Terms - Audio Enhancement

EPIC SYSTEM
TERMS AND CONDITIONS OF USE

Last Updated: October 2, 2023

OUR USE OF AND ACCESS TO OUR SOFTWARE PLATFORM (DEFINED BELOW) ARE SUBJECT TO THE FOLLOWING TERMS. IF YOU DO NOT AGREE TO ALL OF THE FOLLOWING, YOU MAY NOT USE OR ACCESS OUR SOFTWARE PLATFORM IN ANY MANNER. If You accept or agree to these Terms and Conditions of Use on behalf of a company or other legal entity, You represent and warrant that You have the authority to bind that company or other legal entity to these Terms and Conditions of Use and, in such event, “You” and “Your” will refer and apply to that company or other legal entity in addition to You.

Introduction

This Software Platform is intended to serve a single school to provide services specifically purchased by the school. The purpose of this Terms and Conditions of Use Agreement (“Terms of Use”) is to set forth the terms and conditions under which Audio Enhancement, Inc. and/or its affiliated companies (collectively, “Company”, “we”, “us” or “our”), make our Epic System Software Platform (“Software Platform”) available to schools and the conditions under which such schools may have access to and use such Services.

Please read these Terms of Use carefully before using our Software Platform.

By accessing or using the Software Platform in any way or taking any other action to signify Your acceptance of these Terms of Use, You: (1) agree to be bound by these Terms of Use and any future amendments and additions to these Terms of Use as published from time to time by the Company; and (2) represent You are of legal age in Your jurisdiction of residence to form a binding contract with Company. These Terms of Use include the provisions in this document, as well as those in the Company Privacy Policy, which can be found at https://audioenhancement.com/privacy/. Any documents, manuals, videos, and any other supporting software or materials provided to manage the Software Platform are also subject to these Terms of Use. Company periodically releases software updates to address security, stability and other features of the Software Platform. Such updates are subject to these Terms of Use. You agree to maintain security and application updates by using the updates that are released and made available to the public.

Your use of, and participation in the use of the Software Platform may be subject to additional terms (“Supplemental Terms”) and such Supplemental Terms will either be listed in the Terms of Use or will be presented to You for Your acceptance when You sign up to use the Software Platform. If the Terms of Use are inconsistent with the Supplemental Terms, the Supplemental Terms shall control with respect to the Software Platform. The Terms of Use and any applicable Supplemental Terms are referred to herein as the “Agreement.” Company may modify these Terms of Use at any time from time to time without prior notice and such modification shall be effective: (1) for Users who first use the Software Platform or (2) for existing Users, thirty (30) days after posting by the Company on its website. If You do not agree to the modification, You must cease Your use of the Software Platform immediately and Your only recourse is to cease using the Software Platform and to contact the Company immediately.

See our current Privacy Policy for information and notices regarding our collection and use of personal information, found at https://audioenhancement.com/privacy/.

Use of Software Platform and Content

The Software Platform is designed to be used specifically in schools. Video, sound and image files may be uploaded into the system manually or inadvertently by use of classroom cameras. Company cannot monitor or restrict the uploads to validate the ownership of assets. Company cannot monitor camera use or restrict who gains access to cameras, particularly when connected to third-party systems. Company cannot guarantee 911 emergency functionality. The Software Platform relies on an integration with the user’s phone system and cannot guarantee the service availability or uptime of this connection, even if the user desires to use the Software Platform for automated 911 emergency phone calls.

EPIC System has hardware and software integration interfaces for interoperability to other systems. EPIC System can use Common Alerting Protocol (CAP) to activate alerts in third party platforms by sending a CAP compliant message to a system when an event is activated in EPIC. EPIC System is able to subscribe to CAP feeds or receive CAP compliant messages from third party systems to activate events within EPIC. While CAP is a standard messaging format, Audio Enhancement cannot guarantee any off the shelf third party systems or their specific interoperability with EPIC System. Any integrations utilizing hardware or software integrations including CAP or EPIC System's API are not promised to function with any third-party system unless explicitly written into a separate scope of work. Company does not guarantee any integration with third-party systems for receiving or distributing alert or event related messaging.

In order to access certain features of the Software Platform, You may be required to register an Account (as defined below) and become a Registered User. For the purposes of this Agreement, a “Registered User” is a User who has registered for any Account. When registering an account for the Software Platform (“Account”), You agree to provide only true, accurate, current and complete information requested by the registration form (the “Registration Data”) and to promptly update the Registration Data thereafter as necessary to keep it current. You represent that You are not barred from using the Software Platform under any applicable law and that You will be responsible for all activities that occur under Your Account. You may authorize a third party to access or use our Software Platform on Your behalf. You are responsible for maintaining the confidentiality of the user ID and password and are fully responsible for all activities that occur under Your user ID or password. Additionally, You are responsible to secure Your system and restrict access to the Software Platform as appropriate to ensure unauthorized users do not gain system access by means of insecure accounts, accounts which have been left from former employees, or other acts of negligence. You agree to immediately notify us of any unauthorized use of Your user ID or password or any other breach of security. We cannot and will not be liable for any loss or damage arising from any unauthorized use of Your account. You acknowledge and agree that You have no ownership or other property interest in Your Account and that all rights in and to Your Account are owned by and inure to the benefit of Company. It is Your responsibility to secure Your network, the Software Platform and endpoint network devises using all appropriate physical and digital controls to do so.

