posting Content;
(j) Harvesting or otherwise collecting any information about others, including email addresses;
(k) Harassing, inciting, or advocating harassment of any group or individual; or
(l) Posting Content that is implicitly or explicitly offensive, such as Content that engages in, endorses or promotes racism, bigotry, discrimination, hatred, or physical harm of any kind against any group or individual.
5.2 TropheCase reserves the right to limit your use of the Software, including your ability to contact other users of the Software. TropheCase reserves the right to restrict, suspend, or terminate your account or use of the Software if TropheCase believes that you may be misusing the Software, you are in breach of this Agreement, or any law.
5.3 If you believe that a user is uploading Content which is in violation of this Agreement, you may report such infringing content at firstname.lastname@example.org. TropheCase will review these reports and block infringing content within twenty-four (24) hours of receipt of the report. Additionally, you may report a user for any objectionable contect by clicking on the Megaphone icon under the post and then selecting one of the following options :
Violent or Repulsive content
Hateful or Abusive content
Spam or Misleading Information
6. Intellectual Property. Unless otherwise specified in writing, all materials that are part of the Software are owned, controlled, or licensed by TropheCase and its licensors and are protected by law from unauthorized use. The entire contents of the Software (including, without limitation, all visual content, audio visual content, text, and the arrangement, sequence, structure, and organization of the Software) are copyrighted under the United States copyright laws and/or similar laws of other jurisdictions. TropheCase and TropheCase logos are trademarks of TropheCase and may not be used without the express written permission of TropheCase. You do not acquire any ownership rights by using the Software or downloading material from the Software.
7. Fees and Payment.
7.1 Taxes and Third-Party Fees. You must pay any applicable taxes, and any applicable third-party fee (including, for example telephone toll charges, mobile carrier fees, ISP charges, data plan charges, credit card fees, foreign exchange fees). We are not responsible for these fees. We may take steps to collect the fees you owe us. You are responsible for all related collection costs and expenses.
7.2 Credit Card Information. If you do not notify us of updates to your payment method, to avoid interruption of your use of the Software, we may participate in programs supported by your card provider to try to update your payment information, and you authorize us to continue billing your account with the updated information that we obtain.
8. Objectionable Content/Copyright Takedown. If you believe your rights have been violated by, or you otherwise object to, any posting, content, or information on the Software, please contact us promptly at email@example.com so we can evaluate the claim and take appropriate action.
9. Disclaimers; Limitations; Waivers of Liability.
9.1 YOU EXPRESSLY AGREE THAT USE OF THE SOFTWARE IS AT YOUR OWN RISK AND IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES TO TITLE OR THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF INTELLECTUAL PROPERTY. WITHOUT LIMITING THE FOREGOING, NEITHER TROPHECASE NOR ITS AFFILIATES, PARENT COMPANIES, SUBSIDIARIES, OR ANY OF THEIR DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, ATTORNEYS, THIRD-PARTY CONTENT PROVIDERS, DISTRIBUTORS, LICENSEES OR LICENSORS, NOR ANYONE WHO HAS BEEN INVOLVED IN THE CREATION, PRODUCTION, OR DELIVERY OF THE SOFTWARE (COLLECTIVELY, “TROPHECASE PARTIES”) WARRANT THAT THE SERVICE, INCLUDING THE INFORMATION MADE AVAILABLE THROUGH THE SERVICE, WILL BE UNINTERRUPTED, UNCORRUPTED, ACCURATE, RELIABLE, CURRENT, TIMELY, OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE PAGES OR THE SERVER THAT MAKES THE SOFTWARE AVAILABLE ARE FREE FROM VIRUSES, WORMS, OR OTHER HARMFUL COMPONENTS.
9.2 TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE TROPHECASE PARTIES WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, PERSONAL INJURY/WRONGFUL DEATH, LOST OR ANTICIPATED PROFITS, LOST DATA, OR BUSINESS INTERRUPTION, THE USE OR MISUSE OF SUBMISSIONS OR CONTENT IN ANY WAY WHATSOEVER ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE SERVICE, WHETHER OR NOT THE TROPHECASE PARTIES ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN THE EVENT THAT THE FOREGOING EXCLUSION OF LIABILITY IS FOUND BY A COURT OF COMPETENT JURISDICTION TO BE UNENFORCEABLE, THE PARTIES INSTEAD AGREE THAT THE TROPHECASE PARTIES WILL NOT BE LIABLE TO YOU FOR MORE THAN THE GREATER OF THE AMOUNT YOU HAVE PAID TROPHECASE IN THE NINETY (90) DAYS IMMEDIATELY PRECEDING THE DATE ON WHICH YOU FIRST ASSERT ANY SUCH CLAIM OR ONE HUNDRED DOLLARS.
9.3 TO THE FULLEST EXTENT PERMITTED BY LAW, THESE DISCLAIMERS OF LIABILITY APPLY TO ANY AND ALL DAMAGES OR INJURY WHATSOEVER CAUSED BY OR RELATED TO USE OF, OR INABILITY TO USE, THE SERVICE UNDER ANY CAUSE OR ACTION OF ANY JURISDICTION, INCLUDING, WITHOUT LIMITATION, ACTIONS FOR BREACH OF WARRANTY, BREACH OF CONTRACT OR TORT (INCLUDING NEGLIGENCE).
