TERMS AND CONDITIONS

Seats.

Each Seat is a non-exclusive license to access and use the Product during the applicable Contract Year. Each Seat authorizes the individual student that activates the Seat by registration via the Product to access and use the Product in the Territory during the Contract Year in which such Seat is purchased, subject to the terms of this Agreement. Each Seat may only be used by one student at a time, but Seats are transferable among Customer’s and its affiliates’ students and any Seat that has been deactivated by a student (or by Customer on behalf of a student) may be transferred to and reactivated by another student; provided that, no Seat can be registered to more than one individual student at any time or transferred more frequently than once every 90 days. Unless otherwise provided on the Order Form, Seats may only be used by Customer’s and its affiliates’ students and may not be transferred, sublicensed or resold to a person that is not a student of Customer or one of its affiliates. A student must be at least 14 years old to be eligible to activate a Seat and access and use the Product under this Agreement. Students that are under the age of 14 may not access or use the Product. Company retains the right to revoke any Seat activated by a student who is under the age of 14.

 

Credits.

Each Credit entitles a student to 15 minutes of private tutoring. Credits are transferable among Customer’s and its affiliates’ students only for Annual Credits packages. Monthly Credits packages expire at the end of every monthly and are attached to one unique seat. Unless otherwise provided on the Order Form, Credits may only be used by Customer’s and its affiliates’ students and may not be transferred, sublicensed or resold to a person that is not a student of Customer or one of its affiliates. Credits must be used during the Contract Year in which they are purchased.

 

Services and Support.

The “Services and Support” included in the per Seat fees are (i) Product hosting, (ii) Product updates and bug fixes at the times and to the extent made generally available to Company’s other customers, and (iii) any other “Services and Support” specified on the Order Form. Any additional services and/or support will be billed at Company’s standard hourly rates unless otherwise mutually agreed in writing.

 

Fees, Accounting and Payment.

Customer must pay all per Seat fees and fees for the Credits set forth on the Order Form for each Contract Year during the Term in advance, on or before the Launch Date and on or before each anniversary of the Launch Date. Such fees are not refundable and represent payment in full for the minimum number of Seats and Credits (set forth in the Order Form) for that Contract Year. Company will invoice Customer quarterly for any additional amounts payable under this Agreement, and Customer will pay the amount invoiced within 10 days. All amounts hereunder will be paid in United States Dollars. If any fees or other amounts are not received by the due date, such fees or other amounts will accrue interest at the rate of 1.5% of the balance per month (or the maximum rate permitted by law, if lower) until paid. Fees and other amounts will be paid without reduction for or withholding of any sales, use, value added, manufacturing, processing, VAT, GST, PST, gross receipts, or other pass-through tax of a similar nature imposed by any governmental authority.

 

IP Ownership.

As between the parties, all patents, copyrights, moral rights, trademarks, trade secrets and any other form of intellectual property rights recognized in any jurisdiction, including without limitation applications and registrations used by Company to provide the Product, Seats and/or Services and Support (collectively “Company IP”) is and will remain the property of Company. Customer will not (a) copy, modify, create a derivative work of, reverse engineer, decompile, disassemble, reverse engineer, recreate or otherwise attempt to discover the Company IP; or (b) delete, alter, cover, or distort any of Company’s patent, copyright, trademark, or other proprietary rights notices. “Voxy,” the Voxy design logo and certain other names or logos (the “Company Marks”) are service marks or trademarks of Company. In addition, the “look” and “feel” of the Product and Company’s website (including without limitation color combinations, button shapes, layout, design and all other graphical elements) are also protected by Company’s trademarks, service marks and copyrights. Company grants to Customer a non-exclusive, royalty-free license to use the Company Marks (in the form provided by Company) as necessary for Customer to exercise its rights and perform its obligations under this Agreement. Customer agrees that such use of the Company Marks will inure to the benefit and be on behalf of Company. Customer grants to Company a non-exclusive, royalty-free license to use Customer’s trademarks, service marks, names and logos (in the form provided by Customer) as necessary for Company to perform its obligations under this Agreement. Company agrees that such use will inure to the benefit and be on behalf of Customer.

 

Term and Termination.

The Term automatically renews for successive Contract Years unless either party gives written notice of termination at least 60 days before current Term expires. This Agreement will terminate on the last day of the Term unless terminated earlier under this paragraph. Either party may terminate this Agreement if (a) the other party materially breaches this Agreement, and does not cure the breach within 30 days after written notice, or (b) the other party becomes or is declared insolvent or bankrupt, is the subject of any proceeding related to its liquidation or insolvency (whether voluntary or involuntary) or makes an assignment for the benefit of creditors or takes or is subject to any similar action. Upon termination, access to all Seats will terminate, all Credits will expire, and the Company will not be required to refund any amounts paid hereunder. Expiration or termination of this Agreement will not affect those provisions intended to survive such expiration or termination.

 

Customer Data; Usage Data.

“Customer Data” means any personally identifiable information related to end users of the Product, that is acquired by Company in connection with providing access to the Product under this Agreement. “Usage Data” means all data other than Customer Data with respect to end users and their use of the Product, including without limitation the installed user base and user time spent on the Product. Customer Data is the property of Customer and is Customer’s Confidential Information. Customer Data will not be collected, stored, or used by Company for any purpose other than performing its obligations under this Agreement. Usage Data is the property of Company, may be used by Company for any purpose (related or unrelated to this Agreement) and is Company’s Confidential Information. Company will provide reports to Customer covering the categories of Usage Data set forth in the Order Form at the same intervals in the same format, and otherwise on the same basis as reports covering similar categories of Usage Data are generally provided to Company’s other customers.