Except as otherwise indicated, our Software Platform and all rights thereto, are the property of Company and/or our affiliated companies and are protected under U.S. copyright, trade secret, trademark and patent law as well as international treaty provisions, with all rights reserved. All related graphics, logos, service marks and trade names used on or in connection with the Software Platform are the trademarks of Company and may not be used without permission in connection with any third-party products or services. Other trademarks, service marks and trade names that may appear on or in the Software Platform are the property of their respective owners. Subject to these Terms of Use, Company grants You a limited license to install and use the Software Platform solely for the purpose of using within your teaching practice. Any future release, update, or other addition to the Software Platform shall be subject to these Terms of Use. Company, its suppliers, and its service providers reserve all rights not granted in these Terms of Use.

Restrictions on Use of the Software Platform

Except as authorized herein or with our prior written approval, You are prohibited from copying, modifying, displaying, distributing, transmitting, transferring, redelivering, publishing, selling, marketing, renting, leasing, licensing or sublicensing, creating derivative works, or otherwise using or making available to any third party/parties our Software Platform or any of its content for any purpose. Systematic retrieval of data from any of our Software Platform or the content thereon to create or compile, directly or indirectly, a collection, compilation, database or directory, unless with our express written permission, is prohibited. You agree that You will not, directly or indirectly, reverse engineer, decompile, reproduce or otherwise attempt to derive source code, trade secrets, or other intellectual property from any information, material, or technology included in our Software Platform and any content therein. Any attempt to do so is a violation of our rights, and if You breach this restriction, You may be subject to prosecution and damages, including punitive damages. Finally, You are strictly prohibited from accessing and/or using the Software Platform or any of its content to develop, or have a third party develop, a product or service that is similar or competitive to the Software Platform.

Intellectual Property

We own and retain all right, title, and interest in and our Services (except for any licensed content and software components included therein). You agree not to reverse engineer, decompile, distribute, license, sell, transfer, disassemble, copy, alter, modify, or create derivative works of our Services or otherwise use our Services in any way that violates the use restrictions contained in these Terms of Use. We do not grant You any license, express or implied, to any of our intellectual property or that of our licensors. You further acknowledge and agree that any information regarding the design, “look and feel”, specifications, components, functionality or operation and payment terms and pricing (if applicable) of our Services is considered our confidential and proprietary information (collectively “Confidential Information”).

Our graphics, logos, designs, page headers, button icons, scripts and service names are registered trademarks, trademarks or trade dress of Company in the U.S. and/or other countries. Our trademarks and trade dress may not be used, including as part of trademarks and/or as part of domain names, in connection with any product or service in any manner that is likely to cause confusion and may not be copied, imitated, or used, in whole or in part, without our prior written permission. We also reserve the right to determine and control all aspects (including all functionality) of the Software Platform and our trade dress, as well as the right to re-design, modify and remove any or all aspects of them.

General Prohibitions

Your use of the Software Platform is further subject to the following additional restrictions:

You represent, warrant, and agree that You will not contribute any content or otherwise use our Services or interact with our Software Platform in a manner that:

Infringes or violates the intellectual property rights or any other rights of anyone else (including us);

Violates any law or regulation, including any applicable export control laws;
Is harmful, fraudulent, deceptive, threatening, harassing, defamatory, obscene, or otherwise objectionable;

Jeopardizes the security of Your Company account or anyone else’s (such as allowing someone else to log in to our Services as You);

Attempts, in any manner, to obtain the password, account, or other security information from any other user;

Violates the security of any computer network, or cracks any passwords or security encryption codes;

Runs Maillist, Listserv, any form of auto-responder or “spam” on our Software Platform or any processes that run or are activated while You are not logged into our Software Platform or that otherwise interfere with the proper working of our Services (including by placing an unreasonable load on our Software Platform’s infrastructure);

“Crawls,” “scrapes,” or “spiders” any page, data, or portion of or relating to our Software Platform or Content (through use of manual or automated means);

Copies or stores any significant portion of the Content;

Decompiles, reverse engineers, or otherwise attempts to obtain the source code or underlying ideas or information of or relating to our Software Platform.

Additionally, you agree to not use the Software Platform for illegal or harmful activities, including but not limited to undue panic caused by false alerts or for any other reason other than its intended purpose.

