This Apollo Stories™ Click Wrap License Agreement (“Agreement”) is a binding contract between the Apollo Theater Foundation, Inc. a New York nonprofit corporation (“Licensor”) and the individual intending to use (“Licensee”) the Licensor’s proprietary Internet-based curriculum platform entitled Apollo Stories™, which includes, but is not limited to, lesson plans and other educational materials and activities, including educational challenges, prompts, and contests, software, technology, animation, photographs, graphic, audio and visual files, text, documentation and any and all related materials (collectively hereinafter referred to as the “Application”).

LICENSOR PROVIDES THE APPLICATION SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT LICENSEE ACCEPTS AND COMPLIES WITH THEM. BY CLICKING THE “ACCEPT” BUTTON BELOW, AND/OR BY DOWNLOADING OR OTHERWISE USING THE APPLICATION, LICENSEE: (A) ACCEPTS THIS AGREEMENT AND AGREES THAT LICENSEE IS LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENTS AND WARRANTS THAT: (I) LICENSEE IS EIGHTEEN (18) YEARS OF AGE OR OLDER; AND (II) LICENSEE HAS THE RIGHT, POWER AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND BIND LICENSEE TO ITS TERMS. IF LICENSEE DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, LICENSOR WILL NOT AND DOES NOT LICENSE THE APPLICATION TO LICENSEE AND LICENSEE MUST NOT DOWNLOAD OR USE THE APPLICATION.

GRANT OF RIGHTS/LICENSE. Subject to the terms and conditions set forth herein, Licensor hereby grants to Licensee a non-exclusive, non-transferable, non-sublicensable, revocable, limited right and license to utilize the Application during the Term (as defined below) of this Agreement solely for educational purposes and with Licensee’s eligible end users – students, school administrators and staff, and other parties designated by Licensee in accordance with the terms hereof (collectively, “Authorized Users”).2 Licensee shall not assign or sublicense any of its rights hereunder in any manner whatsoever without Licensor’s prior written consent.
OWNERSHIP. As between Licensor and Licensee, Licensor owns the Application and all its associated materials, and under the terms of this Agreement, the Application is licensed, not sold, to Licensee. Licensee acknowledges and agrees that its rights are limited to a nonexclusive, nontransferable, non-sublicensable, revocable, limited license for use of the Application and any software programs or other proprietary materials of Licensor or third parties that are incorporated into the Application, according to the terms of this Agreement. Licensor reserves and retains all right, title, and interest (including but not limited to copyrights, patents, trademarks, service marks, and other intellectual property rights) in, to, and associated with the Application, including all rights to any and all derivative works that may result from the use of the Application by Licensee.
WARRANTIES, REPRESENTATIONS AND COVENANTS. Licensee hereby covenants that it shall:
Utilize the Application only as expressly provided for herein and shall not do any act or thing or fail to do any act or thing, or knowingly permit or allow any other person or entity to do any act or thing or fail to do any act or thing, that will harm or diminish Licensor’s rights in and to the Application including, without limitation, the copyrights, trademarks, or intellectual property therein or make copies of, or distribute, or permit any use of, the Application or any intellectual property related thereto and licensed hereby, other than as specifically authorized herein.
Not, nor permit or allow any other party to, reverse engineer or otherwise analyze, reconstruct, disassemble, modify or reproduce any portion of the Application in any way, except as specifically set forth herein or as agreed to by Licensor in writing.
CUSTOMIZATION. If you post resources to or via the Application or otherwise make (or allow any third party to make) modifications, changes or derivative works to or of the content and other materials made available via the Application (such content and other materials, the “Content” and all such Licensee-posted resources and all modifications or changes to Content, or derivative works thereof, the “Custom Content”), you are entirely responsible for that Custom Content and any harm resulting from that Custom Content. That is the case regardless of what form the Custom Content takes, which includes, but is not limited to text, photo, video, audio or code. You must not post Custom Content that is copyrighted unless you are the copyright owner or have permission from the copyright owner to share it. By making Custom Content available, you represent and warrant that your Custom Content does not violate the terms of this Agreement. By submitting Custom Content to Licensor for inclusion on or via the Application, you waive all moral rights and similar rights relating thereto and you grant Licensor a worldwide, royalty-free and nonexclusive license to reproduce, modify, adapt and publish the Custom Content for the purpose of displaying, distributing, operating and promoting the Application. Further, by clicking that you agree to this Agreement, you are affirming that you acknowledge, consent and agree that Licensor may access the Custom Content if required to do so by law or if based on a good faith belief that such access, preservation or disclosure is reasonably necessary to (a) comply with the legal process; (b) enforce the terms of this Agreement; (c) respond to claims that any Custom Content violates the rights of any third party; (d) respond to your requests for customer or technical service; or (e) protect the rights, property or personal safety of Licensor, its users or any third parties. Except as set forth above, you may not make any use of Custom Content.
