Back Pocket Beta Platform Terms of Use
Last Updated: August 2023
These Back Pocket Beta Platform Terms of Use (“Terms of Use”) between Shaney A. LLC, a Wisconsin limited liability company (“Back Pocket”, “our”, “us”, or “we”), and you, or the entity or organization that you represent (“User”, “you” or “your”), contain the terms and conditions governing your use of the Back Pocket Beta Platform, accessible at [INSERT URL] and any provided documentation (collectively, the “Service”).
BY CLICKING TO ACCEPT OR AGREE TO THESE TERMS OF USE (AND/OR ACCESSING OR USING THE SERVICE), YOU: (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THESE TERMS OF USE; (B) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY (AND HAVE REACHED THE AGE OF MAJORITY IN THE JURISDICTION YOU ARE IN) TO ENTER INTO THESE TERMS OF USE; AND (C) ACCEPT THESE TERMS OF USE AND AGREE TO BE LEGALLY BOUND BY THE TERMS AND CONDITIONS SET FORTH IN THESE TERMS OF USE. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS SET FORTH IN THESE TERMS OF USE, YOU MUST NOT ACCESS OR USE THE SERVICE.
Any information or data that you provide to us may be used by us in accordance with our privacy policy https://www.backpockettools.com/privacy-policy (“Privacy Policy”). By accessing or using, and providing information to or through, the Service, you acknowledge that we may collect store, disclose, and use your personal information as described in the Privacy Policy.
We may revise and update these Terms of Use from time to time in our sole discretion by posting a revised version of these Terms of Use. You can review the most current version of these Terms of Use at https://www.backpockettools.com/back-pocket-terms-of-use. Unless we indicate otherwise, all changes are effective immediately when we post them. Your continued use of the Service following the posting of revised Terms of Use and publication of the general notice means that you accept and agree to the changes. You are expected to check this page from time to time so you are aware of any changes, as they are binding on you.
1. Access and Use.
a.
Provision of Access. Subject to the terms and conditions of these Terms of Use, during the Beta Period (defined below), we hereby grant you a limited, non-exclusive, non-transferable, revocable right to access the Service solely for (i) your for internal use with the number of students (“Students”) set forth in the applicable order form for the Back Pocket Physical Kit License Agreement (Pilot) that you or your school, company, or organization entered into with us, and (ii) reproducing and distributing copies of the student-facing “Master Copy Worksheets” provided in the Service (“Student Worksheets”) solely to the Students for such Students’ personal use. The “Beta Period” is the period from the date you first access the Service (“Effective Date”) until your access to the Service (and these Terms of Use) are terminated in accordance with provisions set forth herein, including in accordance with Section 10. Notwithstanding anything to the contrary, we may terminate your access to the Service (and these Terms of Use) at any time, with or without cause, and with or without notice to you. This grant of access is restricted to use by you and does not include the right to use the Service on behalf of any third party or the right to permit any other person to access or use the Service.
b.
Use Restrictions. You shall not use the Service for any purposes beyond the scope of the access granted in these Terms of Use. Except as otherwise set forth in these Terms of Use, you shall not at any time, directly or indirectly, and shall not permit any third-party to: (i) copy, modify, or create derivative works of the Service, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Service; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Service, in whole or in part; (iv) remove any proprietary notices from the Service; (v) use the Service in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law; or (vi) use the Service for any purpose that is to our detriment or commercial disadvantage, including, but not limited to, developing a competing software product or service.
c.
Reservation of Rights. We reserve all rights not expressly granted to you in these Terms of Use. Except for the limited rights and licenses expressly granted under these Terms of Use, nothing in these Terms of Use grants, by implication, waiver, estoppel, or otherwise, to you or any third party, any intellectual property rights or other right, title, or interest in or to the Service, or any and all intellectual property provided to you in connection with the foregoing (“Back Pocket IP”).
