Library Terms of Service
Dated October 2, 2023
These Library Terms of Service (this “Agreement”) are made and entered into as of the Effective Date of the agreement between the Customer and Creative Empire LLC, d/b/a Mango Languages, a Michigan limited liability company (“Mango”).
- SERVICES. Subject to the satisfaction of the terms and conditions of this Agreement and solely during the Initial Term and any Successor Term(s), if applicable, Mango shall provide Customer access to the services listed above under Description of Subscription Services (“Services”).
- TERM. the “Initial Term” shall start on the Agreement Term Start Date and end on the Agreement Term End Date. The Initial Termshall automatically be extended for successive one (1) year terms (each, a “Successor Term”) unless either party provides written notice to theother party not less than thirty (30) days prior to the end of the Initial Term or Successor Term, as applicable, of its intent not to extend the term. During any such Successor Terms, all terms and conditions of this Agreement shall remain in full force and effect unless modified in writing by the parties on a Mango Change Order signed by both parties.
- PAYMENT. Customer shall pay Mango the Initial Payment Amount within 30 days of Customer’s receipt or initial use of the Services. The Initial Payment Amount shall be payable by check, wire transfer, or other immediately available funds. Prior to the commencement of each Successor Term(s), Customer and Mango shall agree upon the amount Customer shall pay Mango for the upcoming Successor Term (the “Successor Payment Amount”), and Customer shall pay Mango the Successor Payment Amount within 30 days of the date of Mango’s invoice for the Services for the Successor Term. The Successor Payment Amount shall be payable by check, wire transfer, or other immediately available funds.
- LIMITATION OF LIABILITY. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, THE SERVICES PURCHASED BY CUSTOMER FROM MANGO ARE PROVIDED “AS IS”. MANGO DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS, IMPLIED OR STATUTORY WARRANTIES, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OF THIRD-PARTY RIGHTS, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. To the maximum extent permitted by applicable law, neither Mango nor its licensors or distributors shall be liable to the Customerfor any lost profits, cost of substitute goods or services, or any form of indirect, special, incidental, consequential or punitive damages from any causes of action arising with respect to the Services that Customer purchases from Mango, whether arising in tort (including negligence), contract, strict liability or otherwise, whether or not such party has been advised of the possibility of such damage. In no event shall Mango’s aggregate liability under this Agreement exceed the amount actually paid by Customer for the applicable Services.
- WEB-SITE/SOFTWARE ACCESS. To the extent that any Services are accessed through Mango’s website or software programs (collectively “Website”), Mango hereby grants the Customer’s Authorized Users a limited license to access and make use of such Services. “Authorized Users” means users who are registered borrowers of the Customer, those that are walk-ins, and those who are remote users accessing the Services through the Customer’s Customer will make reasonable efforts to protect Mango’s proprietary information (including but not limited to Mango’s intellectual property and other similar Content (as defined below)), will promptly notify Mango if Customer discovers there is unauthorized use of Mango’s Services and will cooperate with Mango to mediate the situation.
- WEB-SITE LICENSE AND CONDITIONS. As a condition of the Website license granted in paragraph 4 above, Customer agrees:
- not to download or modify any part of the Website, except with the express and prior written consent of Mango;
- not to download or copy any account information for the benefit of another merchant;
- not to resell or make any commercial use of the Website or its Content;
- not to reproduce, duplicate, copy, sell, resell or otherwise exploit the Website for any commercial purpose without the express written consent of Mango;
- not to make any derivative use of the Website or its Content;
- not to frame or utilize framing techniques to enclose any trademark, logo, or other proprietary
information (including images, text, page layout, or form) of Mango except for the purposes of this Agreement and for promoting the Services;
- not to use any meta tags or any other “hidden text” utilizing the Mango name or trademarks without the express written consent of Mango;
- While Mango attempts to ensure that its Website is normally available 24 hours a day, Mango shall not be liable if for any reason its Website is unavailable at any time or for any period; provided however, that Mango shall use its best efforts to provide adequate capacity and bandwidth to support the Customer’s needs and provide service on a 24 hour basis except for routine maintenance (for which theCustomer is pre-notified). In the event that Mango fails to
- provide such service for five days within a 30 day period, Mango shall provide a pro rata refund for the 30 day period in question;
- Access to Mango’s Website may be suspended temporarily and without notice in the case of system failure, maintenance or repair or for reasons beyond Mango’s control;
Certain Content, including without limitation Mango Movies Library Edition, may be owned by Mango and/or its licensors. Customertherefore acknowledges and agrees that such Content may be added, removed or unavailable from time to time during the InitialTerm or any Successor Term (the “Unavailability”), and such Unavailability shall not be deemed breach of this Agreement by Mango.
- Neither the Customer nor any of its Authorized Users shall show any Content, including without limitation any video clips or movieswhich are included in the Contents, to any public group or other third parties who are not Authorized Users, and Customer and its Authorized Users shall abide by all Movie Regulations listed at https://mangolanguages.com/legal/movie-regulations/;
- Both Customer and its Authorized Users may deny or revoke their consent for Mango to use any of its/their Personal Data at any time as allowed by data protection law. However, both Customer and its Authorized Users acknowledge that any such denial or revocation of consent may materially degrade, or in some cases even entirely prevent, Customer or Authorized Users’ ability to access and/or use all of Mango’s software, functions, or features; and
- Any rights not expressly granted in these terms are reserved.