DISCLAIMER.
Licensor does not guarantee the operability of the Application with all operating systems or software. Licensor is not responsible for any hardware failure, operating system or software conflict, server or security issue, or any other condition compromising the operability of the Application or otherwise interfering with the Application’s functioning.
THE APPLICATION IS PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. LICENSOR HEREBY DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE APPLICATION, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND NONINFRINGEMENT OF THIRD-PARTY RIGHTS.
LICENSOR DOES NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS THAT THE APPLICATION IS FREE OF ERROR, OR THAT IT WILL MEET LICENSEE’S NEEDS OR REQUIREMENTS, OR THAT THE APPLICATION WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, OR THAT THE APPLICATION WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
The disclaimers set forth in this Agreement supersede any and all oral or written statements, promises, information, advice, suggestions, demonstrations, or recommendations given by Licensor, its representatives, dealers, distributors, agents, or employees. No statements that are not set forth expressly, specifically, and unequivocally in this Agreement shall create a warranty or in any way increase the scope of this Agreement and Licensee may not rely on any such information, advice, suggestions, or recommendations.
LICENSOR HEREBY DISCLAIMS FOR ALL PURPOSES AND CIRCUMSTANCES ANY RESPONSIBILITY OR LIABILITY FOR USE OF THE APPLICATION.
TERM & TERMINATION.
This Agreement and the License shall remain in effect unless terminated as set forth herein (the “Term”).
Licensee may terminate this Agreement by ceasing to use and destroying all copies of the Application in the manner set forth below.
Upon termination, all rights granted to Licensee and Authorized Users shall automatically, immediately, and irrevocably revert to Licensor and the Licensee and Authorized Users shall immediately discontinue any and all access to and use of the Application.
Within thirty (30) days of termination of this Agreement, Licensee shall irrevocably and entirely delete, at Licensee’s sole cost and expense, all Application components and materials, and any and all copies thereof, within Licensee’s and Licensee’s Authorized Users’ possession or control, in whatever form then existing, including translations or compilations, whether partial or complete, and whether or not modified or merged into other software.
Notwithstanding any expiration or termination of this Agreement, any provisions of this Agreement which by their terms are intended to survive expiration or termination of this Agreement shall so survive and continue in full force and effect.
DEFAULT. Licensee is responsible for the actions of Licensee’s Authorized Users. Upon a Default, as defined below, the Licensor may elect to terminate the license granted hereunder prior to the expiration of the Term by issuing written notice of termination to the Licensee. Alternatively, Licensor may elect to suspend Licensee’s access to the Application without immediately terminating the license. A “Default” of this Agreement will be deemed to have occurred if:
The Licensee does not cure any material breach within thirty (30) days after delivery of written notice of a material breach of this Agreement from the Licensor.
If during any term Licensee’s Authorized Users are in material breach of this Agreement more than twice, such breaches shall constitute a material breach for which there is no cure, and Licensee’s access to the Application may, in the sole discretion of the Licensor, be permanently suspended.
ASSIGNMENT. Neither party may assign this Agreement, or any part thereof, without written permission from the other party, except for the unconditional right of Licensor to assign or otherwise transfer this Agreement to any affiliate or any person or entity acquiring ownership of all or a substantial portion of Licensor’s business interests.
CONTROLLING LAW. THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO ITS CONFLICT-OF-LAW PROVISIONS. VENUE FOR ANY ACTION, SUIT, OR OTHER PROCEEDING RELATING TO THIS AGREEMENT SHALL LIE EXCLUSIVELY IN THE STATE AND FEDERAL COURTS OF MANHATTAN, NEW YORK, AND THE PARTIES IRREVOCABLY CONSENT TO THE EXCLUSIVE JURISDICTION OF THOSE COURTS. ATTORNEY’S FEES IN ANY LEGAL ACTION SHALL BE AWARDED TO THE PREVAILING PARTY.
