These SuperNoodle Customer Terms and Conditions (these “Customer T&Cs”) set forth the agreement by and between GoNoodle, Inc. (“GoNoodle”), on the one hand, the Client named in the applicable Sales Order (as defined below), and any third party educational institutions executing the Institution Agreement (as defined below) as permitted by such Sales Order, if applicable (“Additional Parties,” and together with Client, the “Customer”), on other hand, governing Customer’s use of the GoNoodle Platform (as defined below). GoNoodle, Client and any Third Party, and Customer may each be referred to herein as a “Party” or collectively as the “Parties”.

PLEASE READ THIS AGREEMENT CAREFULLY.  These Customer T&Cs hereby incorporate by reference the SuperNoodle Terms of Service, available at [https://www.gonoodle.com/company/p/tos-supernoodle] (the “TOS,” and together with these Customer T&Cs, the “Agreement”). To the extent that the terms of the TOS contradict these Customer T&Cs, the terms of these Customer T&Cs shall prevail.

A. WHEREAS, GoNoodle is the owner and operator of a software application known as SuperNoodle, which provides educational curriculum content in the form of videos, pdfs and audio files (the “GoNoodle Platform”), the functionality to which GoNoodle grants access to subscribers for use on a software as a service basis;

B. WHEREAS, Client desires to purchase Access Rights (as defined below) to the GoNoodle Platform for itself, the Additional Parties and their Authorized Users pursuant to a Sales Order (as defined below), subject to the terms and conditions of this Agreement, and to have GoNoodle provide the GoNoodle Platform to Customer; and

C. WHEREAS, each Additional Party wishes to utilize the Access Rights pursuant its Institution Agreement.

NOW THEREFORE, in consideration of the mutual covenants, terms and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:

1.Purchase of Subscription to the GoNoodle Platform

1.1 Grant of Rights. Pursuant and subject to the terms and conditions of this Agreement and the applicable Sales Order, GoNoodle hereby grants to Customer a revocable, non-exclusive, non-sublicensable, non-assignable and non-transferable license to use the GoNoodle Platform and Documentation (as defined below) during each Subscription Term, solely for Customer’s internal business purposes (“Access Rights”).

1.2 Customer Acknowledgments. Customer acknowledges and agrees that the Access Rights are to be used only by Customer and its Authorized Users, solely for Customer’s internal business purposes and only during the applicable Subscription Term. Customer further acknowledges and agrees (a) that it is responsible for procuring and operating all computer systems, software, and telecommunications services required to meet the minimum technical specifications necessary for Customer as established and agreed upon by both Parties to access and use the GoNoodle Platform, and that Customer and its Authorized Users may be unable to access or utilize some or all aspects of the GoNoodle Platform unless such technical specifications are met; (b) Customer will maintain adequate security measures to protect against unauthorized use of the GoNoodle Platform and Documentation; and (c) nothing in this Agreement or any applicable Sales Order or Institution Agreement requires GoNoodle to provide access to, or deliver a copy of, any software or other product that may be needed for Customer to use the GoNoodle Platform.

1.3 Authorized Users. Customer shall be fully responsible for compliance with this Agreement (and each applicable Sales Order and Institution Agreement) by, as well as the acts and omissions of, all its Authorized Users who access the GoNoodle Platform. Customer shall not authorize access to or permit use of the GoNoodle Platform by persons other than Authorized Users and shall notify GoNoodle promptly at support@gonoodle.com of any (a) unauthorized access or use of the GoNoodle Platform; and/or (b) replacement of any Authorized Users. Customer and each Authorized User shall use the GoNoodle Platform only in accordance with this Agreement, each Sales Order and Institution Agreement, as applicable, and applicable laws and government regulations. GoNoodle may, at any time and without any liability to Customer, suspend and/or terminate any Authorized User’s access to the GoNoodle Platform in the event GoNoodle reasonably believes that Customer or any Authorized User has breached any provision of this Agreement or any applicable Sales Order or Institution Agreement.

2. Reservation of Rights and Restrictions
2.1 Proprietary Rights; No Implied Licenses. Customer acknowledges that, as between the Parties, GoNoodle is the owner or licensee of all Intellectual Property Rights (as defined below) and all other proprietary interests that are embodied in, or practiced by, the GoNoodle Platform and Documentation. Except for the license expressly granted herein, this Agreement confers no title or ownership rights and does not constitute a sale of any rights in the GoNoodle Platform. GoNoodle expressly retains all rights, title and interest in and to the GoNoodle Platform and any and all modifications, changes, additions, deletions or improvements thereto. All rights not expressly granted to Customer are reserved solely to GoNoodle and/or its licensors.

