The following terms of service and end user license agreement (“EULA”) constitute an agreement between you and Saba, Inc., and its affiliates (“Saba”). This EULA governs your use of Software and Services (as specified below) related to the Engyj application and related Services and Software.
For purposes of this EULA "Software" means all software programs distributed, published or otherwise made available by Saba or its affiliates including, but not limited to mobile applications, downloadable/installable applications for personal computer, and applications accessed by means of a browser or other online communication method. Software also includes updates and upgrades as well as accompanying manual(s), packaging and other written, files, electronic or on-line materials or documentation, and any and all copies of such software and its materials.
“Services” means all services made available by Saba, including but not limited to services accessed through mobile applications, by means of a browser, or by other online communication method.
Software and Services are collectively referred to as “Saba Services”.
THE SOFTWARE IS LICENSED, NOT SOLD. YOUR USE OF THE SOFTWARE (AS SPECIFIED BELOW) IS SUBJECT TO THE TERMS AND CONDITIONS SET FORTH IN THIS EULA. BY INSTALLING, USING OR ACCESSING THE SABA SERVICES OR ANY MATERIALS INCLUDED IN OR WITH THE SABA SERVICES, YOU HEREBY ACCEPT THE TERMS OF THIS EULA.
If you do not accept the terms of this EULA, do not install, use or access Engyj.
SPECIAL DISCLOSURE ABOUT SCHOOL MENUS
Saba provides no warranty regarding any information found in Engyj. All information regarding school meals is provided by the schools and/or school districts. This includes, but is not limited to, menu items, ingredients, nutritional data, and allergy information. Saba has no direct or specific knowledge about any of this information. All of this information is subject to change at any time without notice to you or to saba. To inquire about or confirm any of this information, please contact your school or school district directly; do not contact saba. Saba merely provides a channel whereby schools and school districts may convey this information to you.
SOFTWARE LICENSE. Subject to this EULA and its terms and conditions, Saba hereby grants you a non-exclusive, non-transferable, non-sublicensable, limited right and license to use one copy of the Software for your personal non-commercial use on a single device, unless otherwise specified in the Software documentation. The rights granted herein are subject to your compliance with this EULA. The Software is being licensed to you and you hereby acknowledge that no title or ownership in the Software is being transferred or assigned and this EULA is not to be construed as a sale of any rights in the Software.
SERVICE LICENSE. Subject to this EULA and its terms and conditions, Saba hereby grants you a non-exclusive, non-transferable, non-sublicensable, limited right and license to use the Services as provided by Saba, for your personal non-commercial use, in the manner permitted by this EULA. The rights granted herein are subject to your compliance with this EULA.
LICENSE TERM. The term of your licenses under this EULA shall commence on the date that you accept this EULA and install or otherwise use the Software and/or Services and ends on the earlier date of either your disposal of the Software and/or Services or Saba's termination of this EULA. Your license terminates immediately if you attempt to circumvent any technical protection measures used in connection with the Software and/or Services or you otherwise use the Software and/or Services in breach of the terms of this EULA.
OWNERSHIP; NO OTHER LICENSES. Saba retains all right, title, and interest in and to the Saba Services, including, but not limited to, all copyrights, trademarks, trade secrets, trade names, proprietary rights, patents, titles, computer codes, audiovisual effects, themes, artwork, sound effects, musical works, and moral rights whether registered or not and all applications thereof. The Saba Services are protected by applicable laws and treaties throughout the world. Unless expressly authorized by mandatory legislation, the Saba Services may not be copied, reproduced, or distributed in any manner or medium, in whole or in part, without prior written consent from Saba. All rights not expressly granted to you herein are reserved by Saba.
Saba Services may include links to third party services and/or the third party services may be made available to you via Saba Services. These services may include, but are not limited to recording and sharing, social medial connectivity, and the like. These services are subject to respective third party terms and conditions. Please study these third party terms and conditions carefully as they constitute an agreement between you and the applicable third party service provider. Saba assumes no liability for any use of any of these third party services. By accepting this EULA and installing or otherwise using the Software and/or Services, you hereby accept all liability related to such third party services.