A violation of any of the foregoing is grounds for immediate termination of Your right to use or access our Software Platform.

Digital Millennium Copyright Act Notice

If You believe that Your intellectual property rights have been violated by something on our Software Platform, please contact our copyright agent as follows:

Audio Enhancement, Inc.

c/o Strong & Hanni, PC

102 S. 200 E, Ste. #800

Salt Lake City, UT 84111

and provide the following information:

A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that has been allegedly infringed upon;

Identification of or a representative list of the work You believe has been infringed upon;

Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate said material;

Information reasonably sufficient to permit us to contact You;

A statement that You have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and

A statement that the information in the notification is accurate, and under penalty of perjury, that You are authorized to act on behalf of the owner of an exclusive right that has been allegedly infringed upon.

Indemnification

You agree to indemnify and hold Company, its parents, subsidiaries, affiliates, officers, employees, contractors, agents, business partners, and licensors (collectively, the “Company Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of: (a) Your misuse of the Software Platform; (b) Your violation of this Agreement; (c) Your violation of any rights of another party, including any Users; or (d) Your violation of any applicable laws, rules or regulations. Company reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by You, in which event You will fully cooperate with Company in asserting any available defenses. You agree that the provisions in this Section will survive any termination of this Agreement or Your access to the Software Platform.

Disclaimer of Warranty

YOUR USE OF OUR SOFTWARE PLATFORM AND ANY OF THE CONTENT THEREIN IS AT YOUR SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE HEREBY DISCLAIM ALL WARRANTIES IN CONNECTION WITH OUR SOFTWARE PLATFORM AND ANY OF THE CONTENT THEREIN. OUR SOFTWARE PLATFORM AND ALL CONTENT IS PROVIDED “AS IS”, “AS AVAILABLE” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. FURTHER, WE DO NOT MAKE ANY OTHER REPRESENTATIONS OR WARRANTIES THAT OUR SOFTWARE PLATFORM OR CONTENT WILL MEET YOUR REQUIREMENTS, BE UNINTERRUPTED OR FREE FROM ERRORS, THAT ANY ERRORS WILL BE CORRECTED, OR THAT THE SERVICES OR CONTENT WILL BE FREE FROM MALICIOUS SOFTWARE, VIRUSES OR OTHER HARMFUL COMPONENTS. FURTHER, WE DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR RESULTS OF THE USE OF THE SOFTWARE PLATFORM OR ANY OF THE CONTENT THEREIN, NOR THE ADEQUACY, ACCURACY OR COMPLETENESS OF THE SOFTWARE PLATFORM OR ANY OF THE CONTENT THEREIN OR ANY OF THE INFORMATION, PRODUCTS OR SERVICES PROVIDED THROUGH THE SOFTWARE PLATFORM OR CONTENT THEREIN. NO ORAL OR WRITTEN INFORMATION GIVEN BY ANY PARTY SHALL CREATE ANY SUCH WARRANTIES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU. IN NEW JERSEY, THE ABOVE DISCLAIMER OF THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE DOES APPLY TO YOU BUT DOES NOT LIMIT OUR LIABILITY FOR A VIOLATION OF A STATUTORILY IMPOSED DUTY.

THE SOFTWARE PLATFORM IS NOT CLASSIFIED AS A LIFE SAFETY SYSTEM FOR FIRE OR OTHER EMERGENCY AND/OR DISASTER EVENTS OF ANY KIND.

Limitation of Liability

TO THE FULLEST EXTENT PERMITTED BY LAW, WE EXPRESSLY DISCLAIM, AND YOU AGREE NOT TO HOLD US RESPONSIBLE FOR, ANY LOSSES, DAMAGES, INJURIES, CLAIMS OR OTHER LIABILITY OF ANY KIND, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR IN ANY WAY CONNECTED WITH YOUR ACCESSING OR USING OR INABILITY TO ACCESS OR USE ALL OR ANY PART OF ANY OF OUR SOFTWARE PLATFORM OR ANY OF THE CONTENT THEREIN, OR YOUR RELIANCE ON THE SOFTWARE PLATFORM AND ANY CONTENT THEREIN, OR ANY FAILURE OF PERFORMANCE, ERROR, INTERRUPTION, DEFECT, DELAY IN TRANSMISSION, COMPUTER VIRUSES OR OTHER HARMFUL COMPONENTS OR CONTENT, OR LINE OR SYSTEM FAILURE ASSOCIATED WITH THE SOFTWARE PLATFORM AND ANY OF ITS CONTENT, REGARDLESS OF OUR NEGLIGENCE AND/OR KNOWLEDGE THEREOF.

UNDER NO CIRCUMSTANCES WILL COMPANY BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (A) THE TOTAL AMOUNT PAID TO COMPANY BY YOU DURING THE ONE-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY AND (B) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF COMPANY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY AN COMPANY PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY AN COMPANY PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.