2.2 General Restrictions on Use. Customer agrees not to act outside the scope of the rights that are expressly granted by GoNoodle in this Agreement or any applicable Sales Order or Institution Agreement. With respect to the GoNoodle Platform, Customer will not (a) make them available to anyone other than Customer and its Authorized Users; (b) sell, resell, license, sublicense, rent, lease or distribute them or include any of them or any derivative works thereof including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service; (c) modify, correct, adapt, translate, enhance or otherwise prepare derivative works or improvements of the GoNoodle Platform; (d) “frame” or “mirror” any reports contained in, or accessible from, the GoNoodle Platform on any other website, server, other software applications, wireless or Internet-based device except that Customer may share any such reports with its Authorized Users through its internal distribution process; or (e) decompile, disassemble, reverse engineer, decode, adapt or otherwise attempt to obtain or perceive the source code from which any software component underlying the GoNoodle Platform is compiled or interpreted, in whole or in part, and Customer hereby acknowledges that nothing in this Agreement or any applicable Sales Order or Institution Agreement shall be construed to grant Customer any right to obtain or use such source code; (f) bypass or breach any security device or protection used for or contained in the GoNoodle Platform; (g) remove, delete, efface, alter, obscure, translate, combine, supplement or otherwise change any terms of the warranties, disclaimers, or Intellectual Property Rights, proprietary rights or other symbols, notices, marks or serial numbers on or relating to any copy of the GoNoodle Platform; (h) remove, delete, efface, alter, obscure, translate, combine, supplement or otherwise change any terms of the warranties, disclaimers, or Intellectual Property Rights, proprietary rights or other symbols, notices, marks or serial numbers on or relating to the GoNoodle Platform; (i) use them in any manner or for any purpose that infringes, misappropriates or otherwise violates any Intellectual Property Right or other right of any third party, or that violates any applicable Law; (j) use the GoNoodle Platform for purposes of developing, using or providing a competing software product or service; or (j) use the GoNoodle Platform other than for the permitted use or in any manner or for any purpose or application not expressly permitted by this Agreement. Customer acknowledges and agrees that compliance with the restrictions set forth in this Section 2 is a material basis of this Agreement. Customer agrees to reimburse GoNoodle for reasonable and actual attorneys’ fees and court costs incurred in connection with any lawsuit brought by GoNoodle in which a court or arbitrator finds that Customer or its Authorized Users have breached any provisions of this paragraph.

2.3 Upload and Transmission Restrictions. Customer agrees that sensitive Personally Identifiable Information may not be submitted to the GoNoodle Platform, including images, text, sounds or other data containing or revealing government-issued identification numbers; financial information (such as credit or debit card numbers, any related security codes or passwords, and bank account numbers); racial or ethnic origin, political opinions, religious or philosophical beliefs; trade-union membership; information concerning health or sex life; information related to an individual’s physical or mental health; and information related to the provision or payment of health care. Additionally, Customer may not use the GoNoodle Platform to create or analyze biometric identifiers such as face prints, voiceprints, fingerprints, or scans of eyes, hands or facial geometry, nor may Customer use the GoNoodle Platform for the purposes of analyzing, profiling or targeting someone’s racial or ethnic origin, political opinions, religious or philosophical beliefs, trade union membership, age, gender, sex life, sexual orientation, criminal convictions, disability, health status or medical condition.  Customer will not use the GoNoodle Platform to (a) store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party rights, or (b) store or transmit malicious code (e.g., code, files, scripts, agents, or programs intended to do harm, including, viruses, worms, time bombs, and Trojan horses).

3. Data
3.1 Customer Data. Customer hereby grants to GoNoodle a non-exclusive license to use, store, process, analyze and display in reports, all Customer Data during the Term but only as necessary, or as otherwise permitted by this Agreement and the applicable Sales Order and Institution Agreement, to perform GoNoodle’s obligations under this Agreement,  such Sales Order, and Institution Agreement.  Customer further grants GoNoodle the right to use all Customer Data in perpetuity, solely in an aggregated format, provided that the Customer Data does not identify Customer or the Authorized Users or contain Personally Identifiable Information.   Customer represents that it has obtained all licenses, consents or other permissions from appropriate third parties as may be necessary for Customer’s use of the relevant Customer Data, and as may be necessary to enable Customer to grant the rights granted by this Section 3.

3.2 Treatment of Customer Data. Customer acknowledges and understands that the GoNoodle Platform is capable of processing Customer Data. As between the Parties, Customer is solely responsible for selection of all such Customer Data, and GONOODLE DISCLAIMS ANY AND ALL RISKS AND LIABILITY ASSOCIATED WITH CUSTOMER DATA, INCLUDING BUT NOT LIMITED TO THE ACCURACY, COMPLETENESS, CONSISTENCY, INTEGRITY, LEGALITY, RELIABILITY AND APPROPRIATENESS OF CUSTOMER DATA AND THE USE OF ALL CUSTOMER DATA BY CUSTOMER AND BY GONOODLE IN CONNECTION WITH PROVIDING THE GONOODLE PLATFORM HEREUNDER.

3.3 Usage Data. GoNoodle may collect, store and use Usage Data for the purpose of providing the GoNoodle Platform to Customer, for the purpose of providing such data to the Client or Additional Party, as applicable for each of their internal business purposes, and otherwise for GoNoodle’s internal purposes of security and helping GoNoodle improve both the GoNoodle Platform and the user experience in using the GoNoodle Platform.  For example, to improve product functionality, GoNoodle may use the Usage Data to understand and analyze trends or track which features are used most often.  GoNoodle may aggregate Usage Data with data and metadata from other GoNoodle customers or other sources, provided that such data and metadata is not identifiable on an Authorized User level or as Customer’s Usage Data and Customer cannot be recognized as its source (“Aggregated Data”).  GoNoodle may share Usage Data that is not identifiable on an Authorized User level or as Usage Data with GoNoodle’s for the purpose of helping GoNoodle in such tracking, analysis, and improvements.  Additionally, GoNoodle may share Aggregated Data in the normal course of operating its business.

