ENOVED CONNECT AGREEMENT

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Effective date: August 21, 2020

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Please read this Enoved Connect Agreement (the “Agreement”) carefully before using the Enoved API (defined below) offered by Enoved, Inc. (“Enoved,” “We,” “Us”) in connection with Enoved Connect. Please read this Enoved Connect Agreement (the “Agreement”) carefully before using the Enoved API (defined below) offered by Enoved, Inc. (“Enoved,” “We,” “Us”) in connection with Enoved Connect.

This Agreement forms a legally binding contract between you and Enoved in relation to your use of the Enoved API and any features, content, or applications offered from time to time by Enoved in connection therewith (collectively, “Enoved Connect”), to allow Enoved users (“Users”) to access your website(s) and/or application(s) (each, an “Application”) using their Enoved login credentials (“Enoved Credentials”). To use Enoved Connect to allow such access, you must first agree to this Agreement by clicking “accept” where this option is made available to you. You may not use Enoved Connect or otherwise access the Enoved API in any manner if you do not accept this Agreement. Enoved reserves the right to change the terms of this Agreement at any time upon notice to you; your continued use of Enoved Connect or the Enoved API in any manner following such notice constitutes your acceptance of the terms and conditions of this Agreement as modified. If you are accepting this Agreement on behalf of an organization or entity, you represent and warrant that you have the authority and power to bind such organization or entity to this Agreement.

1. Restrictions.

   1. Enoved Connect is offered subject to acceptance of all of the terms and conditions contained herein and all other operating rules, policies and procedures that may be published from time to time by Enoved in relation to Enoved Connect. In order to use Enoved Connect or the Enoved API, you must first create an Enoved publisher account. Your use of Enoved Connect and other aspects of Enoved’s website and services is subject to Enoved’s Terms of Service and Privacy Policy, both of which are incorporated into this Agreement by this reference. In the event of any conflict between this Agreement and any other terms and conditions you have agreed to with Enoved, this Agreement will prevail with respect to the subject matter of this Agreement.

   2. Each Application is subject to Enoved’s approval; your Application may be rejected or the ability of Users to access your Application using their Enoved Credentials may be rescinded at any time, in Enoved’s sole discretion, including if your Application fails to meet the terms of this Agreement or Enoved’s rigorous standards of educational quality and security. Enoved reserves the right to investigate and to monitor any Application for compliance with these terms. Such investigations and monitoring may include Enoved accessing and using your Application, for example, to identify security issues that could affect Enoved or its users and/or to monitor or collect usage data related to SDKs, including unique identifiers, associated IP addresses, version numbers, and which tools or services are being used. You consent to any such investigation or monitoring, and you agree not to interfere with such investigation or monitoring.

   3. You may not use Enoved Connect or the Enoved API if you are a person barred from using or receiving the Enoved API under the applicable laws of the United States or other countries, including the country in which you are resident or from which you use the Enoved API.

   4. In order to use Enoved Connect, you must have a privacy policy that clearly and accurately describes how you collect, maintain, and use information from Users of your Application (your “Application Privacy Policy”). If your privacy policy is used to comply with the EU Data Protection Directive, then it must adhere to the US Safe Harbor principles of Notice, Choice, Onward Transfer, Security, Data Integrity, and Access, available at http://www.export.gov/safeharbor/eu/eg_main_018475.asp. The Application Privacy Policy must comply with the restrictions in this Section 1(d), and you must post it conspicuously on every page within the Application. You must also include a link to the Application Privacy Policy in any app marketplace that provides you with the functionality to do so. You must also protect the privacy and legal rights of Users. If a User or Enoved provides you with, or your Application accesses or uses in any manner, user names, passwords, or other login information, or any personal information of any kind (including information that can be combined with other information to personally identify an individual), you must make all Users aware that the information will be available to you and your Application, and you must provide legally adequate privacy notice and protection for those Users. You must similarly obtain any consents, including parental consents, if required by Enoved or by applicable law (including, without limitation, the Children’s Online Privacy Protection Act). Additionally, your Application may only use information collected about or from a User for the limited purposes for which the User has given you permission to do so. If your Application stores personal or sensitive information provided by or collected from Users, it must use commercially reasonable security measures to protect that data, and you must store that information only for as long as it is needed to support the applicable User’s use of your Application. Notwithstanding anything to the contrary, you may not collect from a User (via Enoved Connect, your Application, or by any other method) any information (personally identifiable or not) beyond what Enoved is permitted to collect from such User under Enoved’s own Privacy Policy, including, but not limited to, geo-location tracking information. Nor shall you collect or use any information about a User for any reason or in any manner that is not necessary for the functioning of the Application. For avoidance of doubt, the term “User” refers to any user of the Application, whether such user is a classroom administrator, student, or otherwise. You will notify all Users if you modify the terms of the Application Privacy Policy, and any modified version thereof must also comply with the terms set forth in this Section.