 

Representations and Warranties; Disclaimer and Limitation of Liability.

Each party represents, warrants and covenants to the other party that: (a) it has the full right, power and authority to enter into and perform this Agreement; (b) its execution, delivery and performance of this Agreement will not conflict with or result in a breach by it of any agreement or other third party obligation; (c) this Agreement constitutes its legal, valid and binding obligation enforceable against it in accordance with its terms; and (d) it will comply with all applicable laws of all applicable jurisdictions in connection with this Agreement. EACH PARTY DISCLAIMS ANY AND ALL OTHER WARRANTIES AND REPRESENTATIONS (EXPRESSED OR IMPLIED, ORAL OR WRITTEN) WITH RESPECT TO THIS AGREEMENT, THE PRODUCT AND/OR THE SERVICES AND SUPPORT, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR ERROR-FREE OR UNINTERRUPTED SERVICE, AND INCLUDING ALL IMPLIED WARRANTIES ARISING OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. FURTHERMORE, THE SERVICES AND SUPPORT AND/OR PRODUCT MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET, ELECTRONIC COMMUNICATIONS OR NEW FORMATS THAT MAKE USE OF NEW TECHNOLOGIES, AND NEITHER PARTY IS RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, COMPATIBILITY AND/OR PERFORMANCE AND CONSISTENCY OF PERFORMANCE ISSUES OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. NEITHER PARTY WILL BE LIABLE (WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHER THEORY), TO THE OTHER PARTY OR ANY OTHER PERSON OR ENTITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFIT, BUSINESS OR DATA). EXCEPT FOR CUSTOMER’S OBLIGATION TO PAY FEES HEREUNDER, THE AGGREGATE LIABILITY OF EACH PARTY WILL NOT EXCEED THE AGGREGATE AMOUNT PAID BY CUSTOMER TO COMPANY DURING THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE APPLICABLE CLAIM. Each party acknowledges that the foregoing limitations are an essential element of the Agreement between the parties and that in the absence of such limitations the pricing and other terms set forth in this Agreement would be substantially different. This paragraph will survive expiration or termination of the Agreement.

 

Confidential Information.

“Confidential Information” means information disclosed to or learned by the other party during the Term concerning the disclosing party’s business, customers, products, proposed products, plans, inventions, processes and techniques, which should reasonably be considered to be confidential or proprietary due to its nature or the context of its disclosure. Confidential Information does not include information that: (i) is or becomes generally known to the public without breach by the receiving party; or (ii) the receiving party rightfully obtains from a third party. Except to perform its obligations or exercise its rights under this Agreement, each party will: (a) not use the other party’s Confidential Information; and (b) protect the other party’s Confidential Information from disclosure using at least the same degree of care that it takes to protect its own Confidential Information (and at least reasonable care). This paragraph will survive expiration or termination of the Agreement.

 

Miscellaneous.

Company and Customer are independent contractors, and this Agreement does not create any partnership, joint venture or agency relationship. Neither party will be deemed in default of this Agreement to the extent that its performance (other than payment of Fees) is delayed or prevented by reasons of force majeure, such as war (whether or not actually declared), sabotage, insurrection, rebellion, riot or other act of civil disobedience, act of a public enemy, any governmental act, judicial action, labor dispute, freight embargoes, epidemic, quarantine, storm or other adverse weather conditions, fire, flood, earthquake or other Acts of God, acts of terrorism, satellite malfunctions, internet outages, communication line failures, power failures or other reasons beyond such party’s control. Each party agrees that the other party may use its name and logo (in the form provided) in marketing materials, including identification on website(s) and otherwise as may be reasonably required in connection with this Agreement. This Agreement will be governed by and construed in accordance with the laws of the State of New York, United States of America, excluding its principles relating to conflicts of laws. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. The parties consent to the exclusive jurisdiction of the federal and state courts located in New York County, New York. This Agreement: (a) represents the entire agreement between the parties and supersedes any proposals and any other oral or written communications between the parties; and (b) may be amended or modified only by a written instrument signed by each party. The failure of a party to require the performance of any term of this Agreement or the waiver by a party of any breach under this Agreement will not prevent a subsequent enforcement of such term by such party nor be deemed a waiver of any subsequent breach. This Agreement has been negotiated and executed by the parties in English. If any translation of this Agreement is prepared, the provisions of the English version will prevail. All notices must be in writing and sent by email with receipt confirmed, by overnight delivery service, to the respective addresses listed on the Order Form. Notices and reports will be effective when actually delivered; provided that any notice or report given or due on a day that is not a business day in New York, USA will be deemed given or due on the next business day. This Agreement may be signed in counterparts, including by facsimile or electronic copy, each of which will be deemed an original, and all such counterparts together constituting one and the same Agreement. This Agreement may not be assigned by Customer without the prior written consent of Company; provided that either party may assign this Agreement to a successor in the event of a reorganization, merger, consolidation or sale of all or substantially all of such party’s stock or assets. If a court of competent jurisdiction finds any provision of this Agreement to be unenforceable, the remainder of this Agreement will continue in full force and effect.