3.4 Data Disclaimers. Customer acknowledges that, as between the Parties, Customer is responsible for backup and archiving of any Customer Data processed by the GoNoodle Platform. GoNoodle shall not be responsible or liable for the loss or failure to store any Customer Data.

4. Subscription and Fees

4.1 Fees. Customer shall pay to GoNoodle all license and subscription fees as set forth in the applicable Sales Order (“Fees”).  Such Fees shall be payable immediately upon Customer’s receipt of invoice therefore from GoNoodle.

4.2 Tax Responsibilities. All Fees and other amounts payable by Customer under this Agreement and the applicable Sales Order are exclusive of any taxes, levies, duties or similar governmental assessments of any nature, including, but not limited to, value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). Without limiting the foregoing, Customer is responsible for paying all Taxes on any amounts payable by Customer hereunder, however, for purposes of clarification, GoNoodle shall be responsible for the payment of taxes imposed on GoNoodle’s income and payroll.

5. Intellectual Property Rights and Ownership

5.1 No Ownership Rights. Customer acknowledges and agrees that Customer does not and will not have or acquire under or in connection with this Agreement (or any Sales Order or Institution Agreement) any ownership interest in the GoNoodle Platform or Documentation, or in any related Intellectual Property Rights. As between the Parties, GoNoodle is and will remain the sole and exclusive owner of all right, title and interest in and to the GoNoodle Platform, including all Intellectual Property Rights relating thereto, subject only to the limited rights granted to Customer under this Agreement and the applicable Sales Order and Institution Agreement.

5.2 Customer Cooperation and Notice of Infringement. Customer shall, during the Term: (a) take all commercially reasonable measures to safeguard the GoNoodle Platform from infringement, misappropriation, theft, misuse or unauthorized access; (b) take all such steps as GoNoodle may reasonably require to assist GoNoodle in maintaining the validity, enforceability and GoNoodle’s ownership of the Intellectual Property Rights in the GoNoodle Platform; (c) promptly notify GoNoodle in writing if Customer becomes aware of: (i) any actual or suspected infringement, misappropriation or other violation of GoNoodle’s Intellectual Property Rights in or relating to the GoNoodle Platform; or (ii) any claim that the GoNoodle Platform, including any production, use, marketing, sale or other disposition of the GoNoodle Platform, in whole or in part, infringes, misappropriates or otherwise violates the Intellectual Property Rights or other rights of any third party; and (d) at GoNoodle’s expense, fully cooperate with and assist GoNoodle in all reasonable ways in the conduct of any claim, suit, action or proceeding (each, an “Action”) by GoNoodle to prevent or abate any actual or threatened infringement, misappropriation or violation of GoNoodle’s rights in, and to attempt to resolve any claims relating to, the GoNoodle Platform, including having Customer’s employees testify when reasonably requested and making available for discovery or trial relevant, non-privileged, non-proprietary records, papers, information, samples, specimens and the like.

5.3 No Implied Rights. Except for the limited rights expressly granted under this Agreement and the applicable Sales Order and Institution Agreement, nothing in this Agreement or any Sales Order or Institution Agreement grants, by implication, waiver, estoppel or otherwise, to Customer or any third party any Intellectual Property Rights or other right, title, or interest in or to the GoNoodle Platform.

5.4 Feedback; Publicity. Customer hereby grants to GoNoodle a worldwide, perpetual, irrevocable, royalty-free license to (a) use and incorporate into the GoNoodle Platform any suggestion, enhancement request, recommendation, correction, or other feedback provided by Customer or Authorized Users relating to the operation or use of the GoNoodle Platform; and (b) use Customer’s name in GoNoodle’s marketing materials.

6. Term and Termination
6.1 Term. This Agreement shall commence upon the Effective Date hereof and shall remain in full force and effect as long as a Sales Order is in effect or otherwise until terminated by the Parties (“Term”).  Each Sales Order shall set forth a subscription term (the “Subscription Term”), which shall automatically renew for successive one-year terms unless and until either Party gives notice of intent not to renew at least ninety (90) days in advance of the end of the then current term.

6.2 Termination. This Agreement and any Sales Order and Institution Agreement then in effect may be terminated prior to the expiration of the Term and Subscription Term:

6.2.1 By either Party upon written notice to the other Party if the other Party materially breaches this Agreement or the applicable Sales Order or Institution Agreement and such breach: (a) is incapable of cure, in which case termination is effective upon notice; or (b) the notified Party has not fully cured the material breach within thirty (30) days after it has been given notice specifying the breach, in which case termination is effective upon expiration of such thirty (30)-day period.

