THIS TERMS OF SERVICE (“TOS”) is between you as a user or “Licensee” and Chickadee, Inc., an Arizona corporation, doing business as “Lively Minds Institute” (“Licensor”).

RECITALS

WHEREAS, Licensor owns certain software (“Platform”) and curriculum (“Lessons”) (collectively, “Intellectual Property”); and

WHEREAS, Licensee desires to acquire a license to use Licensor’s Intellectual Property and Licensor desires to grant Licensee a revocable and non-exclusive license for a period of time as agreed upon by the parties for use in a public or private school for use with enrolled students of the school; and

WHEREAS, Licensor has provided or will provide consulting and support services to Licensee related to the Intellectual Property, and Licensee has received or will receive said services from Licensor; and

THEREFORE, for valuable consideration, receipt of which is hereby acknowledged, the parties agree as follows:

AGREEMENT

1. Subject to the terms and conditions set forth in this TOS, Licensor hereby grants to Licensee a revocable, non-exclusive, non-transferable license to use Licensor’s Intellectual Property collectively called The Platform, Software, and Curriculum (the “License”).  Licensor has sole and complete discretion to determine the contents of Licensor’s Intellectual Property provided pursuant to this TOS.

2. Except as specifically granted in this TOS, Licensor owns and retains all right, title, and interest in the Licensor’s Intellectual Property and any and all related materials.  This TOS does not transfer ownership rights in the Intellectual Property or any related materials to Licensee or any third party.  Licensee may only distribute the Intellectual Property to Licensee’s employees, contractors, and students, solely for educational purposes, so long as, all parties receiving or using the Intellectual Property acknowledge and agree that they shall not disclose the Intellectual Property and no ownership rights pass to the party or parties who obtain and use the Intellectual Property.

3. This TOS, and the License granted under this TOS, becomes effective according to the terms outlined on your (a) Pilot Summary, (b) invoice or (c) other purchase documents on the Effective Date set forth therein and shall continue in effect as outlined in the respective document(s).  Renewals become effective upon payment of the next period’s license fee, unless sooner terminated as set forth in Sections 6, 7, and 8 below.

4. Proprietary and Confidential Information. All Intellectual Property provided by Licensor to Licensee pursuant to this TOS was developed by or for and is owned by Licensor. Such materials are proprietary to Licensor and have substantial value to Licensor. No Intellectual Property or related materials shall be reproduced, modified, reverse engineered, distributed disclosed, or used without the express written consent of Licensor. Violation of this TOS shall constitute a material breach of this TOS and shall entitle Licensor to pursue such remedies as are available at law or in equity.

5. License Revocability. Licensor may terminate the TOS at any time upon thirty (30) days’ prior written notice to Licensee.

6. Termination for Convenience; Buy-Out. Licensee may terminate this license agreement at any time, without cause, upon thirty (30) days’ prior written notice to Licensor.  An essential term of this TOS is that Licensor is entitled to and will receive any and all fees due and owed, established at the outset of the Term; and therefore, in the event of a Termination for Convenience, Licensee agrees to pay the fees payable to Licensor for the remainder of the term by no later than the termination date.

7. Termination For Cause. Either party, as applicable, shall have the right, in addition, and without prejudice to any other rights or remedies, to terminate this agreement as follows:

1. By Licensor, upon ten (10) days’ written notice, if Licensee fails to pay the amounts due to Licensor pursuant to this agreement;
2. By either party for any material breach of this TOS that is not cured within ten (30) days of receipt by the party in default of a notice specifying the breach and requiring its cure, except for a breach of Section 5 above by Licensee, in which case Licensor may immediately terminate this license; or
3. By Licensor, immediately upon written notice, if Licensee breaches Section 5 above.

8. Rights on Termination. Licensor has and reserves all rights and remedies that it has by operation of law or otherwise to enjoin the unlawful or unauthorized use of the Intellectual Property.  Upon termination, (a) all rights granted to Licensee under this TOS cease and Licensee will promptly cease all use of the Intellectual Property; (b) Licensee will promptly return all copies of the Intellectual Property to Licensor or destroy all of Licensee’s copies of the Intellectual Property and so certify to Licensor in writing within ten (10) business days of termination; (c) Licensee will promptly notify all any authorized recipients which had downloaded or used the Intellectual Property that such limited license to use Intellectual Property has terminated.  Sections 5, 9, and 12 will survive termination or expiration of this TOS, as will any cause of action or claim of either party, whether in law or in equity, arising out of any breach or default.