You agree not to: (i) commercially exploit the Saba Services; (ii) distribute, lease, license, sell, rent, lend, convey, or otherwise transfer or assign the Saba Services, any copies thereof, or any passwords or usernames of Saba Services, without the express prior written consent of Saba or as set forth in this EULA; (iii) make a copy of the Saba Services or any part thereof, including, but not limited to, Software (other than as set forth herein); (iv) make the Saba Services publicly available or available on a network for use or download by multiple users; (v) except as otherwise specifically provided by the Saba Services or this EULA, use or install the Saba Services (or permit others to do same) on a network, for on-line use, or on more than one unit at the same time; (vi) reverse engineer, decompile, disassemble, translate, prepare derivative works based on, or otherwise modify the Saba Services, in whole or in part; (vii) remove, obscure, or modify any copyright, trademark, or other proprietary rights notices, marks, or labels contained on or within the Saba Services, falsify or delete any author attributions, legal notices, or other labels of the origin or source of the material; (viii) misrepresent the source of ownership of the Saba Services; (ix) transport, export, or re-export (directly or indirectly) into any country forbidden to receive such Saba Services by any U.S. or other export laws or accompanying regulations or otherwise violate such laws or regulations, that may be amended from time to time; or (x) scrape, build databases, or otherwise create permanent copies of content found in the Saba Services.
However, with regards to installable Software that was delivered on a physical storage medium, you may transfer the entire Software and accompanying documentation on a permanent basis to another person as long as you retain no copies (including archival or backup copies) of the Software, accompanying documentation, or any portion or component of the Software accompanying documentation, and the recipient agrees to the terms of this EULA. The Software is intended for private use only.
The Saba Services may include measures to control access to the Saba Service, prevent unauthorized copies, or otherwise attempt to prevent anyone from exceeding the limited rights and licenses granted under this EULA. Only Saba Services subject to a valid license can be used to access online services, and download updates and patches. You may not interfere with such access control measures or attempt to disable or circumvent such security features. If you disable or otherwise tamper with the technical protection measures, the Saba Services will not function properly.
The Saba Services may allow you to create content within the Saba Services. In exchange for use of the Saba Services, and to the extent that your contributions through use of the Saba Services give rise to any copyright, design right, or any other intellectual or industrial property right, you hereby grant Saba an exclusive, royalty-free, perpetual, irrevocable, fully transferable, and sub-licensable worldwide right and license to use your contributions in any way and for any purpose including, but not limited to, the rights to reproduce, copy, adapt, modify, perform, display, publish, broadcast, transmit, or otherwise communicate to the public by any means whether now known or unknown and distribute your contributions without any further notice or compensation to you of any kind for the whole duration of protection granted to intellectual and industrial property rights by applicable laws and international conventions. If not expressly prohibited by mandatory legislation, you hereby waive any moral rights of paternity, publication, reputation, or attribution with respect to Saba's and other players' use and enjoyment of such assets in connection with the Saba Services and related goods and services under applicable law. This license grant to Saba, and the above waiver of any applicable moral rights, survives any termination of this EULA.
The Saba Services may require an internet connection to access the Saba Services or its internet-based features, authenticate the Software, or perform other functions. In order for certain features of the Saba Services to operate properly, you may be required to have and maintain (a) an adequate internet connection and/or (b) a valid and active account with an online service as set forth in the documentation related to Saba Services. By using the Saba Services, you acknowledge and agree that third party data transfer fees may apply depending on your data plan. Please consult your carrier for further information. If you do not maintain such accounts, then the Saba Services or certain features of the Saba Services may not operate or may cease to function properly, either in whole or in part.
By installing, accessing or using the Saba Services, you consent to these information collection and usage terms, including (where applicable) the transfer of data into a country outside of the United States of America.
We collect Non-Personal Information about you when you visit our Site. You can access and browse certain portions of the Site without registering. We passively collect certain information from your computer, such as your IP address and web browser user agent, when you browse the Site.
In order to use some of the Services, you must register with Engyj. If you register, you will be a Registered User. When you do so, we will collect Personal Information with your own consent using OAuth authorization provided by the service provider we integrate with on your behalf.
The Personal Information we collect will be stored on third party servers of either Liquid Web or Amazon Web Services. Within Engyj, technical personnel who require access to offer our services will have access to your Personal Information.
