SCHOOX, INC.
SERVICES AGREEMENT
This Services Agreement ( “Agreement”) is made as of the date of Licensee's signed order form, ( “Effective Date”) between Schoox, Inc., a Delaware corporation, located at 701 Brazos Street, Austin, TX 78701 (“Schoox”) and Licensee  (“Licensee”). Licensee and Schoox may be referred to herein as a “Party” or, collectively, as the “Parties.” 

RECITALS

A.    Schoox is the owner of certain software which consists of software modules designed to integrate and run in the context of Schoox’s server for the purpose of providing a web-based online platform for life-long learning where Users can share and manage their knowledge (“Service”).

B.    Licensee desires to access and use the Service. The Parties hereby agree as follows:

AGREEMENT
1.    Definitions: As used in this Agreement, the terms below will have the following meanings:


1.1    “Documentation” means the then current description of functions available in the Service help section, which can be accessed through the Service or other Service-related documentation provided with the Service.

1.2    “Error” means material failure of the Service to operate in accordance with the Documentation.

1.3    “Feedback” has the meaning set forth in Section 4.3.

1.4    “Improvements” means improvements, modifications, adaptations, revisions, enhancements, additions or changes to the Service that Schoox generally make available to its other Licensees at no additional charge as part of Support Services. For greater clarity, Improvements do not include any new or different Service functionality or modules that Schoox makes available at separate charge.

1.5    “Initial Term” has the meaning set forth in Section 7.

1.6    “Interface” has the meaning set forth in Section 2.3.

1.7    “Licensee Data” has the meaning set forth in Section 4.2.

1.8    “Renewal Term” has the meaning set forth in Section 7.

1.9    “Service” has the meaning set forth in the Recitals. 

1.10    “Support Services” means telephone, Internet, or e-mail based technical support as well as Improvements.

1.11    “Suspension Event” has the meaning set forth in Section 6.

1.12    “Term” has the meaning set forth in Section 7.

1.13    “Effective Date” means the date Licensee signs the Schoox Agreement.

1.14    “Termination” has the meaning set forth in Section 7

1.15    “User” means an individual authorized user of the Service who has a unique login and password.

2.    License Grant; Interfaces; Security and Passwords

2.1    Service. Schoox hereby grants to Licensee a nonexclusive, non-sublicenseable and non-transferable license to access and use the Service for Licensee’s internal use and to make a reasonable number of copies of the Documentation for training and internal use. Licensee shall have no right to physical possession of any Service. Licensee is solely responsible for all telecommunications or Internet connections at Licensee’s facilities, which are required to access the Service, as well as all hardware and software at Licensee’s facilities.

2.2    Interfaces. Schoox acknowledges and agrees that Licensee may interface, integrate, and use the Service with other software, equipment and systems owned or licensed by Licensee in order to permit the software, equipment and systems to interoperate, whether by use of calls, exchange of data, link, editing or otherwise (“Interface”). Schoox shall not obtain any ownership interest in those software, equipment and systems merely because an Interface was used with the Service. Under no circumstances will Schoox be liable or responsible for any use, or any results obtained by the use of the Service in connection with any Interface or software, equipment or systems that are not provided by Schoox. Support Services do not include support of Interfaces or the software, equipment, and systems to which the Service is Interfaced.

2.3    Security and Passwords. Licensee acknowledges that the Internet is an open system and Schoox cannot and does not warrant or guarantee that third parties cannot or will not intercept or modify data in connection with Licensee’s use of the Service. Licensee is responsible for maintaining the confidentiality of its User identifications and passwords, and Licensee agrees that Schoox has no liability with regard to the use of User identifications or passwords by Users or third parties. Licensee agrees to notify Schoox immediately if Licensee has reason to believe that the security of Licensee’s account has been compromised or if the Service has been accessed by unauthorized users.