THE LAW IN CERTAIN STATES, INCLUDING NEW JERSEY, MAY NOT ALLOW THE DISCLAIMER OR EXCLUSION OF ANY OR ALL OF SUCH LIABILITY, AND AS SUCH, THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IN NEW JERSEY, THIS PROVISION DOES NOT LIMIT OR EXCLUDE OUR LIABILITY FOR OUR OWN INTENTIONAL TORTS, WILLFUL OR RECKLESS CONDUCT, GROSS NEGLIGENCE, OR VIOLATION OF A STATUTORILY IMPOSED DUTY.

Termination

At its sole discretion, Company may modify or discontinue the Software Platform, or may modify, suspend, or terminate Your access to the Software Platform, for any reason, with or without notice to You and without liability to You or any third party. Company will not be responsible for refunding or otherwise paying any funds, amounts or credits that may be owed to You if we have suspended or terminated Your permission to use the Software Platform. In addition to suspending or terminating Your access to the Software Platform, Company reserves the right to take appropriate legal action, including without limitation pursuing civil, criminal or injunctive redress. Even after Your right to use the Software Platform is terminated, this Agreement will remain enforceable against You and unpaid amounts You owe to Company for any purchases will remain due.

Dispute Resolution

Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully. It requires You to arbitrate disputes with Company and limits the manner in which You can seek relief from us. You agree that any dispute or claim relating in any way to Your access or use of the Services, to any products sold or distributed through the Services (including any Company Policy), or to any aspect of Your relationship with Company, will be resolved by binding arbitration, rather than in court, except that (1) You may assert claims in small claims court if Your claims qualify, so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis; and (2) You or Company may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the Effective Date of this Agreement or any prior version of this Agreement.

IF YOU AGREE TO ARBITRATION WITH COMPANY, YOU ARE AGREEING IN ADVANCE THAT YOU WILL NOT PARTICIPATE IN OR SEEK TO RECOVER MONETARY OR OTHER RELIEF IN ANY LAWSUIT FILED AGAINST COMPANY ALLEGING CLASS, COLLECTIVE, AND/OR REPRESENTATIVE CLAIMS ON YOUR BEHALF. INSTEAD, BY AGREEING TO ARBITRATION, YOU MAY BRING YOUR CLAIMS AGAINST COMPANY IN AN INDIVIDUAL ARBITRATION PROCEEDING. IF SUCCESSFUL ON SUCH CLAIMS, YOU COULD BE AWARDED MONEY OR OTHER RELIEF BY AN ARBITRATOR. YOU ACKNOWLEDGE THAT YOU HAVE BEEN ADVISED THAT YOU MAY CONSULT WITH AN ATTORNEY IN DECIDING WHETHER TO ACCEPT THIS AGREEMENT, INCLUDING THIS ARBITRATION AGREEMENT.

Arbitration Rules and Forum

The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, You must send a letter requesting arbitration and describing Your claim to our registered agent:

Jessica Johnston

102 S. 200 E, Ste. #800

Salt Lake City, UT 84111

The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at https://www.jamsadr.com/rules-comprehensive-arbitration/

JAMS’s rules are also available at jamsdr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum.

You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county where You live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.

The arbitrator, and not any federal, state or local court or agency shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of You and Company. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Terms of Use (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon You and us.

YOU AND COMPANY HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Company are instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in this section. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Terms of Use as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.

ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. Notwithstanding anything to the contrary herein, (a) representative action for public injunctive relief may be arbitrated on a class basis and (b) in the event that the foregoing sentence is deemed invalid or unenforceable with respect to a particular class or dispute for recovery of damages, neither You nor we are entitled to arbitration and instead claims and disputes shall be resolved in a court as set forth in the Exclusive Venue section below.

Within 30 days after first becoming subject to this Arbitration Agreement, You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of Your decision to opt out to the following address:

Audio Enhancement, Inc.

c/o Jessica Johnston

102 S. 200 E, Ste. #800

Salt Lake City, UT 84111

Your notice must include Your name and address, the email address You used to set up Your Account, and an unequivocal statement that You want to opt out of this Arbitration Agreement. If You opt out of this Arbitration Agreement, all other parts of these Terms of Use will continue to apply to You. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that You may currently have, or may enter into with us in the future.

Miscellaneous

The communications between You and Company use electronic means, whether You send the Company e-mails, or whether the Company posts notices on the Software Platform or communicates with You via e-mail. For contractual purposes, You (1) consent to receive communications from Company in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications related to these Agreement that Company provides to You electronically satisfy any legal requirement that such communications would satisfy if they were made in writing in a physical document. The foregoing does not affect Your statutory rights.

This Agreement, and Your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by You without Company’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.

Company shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor, nuclear, mine subsidence, named storms or materials.