5.1 TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, THE SABA SERVICES ARE PROVIDED TO YOU “AS IS,” WITH ALL FAULTS, WITHOUT WARRANTY OF ANY KIND, WITHOUT PERFORMANCE ASSURANCES OR GUARANTEES OF ANY KIND, AND YOUR USE IS AT YOUR SOLE RISK. THE ENTIRE RISK OF SATISFACTORY QUALITY AND PERFORMANCE RESIDES WITH YOU. SABA, SABA’S LICENSORS, AND CHANNEL PARTNERS DO NOT MAKE, AND HEREBY DISCLAIM, ANY AND ALL EXPRESS, IMPLIED, OR STATUTORY WARRANTIES, INCLUDING IMPLIED WARRANTIES OF CONDITION, UNINTERRUPTED USE, ACCURACY OF DATA (INCLUDING BUT NOT LIMITED TO LOCATION DATA), MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OF THIRD PARTY RIGHTS, AND WARRANTIES (IF ANY) ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. SABA, SABA’S LICENSORS, AND CHANNEL PARTNERS DO NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE SOFTWARE; THAT THE SABA SERVICES WILL MEET YOUR REQUIREMENTS; THAT OPERATION OF THE SABA SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT THE SABA SERVICES WILL INTEROPERATE OR BE COMPATIBLE WITH ANY OTHER SABA SERVICES OR THAT ANY ERRORS IN THE SABA SERVICES WILL BE CORRECTED. NO ORAL OR WRITTEN ADVICE PROVIDED BY SABA, SABA’S LICENSORS, AND CHANNEL PARTNERS OR ANY AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS APPLY ONLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
5.2 SABA PROVIDES NO WARRANTY REGARDING ANY INFORMATION FOUND IN THE SERVICES OR THE SOFTWARE. ALL INFORMATION REGARDING SCHOOL MEALS IS PROVIDED BY THE SCHOOLS AND/OR SCHOOL DISTRICTS. THIS INCLUDES, BUT IS NOT LIMITED TO, MENU ITEMS, INGREDIENTS, NUTRITIONAL INFORMATION, AND ALLERGY INFORMATION. SABA HAS NO DIRECT OR SPECIFIC KNOWLEDGE ABOUT ANY OF THIS INFORMATION. ALL OF THIS INFORMATION IS SUBJECT TO CHANGE AT ANY TIME WITHOUT NOTICE TO YOU OR TO SABA. TO INQUIRE ABOUT OR CONFIRM ANY OF THIS INFORMATION, PLEASE CONTACT YOUR SCHOOL OR SCHOOL DISTRICT DIRECTLY; DO NOT CONTACT SABA. SABA MERELY PROVIDES A CHANNEL WHEREBY SCHOOLS AND SCHOOL DISTRICTS MAY CONVEY THIS INFORMATION TO YOU.
IN NO EVENT WILL SABA, SABA’S AFFILIATES, SABA’S LICENSORS, OR CHANNEL PARTNERS BE LIABLE FOR SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES RESULTING FROM POSSESSION, ACCESS, USE OR MALFUNCTION OF THE SABA SERVICES, INCLUDING, BUT NOT LIMITED TO, DAMAGES TO PROPERTY, LOSS OF GOODWILL, COMPUTER FAILURE OR MALFUNCTION, AND, TO THE EXTENT PERMITTED BY LAW, DAMAGES FOR PERSONAL INJURIES, PROPERTY DAMAGE, LOST PROFITS, OR PUNITIVE DAMAGES FROM ANY CAUSES OF ACTION ARISING OUT OF OR RELATED TO THIS EULA OR THE SOFTWARE, WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE), CONTRACT, STRICT LIABILITY, OR OTHERWISE AND WHETHER OR NOT SABA, SABA’S LICENSORS, OR CHANNEL PARTNERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FOR PURPOSES OF THIS SECTION 6, SABA’S LICENSORS AND CHANNEL PARTNERS ARE THIRD PARTY BENEFICIARIES TO THE LIMITATIONS OF LIABILITY SPECIFIED HEREIN AND THEY MAY ENFORCE THIS EULA AGAINST YOU.