3.    Restrictions
. Licensee may only use the Service as described in this Agreement and in the current Documentation. Except as expressly authorized by this Agreement, Licensee will use commercially reasonable efforts to prevent any User or third party to: (i) to access or use the Service; (ii) decompile, dissemble, reverse engineer, or otherwise attempt to derive the source code form of the Service or the trade secrets embodied in the Service, except to the extent expressly permitted by applicable law; (iii) use the Service or any Schoox Confidential Information to develop a competing product or service; (iv) use any Service, or allow the transfer, transmission, export or re-export of any Service or portion thereof, in violation of any import or export control laws or regulations administered by the U.S. Commerce Department or any other government agency; or (v) remove any copyright, trademark, proprietary rights, disclaimer or warning notice included on or embedded in any apart of the Documentation or Service, or any other products or materials provided to Licensee by Schoox.

4.    Proprietary Rights

4.1    Ownership. This Agreement does not constitute a sale and does not convey any rights of ownership in or to the Service. The Service, Support Services and Documentation are the property of Schoox or its licensors, and are protected by copyright, trade secret and U.S. or other patent laws, and international treaty provisions. By accepting this Agreement, Licensee acquires the limited rights to the Service, Support Services and Documentation set forth herein.

4.2    License Data. Schoox acknowledges and agrees that all data and information and other materials provided by Licensee to Schoox under this Agreement, whether directly or by use of the Service (“Licensee Data”) is: (i) owned or licensed by Licensee; (ii) may not be used by Schoox for any reason other than as provided herein. Licensee grants Schoox, a nonexclusive, worldwide, royalty-free license to use the Licensee Data to perform its obligations hereunder and to use, copy, modify and distribute Licensee Data, in aggregated and anonymized form, for Schoox’s lawful business purposes. 

4.3    Feedback. Licensee may provide suggestions, comments or other feedback (collectively, “Feedback”) to Schoox with respect to its products, services, Documentation and Service. Feedback is voluntary. Schoox may use Feedback for any purpose without obligation of any kind. To the extent a license is required under Licensee’s intellectual property rights to make use of the Feedback, Licensee grants Schoox an irrevocable, nonexclusive, perpetual, fully-paid, royalty-free license to use, copy, modify and distribute the Feedback in connection with Schoox’s business, including to develop Improvements.

5.    Information Security
. Schoox acknowledges and warrants that it will comport with applicable data security, data privacy and data breach laws and regulations that are then in effect and governing during the Term. If Schoox becomes aware of a security breach before Licensee, it will use commercially reasonable efforts to notify Licensee of the security breach within 24 hours of its discovery. Schoox or its data hosting provider responsible for hosting the Licensee Data, has reasonable and appropriate security measures in place to prevent unauthorized access to, or unauthorized alteration, disclosure, loss or destruction thereof and that when Licensee Data is passed to or from the host server, this information is encrypted both in transit and whenever it is stored in a temporary form. During the Term, Schoox will maintain adequate insurance coverage in the event loss or destruction of Licensee Data occurs to mitigate potential damages. 

6.    Suspension of Access to Service
. Schoox may, in its reasonable discretion, suspend Licensee’s use of and access to the Service for any of the following reasons (each a “Suspension Event”): (i) to prevent damages or risk to, or degradation of, the Service; (ii) to comply with any law, regulation, court order, or other government request; (iii) to otherwise protect Schoox from potential legal liability; or (iv) in the event an invoice remains unpaid for more than 45 days from the invoice date. Schoox will use commercially reasonable efforts to provide Licensee with notice prior to or promptly following any Suspension Event. Schoox will promptly restore access to and use of the Service to Licensee upon Licensee’s resolution of the Suspension Event.

7.    Initial Term, Renewal Term and Termination

7.1    Initial Term. The Initial Term of this Agreement starts on the Acceptance date and will be in affect for the total term identified on Licensee's signed order form plus any prorated days to equal an entire month.

7.2    Renewal Term(s). Following the initial term, this agreement will automatically renew for successive twelve (12) month period(s) at our then prevailing rates, unless terminated earlier according to Section 7.3. 