   5. You agree to use Enoved Connect only for purposes that are permitted by (i) this Agreement and (ii) any applicable law, regulation, or generally accepted practices or guidelines in the relevant jurisdictions (including any laws regarding intellectual property and the export or import of data or software to and from the United States or other relevant countries). You will not use Enoved Connect or the Enoved websites or services, to market, sell, or promote any products or services that are not available for Users to access using their Enoved Credentials. You will also not charge Users for use of Enoved Credentials to access your Application. You will also host all Applications on your servers and equipment.

   6. You agree that you will not engage in any activity in connection with Enoved Connect, including the development of or access to any Application, that interferes with, disrupts, damages, or accesses in an unauthorized manner the devices, servers, networks, or other properties or services of Enoved or any third party. You will similarly not engage in any activity that is harmful, fraudulent, deceptive, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, or otherwise objectionable.

   7. You will not collect, use, or directly or indirectly transfer any information obtained in connection with Enoved Connect or from Users’ use of your Application, including aggregate, anonymous, or derivative data, to sell, advertise, promote, or distribute any products or services. During the term of this Agreement, you will not have a current or proposed program, feature, product, or service, offered via any channel, that is competitive with an Enoved program, feature, product or service (a “Competitive Program”). If you are not sure whether something you intend to offer would be considered a Competitive Program, please contact Enoved.

   8. You will delete all data that you receive via Enoved Connect concerning a User if the User asks you to do so, and you will provide an easily accessible way for Users to make such a request. Likewise, if you stop using Enoved Connect or Enoved disables your Application for any reason, including violation of this Agreement, you must delete all information about Users you have received from us unless you have received explicit consent from the User to retain his or her data.

   9. You will use the Secure Sockets Layer (“SSL”) protocol in your Application to protect User data in transit, and you will utilize commercially reasonable efforts to protect User data that you store from unauthorized access or use. You further agree promptly to report to your users any unauthorized access or use of such information.

   10. Your Application must offer an explicit “Log Out” option to Users.

   11. You will require your Users to comply with any and all applicable laws, and you will not knowingly enable your Users to violate applicable law or Enoved’s Terms of Service.

   12. You will only access (or attempt to access) the Enoved API by the means described in the API documentation. If Enoved assigns you developer credentials, you must use them with the Enoved API. You will not misrepresent or mask either your identity or your API credentials when using the Enoved API or your developer account.

   13. You agree that you are solely responsible for (and that Enoved has no responsibility to you or to any third party for) any Applications offered in connection with Enoved Connect and for the consequences of your actions (including any loss or damage which Enoved may suffer) by doing so.

   14. You agree that you are solely responsible for (and that Enoved has no responsibility to you or to any third party for) any breach of your obligations under this Agreement, any applicable third party contract or terms of service, or any applicable law or regulation, and for the consequences (including any loss or damage which Enoved or any third party may suffer) of any such breach.

2. Support.

You will: (a) use commercially reasonable efforts to provide telephone, web-based, and/or email support to Users who use your Application, and in no event shall such level of support be any worse than the level of support you provide to your other customers who do not access your Application using Enoved Credentials; and (b) provide to Enoved a current email address to which Enoved may direct inquiries from purchasers regarding your Applications. Enoved retains the right, but does not have the obligation, to immediately prevent or restrict your access to the Enoved API or Users’ access of your Applications using Enoved Credentials, or take any other action in case of technical problems, objectionable material, inaccurate listings, inappropriately categorized services, failure to provide adequate support, or actions otherwise prohibited by the procedures and guidelines provided to you by Enoved, or for any other reason in the sole and absolute discretion of Enoved.