9. Compliance with Privacy Laws. Licensee acknowledges that it may manage or receive data which may include information that contains personally identifiable information about a student or other individual (“Data”), and that such Data is protected under the Family Educational Rights and Privacy Act (“FERPA”), Telephone Consumer Protection Act (“TCPA”), and other privacy laws that may be applicable to Licensee and such data.  For effective use of the License, the Data will be used, and Licensor’s access to any of this Data is authorized solely in connection with the License used, and paid for, by Licensee.  Licensee is solely responsible for compliance with FERPA, TCPA, and other privacy laws.  Licensee assumes all risks associated with obtaining Data, and is solely responsible for any damage or other loss that may result from activities associated with the Data. Licensee affirms that they will monitor and ensure compliance and that Licensee has appointed a “Compliance Manager” to act as Licensee’s agent for purposes of this Section 10, and point of contact for Licensor regarding use of Data with the Intellectual Property licensed pursuant to this TOS. In the event that Licensee needs to contact Licensor they can email info@cerebrate.education.

10. No Warranty; Intellectual Property “As Is”. To the fullest extent permissible by law, the Intellectual Property, and other services provided pursuant to this TOS, are provided “AS IS.”  Licensor and its affiliates expressly disclaim all representations or warranties of any kind relating in any way to the Intellectual Property or content thereof, either express or implied, including, but not limited to warranties of merchantability, fitness for a particular purpose, title, and noninfringement.  Licensor do not warrant that any material or functions in the Intellectual Property will be uninterrupted or error free, that defects will be corrected, or that the Intellectual Property is free of viruses or other harmful components.  Licensee assumes total responsibility and risk for the use of the Intellectual Property.

11. Limitation of Liability. Licensor is not liable for any indirect, incidental, special, or consequential damages, including the loss of profits, good will, revenue, data, or use or cost of procurement of substitute goods incurred by Licensee or any third party, whether in an action for contract, tort, based on a warranty, or otherwise even if Licensor or any other person has been advised of the possibility of such damages.  In any case, Licensor’s liability for damages under this agreement shall not exceed the amounts actually paid by Licensee to Licensor under this agreement. This limitation shall apply regardless of the cause(s) or the theory of liability, including negligence, indemnity, or other recovery.

12. Licensee is responsible and indemnifies and holds Licensor harmless for any and all losses, liability, or damages arising out of, or incurred in connection with, Licensee’s use, reproduction, and limited license to the Intellectual Property pursuant to this TOS.  The indemnified party agrees to cooperate with the indemnifying party and provide reasonable assistance in the defense and settlement of such claim.  The indemnifying party is not responsible for any costs incurred or compromise made by the indemnified party unless the indemnifying party has given prior written consent to the cost or compromise.

13. Licensee may not generally assign, sublicense, or transfer Licensee’s rights or delegate its obligations under this TOS without Licensor’s prior written consent. Without regard of the aforementioned limitation, Licensee may share the use of the Intellectual Property with its employees, contractors, and students for the only purpose of performing its business. This agreement and TOS shall be binding upon the successors and assigns of the parties to this agreement.

14. Governmental Restricted Rights. Licensor provides software with RESTRICTED RIGHTS, and any use, duplication or disclosure of the Software by the United States Government is subject to those restrictions set forth in subparagraph (c)(1)(ii) of “Rights in Technical Data and Commercial Computer Software – Restricted Rights,” at 48 CFR 52.227-19, and any amendments thereto, as applicable. Lincensee agrees that neither all nor any part of the Software will be shipped, transferred, or exported in any form into any country outside the U.S.A. or used in any manner prohibited by the United States Export Administration Act or any other export laws, restrictions or

15. Entire Agreement. This agreement constitutes the final and complete understanding between the parties, and replaces and supersedes all previous oral or written agreements, understandings, or arrangements between the parties with respect to the subject matter contained in this TOS.

16. This TOS may not be modified or amended except in a writing signed by an authorized officer of each party.  The failure of either party to enforce any provision of this TOS shall not be deemed a waiver of the provisions or of the right of such party thereafter to enforce that or any other provision.

17. Except as otherwise provided in this TOS, notices required to be given pursuant to this TOS shall be effective when received, and shall be sufficient if given in writing, hand-delivered, sent via electronic mail (e-mail) to the authorized recipient, sent by facsimile with confirmation of receipt, sent by First Class Mail, return receipt requested (for all types of correspondence), postage prepaid, or sent by overnight courier service addressed as follows:

 

Cerebrate
12332 E Teakwood Dr

Chandler, AZ 85249

info@cerebrate.education

18. No Relationship. Licensee acknowledges and agrees that Licensee’s use of the Intellectual Property pursuant to this TOS in no way creates any employment, independent contractor, joint venture, or other relationship between Licensor and Licensee.

19. Governing Law. This agreement shall be governed by and construed in accordance with the laws of the State of Arizona and any lawsuit must be filed in the courts of Maricopa County, Arizona.

20. In case any provision of this agreement is held to be invalid, unenforceable, or illegal, the provision will be severed from this agreement, and such invalidity, unenforceability, or illegality will not affect any other provisions of this agreement.

21. Attorney Fees. In the event of any dispute between the parties arising out of this TOS, the prevailing party shall be entitled, in addition to any other rights and remedies it may have, to recover its reasonable attorney fees and costs.

22. This TOS or agreement may be executed in several counterparts, each of which shall constitute an original and all of which, when taken together, shall constitute one agreement.