6.2.2 By GoNoodle upon written notice to Customer, if (a) Customer fails to pay any amount when due under this Agreement or any applicable Sales Order or Institution Agreement and such failure continues more than thirty (30) days after GoNoodle’s delivery of written notice thereof (“Payment Failure”), effective upon expiration of such thirty (30)-day period; or (b) if GoNoodle is no longer able to provide the GoNoodle Platform for any other reason, provided that GoNoodle shall refund or credit to Customer, on a pro-rata basis, any prepaid unused Fees;

6.2.3 By either Party, effective immediately, if the other Party: (a) is dissolved or liquidated or takes any corporate action for such purpose; (b) becomes insolvent or is generally unable to pay its debts as they become due; (c) becomes the subject of any voluntary or involuntary bankruptcy proceeding under any domestic or foreign bankruptcy or insolvency Law that is not dismissed within thirty days of the filing of such petition; or (d) makes or seeks to make a general assignment for the benefit of its creditors.

6.3 General Consequences of Termination. Effective immediately upon expiration or termination of this Agreement: (a) Customer shall immediately cease, and shall direct its Authorized Users to immediately cease, use of the GoNoodle Platform and Documentation; (b) all Access Rights granted under this Agreement will become void; (c) except as otherwise permitted in this Agreement, all use of the Customer Data shall immediate cease; and (d) neither Party will have continuing rights to use any Confidential Information of the other Party. As soon as practicable after termination or expiration of this Agreement, each Party will discontinue its use of and will return or destroy the Confidential Information, Documentation, and other proprietary materials of the other Party. If Customer has not paid in full all Fees set forth in a Sales Order at the time of expiration or termination, Customer will make payment in full within ten (10) business days after the expiration or termination. In no event shall Customer be entitled to a refund or credit of any Fees paid to GoNoodle. Following expiration or termination of this Agreement, GoNoodle will have no obligation to retain, or return to Customer, any Data and may, unless legally prohibited, delete all such Data from its systems.

6.4 Surviving Terms. The provisions set forth in the following Sections, and any other right, obligation or provision under this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: Section 5 (Intellectual Property Rights); this Section 6; Section 7 (Confidentiality); Section 8 (Representations and Warranties, Disclaimer); Section 9 (Indemnification); Section 10 (Limitations of Liability) and Section 21 (Glossary of Defined Terms).

7. Confidentiality
7.1 Confidential Information. During the term of this Agreement, each Party (the “Disclosing Party”) may provide the other Party (the “Receiving Party”) with Confidential Information. For the purpose of this Agreement, “Confidential Information” means any information or data (including information or data received by the disclosing Party from a third Party and as to which the disclosing Party has confidentiality obligations) provided or disclosed by Disclosing Party or its agents to Receiving Party that is: (i) fixed in a tangible medium and marked as the confidential or proprietary information of the Disclosing Party; (ii) otherwise provided or disclosed by or on behalf of the Disclosing Party marked as proprietary at the time the information is provided; or (iii) not falling within any of the prior clauses of this sentence, but which, a reasonable person would conclude is of a confidential nature given the facts and circumstances of such disclosure or (iv) in the case of GoNoodle, the GoNoodle Platform, the Documentation, any price quotes by GoNoodle and the Fees. The terms of this Agreement and all Sales Orders and Institution Agreements shall also constitute the Confidential Information of both Parties.

7.2 Confidentiality Obligation. The Receiving Party agrees that it will not use or disclose to any third party any Confidential Information of the Disclosing Party, except as expressly permitted under this Agreement, except that it may share such information with its accountants, lawyers and other consultants, and with any regulatory or government bodies (e.g., tax authorities) in the normal course of business or for the purpose of enforcing this Agreement or any Sales Order or Institution Agreement. The Receiving Party will limit access to the Confidential Information to those employees who have a need to know, who have confidentiality obligations no less restrictive than those set forth herein, and who have been informed of the confidential nature of such information. In addition, the Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care. At the Disclosing Party’s request or upon termination of this Agreement, the Receiving Party will return to the Disclosing Party or destroy (or permanently erase in the case of electronic files) all copies of the Confidential Information that the Receiving Party does not have a continuing right to use under this Agreement, and the Receiving Party shall provide to the Disclosing Party a written affidavit certifying compliance with this sentence.

7.3 Exceptions. The confidentiality obligations set forth in this section will not apply to any information that (a) becomes generally available to the public through no fault of the Receiving Party; (b) is lawfully provided to the Receiving Party by a third party free of any confidentiality duties or obligations; (c) was already known to the Receiving Party at the time of disclosure as evidenced by written documentation; or (d) the Receiving Party can prove, by clear and convincing evidence, was independently developed by employees and contractors of the Receiving Party who had no access to the Confidential Information. The exceptions identified in the preceding sentence do not apply to the GoNoodle Platform and the Documentation, which are the Confidential Information of GoNoodle subject to Section 7.2 unless GoNoodle intentionally makes any such information public.  The Receiving Party may disclose Confidential Information to the extent that such Confidential Information is required to be disclosed by law or by the order of a court or similar judicial or administrative body, provided that prior to making any such disclosure, the Receiving Party promptly notifies the Disclosing Party in writing of such required disclosure and cooperates with the Disclosing Party if the Disclosing Party seeks an appropriate protective order.