To the extent the parties are permitted under this Agreement to initiate litigation in a court, both You and Company agree that all claims and disputes arising out of or relating to this Agreement or the Services will be litigated exclusively in the state courts located in Salt Lake City, Utah or federal courts located in the District of Utah.

This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of Utah, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction.

Where Company requires that You provide an e-mail address, You are responsible for providing Company with Your most current e-mail address. In the event that the last e-mail address You provided to Company is not valid, or for any reason is not capable of delivering to You any notices required/ permitted by this Agreement, Company’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Company at the following address:

Audio Enhancement, Inc.

c/o Jessica Johnston

102 S. 200 E, Ste. #800

Salt Lake City, UT 84111

Such notice shall be deemed given when received by Company by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.

Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

If any portion of these Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.

This Agreement are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.

Company is a registered business in Utah, USA.

General Customer Assumptions

• All Network Connections/Drops will be provided by Other at equipment locations and connected to a PoE+ switch with sufficient capacity to handle the installed devices. (30 Watts for each MS-XXX Device, 15 Watts for each Camera, 30 Watts for each PoE InfoView Display)

• All necessary power/racking will be provided by other, if it doesn’t already exist in equipment locations.

• The network must be programmed and managed by the End User/Owner, to ensure successful functionality of the EPIC, SAFE, VIEWpath, and/or InfoView system.

Installation

Audio Enhancement standard installation rates do not include prevailing/Davis Bacon wages, or the installation of equipment into materials that are made up of Asbestos or Lead, unless explicitly called within the BOM or proposal.

• Audio Enhancement provides up to 6’ of non-metallic wire mold for classroom installations at no additional charge.

• All other conduit, wire mold styles, parts, boxes, etc. are not included, unless explicitly called out within the BOM or proposal.

Subcontractors

Audio Enhancement reserves the right to utilize certified and authorized sub-contractors for all or part of the scope of work as viable for the installation and commissioning.

Payment Terms

Unless otherwise agreed, standard payment terms are Net (30) Days on approved credit. Unless otherwise agreed all product and material will be billed Net (30) days from date of shipment of products from Audio Enhancement. Unless otherwise agreed all labor will be billed Net (30) at the completion of each site visit. Payments are to be made via check or wire. Unless otherwise agreed the customer agrees to pay 1.5% interest per month (18% annum) to Audio Enhancement for any unpaid invoices or monies past due on the quoted terms of sale. Unless otherwise agreed should collection of delinquent account be necessary, the customer agrees to pay legal fees incurred. Certain Audio Enhancement products are available on a subscription, per site or other limited license basis, and may require additional licenses or renewal from time to time. Renewal subscriptions and additional licenses will be subject to the terms and conditions in effect at the time of purchase.

Order Changes after shipment

Changes in the specifications, quantities, schedule, or other aspects of the services that are requested or approved by the customer, will result in addition charges that may include product cost, freight/shipping cost, and or restocking fees.

Supply Chain Shortages

The current supply dynamics are complex. Audio Enhancement may substitute products or alter project timelines due to unforeseen supply/demand constraints.

Assignments

Customer may not assign or transfer, by operation of law or otherwise, any of its rights under these terms and conditions, to any third party without Audio Enhancement’s prior written consent. Any attempted assignment or transfer will be considered a violation of the foregoing and will be null and void.

Insurance

Audio Enhancement will maintain, at its own expense, the following insurance coverage as evidenced by insurance certificates provided to the Customer upon request.

• Worker’s Compensation and Employer’s Liability Policy: $500,000 coverage per incident/bodily injury

• General Commercial Liability Policy: $1,000,000 per incident/$2,000,000 in aggregate

Governing Law

Unless otherwise agreed, all terms and conditions to be governed by the laws of Utah and the venue shall be Salt Lake County, West Jordan, Utah.

Use of Services and Limits of Liability

Audio Enhancement’s liability under these terms and conditions is limited to the correction of any non-conformity in any services, or refund of the purchase price, or refund of specific amounts paid for products or services that fail to conform, at Audio Enhancement’s sole option. In no event shall Audio Enhancement’s aggregate liability to the Customer under these terms and conditions for any claim arising exceed an amount equal to the fees paid to Audio Enhancement for the specific project during the prior six months for the particular services which gives rise to the claim. No actions, regardless of the form, arising out of these terms and conditions may be brought by the Customer more than one (1) year after the occurrence of the events that gave rise to the cause of actions. The pricing of all services is based upon this limitation of liability. The Customer’s sole and exclusive remedy shall be written termination of these terms and conditions.

The SAFE System (Security Alert for Education) is designed to alert you if there is an emergency in the classroom. It does not prevent emergencies. Audio Enhancement is not responsible or liable to the Customer for any damage or harm caused by the system not functioning properly if the failure is caused by errors or delay in the Customers third party network or equipment. Audio Enhancement is also not responsible or liable to the Customer for any damage or harm caused by the system not functioning properly if the failure is caused by the Customers failure to properly care for, maintain, and/or repair the system, or for any delays in performing any service or maintenance, regardless of the reason(s), or for any resulting consequences. If it is determined that Audio is directly or indirectly responsible for any loss, damage, injury, or other consequence, The Customer agrees the damages shall be limited to the amount paid for the services or systems provided for the project.

The Customer represents and warrants that it owns or otherwise has the necessary rights to any materials, files, videos, images, information, rubrics, frameworks, checklists, data, or other content provided by the Customer under these terms and conditions, and none of the foregoing will infringe, misappropriate, or otherwise violate any rights of any third party or applicable law. The Customer acknowledges that any software and/or software as a service provided in connection with these terms and conditions, is subject to the terms of use and privacy policies of the respective software.

VIEWpath (My Workshop Video Repository - SaaS Platform)
TERMS AND CONDITIONS OF USE

Last Updated: October 2, 2023

OUR USE OF AND ACCESS TO OUR SOFTWARE SERVICE (DEFINED BELOW) ARE SUBJECT TO THE FOLLOWING TERMS. IF YOU DO NOT AGREE TO ALL OF THE FOLLOWING, YOU MAY NOT USE OR ACCESS OUR SOFTWARE SERVICE IN ANY MANNER. If You accept or agree to these Terms and Conditions of Use on behalf of a company or other legal entity, You represent and warrant that You have the authority to bind that company or other legal entity to these Terms and Conditions of Use and, in such event, “You” and “Your” will refer and apply to that company or other legal entity in addition to You.

Introduction

This Software Service is provided as a service to work in conjunction with the Company’s EPIC System primarily utilized by school teachers who maintain an active subscription. The purpose of this Terms and Conditions of Use Agreement (“Terms of Use”) is to set forth the terms and conditions under which Audio Enhancement, Inc. and/or its affiliated companies (collectively, “Company”, “we”, “us” or “our”), make our VIEWpath (SaaS Platform) software service (“Software Service”) available to schools and the conditions under which such schools may have access to and use such Services.

Please read these Terms of Use carefully before using our Software Service.

By accessing or using the Software Service in any way or taking any other action to signify Your acceptance of these Terms of Use, You: (1) agree to be bound by these Terms of Use and any future amendments and additions to these Terms of Use as published from time to time by the Company; and (2) represent You are of legal age in Your jurisdiction of residence to form a binding contract with Company. These Terms of Use include the provisions in this document, as well as those in the Company Privacy Policy, which can be found at https://audioenhancement.com/privacy/. Any documents, manuals, videos, and any other supporting software or materials provided to manage the Software Service are also subject to these Terms of Use.

Your use of, and participation in the use of the Software Service may be subject to additional terms (“Supplemental Terms”) and such Supplemental Terms will either be listed in the Terms of Use or will be presented to You for Your acceptance when You sign up to use the Software Service. If the Terms of Use are inconsistent with the Supplemental Terms, the Supplemental Terms shall control with respect to the Software Service. The Terms of Use and any applicable Supplemental Terms are referred to herein as the “Agreement.” Company may modify these Terms of Use at any time from time to time without prior notice and such modification shall be effective: (1) for Users who first use the Software Service or (2) for existing Users, thirty (30) days after posting by the Company on its website. If You do not agree to the modification, You must cease Your use of the Software Service immediately and Your only recourse is to cease using the Software Service and to contact the Company immediately.

See our current Privacy Policy for information and notices regarding our collection and use of personal information, found at https://audioenhancement.com/privacy/.

Use of Services and Content

The Software service is designed as an educational tool for teachers to reflect on their practices and to share directed content with students or PLCs. The Software Service is not a security recording system, VMS, NVR or other continuous recording solution. Regular, continuous or otherwise abusive uploading during or after normal school hours constitutes abuse of the system and will be seen as a violation of these terms. Video stored in VIEWpath does not meet the requirements of a VMS solution and cannot be used in any legal manner. Video, sound and image files may be uploaded into the system manually or inadvertently by use of classroom cameras. Company cannot monitor or restrict the uploads to validate the ownership of assets. Company cannot monitor camera use or restrict who gains access to cameras, particularly when connected to third-party systems.

In order to access certain features of the Software Service, You may be required to register an Account (as defined below) and become a Registered User. For the purposes of this Agreement, a “Registered User” is a User who has registered for any Account. When registering an account for the Software Service (“Account”), You agree to provide only true, accurate, current and complete information requested by the registration form (the “Registration Data”) and to promptly update the Registration Data thereafter as necessary to keep it current. You represent that You are not barred from using the Software Service under any applicable law and that You will be responsible for all activities that occur under Your Account. You may authorize a third party to access or use our Software Service on Your behalf. You are responsible for maintaining the confidentiality of the user ID and password and are fully responsible for all activities that occur under Your user ID or password. You agree to immediately notify us of any unauthorized use of Your user ID or password or any other breach of security. We cannot and will not be liable for any loss or damage arising from any unauthorized use of Your account. You acknowledge and agree that You have no ownership or other property interest in Your Account and that all rights in and to Your Account are owned by and inure to the benefit of Company.

