As used herein, “TutorFirst” refers to TutorFirst, a Florida corporation, and “You” (and similar expressions) refers to you, the user of this software.
You agree that this Agreement is legally binding upon You in all respects, notwithstanding the electronic form of the Agreement.
You agree that all of Your obligations and covenants under this Agreement are binding upon You and all of Your subsidiaries, affiliates, related entities, successors, assigns, designees, owners, officers, directors, employees and agents.
You agree to maintain and archive print copies of all of Your data.
You agree that TutorFirst shall not be liable to You for any loss, damage, claim, expense (including, without limitation, attorney fees), lawsuit or judgment, directly or indirectly arising from or relating to (i) any act or omission of TutorFirst, other than intentional misconduct or gross negligence, (ii) any indirect, special, punitive or consequential damages or damages for lost profits, lost opportunities or business interruption whatsoever, (iii) any damage or delay resulting directly or indirectly from any act of God, labor dispute, inclement weather, act of a public authority, act of Yours or other unforeseen contingency or matter beyond the reasonable control of TutorFirst, (iv) any failure or lack of function of the software or any other product delivered by TutorFirst, or any loss resulting from any failure of TutorFirst’s servers or other hardware or software, (v) any virus, worm or other contamination of any system or software of Yours or any other partial or entire loss of a server or other hardware, and (vi) any other matter directly or indirectly related to this Agreement or the software or other products provided by TutorFirst. In the event that a court of competent jurisdiction determines in a final and non-appealable order that the foregoing limitation of liability is unenforceable in whole or in part, or in the event of any gross negligence or intentional misconduct by TutorFirst, the entire liability of TutorFirst to You shall in no event exceed the aggregate amount paid by You to TutorFirst for software or other products.
You agree to indemnify and hold harmless TutorFirst (and all of its shareholders, directors, officers, employees and agents) from any third-party suit, judgment, claim, loss, expense (including, without limitation, attorney fees), judgment and all other costs of whatever type and nature in any way arising or resulting from (i) any inaccuracy, misrepresentation or omission in the information provided by You to TutorFirst, (ii) any act or omission of Yours, including, without limitation, any distribution, modification, sale, use or mis-use of the software or other products provided to You by TutorFirst, and (iii) any default by You under this Agreement.
You agree that TutorFirst is the owner of the software and will hold You harmless from and against any third party Claim alleging the software infringes any third party copyrights, trade secrets or patents to the extent of any damages attributable to such infringement and finally incurred by You in the judicial or arbitrated re resolution of any such claim or in a monetary settlement thereof.
You agree that no warranty of any nature whatsoever is expressed or implied by TutorFirst to You with respect to the software or other products provided by TutorFirst and that all such software and products are provided on an AS-IS, with all faults basis. In particular, and without limiting the generality of the foregoing, TutorFirst does not make any guarantee, representation or warranty (i) of merchantability, (ii) of fitness for a particular purpose, (iii) that the software or other products will result in any increase to Your sales, revenues or business, (iv) regarding any minimum functionality or performance, or (v) regarding any other matter directly or indirectly related to the software or other products provided by TutorFirst.
You agree that TutorFirst may amend or modify this Agreement at any time and from time to time in its sole discretion, provided that all such changes are prospective in application only. You also agree that no amendment to this Agreement may be made by You without the express written consent of TutorFirst. Your use of the software or other products after such amendments or modifications constitutes your agreement to the modified or amended terms.
You agree that Your use of software or other products is limited to You only and You may not resell or otherwise make commercial use of it.
You agree that you may terminate your account with TutorFirst at any time.
You agree that TutorFirst may suspend or terminate your account and refuse any and all current and future use of the software or other products at any time for any reason and shall not be liable for any such suspension or termination
You agree that TutorFirst has made available various methods, processes, trademarks or other copyrightable material or intellectual property and no license or other authorization to use them is granted except as expressly provided herein. In cases where Your improvement suggestions or other feedback are incorporated into the design of any software or other products, You agree that TutorFirst owns all intellectual property and other rights to such suggestions and feedback.
You agree that TutorFirst reserves the right to change modify or discontinue the software or other products at any time and from time to time in its sole discretion and that TutorFirst shall not be liable to You or any other party for any such change, modification or discontinuance.
You agree that TutorFirst invoices are due on receipt and are calculated according to the latest published fee structure unless otherwise agreed in writing. Failure to pay the full amount due will result in suspension of Your account. Reactivation of Your account will be handled on a case-by-case basis thereafter.
You agree that if you have given TutorFirst credit card details for automatic billing you also give TutorFirst the authority to charge the credit card with any amounts outstanding on your account at any time.
You agree that TutorFirst will maintain a Fair Access Policy designed to ensure that all customers receive the fastest possible service at the lowest possible price. A customer consuming more than Fair resources may be subject to limitation of access.
You agree that if you request specific custom software engineering, TutorFirst may perform the work and may either bill You separately or may accrue an amount for the service. If TutorFirst accrues an amount and the regular license fees for the use of the software do not cover the amount within ninety days, You agree that the balance of the accrued amount less the regular license fees charged in the ninety day period will become payable.
You agree that each provision of this Agreement shall be considered separable and if, for any reason, any provision herein is determined to be unenforceable under applicable law, such unenforceability shall not impair the operation of or affect those portions of this Agreement which are enforceable and such unenforceable provision shall be deemed amended to the minimum extent required to render such provision valid and enforceable.
You agree that, in addition to all other available remedies under this Agreement, at law or in equity, TutorFirst may obtain temporary and permanent injunctions, specific performance and other equitable relief in the event of any breach of this Agreement, or threatened breach, by You. No failure of TutorFirst to insist on strict performance of any provision of this Agreement shall operate as a waiver of such provision with respect to any other occasion.
You agree that all questions concerning the construction, validity and interpretation of this Agreement shall be governed by the internal law, not the law of conflicts, of the State of Florida. You hereby (i) consent to the jurisdiction of the courts of the State of Florida in any action or proceeding seeking to enforce any provision of, or based on any right arising out of, this Agreement, and (ii) waive any objection to venue laid in any such court.