8. Representations and Warranties

8.1 Mutual Representations and Warranties. Each Party represents and warrants to the other Party that: (a) it is duly organized, validly existing and in good standing as a corporation under the laws of the jurisdiction of its incorporation; (b) it has the full right, power and authority to enter into and perform its obligations and grant the rights, licenses, consents and authorizations it grants or is required to grant under this Agreement and the applicable Sales Order and Institution Agreement; (c) the execution of this Agreement and the applicable Sales Order and Institution Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate action of such Party; and (d) when executed and delivered by both Parties, this Agreement and the applicable Sales Order and Institution Agreement will constitute the legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms.

8.2 Additional Customer Representations and Warranties. Customer represents, warrants and covenants to GoNoodle that Customer has and will have throughout the Term the necessary rights and consents in and relating to the Customer Data so that, as received by GoNoodle and processed in accordance with this Agreement and/or the applicable Sales Order or Institution Agreement, GoNoodle does not and will not infringe, misappropriate or otherwise violate any Intellectual Property Rights, privacy or other rights of any third party or violate any applicable law. Customer represents and warrants that it will not, nor will it permit or authorize anyone else to upload, post, store, view, transmit, distribute or otherwise publish any Customer Data through the GoNoodle Platform that (a) is capable of identifying, directly or indirectly, any student of Customer or an Authorized User, as applicable; (b) is unlawful, fraudulent, invasive of another’s privacy, or otherwise tortious; (c) violates or infringes the rights of third parties, including, but not limited to, Intellectual Property Rights, rights of privacy or publicity or any other proprietary rights; or (d) knowingly contains any viruses, Trojan horses, worms, time bombs, cancelbots, or other harmful components that are intended to damage, detrimentally interfere with, surreptitiously intercept or misappropriate any system, data or Personally Identifiable Information. Customer further represents, warrants and covenants to GoNoodle that (x) Customer shall use the GoNoodle Platform in compliance with all applicable laws and regulations, including all procurement laws and regulations, and, to the extent Customer collects, stores, shares or otherwise handles the Personally Identifiable Information of any student, Customer shall be responsible for complying with all applicable federal and state privacy laws and regulations including but not limited to the Family Educational Rights and Privacy Act (FERPA), the Children's Online Privacy Protection Rule (COPPA), and the Protection of Pupil Rights Amendment (PPRA); and (y) Customer shall maintain and apply industry standard data security measures with respect to all data processed by it through the GoNoodle Platform, including, but not limited to, Customer Data.

8.3 Additional GoNoodle Representations and Warranties. GoNoodle represents, warrants and covenants to Customer that GoNoodle owns or otherwise has and will throughout the Term have the necessary rights and consents in and relating to the GoNoodle Platform so that, as used by Customer in accordance with this Agreement, they do not and will not infringe, misappropriate or otherwise violate any intellectual property rights, privacy or other rights of any third Party or violate any applicable law.  GoNoodle represents and warrants that: (a) any services provided by GoNoodle hereunder shall be performed by qualified and competent personnel in accordance with the commercially reasonable generally accepted professional and technical standards; (b) as of the Effective Date, it has, and during the Term it will have, implemented and maintained suitable virus protection for the GoNoodle Platform such that the GoNoodle Platform will not knowingly introduce any viruses, Trojan horses, worms, time bombs, cancelbots, or other harmful components that are intended to damage, detrimentally interfere with, surreptitiously intercept or misappropriate any system, data or Personally Identifiable Information; and (d) it has implemented and will use, and will ensure that its subcontractor(s) have implemented and will use, in the provision of the GoNoodle Platform, business practices, technology, operating procedures and methodologies consistent with generally recognized industry best practices to prevent the disclosure or distribution of the Data.

8.4 DISCLAIMERS. EXCEPT AS OTHERWISE EXPRESSLY REPRESENTED OR WARRANTED IN THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE GONOODLE PLATFORM AND ANY OTHER GONOODLE PRODUCTS PROVIDED BY GONOODLE ARE PROVIDED “AS IS,” AND GONOODLE DISCLAIMS ANY AND ALL OTHER PROMISES, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, NON-INTERFERENCE, SYSTEM INTEGRATION AND/OR DATA ACCURACY. GONOODLE DOES NOT WARRANT THAT THE GONOODLE PLATFORM OR ANY OTHER PRODUCTS PROVIDED BY GONOODLE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED. NO WARRANTY IS MADE ON THE BASIS OF COURSE OF PERFORMANCE, COURSE OF DEALING, OR TRADE USAGE.

9. Indemnification

9. 1 Indemnification by GoNoodle. GoNoodle will defend Customer against any claim, demand, suit or proceeding made or brought against Customer by a third party alleging that the GoNoodle Platform infringes or misappropriates such third party’s Intellectual Property Rights (a “Claim Against Customer”), and will indemnify and hold harmless Customer from any damages, reasonable attorney fees, and costs finally awarded against Customer as a result of, or for amounts paid by Customer under a settlement approved by GoNoodle in writing of, a Claim Against Customer, provided Customer (a) promptly gives GoNoodle written notice of the Claim Against Customer; (b) gives GoNoodle sole control of the defense and settlement of the Claim Against Customer (except that GoNoodle may not settle any Claim Against Customer unless it admits no wrongdoing by Customer, only requires a monetary payment and no other act by Customer, and unconditionally releases Customer of all liability); and (c) gives GoNoodle all reasonable assistance, at GoNoodle’s expense. Customer may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing. If GoNoodle receives information about a third party infringement or misappropriation claim related to the GoNoodle Platform or Documentation, GoNoodle may in its discretion and at no cost to Customer (x) modify such GoNoodle Platform or Documentation so that it is no longer claimed to infringe or misappropriate, without breaching GoNoodle’s warranties under this Agreement; (y) obtain a license for Customer’s continued use of the GoNoodle Platform or Documentation in accordance with this Agreement; or (z) terminate Customer’s subscription to the GoNoodle Platform upon thirty (30) days’ written notice and refund Customer any prepaid fees covering the remainder of the applicable Subscription Term. Notwithstanding the foregoing, GoNoodle shall have no indemnification obligation to Customer with respect to any claim arising out of or related to any (a) modification of the GoNoodle Platform or Documentation other than by GoNoodle or authorized by GoNoodle in writing, (b) combination of the GoNoodle Platform with any materials not provided or authorized by GoNoodle, (c) compliance with Customer’s mutually agreed upon written specifications or requirements, or any mutually agreed upon modification or customization of the GoNoodle Platform made for or on behalf of Customer, or (d) use or exploitation of the GoNoodle Platform other than as set forth in the Agreement or applicable Documentation.

9.2 Indemnification by Customer. Customer will defend GoNoodle against any claim, demand, suit or proceeding made or brought against GoNoodle (a) by a third party alleging that GoNoodle wrongfully received Customer Data or that any Customer Data infringes or misappropriates such third party’s Intellectual Property Right; (b) arising from Customer’s use of the GoNoodle Platform other than as expressly permitted hereunder;  (c) in connection with Customer’s breach of applicable law or negligence, willful misconduct or fraud; (d) by any Authorized User, school or teacher arising from the content available on the GoNoodle Platform; or (e) in connection with any student’s participation in activities related to the GoNoodle Platform (each a “Claim Against GoNoodle”), and Customer will indemnify and hold harmless GoNoodle from any damages, reasonable attorney fees, and costs finally awarded against GoNoodle as a result of, or for any amounts paid by GoNoodle under a settlement approved by Customer in writing of a Claim Against GoNoodle, provided GoNoodle (x) promptly give Customer written notice of the Claim Against GoNoodle; (y) give Customer sole control of the defense and settlement of the Claim Against GoNoodle (except that Customer may not settle any Claim Against GoNoodle unless it admits no wrongdoing by GoNoodle, only requires a monetary payment and no other act by GoNoodle, and unconditionally releases GoNoodle of all liability); and (z) give Customer all reasonable assistance, at Customer’s expense. GoNoodle may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing. as between the Parties, Customer (and not GoNoodle) stands in loco parentis to any students who participate in activities related to the GoNoodle Platform, and Customer assumes all responsibilities associated therewith

9.3 Infringing Materials.  If GoNoodle receives information about a claim for infringement or misappropriation of a third party’s Intellectual Property Rights related to the GoNoodle Platform or Documentation, or any part thereof, GoNoodle may, at its own expense, use commercially reasonable efforts to either (a) promptly replace any allegedly infringing or misappropriating materials with functionally equivalent, non-infringing and non-misappropriating materials; (b) modify any allegedly infringing or misappropriating materials to render them functionally equivalent, non-infringing and non-misappropriating; or (c) obtain a license for Customer to continue using, receiving and otherwise exercising their rights under this Agreement in and to any allegedly infringing or misappropriating materials.  In the event GoNoodle determines in its sole discretion that neither (a), (b) nor (d) is commercially reasonable, GoNoodle may terminate the Sales Order(s) and/or Institution Agreements upon thirty (30) days’ written notice and refund Customer any prepaid fees covering the remainder of the applicable Subscription Terms (collectively, the “Corrective Solutions”).  If GoNoodle does not implement any Corrective Solutions, Customer may terminate the Agreement for breach under Section 6.2.1.

9.4 Exclusions. The defense and/or indemnification obligations in Sections 9.1 do not apply if a claim for infringement or misappropriation of a third-party’s Intellectual Property Rights related to the GoNoodle Platform or Documentation arises: (1) from Customer’s use or combination of the GoNoodle Platform with software, hardware, data, or processes that are not provided by GoNoodle, authorized by GoNoodle in writing or otherwise contemplated by the Documentation or a Sales Order or Institution Agreement, if the GoNoodle Platform or use thereof would not infringe without such combination; (2) in whole or in part from Customer’s breach of this Agreement or any Sales Order or Institution Agreement; (3) from Customer’s modification or alteration of the GoNoodle Platform in a manner not authorized by GoNoodle in writing and not contemplated by the Documentation or a Sales Order or Institution Agreement, if the GoNoodle Platform would not infringe without such modification or alteration; or (4) from the Customer’s own malfeasance.

9.5 Exclusive Remedy. This Section states the indemnifying Party’s sole liability to, and the indemnified Party’s exclusive remedy against, the other Party for any type of claim described in this Section.

10. Exclusions of Remedies; Limitation of Liability. EXCLUDING EITHER PARTY’S LIABILITY FOR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT AND THE PARTIES’ INDEMNIFICATION OBLIGATIONS UNDER SECTION 9, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION,  COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS EXCLUSION OF CERTAIN DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT OR ANY SALES ORDER OR INSTITUTION AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. EXCLUDING CUSTOMER’S OBLIGATION TO PAY FEES UNDER THIS AGREEMENT OR ANY SALES ORDER OR INSTITUTION AGREEMENT, EITHER PARTY’S LIABILITY FOR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, AND THE PARTIES’ INDEMNIFICATION OBLIGATIONS UNDER SECTION 9, THE CUMULATIVE LIABILITY OF EITHER PARTY TO THE OTHER PARTY FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT AND ANY APPLICABLE SALES ORDER OR INSTITUTION AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY, WILL NOT EXCEED THE AMOUNTS PAID TO GONOODLE UNDER ALL SALES ORDERS. THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. AS BETWEEN THE PARTIES, CUSTOMER (AND NOT GONOODLE) STANDS IN LOCO PARENTIS TO ANY STUDENTS WHO PARTICIPATE IN ACTIVITIES RELATED TO THE GONOODLE PLATFORM; CUSTOMER ASSUMES ALL RESPONSIBILITIES, AND RELEASES GONOODLE FROM ALL LIABILITY, IN ASSOCIATION THEREWITH.

11. Force Majeure/No Breach or Default. In no event will either Party be liable or responsible to the other Party, or be deemed to have defaulted under or breached this Agreement or any applicable Sales Order or Institution Agreement, for any failure or delay in fulfilling or performing any term of this Agreement or such applicable Sales Order or Institution Agreement, when and to the extent such failure or delay is caused by any circumstances beyond such Party's reasonable control (a "Force Majeure Event"), including acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the date of this Agreement, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of Law or any action taken by a governmental or public authority, including imposing an export or import restriction, quota or other restriction or prohibition or any complete or partial government shutdown, or national or regional outage of adequate power or telecommunications or transportation. Either Party may terminate this Agreement and any applicable Sales Orders and Institution Agreements if a Force Majeure Event affecting the other Party continues substantially uninterrupted for a period of thirty (30) days or more. In the event of any failure or delay caused by a Force Majeure Event, the affected Party shall give prompt written notice to the other Party stating the period of time the occurrence is expected to continue and use diligent efforts to end the failure or delay and minimize the effects of such Force Majeure Event.

12. Notices. All notices required by or relating to this Agreement will be in writing and will be sent by means of overnight express courier or by certified mail, postage prepaid, to the other Parties at their respective addresses set forth in the Sales Order and/or Institution Agreement or addressed to such other address as the receiving Party may have given by written notice in accordance with this provision. Notices to GoNoodle, Client and each Additional Party shall be addressed to the attention of the individuals set forth in the applicable Sales Order and/or Institution Agreement, unless in either case the receiving Party has otherwise indicated by written notice in accordance with this provision.

13. Assignment. This Agreement and the Sales Orders and Institution Agreements shall be binding and inure to the benefit of Customer, GoNoodle and each of their respective successors and assigns. Neither Party shall assign any of its rights under this Agreement or any Sales Order or Institution Agreement without the express, prior written consent of the other Party, and, absent such consent, any attempted assignment will be null, void and of no effect. Notwithstanding the foregoing, either Party may assign all of its rights and obligations under this Agreement and the Sales Orders and Institution Agreements to a successor-in-interest as a result of a merger or consolidation or in connection with the sale or transfer of all or substantially all of its business or assets to which this Agreement relates. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the Parties, their successors and permitted assigns.

14. Governing Law & Jurisdiction. You agree that this Agreement or any claim, dispute or controversy (whether in contract, tort or otherwise, whether preexisting, present or future, and including statutory, common law and equitable claims) between you and GoNoodle arising from or relating to this Agreement, its interpretation or breach, termination or validity, the relationships which result from this Agreement, the GoNoodle Platform, GoNoodle advertising or any related transaction shall, to the maximum extent permitted by applicable law, be governed by the laws of the State of Tennessee, without regard to its conflicts of laws rules. Subject to the arbitration requirement below, the state and federal courts in Tennessee shall have exclusive jurisdiction over any Claim (as defined below).