Except as otherwise indicated, our Software Service and all rights thereto, are the property of Company and/or our affiliated companies and are protected under U.S. copyright, trade secret, trademark and patent law as well as international treaty provisions, with all rights reserved. All related graphics, logos, service marks and trade names used on or in connection with the Software Service are the trademarks of Company and may not be used without permission in connection with any third-party products or services. Other trademarks, service marks and trade names that may appear on or in the Software Service are the property of their respective owners. Subject to these Terms of Use, Company grants You a limited license to install and use the Software Service solely for the purpose of using within your teaching practice. Any future release, update, or other addition to the Software Service shall be subject to these Terms of Use. Company, its suppliers, and its service providers reserve all rights not granted in these Terms of Use.

Restrictions on Use of the Software Service

Except as authorized herein or with our prior written approval, You are prohibited from copying, modifying, displaying, distributing, transmitting, transferring, redelivering, publishing, selling, marketing, renting, leasing, licensing or sublicensing, creating derivative works, or otherwise using or making available to any third party/parties our Software Service or any of its content for any purpose. Systematic retrieval of data from any of our Software service or the content thereon to create or compile, directly or indirectly, a collection, compilation, database or directory, unless with our express written permission, is prohibited. You agree that You will not, directly or indirectly, reverse engineer, decompile, reproduce or otherwise attempt to derive source code, trade secrets, or other intellectual property from any information, material, or technology included in our Software Service and any content therein. Any attempt to do so is a violation of our rights, and if You breach this restriction, You may be subject to prosecution and damages. Finally, You are strictly prohibited from accessing and/or using the Software Service or any of its content to develop, or have a third party develop, a product or service that is similar or competitive to the Software Service.

Intellectual Property

Our graphics, logos, designs, page headers, button icons, scripts and service names are registered trademarks, trademarks or trade dress of Company in the U.S. and/or other countries. Our trademarks and trade dress may not be used, including as part of trademarks and/or as part of domain names, in connection with any product or service in any manner that is likely to cause confusion and may not be copied, imitated, or used, in whole or in part, without our prior written permission. We also reserve the right to determine and control all aspects (including all functionality) of the Software Service and our trade dress, as well as the right to re-design, modify and remove any or all aspects of them.

General Prohibitions

Your use of the Software Service is further subject to the following additional restrictions:

You represent, warrant, and agree that You will not contribute any content or otherwise use our Services or interact with our Software Service in a manner that:

Infringes or violates the intellectual property rights or any other rights of anyone else (including us);

Violates any law or regulation, including any applicable export control laws;
Is harmful, fraudulent, deceptive, threatening, harassing, defamatory, obscene, or otherwise objectionable;

Jeopardizes the security of Your Company account or anyone else’s (such as allowing someone else to log in to our Services as You);

Attempts, in any manner, to obtain the password, account, or other security information from any other user;

Violates the security of any computer network, or cracks any passwords or security encryption codes;

Runs Maillist, Listserv, any form of auto-responder or “spam” on our Software Service or any processes that run or are activated while You are not logged into our Software Service or that otherwise interfere with the proper working of our Services (including by placing an unreasonable load on our Software Service’s infrastructure);

“Crawls,” “scrapes,” or “spiders” any page, data, or portion of or relating to our Software Service or Content (through use of manual or automated means);

Copies or stores any significant portion of the Content;

Decompiles, reverse engineers, or otherwise attempts to obtain the source code or underlying ideas or information of or relating to our Software Service.

A violation of any of the foregoing is grounds for immediate termination of Your right to use or access our Software Service.

Digital Millennium Copyright Act Notice

If You believe that Your intellectual property rights have been violated by something on our Software Service, please contact our copyright agent as follows:

Audio Enhancement, Inc.

c/o Strong & Hanni, PC

102 S. 200 E, Ste. #800

Salt Lake City, UT 84111

and provide the following information:

A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that has been allegedly infringed upon;

Identification of or a representative list of the work You believe has been infringed upon;

Information reasonably sufficient to permit us to contact You;

A statement that You have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and

Indemnification

You agree to indemnify and hold Company, its parents, subsidiaries, affiliates, officers, employees, contractors, agents, business partners, and licensors (collectively, the “Company Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of: (a) Your misuse of the Software Service; (b) Your violation of this Agreement; (c) Your violation of any rights of another party, including any Users; or (d) Your violation of any applicable laws, rules or regulations. Company reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by You, in which event You will fully cooperate with Company in asserting any available defenses. You agree that the provisions in this Section will survive any termination of this Agreement or Your access to the Software Service.

