Terms and Conditions

1. DEFINITIONS.

Certain capitalized terms, not defined above, have the meanings set forth below.

1.1 “Access Protocols”

will mean the passwords, access codes, technical specifications, connectivity standards or protocols, or other relevant procedures, as may be necessary to allow Authorized Users to access the Application Services.

1.2 “Application Services”

shall mean the services ordered by Customer pursuant to this Agreement and provided by XLNTBRAIN by means of access to certain content and use of the features and functionality of software applications available and accessible within the XLNTBRAIN Web Sites, solely to the extent set forth and further described in, and as limited by, this Agreement.

1.3 “Application Documentation”

shall mean the documentation provided by XLNTBRAIN relating to the Application Services.

1.4 “Authorized User”

will mean any individual who is an employee of Customer, student of Customer or parent of a student of Customer or such other person or entity as may be authorized by this Agreement, authorized, by virtue of such individual’s relationship to Customer, to access the Application Service pursuant to Customer’s rights under this Agreement, including, but not limited to individuals who visit the XLNTBRAIN Web Sites.

1.5 “Customer Content”

will mean the data, media and content provided by Customer through the Application Service.

1.6 “Confidential Information”

shall mean all written or oral information, disclosed by either Party to the other, related to the operations of either Party or a third party that has been identified as confidential or that by the nature of the circumstances surrounding disclosure ought reasonably to be treated as confidential.

1.7 “XLNTBRAIN Web Sites”

shall mean the Web sites accessible at the URL www.xlntbrain.com.

2. ORDERS, ACCESS AND USE

2.1 Provision of Access.

Subject to the terms and conditions contained in this Agreement, XLNTBRAIN hereby grants to Customer a non-exclusive, non-transferable right to access the features and functions of the applicable Application Service ordered pursuant to this Agreement during the Term in accordance with the terms and conditions of this Agreement. As soon as commercially practicable after the Effective Date, XLNTBRAIN shall provide to Customer the necessary Access Protocols.

2.2 Usage Restrictions.

Customer will not (i) decompile, disassemble, reverse engineer or otherwise attempt to obtain or perceive the source code from which any software component of the Application Services are compiled or interpreted, and Customer acknowledges that nothing in this Agreement will be construed to grant Customer any right to obtain or use such code; (ii) create any derivative product from any of the foregoing, except with the prior written consent of XLNTBRAIN; or (iii) allow third parties other than Authorized Users to gain access to the Application Services or use the Application services as a service bureau; (iv) assign, sublicense, sell, resell, lease, rent or otherwise transfer or convey, or pledge as security or otherwise encumber, Customer’s rights under Section 2.1. Customer will ensure that its use of the Application Service and the Application Documentation complies with all applicable laws, statutes, regulations or rules.

2.3 Retained Rights; Ownership.

(a) Ownership and use of Customer Content.

Customer retains all right, title and interest in and to the Customer Content, and XLNTBRAIN acknowledges that it neither owns nor acquires any additional rights in and to the Customer Content not expressly granted by this Agreement. XLNTBRAIN further acknowledges that Customer retains the right to use the Customer Content for any purpose in Customer’s sole discretion. Subject to the foregoing, Customer hereby grants to XLNTBRAIN a non-exclusive, non-transferable right and license to use the Customer Content during the Term for the limited purposes of performing XLNTBRAIN’s obligations and to collect and use any such data, in non-user specific and aggregated statistical form, for the development and maintenance of the Application Services and for XLNTBRAIN’s other business purposes. To the extent that the Customer Content contains any “educational records” or “treatment records,” as each is defined by the Family Educational Rights and Privacy Act ( “FERPA” ), Customer will coordinate with XLNTBRAIN to ensure that the applicable Authorized End User has executed a valid waiver under FERPA.

(b) Ownership of Application Services.

Subject to the rights granted in this Agreement, XLNTBRAIN retains all right, title and interest in and to the Application Services, and Customer acknowledges that it neither owns nor acquires any additional rights in and to the foregoing not expressly granted by this Agreement. Customer further acknowledges that XLNTBRAIN retains the right to use the foregoing for any purpose in XLNTBRAIN’s sole discretion. Customer agrees to assign to XLNTBRAIN all intellectual property rights relating to the Application Services, including those pertaining to any inventions or otherwise, to the extent that Customer acquires such rights by operation of law, and Customer shall cooperate with XLNTBRAIN as reasonably necessary to perfect such an assignment.

3. XLNTBRAIN OBLIGATIONS

3.1 Implementation Plan; Access Term.

Customer understands that, before access to the Application Service can be provided to Customer, the Application Service may require supplementation, modification or configuration. XLNTBRAIN’s systems may also require preparation in order to make available access for Customer’s Application Service customizations. All such activities shall be set forth in this Agreement. The term of access to a particular Application Service shall be set forth in this Agreement.

3.2 Responsibility for Application and Content Hosting.

XLNTBRAIN shall, at its own expense, provide for the hosting of the Application Services which is accessible as part of the Application Services, provided that nothing herein shall be construed to require XLNTBRAIN to provide for, or bear any responsibility with respect to, the development, or with respect to any telecommunications or computer network hardware required by Customer to provide access from the Internet to the Application Services.