15. Arbitration Requirement. Any claim, dispute or controversy (whether in contract, tort or otherwise, whether preexisting, present or future, and including statutory, common law, intentional tort and equitable claims) between you and GoNoodle arising from or relating to this Agreement, its interpretation or breach, termination or validity, the relationships which result from this Agreement, the GoNoodle Platform, GoNoodle advertising or any related transaction (a “Claim”) shall be resolved exclusively and finally by binding arbitration administered by the American Arbitration Association, in accordance with the Consumer Arbitration rules then in effect, or any other established alternative dispute resolution provider mutually agreed upon by you and GoNoodle. The Federal Arbitration Act will govern the interpretation and enforcement of this section.  The arbitration will be limited solely to the dispute between you and GoNoodle. Neither you nor GoNoodle shall be entitled to join or consolidate Claims by or against other users or arbitrate any Claim as a representative or class action or in a private Attorney General capacity. The arbitrator will have exclusive authority to resolve any dispute relating to arbitrability and/or enforceability of this arbitration provision, including any unconscionability challenge or any other challenge that the arbitration provision or the Agreement is void, voidable, or otherwise invalid. The arbitrator will be empowered to grant whatever relief would be available in court under law or in equity. Any award of the arbitrator shall be final and binding on you and GoNoodle and may be entered as a judgment in any court of competent jurisdiction. You and GoNoodle shall pay your and its own costs and attorneys’ fees. However, if you or GoNoodle prevails on a statutory Claim that affords the prevailing party attorneys' fees, or if there is a written agreement providing for fees, the arbitrator may award reasonable fees to the prevailing party, under the standards for fee shifting provided by law. Arbitration shall take place in the State of Tennessee. Any Claim must be brought within one (1) year after such claim or cause of action arose, regardless of any statute or law to the contrary. In the event any such claim or cause of action is not filed within such one (1) year period, such Claim shall be forever barred.

16. Entire Agreement. This Agreement, together with the applicable Sales Order and Institution Agreements, if applicable, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter including the Parties’ respective confidentiality obligations. In the event of any inconsistency between the statements made in this Agreement, the applicable Sales Order or Institution Agreement (other than as expressly set forth as such therein), and any other terms incorporated herein by reference, the following order of precedence governs: (a) first, this Agreement; and (b) second, the applicable Sales Order or Institution Agreement; and (c) third, any other terms incorporated herein by reference.

17. Enforceability. Even if the law will not enforce a provision of this Agreement in a particular instance, the Parties intend to remain bound by the other, enforceable provisions. If the unenforceable provision could be interpreted in a manner that would render it enforceable, while still reflecting the Parties’ mutual intent, they intend for that interpretation to apply. If permitted by law, the Parties also intend for the provision that cannot be enforced in that instance to remain applicable in any other instances when it can be enforced.

18. Amendments. The Parties acknowledge that they may desire to modify this Agreement in the future, but that no modifications will be legally binding unless the modifications are expressly set forth in a writing that is physically or digitally signed by representatives of each of them.

19. Waivers. Even if a Party fails to enforce its rights under this Agreement in a particular instance, the other Party must still perform its duties in that instance unless the non-enforcing Party physically signs a document that expressly waives its rights in that instance, and any such waiver only applies to the particular instance and particular rights expressly waived.

20. Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.

21. Glossary of Defined Words and Phrases. For purposes of this Agreement and all Sales Orders and Institution Agreements, certain capitalized words and phrases will have the meanings set forth or cross-referenced below.

“Authorized Users” are individual persons for whom Customer has purchased Access Rights and may include only employees or independent contractors of Customer or of an Additional Party, including agents of Customer or an Additional Party who are acting on Customer’s or such Additional Party’s behalf.

“Customer Data” means the data generated, collected, or recorded by Customer that is provided to the GoNoodle Platform through use of the GoNoodle Platform by Customer or its Authorized Users, including, but not limited to, Personally Identifiable Information.

“Documentation” means the description of the GoNoodle Platform, including any specifications, requirements, training guides or manuals, and any information about the installation, configuration, interoperability and use of the GoNoodle Platform, including updates thereto, as provided or made available on behalf of the GoNoodle.

“Institution Agreement” means the document executed by any Additional Party that sets forth a description of the GoNoodle Platform and the Additional Party’s rights and obligations hereunder.

“Intellectual Property Rights” are the exclusive rights held by the owner of a copyright, patent, trademark, or trade secret, including (i) the rights to copy, publicly perform, public display, distribute, adapt, translate, modify and create derivative works of copyrighted subject matter; (ii) the right to exclude another from using, making, having made, selling, offering to sell, and importing patented subject matter and from practicing patented methods; (iii) the rights to use and display any marks in association with businesses, products or services as an indication of ownership, origin, affiliation, endorsement, or sponsorship; and (iv) the rights to apply for any of the foregoing rights, and all rights in the GoNoodle Platform and Documentation. Intellectual Property Rights also include any and all rights associated with particular information that are granted by law and that give the owner, independent of contract, exclusive authority to control use or disclosure of the information, including enforceable privacy rights and any rights in databases recognized by applicable law.

“Personally Identifiable Information” means any information that relates to an individual person and that, alone or in combination with other data, can be used to identify, contact, or precisely locate an individual person, or any other information that constitutes “personal data” or “personal information” under any data protection law, rule, regulation, ruling, decree, directive or other requirement of any governmental authority that applies to the GoNoodle Platform or relates to the Parties’ rights and obligations under this Agreement and the applicable Sales Order and Institution Agreement.

"Sales Order” means the document executed by the Parties that sets forth, at minimum, a detailed description of the GoNoodle Platform, the Subscription Term, Additional Parties, Fees, and payment terms.

“Usage Data” means (a) metadata associated with Customer’s use of the GoNoodle Platform, including, but not limited to, user IP addresses, stored sessions, and network metadata; and (b) data from tracking and analyzing Customer’s usage of the GoNoodle Platform.