2. Your Responsibilities
You are responsible and liable for all uses of the Service and resulting from access, directly or indirectly, whether such access or use is permitted by or in violation of these Terms of Use. You are responsible for maintaining and safeguarding the security of your account and password and you shall not share such password with any other person or allow any other person to access the Service under your account. You hereby agree to only use the Service in a manner consistent with applicable laws and regulations.
3. Support and Updates.
Back Pocket has no obligation under these Terms of Use to provide support, maintenance, upgrades, modifications, or new releases of the Service to you. However, we may from time to time in our sole discretion develop and provide Service updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates”). Updates may also modify or delete in their entirety certain features and functionality. You agree that we have no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. All Updates will be deemed part of the Service and be subject to all terms and conditions of these Terms of Use.
4. Fee
The parties agree that no fees will be payable in exchange for the access granted under these Terms of Use. You acknowledge and agree that this fee arrangement is made in consideration of the mutual covenants set forth in these Terms of Use, including, without limitation, the disclaimers, exclusions, and limitations of liability set forth herein.
5. Confidential Information
From time to time, either party may disclose or make available to the other party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media, whether or not marked, designated, or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (a) generally known to the public; (b) known to the receiving party at the time of disclosure; (c) rightfully obtained by the receiving party on a non-confidential basis from a third party; or (d) independently developed by the receiving party without use of disclosing party’s Confidential Information. The receiving party shall not disclose the disclosing party's Confidential Information to any person or entity, except to the receiving party's employees who have a need to know the Confidential Information for the receiving party to exercise its rights or perform its obligations hereunder. Each party shall safeguard the Confidential Information of the other party from unauthorized use, access, or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care. Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the party making the disclosure pursuant to the order shall first have given written notice to the other party and made a reasonable effort to obtain a protective order; or (ii) to establish a party's rights under these Terms of Use, including to make required court filings. Each party's obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire three years from the expiration or termination of these Terms of Use; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of these Terms of Use for as long as such Confidential Information remains subject to trade secret protection under applicable law.
6. Intellectual Property Ownership; Feedback.
a.
Back Pocket IP. You acknowledge that, as between you and Back Pocket, Back Pocket owns all right, title, and interest, including all intellectual property rights, in and to the Back Pocket IP.
b.
User Data. Back Pocket acknowledges that, as between Back Pocket and you, you own all right, title, and interest, including all intellectual property rights, in and to, other than Aggregated Statistics (defined below), data, databases, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by you or on your behalf through or in connection with the Service (“User Data”). You hereby grant to Back Pocket a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the User Data and perform all acts with respect to the User Data as may be necessary for Back Pocket to provide the Service to you and to improve the Service.
c.
Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, Back Pocket may monitor your use of the Service and collect and compile data and information related to your use of the Service that is used by Back Pocket in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Service (“Aggregated Statistics”). As between Back Pocket and you, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Back Pocket. You agree that Back Pocket may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law.
d.
Feedback. If you send or transmit any communications or materials to us by mail, email, telephone, or otherwise, suggesting or recommending changes to the Back Pocket IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Back Pocket is free to use such Feedback irrespective of any other obligation or limitation between the parties governing such Feedback. All Feedback is and will be treated as non-confidential. You hereby assign to Back Pocket all right, title, and interest in, and Back Pocket is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Back Pocket is not required to use any Feedback.
7. Disclaimer of Warranties
THE SERVICE AND BACK POCKET IP ARE PROVIDED “AS IS” AND BACK POCKET HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. BACK POCKET SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. BACK POCKET MAKES NO WARRANTY OF ANY KIND THAT THE SERVICE, BACK POCKET IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET YOUR OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. USER ACKNOWLEDGES THAT THE SERVICE IS NOT INTENDED TO BE USED AS MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT OF ANY MEDICAL CONDITION. ADDITIONALLY, ANY THIRD-PARTY WEBSITES OR DOCUMENTS LINKED FROM THE SERVICE ARE SOLELY FOR CONVENIENCE ONLY, AND ACCESSING SUCH WEBSITES OR DOCUMENTS ARE ENTIRELY AT YOUR OWN RISK AND SUBJECT TO THE TERMS AND CONDITIONS OF USE FOR SUCH WEBSITES OR DOCUMENTS.
8. Indemnification
You shall indemnify, hold harmless, and defend us, our affiliates, and our and their officers, directors, employees, agents, successors, and assigns from and against any losses, damages, liabilities, or costs (including reasonable attorneys’ fees) resulting from any third-party claim, suit, action, or proceeding arising out of or relating to: (a) your User Data, (b) your violation of these Terms of Use, (c) your violation of any applicable laws or regulations, (d) your infringement or misappropriation of any intellectual property right, or your violation of any other proprietary or privacy right, or (e) your acts or omissions in using the Service (including, without limitation, the results from using the Service). Back Pocket reserves the right, at our option and in our sole discretion, to assume full control of the defense of claims with legal counsel of our choice. You may not enter into any third-party agreement which would, in any manner whatsoever, affect our rights, constitute an admission of fault by us, or bind us in any manner, without our prior written consent.
9. Limitations of Liability
IN NO EVENT WILL BACK POCKET BE LIABLE FOR ANY DAMAGES ARISING FROM, OR IN ANY WAY RELATED TO, YOUR ACCESS TO OR USE OF THE SERVICE OR OTHERWISE UNDER OR IN CONNECTION WITH THESE TERMS OF USE UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, FOR ANY: (i) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (ii) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (iii) LOSS OF GOODWILL OR REPUTATION; (iv) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (v) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER BACK POCKET WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL BACK POCKET 'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS OF USE OF THE SERVICE UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE EXCEED $100 US DOLLARS.
10. Term and Termination
The term of these Terms of Use shall be for the Beta Period, unless earlier terminated pursuant to this Agreement. You may terminate these Terms of Use at any time by ceasing further use of the Service. We may, with or without notice, terminate, modify, suspend, and/or deny you access to the Service (in whole or in part) at our sole discretion for any reason or no reason. In addition, these Terms of Use will terminate immediately and automatically without any notice if you violate any of the terms and conditions of these Terms of Use. You agree that we will not be liable to you or to any third party for any termination, modification, suspension, discontinuation, or denial of access to, the Service or any part thereof. Upon expiration or termination of these Terms of Use for any reason, all rights granted to you will also terminate and you shall immediately cease use of the Service and Back Pocket IP. Termination will not limit any of our rights or remedies at law or in equity. This Section 10 and Sections 5, 6, 7, 8, 9, and 11 and any other right or obligation of the parties in these Terms of Use that, by its nature, should survive termination or expiration of these Terms of Use, will survive any expiration or termination of these Terms of Use.
11. Miscellaneous
These Terms of Use will be interpreted, construed, and enforced in accordance with the laws of the State of Wisconsin, without reference to its choice of law rules. Each party hereby irrevocably consents to the jurisdiction of the courts of the State of Wisconsin with venue in the state or federal courts in Dane County. If any term or provision of these Terms of Use is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of these Terms of Use or invalidate or render unenforceable such term or provision in any other jurisdiction, and such invalid, illegal, or unenforceable term or provision will be enforced to the maximum extent permissible under applicable law. No failure of either party to exercise or enforce any of its rights under these Terms of Use shall act as a waiver of subsequent breaches and the waiver of any breach shall not act as a waiver of subsequent breaches. You shall not assign any of its rights or delegate any of its obligations under these Terms of Use without the prior written consent of Back Pocket. Any purported assignment or delegation in violation of this Section is null and void. All notices, requests, consents, claims, demands, waivers and other communications hereunder shall be in writing and addressed to the parties at the addresses as follows: (a) if to Back Pocket: to Craig Andler at craig@backpockettools.com, and (b) if to you, to the physical or email address set forth in your account for the Service. These Terms of Use constitute the sole and entire agreement between Back Pocket and you regarding the Service.