1. Intellectual Property Rights.

   1. You hereby grant Enoved a worldwide, nonexclusive, sublicensable, perpetual, royalty-free, fully paid-up, transferable right and license: (a) to market your Applications and to permit others to use and access your Applications and any associated documentation using Enoved Credentials, and (b) to your applicable trademarks and logos in connection with the marketing and provision of access to your Applications.

   2. You will not use any Enoved names, marks, or logos (the “Enoved Marks”), except as expressly permitted by this Agreement and Enoved’s Brand Guidelines. Enoved shall have the right to perform quality assurance inspections of each Application and your use of any Enoved Marks, and to withhold rights to use such Marks if the quality is not satisfactory to Enoved in its sole discretion.

   3. By using the Enoved API, you do not acquire ownership of any rights in the API, and Enoved does not acquire ownership of your Applications.

   4. If you provide feedback or suggestions about the Enoved API, then Enoved may use such information without obligation to you.

2. License to Enoved API

   1. Subject to full compliance with the terms of this Agreement and any other Agreement between you and Enoved, Enoved hereby grants you a limited, personal, non-sublicensable, non-transferable, royalty-free, nonexclusive license to use the Enoved application programming interface and related information and documentation in the form they are provided to you by Enoved (collectively, the “Enoved API”) for the purpose of allowing you to build an interface allowing Users to access your Application with their Enoved Credentials.

   2. If you institute a Competitive Program at any time after the term of the Agreement, you will not use in that Competitive Program any part of the Enoved API or any related intellectual property in connection with that Competitive Program.

   3. You shall not sublicense or disclose (or allow access to) the Enoved API (or any information derived from it) to any third party, and you will limit access to the Enoved API (and any derived information) to your employees who are developing the interface described above. In support of this obligation, you shall apply at least the same security as you use to protect your own most confidential information. You shall not reverse engineer any aspect of the Enoved API or permit anyone else to do so (except the foregoing shall not apply to the sole extent such a provision is prohibited by applicable law).

   4. You shall not block, disable, hide or limit in any way the ability of any device (whether or not it has the Application installed on it) to access the Enoved websites, applications, and/or other services (collectively, the “Service”) or any portion or functionality of or enabled by the Service. You shall not modify, extend, subset or superset the Enoved API to any extent. You understand that Enoved may cease support of old versions or releases of the Enoved API; you will always use and support the latest available version or release of the Enoved API.

   5. You will not make any statement regarding your use of the Enoved API that suggests partnership with, sponsorship by, or endorsement by Enoved without Enoved’s prior written approval.

3. Registration and Security.

As a condition to using Enoved Connect, you may be required to register with Enoved and select a password and user name (“User ID”) to obtain a publisher account. You shall provide Enoved with accurate, complete, and updated registration information. Failure to do so shall constitute a breach of this Agreement, which may result in immediate termination of your account. You may not (a) select or use as a User ID a name of another person with the intent to impersonate that person; or (b) use as a User ID a name subject to any rights of a person other than you without appropriate authorization. Enoved reserves the right to refuse registration of or cancel a User ID in its discretion. You shall be responsible for maintaining the confidentiality and security of your password and other account credentials, and you will notify Enoved if you learn of any unauthorized use of your account. You will provide Enoved with all requested data or information about you and your Application, and you will ensure such information is accurate and up-to-date.

 

1. Representations and Warranties.

You represent and warrant that: (a) the Applications do not and shall not infringe, violate, or misappropriate any law, statute, ordinance or regulation or rights of any third party; and (b) the Applications do not and shall not contain any virus, trojan horse, worm, time bomb, or other harmful computer code, file, or program.

1. Indemnity.

You will indemnify and hold Enoved, its parents, subsidiaries, affiliates, officers, and employees harmless (including, without limitation, from all damages, liabilities, settlements, costs and attorneys’ fees) from any claim or demand made by any third party due to or arising out of your access to or use of Enoved Connect or the Enoved API in any manner, your violation or your User’s violation of this Agreement, or the infringement by you or any third party using your account of any intellectual property or other right of any person or entity.