INJUNCTIVE RELIEF; SPECIFIC PERFORMANCE. Licensee acknowledges that a breach of this Agreement will cause Licensor irreparable harm, injury and damage, which cannot be reasonably or adequately compensated by money damages. Accordingly, Licensee acknowledges that Licensor shall be entitled to the remedies of injunction and specific performance in the event of a breach, in addition to any available legal or equitable remedy without the need to post bond or other security. Notwithstanding any other provision of this Agreement, Licensor may seek equitable relief from a court at any time.
LIMITATION OF LIABILITY.
NO CONSEQUENTIAL OR INDIRECT DAMAGES. LICENSOR, ITS SUBSIDIARIES, AFFILIATES, AND ASSIGNS, AND EACH OF THEIR DIRECTORS, OFFICERS, AGENTS, CONTRACTORS, PARTNERS, AND EMPLOYEES, SHALL NOT BE LIABLE TO LICENSEE, AUTHORIZED USERS, OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, OR INCIDENTAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF FUNDS OR PROPERTY, BUSINESS INTERRUPTION, LOSS OF BUSINESS OPPORTUNITY, LOSS OF DATA, OR ANY OTHER HARDSHIP, DAMAGES, OR LOSSES ARISING OUT OF OR RELATED TO: (1) THE USE OR INABILITY TO USE THE APPLICATION, HOWEVER CAUSED; (2) UNAUTHORIZED OR ACCIDENTAL ACCESS TO OR ALTERATION OF DATA; (3) STATEMENTS OR CONDUCT OF ANY THIRD PARTY; OR (4) ANY MATTER RELATING TO THIS AGREEMENT OR TO THE USE OF THE APPLICATION ‒ EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
LIABILITY CAP. EXCEPT WITH RESPECT TO ITS GROSS NEGLIGENCE, LICENSOR’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED FIVE HUNDRED DOLLARS ($500).
CONFIDENTIALITY. Each party agrees to use commercially reasonable efforts to maintain the confidentiality of any confidential information of the other party that it obtains pursuant to this Agreement consistent with the efforts such party uses to protect its own confidential information of like importance, and shall take all reasonable steps to ensure that such confidential information is not disclosed or distributed. Each party agrees that the Application shall be deemed confidential information of Licensor.
REIMBURSEMENT RIGHTS. To the extent that Licensee, or an Authorized User, breaches an obligation, covenant, representation, or warranty herein to the Licensor and such breach gives rise to a claim by a third party against the Licensor, the parties hereby agree that the Licensee shall reimburse and be financially responsible to the Licensor, for any and all charges, claims, damages, costs, judgments, decrees, losses, expenses (including reasonable attorney’s fees and court costs), penalties, demands, liabilities, and causes of action, demanded, claimed, or obtained by a third party against the Licensor, whether or not groundless and including the expenses related to defending such claims, of any kind or nature whatsoever by reason of, based upon, relating to, or arising out of a breach or claim of breach or failure of any of the covenants, agreements, representations, or warranties the Licensee has made hereunder. This contractual right of reimbursement hereunder shall be cumulative and shall not be exclusive of any other right or remedy which may be available.
WAIVER. No term or provision hereof shall be deemed waived and no breach excused unless such waiver or consent shall be in writing signed and dated by the party claimed to have waived or consented. A waiver by either party of any term or condition shall not be deemed or construed as a waiver of such term or condition for the future, or of any subsequent breach thereof, nor a permanent modification of such provision or of this Agreement.
COMMUNICATIONS. By accepting this Agreement, Licensee agrees to receive ongoing Apollo Stories™ communications including regarding youth-centered opportunities. Licensee may opt out of these communications at any time.
SURVIVAL. The duties set forth in the following paragraphs shall survive termination of this Agreement: sections 4, 5, and 6 and any other obligations or duties which by their nature should survive termination of this Agreement, shall survive termination of this Agreement.
SEVERABILITY. If any part or parts of this Agreement shall be held unenforceable for any reason, the remainder of this Agreement shall continue in full force and effect. If any provision of this Agreement is deemed invalid or unenforceable by any court of competent jurisdiction, and if limiting such provision would make the provision valid, then such provision shall be deemed to be construed as so limited.
ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between Licensor and Licensee and supersedes any prior understanding or representation of any kind. There are no other promises, conditions, understandings or other agreements, whether oral or written, relating to the subject matter of this Agreement.