7.3    Termination. Licensee may terminate this Agreement by providing written notice to Schoox at least 30 days prior to the end of the Initial Term or any Renewal Term(s). Either Party may terminate this Agreement (i) in the event that the other Party is in material breach of any of its obligations under this Agreement after providing written notice of such breach and 30 days to cure such breach, or (ii) immediately if the other party is in breach of Section 10. 

7.4    Effect of Termination. Upon expiration or termination of this Agreement (i) Licensee will pay all outstanding amounts due to Schoox prior to termination or expiration of the Agreement on the date such payment would have fallen due, but for the termination or expiration; (ii) Licensee will cease use of the Service and return or destroy the Service, Documentation, and all Schoox Confidential Information in its possession or control; and (iii) Schoox shall make Licensee Data available to Licensee on a medium and format agreed upon by the Parties and at no cost to Licensee. Within 30 days of expiration or termination of this Agreement for any reason, Schoox shall purge its systems of all Licensee Data; provided that nothing will prevent Schoox from continuing to use the Licensee Data in aggregated and anonymized form for its lawful business purposes.

7.5    The following Sections of this Agreement survive termination or expiration: 1, 3, 4, 7.3, 7.4 and 8-12.

8.    Payments and Payment Terms

8.1    Licensee shall pay to Schoox a non-refundable payment in the amount set forth in Services Order Form. Licensee shall pay all fees in accordance with Services Order Form. All payments will be paid in U.S. Dollars by wire transfer to a bank account designated by Schoox or as otherwise agreed in writing by the Parties. In addition to any other rights Schoox may have hereunder or in law, upon termination of this Agreement for any reason, any charges accrued but unpaid at the time of termination shall be paid upon termination. Payments not made within the time required will be subject to late charges equal to the lesser of (a) one and one half percent per month of the overdue amount or (b) the maximum amount permitted under applicable law. 

8.2    Licensee will make all payments under this Agreement without withholding or deduction of, or in respect of, any tax unless required by law. If any such withholding or deduction is required, Licensee will, when making the payment to which the withholding or deduction relates, pay to Schoox such additional amount as will ensure that Schoox receives the same total amount that it would have received if no such withholding or deduction had been required. Licensee agrees to indemnify and hold Schoox harmless from any sales, use, transfer, privilege, tariffs, excise and all other taxes and all duties, whether national or international, state or local, however designated, which are levied or imposed by reason of the licenses granted to License hereunder or Licensee’s receipt or use of the Service or Documentation; excluding, however, income taxes levied against Schoox.