1. Termination

   1. This Agreement shall remain in full force and effect while you use Enoved Connect and the Enoved API. Subject to the terms of this Section 8, either party may terminate this Agreement at any time, for any reason or for no reason, with fifteen (15) days’ notice to the other party.

   2. Notwithstanding anything else, Enoved may terminate this Agreement, and/or terminate or suspend in whole or in part your access to the Enoved API or any User’s access of your Application using Enoved Credentials, without prior notice or liability, for any reason, including without limitation if you breach any of the terms or conditions of this Agreement, if your behavior or any Application is offensive or unacceptable in any manner (or otherwise fails to meet Enoved’s rigorous standards of educational quality or security), or if you notify Enoved that you intend to assign this Agreement to an Enoved competitor pursuant to Section 12(b). Upon termination of your account, your right to use Enoved Connect and Enoved’s brand attributes will immediately cease.

   3. The following provisions shall survive termination of this Agreement: 1(a), 1(d), 1(i), 1(j), 1(k), 3, 4(b), 7, 8, 9, 10, 11, and 12.

2. Disclaimer.

EXCEPT AS EXPRESSLY SET FORTH HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OR REPRESENTATIONS WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT, AND EACH PARTY HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

1. Limitation of Liability.

NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT OR OTHERWISE, ENOVED SHALL NOT BE LIABLE OR OBLIGATED WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR (A) ANY SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR (B) ANY AMOUNT, IN THE AGGREGATE, IN EXCESS OF
$5,000.

 

1. Confidentiality.

   1. You may receive business, technical, financial, or other information, materials, and/or ideas from Enoved during the term of this Agreement, including without limitation the Enoved API and personal information about Users (“Confidential Information”). You agree to hold in confidence, not disclose, and not use the Confidential Information (except for use as necessary to fulfill your obligations hereunder). To be clear, Enoved is under no obligation to share any data with you.

   2. You understand and agree that Enoved works with many application and software developers and some of their products or services may be similar to or perform the same or similar functions as your Applications (“Similar Offerings”), and Enoved may also develop its own Similar Offerings. To avoid potential misunderstandings, Enoved cannot agree to any confidentiality or use restrictions with respect to any information that you may provide in connection with your Applications or this Agreement, and nothing herein shall be construed to limit Enoved from developing Similar Offerings.

2. Miscellaneous.

   1. You shall bear and be responsible for all applicable federal, state, local and foreign taxes, duties, tariffs, levies, withholdings and similar assessments, if any, relating to the subject matter hereunder.

   2. This Agreement is not assignable, transferable or sublicensable by you (by operation of law or otherwise) except with Enoved’s prior written consent; provided, however, that you may assign this Agreement to a successor to all or substantially all of your assets or business who agrees in writing to be bound by this Agreement, provided you give Enoved thirty (30) days prior written notice thereof. Enoved may transfer, assign or delegate this Agreement and its rights and obligations without consent.

   3. The parties agree that they are each independent contractors and nothing in this Agreement will be deemed to establish a joint venture, partnership, agency or employment relationship between the parties. Neither party has the right or authority to assume or create any obligation or responsibility on behalf of the other. Any notice, report, approval or consent required or permitted hereunder will be in writing. Except as otherwise set forth herein, any waivers or amendments will be effective only if made in writing and executed by both parties. If any provision of this Agreement is unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.

   4. This Agreement will be construed under the laws of the State of California, without regard to conflicts of law provisions thereof. Any dispute arising from or relating to the subject matter of this Agreement shall be finally settled by arbitration in Sacramento County, California, using the English language in accordance with the Streamlined Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, Inc. (“JAMS”) then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with the Streamlined Arbitration Rules and Procedures of JAMS. Judgment upon the award so rendered may be entered in a court having jurisdiction, or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. Notwithstanding the foregoing, each party shall have the right to institute an action in a court of proper jurisdiction for injunctive or other equitable relief pending a final decision by the arbitrator. For all purposes of this Agreement, the parties consent to exclusive jurisdiction and venue in the state or federal courts located in, respectively, Sacramento County, California, or Santa Clara County, California. The prevailing party in any action or proceeding arising out of this Agreement will be entitled to an award of costs and attorneys’ fees.

   5. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes all previous written and oral agreements and communications relating to the subject matter of this Agreement.