10. Third Party Claims. You agree to hold harmless the TropheCase Parties from and against all third-party claims and actions brought against the TropheCase Parties arising out of your use of the Software or that of any individual you provide access to use the Software and/or your breach or alleged breach, or that of any individual you provide access to use the Software, of any term, condition, obligation, representation or warranty in this Agreement, including by paying all attorneys’ fees and costs to defend such claims and actions and all awards, damages, costs and expenses arising therefrom. You agree that the provisions in this paragraph will survive any termination of your account(s), the Software, or this Agreement
11. Governing Law/Waiver of Injunctive Relief.
11.1 This Agreement and all aspects of the Software will be governed by and construed in accordance with the internal laws of the United States and the State of New York governing contracts entered into and to be fully performed in the State of New York (i.e., without regard to conflict of laws provisions) regardless of your location. With respect to any disputes or claims not subject to informal dispute resolution or arbitration (as set forth below), you agree not to commence or prosecute any action in connection therewith other than in the state courts located in the State of New York, and you hereby consent to, and waive all defenses of lack of personal jurisdiction and forum non convenience with respect to, venue and jurisdiction in the state courts located in the State of New York.
11.2 To expedite resolution and control the cost of any dispute, controversy or claim related to this Agreement (“Dispute”), you and TropheCase agree to first attempt to negotiate any Dispute (except those Disputes expressly provided below) informally for at least thirty (30) days before initiating any arbitration or court proceeding. Such informal negotiations commence upon written notice from one person to the other. You will send your notice to TropheCase, Inc. (ATTENTION:POLICY).
11.3 If you and TropheCase are unable to resolve a Dispute through informal negotiations within thirty (30) days, either you or TropheCase may elect to have the Dispute (except those Disputes expressly excluded below) finally and exclusively resolved by binding arbitration. Any election to arbitrate by one party will be final and binding on the other. YOU UNDERSTAND THAT ABSENT THIS PROVISION, YOU WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL. The arbitration will be commenced and conducted under the Streamlined Arbitration Rules and Procedures (the “Rules”) of JAMS, which is available at the JAMS website www.jamsadr.com. The determination of whether a Dispute is subject to arbitration will be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator. Your arbitration fees and your share of arbitrator compensation will be governed by the Rules. The arbitration may be conducted in person, through the submission of documents, by phone or online. The arbitrator will make a decision in writing, but need not provide a statement of reasons unless requested by a party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. Except as otherwise provided in this Agreement, you and TropheCase may litigate in court to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator.
11.4 You and TropheCase agree that any arbitration will be limited to the Dispute between TropheCase and you individually. To the full extent permitted by law,
No arbitration will be joined with any other;
There is no right or authority for any Dispute to be arbitrated on a class-action basis or to utilize class action procedures; and
There is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons.
11.5 You and TropheCase agree that the following Disputes are not subject to the above provisions concerning informal negotiations and binding arbitration:
Any Disputes seeking to enforce or protect, or concerning the validity of, any of your or TropheCase’s intellectual property rights;
Any Dispute related to, or arising from, allegations of theft, piracy, invasion of privacy, or unauthorized use; and
Any claim for injunctive relief.
12.1 The failure of TropheCase to require or enforce strict performance by you of any provision of this Agreement or to exercise any right
under them will not be construed as a waiver or relinquishment of TropheCase’s right to assert or rely upon any such provision or right in that or any other instance. 12.2 You and TropheCase agree that if any portion of this Agreement, except any portion of Section 11.5, is found illegal or unenforceable, in whole or in part by any court of competent jurisdiction, such provision will, as to such jurisdiction, be ineffective to the extent of such determination of invalidity or unenforceability without affecting the validity or enforceability thereof in any other manner or jurisdiction and without affecting the remaining provisions of this Agreement, which will continue to be in full force and effect. If Section 11.5 is found to be illegal or unenforceable then neither you nor TropheCase will elect to arbitrate any Dispute falling within that portion of Section 11.5 found to be illegal or unenforceable and such Dispute will be decided by a court of competent jurisdiction in the state courts located in the State of New York, Albany County, and you and TropheCase agree to submit to the personal jurisdiction of that court.
13. Miscellaneous. TropheCase operates and controls the Software from its offices in North America. TropheCase makes no representation that the Software is appropriate or available in other locations. The information provided on the Software is not intended for distribution to or use by any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation or which would subject TropheCase to any registration requirement within such jurisdiction or country. Accordingly, those persons who choose to access the Software from other locations do so on their own initiative and are solely responsible for compliance with local laws, if and to the extent local laws are applicable. This Agreement is effective until terminated by either party. You may terminate this Agreement by destroying all Software-related materials obtained from the Software, TropheCase, or any other website or source. The privileges granted to you under this Agreement will terminate immediately and automatically without notice from TropheCase if, in our sole discretion, you fail to comply with any term or provision of this Agreement or for any reason in TropheCase’s sole discretion. Neither the course of conduct between the parties nor trade practice will act to modify this Agreement to any party at any time without any notice to you. You may not assign this Agreement without TropheCase’s prior written consent, which may be withheld in TropheCase’s sole discretion, and any assignment without such consent shall be deemed null and void. Such anti-assignment provision shall not apply to any Entity that has a right to assign its written agreement with TropheCase relating to the Software. This Agreement contains the entire understanding of you and TropheCase, and supersedes all prior understandings between the parties concerning its subject matter, and cannot be changed or modified by you. The section headings used in this Agreement are for convenience only and will not be given any legal import. Upon TropheCase’s request, you will furnish TropheCase any documentation, substantiation or releases necessary to verify your compliance with this Agreement. You agree that this Agreement will not be construed against TropheCase by virtue of having drafted it. You hereby waive any and all defenses you may have based on the electronic form of this Agreement and the lack of signing by the parties hereto to execute this Agreement.
13. Statute of Limitations. You and TropheCase both agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Software or this Agreement (including the Privacy Policies) must be filed within ONE (1) YEAR after such claim or cause of action arose or will be forever barred.