8.3    Licensee will provide a billing contact for Schoox on Licensee's signed order form        

9.    Limitation of Liability

9.1    EXCEPT FOR THE EXPRESS LIMITED WARRANTIES SET FORTH HEREIN AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, SCHOOX DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE SERVICE, DOCUMENTATION AND SUPPORT SERVICES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. FURTHER, SCHOOX DOES NOT WARRANT THAT THE SERVICE WILL MEET LICENSEE’S REQUIREMENTS OR SPECIFIC RESULTS OF USE, THAT THE USE OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE, THAT PATCHES OR WORKAROUNDS WILL BE PROVIDED OR THAT ERRORS WILL BE CORRECTED IN IMPROVEMENTS. ANY IMPLIED WARRANTIES RELATING TO THE SERVICE THAT CANNOT BE EFFECTIVELY DISCLAIMED WILL BE LIMITED TO 30 DAYS FROM THE DATE LICENSEE INSTALLS OR FIRST ACCESSES THE SERVICE, WHICHEVER IS EARLIER. LICENSEE ACKNOWLEDGES THAT LICENSEE DOES NOT CONTROL THIRD PARTY DATA OR THE TRANSFER OF ANY DATA OVER NETWORKS OR COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THIRD PARTY DATA, NETWORKS AND COMMUNICATIONS FACILITIES. SCHOOX IS NOT RESPONSIBLE FOR ANY THIRD PARTY DATA, DELAYS, DELIVERY FAILURES, OR OTHER DAMAGES RESULTING THEREFROM. THE SERVICE IS NOT DESIGNED, MANUFACTURED, OR INTENDED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE WHERE THE FAILURE OF THE SERVICE COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SIGNIFICANT PHYSICAL OR ENVIRONMENTAL DAMAGE (“HIGH RISK ACTIVITIES”). USE OF THE SERVICE IN HIGH RISK ACTIVITIES IS NOT AUTHORIZED.
9.2    NEITHER SCHOOX NOR ITS VENDORS NOR LICENSORS WILL HAVE ANY LIABILITY TO LICENSEE OR ANY THIRD PARTY FOR ANY LOSS OF PROFIT OR SAVINGS, SALES, LOST OR CORRUPTED DATA OR SYSTEM CRASH, LOSS OF BUSINESS OR OTHER INCIDENTAL, CONSEQUENTIAL OR SPECIAL LOSS OR DAMAGE, INCLUDING EXEMPLARY AND PUNITIVE, OF ANY KIND OR NATURE RESULTING FROM OR RISING OUT OF THIS AGREEMENT INCLUDING USE OF OR INABILITY TO USE THE SERVICE, SUPPORT SERVICES OR DOCUMENTATION. EXCEPT AS OTHERWISE PROVIDED HEREIN, THE SERVICE, DOCUMENTATION, AND SUPPORT SERVICES ARE PROVIDED “AS-IS” AND IN NO EVENT WILL THE AGGREGATE LIABILITY OF SCHOOX, WHETHER FOR BREACH OF CONTRACT, NEGLIGENCE, STRICT PRODUCT LIABILITY OR ANY OTHER CAUSE OF ACTION OR THEORY OF LIABILITY EXCEED THE TOTAL FEES PAID HEREUNDER BY LICENSEE DURING THE 12 MONTHS IMMEDIATELY PRECEDING APPLICABLE CLAIM. LICENSEE AGREES TO THE ALLOCATION OF LIABILITY SET FORTH IN THIS SECTION AND ACKNOWLEDGES THAT WITHOUT LICENSEE’S AGREEMENT TO THESE LIMITATIONS, THE FEES CHARGED TO LICENSE THE SERVICE AND DOCUMENTATION AND TO PROVIDE SUPPORT SERVICES WOULD BE HIGHER. THE PARTIES AGREE THAT THIS SECTION REPRESENTS A REASONABLE ALLOCATION OF RISK. NOTHING IN THIS AGREEMENT WILL EXCLUDE OR RESTRICT SCHOOX’S LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY SCHOOX’S NEGLIGENCE. THE LIMITATIONS SET FORTH HEREIN SHALL NOT APPLY IN THE CASE OF A SCHOOX’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR FRAUD.

10.    Confidentiality.

10.1    Confidential Information. Each Party (“Receiving Party”) will retain in confidence the terms of this Agreement, Licensee Data, Service and all other non-public information, technology, materials and know-how disclosed to it by the other Party (“Disclosing Party”) or acquired by the Receiving Party pursuant to or in connection with this Agreement that is either designated as proprietary or confidential or, by the nature of the circumstances surrounding disclosure, ought in good faith to be treated as proprietary or confidential (“Confidential Information”); provided that the Receiving Party may disclose the terms and conditions of this Agreement to its immediate legal and financial consultants in the ordinary course of its business. The Receiving Party will not use any Confidential Information for any purpose other than to carry out the activities contemplated by this Agreement. The Receiving Party will protect the confidentiality of the Confidential Information in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind, but in no event less than reasonable care in protecting such information. The Receiving Party will also promptly notify the Disclosing Party in writing in the event that the Receiving Party learns of any unauthorized use or disclosure of any Confidential Information, and will cooperate with the Disclosing Party in good faith to remedy such occurrence to the extent reasonably possible. The restrictions set forth in this paragraph will not apply to any information that: (i) was known by the Receiving Party without obligation of confidentiality prior to disclosure thereof by the Disclosing Party, as evidenced in writing; (ii) was in or entered the public domain through no fault of the Receiving Party; (iii) is disclosed to the Receiving Party by a third party legally entitled to make such disclosure without violation of any obligation of confidentiality; (iv) is required to be disclosed by applicable laws or regulations (but in such event, only to the extent required to be disclosed, and provided that the Disclosing Party is given the opportunity to review and redact the Confidential Information prior to disclosure); or (v) is independently developed by the Receiving Party without reference to any Confidential Information of the Disclosing Party. Upon request, the Receiving Party will return to the Disclosing Party all materials and any copies thereof, in any medium that contain or reveal all or any part of any Confidential Information. The Receiving Party acknowledges that breach of this provision will result in irreparable harm to the Disclosing Party, for which money damages would be an insufficient remedy, and therefore the Disclosing Party will be entitled to seek injunctive relief to enforce the provisions in this Section.

10.2    Disaster Recovery.  Schoox shall maintain and implement disaster recovery and avoidance procedures designed to ensure that access and use of the Service is not interrupted during any disaster. Licensee may request copy of Schoox’s current disaster recovery plan. Schoox will create daily backup copies of all Licensee Data, if any, in its possession and other work related to the Service. 

11.    Indemnification
.
11.1    Schoox Indemnity. Schoox will defend and indemnify Licensee and hold it harmless from any claims, losses, deficiencies, damages, costs, and expenses, including reasonable attorneys’ fees arising from claim by third party that Licensee’s licensed the use of Service infringes a third party’s United States patent, copyright, or trade secret rights. The foregoing indemnification obligation of Schoox is contingent upon Licensee promptly notifying Schoox in writing of such claim, permitting Schoox the sole authority to control the defense or settlement of such claim and providing Schoox reasonable assistance in connection therewith. 

11.2    Options. If Schoox believes or it is determined that the Service, or any element thereof, may have violated a third party’s intellectual property rights, Schoox may choose to either modify the Service to be non-infringing (while substantially preserving its utility or functionality) or obtain a license to allow for continued use, or if these alternatives are not commercially reasonable, Schoox may terminate this Agreement, require return of the Service and refund any unused, prepaid fees Licensee may have paid to Schoox for the Service. 

11.3    Exclusions. Schoox will not indemnify Licensee if License alters the Service or uses it outside the scope of the license granted herein. Schoox will not indemnify Licensee to the extent that an infringement claim is based upon (i) any information, design, specification, instruction, software, data, or material not furnished by Schoox, or (ii) any materials or data from a third party. Schoox will not indemnify Licensee to the extent that an infringement claim is based upon the combination of the Service with any products or services not provided by Schoox. This Section provides Customer’s exclusive remedy for any infringement claims or damages.

11.4    Licensee Indemnity. Licensee will defend and indemnify Schoox and hold it harmless from any and all claims, losses, deficiencies, damages, liabilities, costs and expenses incurred by Schoox as result of any claim by a third party arising from (i) Licensee’s use of the Service in breach of this Agreement; or (ii) Schoox’s Licensee-authorized use of the Licensee Data. The foregoing indemnification obligation is contingent upon Schoox promptly notifying Licensee in writing of such claim permitting Licensee sole authority to control the defense or settlement of such claim and providing Licensee reasonable assistance in connection therewith.

12.    General Provisions.

12.1    Notices. All notices to Licensee will be given electronically to the email address provided by Licensee and will be deemed fully given and received when delivered by electronic transmission to the electronic mail address or other proper electronic destination provided to Schoox.  Except where provided otherwise, notices hereunder shall be in writing and shall be deemed to have been fully given and received (i) when delivered in writing personally; (ii) when sent by confirmed telex or facsimile, (iii) five days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (iv) one day after deposit with a commercial overnight carrier, with written verification of such receipt.  All communications will be sent to the Party’s address as set forth herein, or at such address as the Parties may later specify in writing for such purposes.

12.2    Amendments. This Agreement may be supplemented, amended or modified only by the Parties’ mutual Agreement. No supplement, amendment or modification of this Agreement will be binding unless it is in writing and signed by both Parties. In particular, terms included in any purchase order or similar document from Licensee shall be deemed null and void and rejected by Schoox.

12.3    Construction and Interpretation of This Agreement. The Parties agree that the language of all parts of this Agreement shall in all cases be construed as a whole, according to its fair meaning and not strictly for or against either Party. The captions and sections heading appearing in this Agreement are included solely for the purpose of reference and are not intended to affect the interpretation of any provision. 

12.4    Severability in Event of Partial Invalidity. If any provision of this Agreement is held by court or other tribunal of competent jurisdiction in whole or in part, to be invalid, illegal or unenforceable in any respect, for any reason, the validity, legality and enforceability of the remainder of that provision, any other remaining provision and of the entire Agreement shall not in any way be affected or impaired thereby and shall be interpreted to the extent possible to achieve the purposes as originally expressed with the provision found to be invalid, illegal or unenforceable.

12.5    Consultation With Attorney. Each Party has carefully reviewed and considered the terms and conditions of this Agreement, and has had an opportunity to consult with attorneys and other professional of their choosing prior to executing this Agreement. Each Party is voluntarily entering into this Agreement after such review, consideration and consultation.

12.6    Counterparts. The Parties agree that this Agreement may be executed in counterparts and all such executed counterparts shall constitute in Agreement that shall be binding upon them, notwithstanding that they are not signatories to the original or same counterpart. For purposes of this Agreement, signature on counterpart that is faxed and/or scanned and emailed shall be fully binding as though it was an original wet ink signature, subject to verification of authenticity of same.

12.7    Parties Bound. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective heirs, executors, legal administrators, successors or assigns, but neither this Agreement nor any rights or payments arising hereunder may be assigned, pledged or transferred by any Party without the express written permission of the other Party; provided however, that Schoox may assign this Agreement to successor entity in the event of a merger, acquisition or sale of all or substantially all of its assets.

12.8    Authority. Each Party hereby represents and warrants that it is duly formed and validly existing under the laws of its state of incorporation and has all rights and the corporate capacity to enter into this Agreement and to perform each of its obligations hereunder.

12.9    Integration. This Agreement and all other Agreements, exhibits and schedules referred to in this Agreement constitute the final, complete and exclusive statement of the terms of Agreement between the Parties pertaining to the license and supersede all prior and contemporaneous negotiations, understandings or Agreements of the Parties. 

12.10    No Waiver. No waiver of breach, failure of any condition or any right or remedy contained in or granted by this Agreement will be effective unless it is in writing and signed by the Party waiving the breach, failure, right or remedy. No waiver of any breach, failure, right or remedy will be deemed waiver of any other breach, failure, right or remedy, whether or not similar, nor will any waiver constitute containing waiver unless the writing so specifies.

12.11    Force Majeure. Notwithstanding any provision contained in this Agreement, neither party shall be liable to the other to the extent fulfillment or performance of any terms or provisions of this Agreement are delayed or prevented by revolution or other civil disorders; wars; strikes; labor disputes; fires; floods; nuclear incident; acts of God; terrorism; government action; or, without limiting the foregoing, any other causes not within its control and which, by the exercise of reasonable diligence, it is unable to prevent. This Section shall not apply to the payment of any fees due under this Agreement.

12.12    Governing Law and Choice of Forum. This Agreement and any dispute arising from the relationship between the Parties to this Agreement, will be governed and determined by the local laws of the State of Texas, excluding any choice of law provisions. The Parties expressly waive any right they may otherwise have to cause any such action or proceeding to be brought or tried elsewhere.

12.13    USA Patriot Act Notice. The U.S. federal U.S.A Patriot Act provides generally for the operator of communication host and law enforcement to be able to monitor any content, upon request of the operator. Schoox anticipates fully complying with all its obligations and availing itself of all its rights, under the USA Patriot Act.

The Parties have executed this Agreement through their duly authorized representatives via signing the Order Form which references this Agreement as a link - as of the date on the Licensee's signed Order Form which hereby references and incorporate this Agreement in full into the Order Form terms.