BECAUSE SOME STATES/COUNTRIES DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY, THIS LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION. THIS LIMITATION OF LIABILITY SHALL NOT BE APPLICABLE SOLELY TO THE EXTENT THAT ANY SPECIFIC PROVISION OF THIS LIMITATION OF LIABILITY IS PROHIBITED BY ANY FEDERAL, STATE, OR MUNICIPAL LAW, WHICH CANNOT BE PRE-EMPTED. THIS EULA GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
IN NO EVENT SHALL SABA’S, SABA’S AFFILIATES’, SABA’S LICENSORS’, OR CHANNEL PARTNERS’ LIABILITY FOR ALL DAMAGES (EXCEPT AS REQUIRED BY APPLICABLE LAW) EXCEED THE ACTUAL PRICE PAID BY YOU FOR USE OF THE SABA SERVICES.
TERMINATION: This EULA will terminate automatically if you fail to comply with its terms and conditions. In such event, you must destroy all copies of the Software and all of its component parts and cease and desist from accessing any Saba Services. With regards to Software delivered on a physical storage medium you can end this EULA by destroying the Software and all copies and reproductions of the Software and deleting and permanently purging the Software from any client server or computer on which it has been installed.
EQUITABLE REMEDIES: You hereby agree that if the terms of this EULA are not specifically observed, Saba will be irreparably damaged, and therefore you agree that Saba shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to your breach of any of the terms of this EULA, in addition to any other available remedies.
AFFILIATE: For purposes of this EULA, an “affiliate” of Saba means any legal entity that is directly or indirectly controlled by Saba for so long as such control lasts. Control shall exist through direct or indirect ownership of more than 50 % of the nominal value of the issued equity share capital or more than 50 % of the shares entitling the holders to vote for the election of the members of the board of directors or persons performing similar functions.
INDEMNITY: You agree to indemnify, defend, and hold Saba, its partners, affiliates, contractors, officers, directors, employees, and agents harmless from and against any and all damages, losses, and expenses arising directly or indirectly from: (i) your acts and omissions to act in using the Saba Services pursuant to the terms of the EULA; or (ii) your breach of this EULA.
GOVERNING LAW AND DISPUTE RESOLUTION. This EULA will be governed by the laws of the State of California without reference to its choice of law rules. The United Nations Convention for the International Sale of Goods shall not apply.
Any controversy, claim, or dispute arising out of or relating to this agreement will be settled in the following order of preference: (a) by good faith negotiation between representatives of the parties who have authority to fully and finally resolve the dispute; (b) if necessary, by non-binding mediation at a location acceptable to the parties in San Diego County, California, using a neutral mediator. In any mediation, the parties will equally share the cost of the mediator and otherwise bear their own respective costs; or (c) as a last resort only, by binding arbitration in San Diego County, California. Such arbitration will be conducted in accordance with the then-prevailing commercial arbitration rules of the American Arbitration Association, with the following exceptions if in conflict: (a) one arbitrator will be chosen by the American Arbitration Association; (b) each party to the arbitration will pay one half of the expenses and fees of the arbitrator, together with other expenses of the arbitration incurred or approved by the arbitrator; and (c) arbitration may proceed in the absence of any party if written notice (pursuant to the Arbitrator’s rules and regulations) of the proceeding has been given to such party. The parties will abide by all decisions and awards rendered in such proceedings. Such decisions and awards rendered by the arbitrator will be final and conclusive and may be entered in any court having jurisdiction thereof as a basis of judgment and of the issuance of execution for its collection. All such controversies, claims or disputes will be settled in this manner in lieu of any action at law or equity, provided however, that nothing in this subsection will be construed as precluding bringing an action for injunctive relief or other equitable relief. The arbitrator will not have the right to award punitive damages or speculative damages to either party and will not have the power to amend this agreement. IF FOR ANY REASON THIS ARBITRATION CLAUSE BECOMES INAPPLICABLE, THEN EACH PARTY, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY AS TO ANY ISSUE RELATING HERETO IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER MATTER INVOLVING THE PARTIES HERETO. Each party will bear its own costs and attorney’s fees arising out of any dispute. YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST SABA ONLY IN YOUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
IF YOU HAVE ANY QUESTIONS CONCERNING THIS AGREEMENT, YOU MAY CONTACT