- IDEMNIFICATION. Mango and the Customer agree to indemnify, defend and hold one another, and all of their respective members, directors, officers, employees, attorneys and agents (collectively, “Agents”) harmless from and against any loss, claim, judgment, liability,damage, action or cause of action (including reasonable attorneys’ fees and court costs) arising out of or in connection with (a) a third party claim that the Customer’s possession and/or use of the Services infringe or misappropriate the patent, copyright, trademark or otherintellectual property rights of a third party, or (b) the negligence or willful misconduct of either Mango or the Customer or their respective Agents with respect to any obligation, term or condition of this Agreement.
- SUPPORT. Mango shall support the Customer by responding to emails and phone calls from the Customer. Mango shall make reasonable efforts to respond to all customer support issues during normal business days between the hours of 9 a.m. and 7 p.m. Eastern Time, Monday through Thursday, and 9 a.m. and 5 p.m. Eastern Time on Fridays.
- UPDATES. Mango shall from time to time update its online software and content related to the Services in its absolute discretion. The Customer shall only receive updates to the Services listed above. Any changes or enhancements to Mango’s consumer edition and/or other editions not specifically listed above will not necessarily be made to the Services listed above.
- ACCESS. Mango intends to provide Authorized Users unlimited access to the Services. In the event that the Customer’s Authorized Users exceed what Mango deems reasonable usage during the term of this Agreement (i.e., Mango determines that usage of the Website and Services is being excessively abused by a particular user id and password), Mango shall assume that either the number of Customer’s library cardholders was grossly underestimated or there is piracy of Mango’s Service from outside sources. Under such circumstances, Mango reserves the right to restrict or limit access to the Services and/or the Website. In the event of such circumstances, Mango shall make every effort to provide notice to and cooperate with Customer prior to Mango’s restriction or limitation of access to its Website and Services.
- INTELLECTUAL. All materials on the Mango Website or accessible as part of the Services, including without limitation, text,images, logo, software, audio content and video clips, databases, e-mails, and posted comments and reviews (collectively, the “Content”’) are owned or controlled by Mango and/or its licensors, who retain all right, title, and interest in and to the Content. The Website and Content are protected by the copyright and trademark laws of the United States and other countries, international conventions, and other applicable laws. Customer shall use all reasonable efforts to ensure that all Authorized Users are appropriately notified of the importance of respecting Mango’s intellectual property rights.
- LICENSE OF CUSTOMER’S TRADEMARKS. Customer agrees to grant Mango a non-exclusive, non-transferable, royalty-free, right and license, solely during the Initial or any Successor Terms of the Agreement, to reproduce, display, and otherwise use the trademarks, service marks, logos, and trade names of Customer solely in connection with the advertising and promotion of Mango’s language learning business.
- APPLICABLE LAW; This Agreement shall be governed by and construed in accordance with the laws of the State of Michigan, excluding any conflicts of law provisions. The parties hereto agree to submit any suit arising under or relating to this Agreement to any state court of competent jurisdiction located in Oakland County, Michigan, or in the United States District Court for the Eastern District of Michigan, and the parties hereto waive any objection to submitting to the personal jurisdiction and venue therein.
- FORCE MAJURE. Neither party hereto shall be deemed in default of this Agreement to the extent that performance of its obligations under this Agreement (other than any payment obligations) are delayed or prevented solely by supervening conditions beyond a party’s reasonable control, including without limitation natural disasters, war, terrorism, strikes, power outages, internet connectivity outages, labor disputes, and government demands or requirements (each, a “Force Majeure”), provided that such party gives the other party written notice thereof within fifteen (15) days of its discovery of a Force Majeure that prevents the performance of its obligations under this Agreement (other than any payment obligations). The time for performance shall be extended for a period equal to the duration of the Force Majeure, not to exceed six (6) months.
- TAXES. All prices for the Services and other amounts in this Agreement are exclusive of any applicable customs, duties, assessments, fees and taxes, including any applicable value added or any other sales taxes (collectively, “Taxes”). Customer shall be responsible for payment of any and all applicable Taxes to the extent required under applicable law.
- ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between Mango and the Customer regarding the subject matter hereof, supersedes all prior or contemporaneous agreements, understandings or negotiations between Mango and the Customer, whether written or oral, regarding the subject matter hereof, and may be amended, modified or waived only by a Mango Change Order signed by Mango and Customer. Notwithstanding the foregoing, no terms, provisions or conditions of any purchase order (including external links to terms and conditions), vendor registration or similar document issued by, or on behalf of, the Customer will have any effect on the parties nor add to or modify this Agreement, even when signed (before, during, or after the signing of this Agreement) by Mango, under any circumstances. Any reference to a purchase order or similar documentation on an invoice or other acceptance thereof is solely for Customer’s convenience in record keeping, and no such reference shall be deemed an acknowledgment of or agreement to any terms or conditions associated with any such purchase order or other Customer provided documentation or vendor registration process. Any such associated terms and conditions shall be of no force and effect, and shall not in any way be deemed to amend, modify, supersede, alter or supplement this Agreement.
- GENERAL. The parties hereto represent and warrant to the other party that they each have the right power, and authority to enter into and fully perform its obligations under this Agreement and have obtained all necessary licenses, permissions, and consents to fulfill their respective obligations under this Agreement. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns, but only Mango may assign any of its rights or obligations under this Agreement. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law. In the event that any provision of this Agreement shall be held to be void or unenforceable by any competent court or tribunal, the remaining provisions of this Agreement shall continue in full force and effect. No failure or delay by Mango in exercising any right or power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right or power hereunder. This Agreement may be executed in counterparts (including counterparts delivered via facsimile or other electronic transmission), each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument.