This Kaymbu End User License Agreement (“EULA”) contains the terms and conditions that governs Customer and Authorized Users access to and use of the Platform and Services and is the agreement between Kaymbu (“Kaymbu”) and you, or the entity you represent, (“Customer”, “you” or “your”). This EULA takes effect when Customer and Kaymbu execute an Order Form; or if you’re an Authorized Users, this EULA applies when you click an “I Accept” button or checkbox presented with these terms or, when you use the Services (“Effective Date”). Customer and each Authorized User represents to Kaymbu that Customer or such Authorized User is lawfully able to enter into contracts (e.g., you are not a minor). If you are entering into this EULA for an entity, such as the company you work for, you represent to Kaymbu that you have legal authority to bind that entity.
1. Definitions. “Agreement” means this EULA for Authorized Users, and this EULA and any mutually agreed upon Order Forms for Customer.
“Authorized User” is any teacher, administrator or staff member employed by Customer, who Customer authorizes to use the Platform, or a parent or guardian who Customer authorizes to use the Platform in connection with your student’s enrollment with Customer.
“Platform” is the online Kaymbu platform operated by Kaymbu that enables Customers to conduct observation-based developmental assessment of Customer’s enrolled students and improves communications with the parents and guardians of those students.
“Services” means the provision of the Platform and related services provided by Kaymbu under this EULA, whether such related services are provided through the Platform or otherwise, or to Customer or an Authorized User.
4. Limitations on Services. Customer hereby agrees not to (a) decompile or attempt to decipher any code, reverse engineer, reverse assemble, disassemble, modify, rent, lease, loan, distribute, or create derivative works (as defined by the U.S. Copyright Act) or improvements (as defined by U.S. patent law) of the Services, Platform or Software, or any portion of any of the foregoing; (b) remove any trademark, logo, name, identifying number or coding from the Platform, Software, any of the Services or any documentation or output provided in connection with the Services (“Documentation”); (c) use the Platform in any manner whatsoever except in the manner expressly authorized pursuant to Section 2 hereof; (d) use the Platform in any unlawful manner or for any unlawful purpose, or otherwise transmit through or post on the Services any material that is deemed abusive, harassing, obscene, slanderous, fraudulent, libelous or otherwise objectionable or unlawful; (e) transmit through or post on the Platform any material that may infringe the intellectual property rights or other rights of third parties, including, without limitation, trademark, copyright, data privacy or right of publicity; (f) transmit or post on the Platform any material that contains software viruses or other harmful or deleterious computer code, files or programs; (g) if the Customer is a Kaymbu competitor for the relevant Services, use the Services directly or indirectly for competitive benchmarking or other competitive analysis, unless permitted under applicable law; (h) use or access the Platform or permit an Authorized User to use or access the Platform in a manner that violates the terms of this EULA; or (i) make any representations with respect to Kaymbu or this EULA or any Order Form (including, without limitation, that Kaymbu is a warrantor or co-seller of any of Customer’s products and/or services). Customer agrees to abide by all applicable proprietary rights laws and other laws, as well as any additional patent or copyright notices or restrictions. All rights, title, and interest in and to the Platform, Documentation and Services shall remain vested in Kaymbu and its licensors. Other than the express licenses granted herein, no licenses are granted to Customer. If Customer becomes aware or receives notice from Kaymbu that Customer or any Authorized User’s access to or use of Platform violates this Section, Customer must take immediate action to correction the violation or to suspend the Authorized User’s access to the Services, as applicable. If Customer fails to comply with such request, Kaymbu may suspend the Services.
5. Rights in Collected Data. As between Kaymbu and Customer, Customer is the sole and exclusive owner of data created by its use, and its Authorized Users’ use, of the Platform and Services (“Customer Data”), provided that Customer hereby grants Kaymbu a non-exclusive, transferable, irrevocable, sublicensable, royalty-free, worldwide license to copy, make derivative works from, modify, publish, perform, display, and otherwise use the Customer Data, to collect the Customer Data, create aggregates from the Customer Data, analyze the Customer Data and resultant datasets, provide information using aggregate data back to its customers (including but not limited to Customer) and otherwise develop or improve Kaymbu’s Platform and Services, provided that Kaymbu shall not share data which expressly identifies Customer or any Authorized User without first obtaining Customer’s consent.
6. Suspension of Service. Kaymbu may suspend Customer or any Authorized User’s right to access or use any portion or all of the Services or Platform immediately upon notice to Customer if Kaymbu determines: (a) that Customer or an Authorized User’s use of the Services or Platform: (i) poses a security risk to the Services or Platform, Kaymbu, or any third party, (ii) could adversely impact Kaymbu’s systems, the Services, the Platform, or the systems or content of any other Kaymbu customer, (iii) could subject Kaymbu or any third party to liability, or (iv) could be fraudulent; (b) Customer, or any Authorized User is, in breach of this EULA or any Order Form; or (c) that Customer has ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition of Customer’s assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding. If Kaymbu suspends Customer’s or an Authorized User’s right to access or use any portion or all of the Services or Platform: (A) Customer remains responsible for all fees and charges Customer incurs during the period of suspension; and (b) Kaymbu will promptly restore access to and use of the Services and Platform if the cause for the suspension is promptly resolved by Customer.
7. Payments. Unless otherwise stated in an Order Form, payments are due within thirty (30) days of the invoice date. All amounts that are not paid when due shall incur a service charge thereafter at the rate of one and a half percent (1½%) per month or the highest rate allowed by applicable law, whichever is lower. All amounts due hereunder shall not be subject to any offset or claim hereunder. Kaymbu reserves the right, in its discretion, to suspend or terminate the Services or any portion thereof for non-payment of fees.
8. Pricing; Currency. All prices quoted are exclusive of freight, insurance, taxes and other similar amounts unless otherwise specified. All monetary amounts are quoted in United States Dollars (“Dollars”); payments are to be made in Dollars. Customer agrees to pay all federal, state and local taxes, together with any duties or other related charges, to the extent applicable, including without limitation any sales and use taxes.
9. Parental Consents. Customer covenants that Customer shall obtain all requisite consents from the parents and guardians of all students before using the Platform in connection with such students. Kaymbu may require a specific form of consent by such parents and guardians. Customer shall indemnify, defend, and hold harmless Kaymbu from any claims made by a parent or guardian that Customer and its Authorized Users had failed to obtain such consents.
10. Confidential Information. For purposes of this EULA, “Confidential Information” shall mean any and all information of one Party provided to the other Party (“Recipient”) in connection with the Services which is confidential to the Party providing the information; and the information is either marked as confidential at the time provided to the Recipient, is confidential pursuant to the terms of this EULA, or, due to its nature and the circumstances surrounding its disclosure, should reasonably be understood to be confidential information and that is not generally known by others with whom it competes or does business. However, Confidential Information shall not include any information that: (a) was or becomes generally known through no act of the Recipient or its employees, agents or independent contractors; (b) has come into the possession of the Recipient from a third party who is under no obligation to the disclosing Party to maintain the confidentiality of such information; or (c) is known to Recipient prior to disclosure hereunder. Neither Party shall disclose or use for any other purpose other than in connection with the relationship contemplated herein any Confidential Information of the other Party during the license term and for a period of five (5) years thereafter. The Services, Platform, fees, discounts, the terms of the Order Form and any Documentation shall constitute Confidential Information of Kaymbu.
11. Term. The term of this EULA shall commence on the Order Effective Date for Customer and will remain in effect until the license term of the Order expires, or the Order Form is terminated under Section 12. The term of this EULA shall commence upon acceptance or use of the Services or Platform, and continue until either Customer’s Order Form expires or is terminated, Customer terminates Authorized Users authorization, or Kaymbu terminates Authorized Users rights to access and use the Services and Platform.
12. Termination. Customer and Kaymbu may terminate Order Form(s) for any reason by providing the other sixty (60) days advance written notice, provided that nothing hereunder shall entitle Customer to a refund of fees paid. If Customer does terminate for convenience, Customer shall remain responsible for any remaining license term set forth in an Order Form, which shall become due immediately and must be paid within thirty (30) days of the effective date of termination. Either Party may terminate Order Form(s) for cause if the other party is in material breach of the Order Form or EULA, and the material breach remains uncured for a period of thirty (30) days from receipt of notice by the other Party. Kaymbu may also terminate Order Form(s) and this EULA immediately upon notice to Customer for cause if Kaymbu has the right to suspend the Service or Platform, if Kaymbu’s relationship with a third party who provides software or other technology used by Kaymbu to provide the Services or Platform expires, terminates or requires Kaymbu to change the way it provides the software or other technology as part of the Services or Platform, or (C) in order to comply with the law or requests of governmental entities. Upon the effective date of termination, or expiration of an Order Form, all rights of Customer and Authorized Users under the Order Form and this EULA immediately terminate; Customer remains responsible for all fees and charges incurred through the effective date of termination, and each Party will immediately return or, if instructed by the other Party, destroy all Confidential Information in such Party’s possession.
13. Limited Warranty. KAYMBU WARRANTS THAT THE PLATFORM WILL MATERIALLY CONFORM TO THE DOCUMENTATION DURING THE LICENSE TERM. EXCEPT AS SET FORTH IN THIS SECTION 13, THE SERVICES ARE PROVIDED ON AN “AS IS” BASIS, AND CUSTOMER’S USE OF THE SERVICES IS AT ITS OWN RISK. KAYMBU AND ITS LICENSORS DO NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR FREE, OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA. KAYMBU AND ITS LICENSORS DO NOT WARRANT THAT THE SERVICES OR PLATFORM WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS, THAT ALL ERRORS OR DEFECTS WILL BE CORRECTED, OR THAT THE SERVICES WILL BE FREE FROM ANY HARMFUL COMPONENTS OR THAT ANY CONTENT, INCLUDING CUSTOMER OR THIRD PARTY CONTENT, WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED.
KAYMBU DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. NO VERBAL REPRESENTATION, ADVERTISEMENT, BROCHURE, MANUAL OR OTHER DOCUMENT SHALL MODIFY OR OTHERWISE AMEND THIS DISCLAIMER.
THE FOREGOING LIMITED WARRANTY DOES NOT COVER PROBLEMS ARISING BY ACCIDENT, ABUSE OR USE IN A MANNER INCONSISTENT WITH THIS EULA OR RESULTING FROM EVENTS BEYOND KAYMBU’S REASONABLE CONTROL. KAYMBU’S ENTIRE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDY UNDER THIS WARRANTY WILL BE, AT KAYMBU’S SOLE OPTION AND SUBJECT TO APPLICABLE LAW, TO PROVIDE CONFORMING SERVICES, INCLUDING REPLACEMENT SOFTWARE AS REQUIRED, OR TO TERMINATE THE NON-CONFORMING SERVICES, AND PROVIDE A PRO-RATED REFUND OF ANY PREPAID FEES FROM THE PERIOD OF NON-CONFORMANCE THROUGH THE END OF THE REMAINING TERM. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES AND CONDITIONS, THEREFORE SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO CUSTOMERS LOCATED IN SUCH JURISDICTIONS.
14. Customer Warranties. Customer represents and warrants that Customer will only use the Platform in relation to the children of parents and guardians for whom Customer has obtained the requisite parental and guardian consents. Each Party represents and warrants to the other Party that it will: (a) comply with all laws, regulations and governmental orders applicable to its organization in the performance of this EULA, and in the use of the Services and Platform; (b) it has the full power and authority to enter into and fully perform its obligations under this EULA; and (c) it is duly organized under and existing under the laws of its territory of organization.
15. Limitation and Disclaimer of Liability. KAYMBU’S MAXIMUM AGGREGATE LIABILITY UNDER THE AGREEMENT FOR ANY CLAIMS RELATED TO THE SERVICES AND THE AGREEMENT, REGARDLESS OF CAUSE OR ORIGIN OR LEGAL THEORY, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW SHALL BE LIMITED TO THE FEES PAID BY CUSTOMER TO KAYMBU FOR THE PARTICULAR SERVICES OR PORTIONS OF THE SERVICES GIVING RISE TO THE CLAIM IN THE THEN-PRECEDING TWELVE (12) MONTHS PRIOR TO ASSERTION OF THE CLAIM. EXCEPT WITH RESPECT TO CUSTOMER’S INDEMNIFICATION OBLIGATIONS, CUSTOMERS BREACH OF SECTION 2 AND 4, AND CUSTOMER’S PAYMENT OBLIGATIONS, NEITHER PARTY SHALL NOT BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, MULTIPLE, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES IN CONNECTION WITH THE AGREEMENT, THE PLATFORM OR THE SERVICES.
16. Indemnification by Customer. Customer will indemnify, defend and hold harmless Kaymbu (and its subsidiaries, affiliates, agents, directors, officers, representatives, partners, managers, successors, assigns and employees) from any costs, damages, claims, demands, proceedings, loss, suit or other liability or expense (including without limitation reasonable attorneys’ fees and court costs) that directly or indirectly arises out of or is in connection with: (a) Customer’s use of the Platform and Services or any resulting data; (b) any breach of the Agreement by Customer; or (c) any failure to obtain permission from Clients to use the Platform or Services; provided that Customer shall not be responsible for claims to the extent such claims arise from Kaymbu’s gross negligence or willful misconduct.
17. Indemnification by Kaymbu. Kaymbu will indemnify, defend and hold harmless Customer (and its subsidiaries, affiliates, agents, directors, officers, representatives, partners, managers, successors, assigns and employees) from any costs, damages, claims, demands, proceedings, loss, suit or other liability or expense (including without limitation reasonable attorneys’ fees and court costs) that directly arises out of or is in connection with any third party claim infringement or misappropriation of such third party’s patent, trademark, copyright, or trade secret (“Infringement Claim”), provided that: (a) Customer promptly notifies Kaymbu in writing of such Infringement Claim such that Kaymbu is not prejudiced by any delay of such notification; (b) Kaymbu will have sole control over the defense and any settlement of any Infringement Claim; and (c) Customer will provide reasonable assistance in the defense of same. If Customer’s use of any of the Services is, or in Kaymbu’s opinion is likely to be, enjoined as a result of an Infringement Claim, Kaymbu shall, at its sole option and expense, either (i) procure for Customer the right to continue to use the Services as contemplated herein, or (ii) replace or modify the Services to make their use non-infringing without degradation in performance or a material reduction in functionality and notify Customer to discontinue use of the prior version, which Customer shall do immediately. If options (i) and (ii) above are not reasonably available, Kaymbu may, in its sole discretion and upon written notice to Customer, terminate the Order Form and this EULA, cancel access to the Services and refund to Customer any prepaid, but unused fees. Kaymbu assumes no liability, and shall have no liability, for any Infringement Claim based on: (A) Customer’s access to and/or use of the Services following notice of an Infringement Claim; (B) any modification of the Services, other than by Kaymbu or by at third party at its direction; (C) Customer’s combination of the Services with third party programs, services, data, hardware, or other materials; or (D) any trademark or copyright infringement involving any marking or branding not applied by Kaymbu or involving any marking or branding applied at Customer’s request.
18. Export. Customer represents and warrants that Customer does not intend to, and will not knowingly, without the prior written approval, if required, of the Office of Export Administration of the U.S. Department of Commerce or any other applicable U.S. Government agency, export, either directly or indirectly, provide access to the Platform or Services to any country for which such approval is required.
19. Specific Performance. Customer agrees that in the event of its breach of Sections 2-5 or its confidentiality obligations, Kaymbu will suffer irreparable harm which cannot be compensated monetarily and therefore will not have an adequate remedy at law. Accordingly, Kaymbu will be entitled to injunctive relief without proof of additional damage or posting any bond to prevent any further breach of any confidentiality obligations, further unauthorized use of Confidential Information, or infringement of Kaymbu’s rights in its intellectual property or that of its licensors, or Kaymbu’s rights in Customer Data. This remedy is non-exclusive.
20. Kaymbu Marks. Customer agrees that it shall not use, register or apply for registration of any trademark, service mark, business name, company/trade name, domain name or social media account name or handle that is comprised of or incorporates in whole or in part any Kaymbu trademark, service mark, business name, company/trade name, domain name or social media account name or handle, whether registered or not (“Kaymbu Mark”) or is otherwise confusingly similar to a Kaymbu Mark. In the event of any breach of this provision, Customer agrees that it will do all things necessary to effect the transfer of any such same or similar trademark, service mark, business name, company/trade name, domain name or social media account name or handle to Kaymbu, including but not limited to executing assignment documentation. Except as expressly granted herein, no license regarding the use of Kaymbu’s copyrights, patents, trademarks, service marks or company/trade names is granted or will be implied. For any authorized use of the Kaymbu Marks, Customer represents that it adhere to Kaymbu’s guidelines as provided and as may be periodically updated by Kaymbu.
21. Assignment. This EULA and any Order Forms and the rights and obligations hereunder and therein are unique to Customer and Authorized Users, and no Party shall have any right to assign the Agreement to any other party without the express written prior consent of the other Party, except that Kaymbu may assign the Agreement by operation of law or otherwise to a purchaser of substantially all of its assets related to the business or to an affiliate of Kaymbu. Any attempted assignment in breach of the foregoing shall be void. This EULA and each Order Form will bind and inure to the benefit of each Party’s successors or permitted assigns.
22. Amendments; Integration. The Agreement may not be amended, modified or supplemented or any of the provisions waived unless in writing and signed by the Party against whom the same is sought to be enforced. The Agreement constitutes the entire agreement and understanding of the parties hereto in respect to the subject matter hereof and supersedes all prior agreements and understandings, written or oral, between the parties with respect to such subject matter.
23. Audit. Not more frequently than annually and at Kaymbu’s expense, Kaymbu may audit Customer’s use of any Service, including without limitation on-premises components provided with the Services. If an audit reveals that Customer has underpaid fees for any Services, in addition to other remedies provided for herein, Customer shall be invoiced for such underpaid fees. If the underpaid fees exceed three percent (3%) of the fees paid, then Customer shall also pay Kaymbu’s reasonable costs of conducting the audit.
24. Waiver. The waiver of any right or default in any instance hereunder shall not be deemed to be a waiver of any future right or breach of hereunder.
25. Severability; Remedies. If any provision of the Agreement is held to be invalid, illegal or unenforceable by a court of competent jurisdiction, such provision will be deemed restated, in accordance with applicable law, to reflect as nearly as possible the original intentions of the Parties, and the remainder of the Agreement will remain in full force and effect.
26. Force Majeure. Kaymbu shall not be liable to Customer for nonperformance or delays in performance due wholly or partly to any cause beyond Kaymbu’s reasonable control, including without limitation acts of God, acts of Customer, acts of civil or military authorities, war, terrorism, insurrection, strikes, cyber attack, labor disputes, accidents, floods, fire, lightning, delay in transportation, and inability, due to causes beyond Kaymbu’s reasonable control, to obtain necessary labor, material or manufacturing facilities. In event of any delay caused by such acts, the dates for performance shall be extended by a period equal to the time lost by such delays.
27. Beneficiaries. The only parties to the Agreement intended to be benefited hereby are Kaymbu and Customer and the covenants, agreements, representations of Kaymbu made herein shall extend solely to Customer and to no other person or entity, known or unknown, who may be affected thereby.
28. Relationship of Parties. The Parties are independent contractors. The Agreement only creates an independent contractor relationship and is not intended to create any other relationship such as a partnership, franchise, joint venture, agency or employment relationship. Neither Party may act in a manner which expresses or implies a relationship other than that of independent contractor nor bind the other Party.
29. Construction. The headings contained in the Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of the Agreement. No Party or its counsel shall be deemed to be the drafter of the Agreement for purposes of construing the provisions hereof, and all provisions of the Agreement shall be construed in accordance with their fair meaning, and not strictly for or against any Party. Unless the context of the Agreement otherwise requires, (a) words of any gender include each other gender, (b) words such as “herein”, “hereof”, and “hereunder” refer to the Agreement as a whole and not merely to the particular provision in which such words appear, (c) words using the singular shall include the plural, and vice versa, and (d) “or” shall be interpreted in the inclusive sense (i.e., “and/or”).
30. Notices. All notices which may be or are required to be given, served, or sent by either Party to the other Party pursuant to the Agreement shall be in writing and shall be sent by: (a) U.S. registered or certified mail, postage prepaid and return receipt requested, (b) hand delivery (including delivery by courier), (c) by recognized overnight delivery service, or (d) facsimile (with confirmation of receipt). Notices will be effective upon receipt. Each Party may designate by notice in writing a new person or persons or a new address to which any notice, demand, request or communication may thereafter be so given, served or sent. Notices delivered under this Section will be addressed to the address first set forth in the Agreement, or to such new notice address for a Party that such Party may select upon written notice to the other Party. Kaymbu may also provide Customer with notice postings on Kaymbu’s website.
31. Governing Law; Jurisdiction and Time Limitation. The Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, without giving effect to conflicts of law rules. The Parties consent to the exclusive jurisdiction of the federal and state courts located in Boston, Massachusetts, except that either Party may seek equitable relief in any jurisdiction. You agree that any claim you may have arising out of or related to your relationship with Kaymbu must be filed within one (1) year after such claim arose; otherwise, your claim is permanently barred.
32. Counterparts. Order Forms and other documents executed in connection with the Agreement may be signed in two counterparts, each of which shall be deemed to be an original, and both of which taken together shall constitute one and the same instrument. Delivery of a photocopy, telecopy or e-mail copy of an executed counterpart of a signature page or any of the aforementioned documents shall be as effective as delivery of a manually executed counterpart of the Order Form or such other executable documents.
33. Entire Agreement. The Agreement, this EULA, and the applicable Order Forms for Customers, sets forth the entire agreement and understanding of the parties relating to the Services and supersedes all prior and contemporaneous oral and written agreements. For any conflict between this EULA and any Ordering Form, this EULA shall control. Nothing contained in any order, administrative document, or other document submitted by Customer shall in any way add to or otherwise modify this EULA.
34. Survival. All accrued payment obligations and those provisions related to ownership, confidentiality, indemnification, limitation of liability, audit, and that by their nature should survive expiration or termination of the Agreement shall survive termination of the Agreement for any reason.
35. Class Actions. Each Party agrees that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. Each Party agrees that it may bring suit in court to enjoin infringement or other misuse of intellectual property rights.
36. Waiver of Jury Trial. FOR THEIR MUTUAL BENEFIT, KAYMBU AND YOU WAIVE ANY RIGHT TO TRIAL BY JURY IN THE EVENT OF LITIGATION REGARDING THE PERFORMANCE OR ENFORCEMENT OF, OR IN ANY WAY RELATED TO, THE AGREEMENT.