Disclaimer of Warranty

YOUR USE OF OUR SOFTWARE SERVICE AND ANY OF THE CONTENT THEREIN IS AT YOUR SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE HEREBY DISCLAIM ALL WARRANTIES IN CONNECTION WITH OUR SOFTWARE SERVICE AND ANY OF THE CONTENT THEREIN. OUR SOFTWARE SERVICE AND ALL CONTENT IS PROVIDED “AS IS”, “AS AVAILABLE” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. FURTHER, WE DO NOT MAKE ANY OTHER REPRESENTATIONS OR WARRANTIES THAT OUR SOFTWARE SERVICE OR CONTENT WILL MEET YOUR REQUIREMENTS, BE UNINTERRUPTED OR FREE FROM ERRORS, THAT ANY ERRORS WILL BE CORRECTED, OR THAT THE SERVICES OR CONTENT WILL BE FREE FROM MALICIOUS SOFTWARE, VIRUSES OR OTHER HARMFUL COMPONENTS. FURTHER, WE DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR RESULTS OF THE USE OF THE SOFTWARE SERVICE OR ANY OF THE CONTENT THEREIN, NOR THE ADEQUACY, ACCURACY OR COMPLETENESS OF THE SOFTWARE SERVICE OR ANY OF THE CONTENT THEREIN OR ANY OF THE INFORMATION, PRODUCTS OR SERVICES PROVIDED THROUGH THE SOFTWARE SERVICE OR CONTENT THEREIN. NO ORAL OR WRITTEN INFORMATION GIVEN BY ANY PARTY SHALL CREATE ANY SUCH WARRANTIES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU. IN NEW JERSEY, THE ABOVE DISCLAIMER OF THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE DOES APPLY TO YOU BUT DOES NOT LIMIT OUR LIABILITY FOR A VIOLATION OF A STATUTORILY IMPOSED DUTY.

Limitation of Liability

TO THE FULLEST EXTENT PERMITTED BY LAW, WE EXPRESSLY DISCLAIM, AND YOU AGREE NOT TO HOLD US RESPONSIBLE FOR, ANY LOSSES, DAMAGES, INJURIES, CLAIMS OR OTHER LIABILITY OF ANY KIND, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR IN ANY WAY CONNECTED WITH YOUR ACCESSING OR USING OR INABILITY TO ACCESS OR USE ALL OR ANY PART OF ANY OF OUR SOFTWARE SERVICE OR ANY OF THE CONTENT THEREIN, OR YOUR RELIANCE ON THE SOFTWARE SERVICE AND ANY CONTENT THEREIN, OR ANY FAILURE OF PERFORMANCE, ERROR, INTERRUPTION, DEFECT, DELAY IN TRANSMISSION, COMPUTER VIRUSES OR OTHER HARMFUL COMPONENTS OR CONTENT, OR LINE OR SYSTEM FAILURE ASSOCIATED WITH THE SOFTWARE SERVICE AND ANY OF ITS CONTENT, REGARDLESS OF OUR NEGLIGENCE AND/OR KNOWLEDGE THEREOF.

Termination

At its sole discretion, Company may modify or discontinue the Software Service, or may modify, suspend, or terminate Your access to the Software Service, for any reason, with or without notice to You and without liability to You or any third party. Company will not be responsible for refunding or otherwise paying any funds, amounts or credits that may be owed to You if we have suspended or terminated Your permission to use the Software Service. In addition to suspending or terminating Your access to the Software Service, Company reserves the right to take appropriate legal action, including without limitation pursuing civil, criminal or injunctive redress. Even after Your right to use the Software Service is terminated, this Agreement will remain enforceable against You and unpaid amounts You owe to Company for any purchases will remain due.

Dispute Resolution

Arbitration Rules and Forum

Jessica Johnston

102 S. 200 E, Ste. #800

Salt Lake City, UT 84111

JAMS’s rules are also available at jamsdr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum.

Audio Enhancement, Inc.

c/o Jessica Johnston

102 S. 200 E, Ste. #800

Salt Lake City, UT 84111

Miscellaneous

The communications between You and Company use electronic means, whether You send the Company e-mails, or whether the Company posts notices on the Software Service or communicates with You via e-mail. For contractual purposes, You (1) consent to receive communications from Company in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications related to these Agreement that Company provides to You electronically satisfy any legal requirement that such communications would satisfy if they were made in writing in a physical document. The foregoing does not affect Your statutory rights.

Audio Enhancement, Inc.

c/o Jessica Johnston

102 S. 200 E, Ste. #800

Salt Lake City, UT 84111

Such notice shall be deemed given when received by Company by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.

Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

Company is a registered business in Utah, USA.