3.3 Support Services.

XLNTBRAIN will provide the support services for the Application Services in accordance with its standard support offerings for a particular Application Service ordered under this Agreement, provided that all fees due under this Agreement have been paid. The Parties acknowledge and agree that XLNTBRAIN will have no obligation to provide support to Customer with respect to (i) use of the Application Service other than according to the Application Documentation or the terms of this Agreement; or (ii) any combination of the Application Service and/or the Application with hardware, software or technology not provided by XLNTBRAIN.

4. CUSTOMER OBLIGATIONS.

4.1 Authorized Users Access to Services.

Customer may permit any Authorized Users to access and use the features and functions of the Application Service as contemplated by this Agreement. Each Authorized User that obtains such access in accordance with this Section 4.1 shall be referred to as an “Accessing User” for so long as such Authorized User remains an Accessing User. Each Authorized User’s access to the Application Services is subject to (i) his/her agreement to XLNTBRAIN’s then-current terms of service, available at the time of registration and permanently on the user’s dashboard and (ii) his/her provision of the necessary authorization forms; provided, however, in the event of a conflict between this Agreement and the terms of service entered into by any employee of Customer, this Agreement shall govern.

4.2 Provision of Support to Authorized Users.

Other than as required from XLNTBRAIN under Section 3.3, Customer will provide all maintenance and technical support services as may be required by its Authorized Users, with respect to provision of access to, and use of, the Application Service.

4.3 Customer Responsibility for Data and Security.

Customer and its Authorized Users shall have access to the Customer Content and shall be responsible for all changes to and/or deletions of Customer Content and the security of all passwords and other access protocols required in order to access the Application Services.

4.4 Customer Cooperation.

Customer acknowledges that its timely provision of and access to office accommodations, facilities, equipment, assistance, cooperation, complete and accurate information and data from its officers, agents, and employees, and suitably configured computer products are essential to performance of XLNTBRAIN’s obligations hereunder, and that XLNTBRAIN shall not be liable for any deficiency in performing if such deficiency results from Customer’s failure to provide full cooperation.

5. TREATMENT OF CONFIDENTIAL INFORMATION.

5.1 Ownership of Confidential Information.

The Parties acknowledge that during the performance of this Agreement, each Party will have access to certain of the other Party’s Confidential Information or Confidential Information of third parties that the disclosing Party is required to maintain as confidential. Both Parties agree that all items of Confidential Information are proprietary to the disclosing Party or such third party, as applicable, and will remain the sole property of the disclosing Party or such third party.

5.2 Mutual Confidentiality Obligations.

Each Party agrees as follows: (a) to use Confidential Information disclosed by the other Party only for the purposes described herein; (b) that such Party will not reproduce Confidential Information disclosed by the other Party, and will hold in confidence and protect such Confidential Information from dissemination to, and use by, any third party; (c) that neither Party will create any derivative work from Confidential Information disclosed to such Party by the other Party; (d) to restrict access to the Confidential Information disclosed by the other Party to such of its personnel, agents, and/or consultants, if any, who have a need to have access and who have been advised of and have agreed in writing to treat such information in accordance with the terms of this Agreement; and (e) to the extent practicable, return or destroy, all Confidential Information disclosed by the other Party that is in its possession upon termination or expiration of this Agreement. Notwithstanding the foregoing, Customer agrees that XLNTBRAIN may collect aggregated statistical data regarding Customer’s use of the Service and provide such aggregated statistical data to third parties. In no event shall XLNTBRAIN provide to third parties specific data regarding Customer or Customer’s Authorized Users.

5.3 Confidentiality Exceptions.

Notwithstanding the foregoing, the provisions of Sections 6.1 and 6.2 will not apply to Confidential Information that (a) is publicly available or in the public domain at the time disclosed; (b) is or becomes publicly available or enters the public domain through no fault of the recipient; (c) is rightfully communicated to the recipient by persons not bound by confidentiality obligations with respect thereto; (d) is already in the recipient’s possession free of any confidentiality obligations with respect thereto at the time of disclosure; (e) is independently developed by the recipient; or (f) is approved for release or disclosure by the disclosing Party without restriction. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (x) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (y) to establish a Party’s rights under this Agreement, including to make such court filings as it may be required to do.

5.4 Limitation Period.

The obligations set forth in this Section 6 shall survive the termination or expiration of this Agreement for a period of three (3) years.

6. REPRESENTATIONS AND WARRANTIES.

Each Party hereby represents and warrants (i) that it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization; (ii) that the execution and performance of this Agreement will not conflict with or violate any provision of any law having applicability to such Party; and (iii) that this Agreement, when executed and delivered, will constitute a valid and binding obligation of such Party and will be enforceable against such Party in accordance with its terms.

7. DISCLAIMERS, EXCLUSIONS AND LIMITATIONS OF LIABILITY.

7.1 Disclaimer.

EXCEPT AS EXPRESSLY REPRESENTED OR WARRANTED IN SECTION 7, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE APPLICATION SERVICE, THE APPLICATION DOCUMENTATION, AND ALL SERVICES PERFORMED BY XLNTBRAIN ARE PROVIDED “AS IS,” AND XLNTBRAIN 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, QUIET ENJOYMENT, SYSTEM INTEGRATION AND/OR DATA ACCURACY. XLNTBRAIN DOES NOT WARRANT THAT THE APPLICATION SERVICE OR ANY OTHER SERVICES PROVIDED BY XLNTBRAIN WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE OPERATION OF THE APPLICATION SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED.

7.2 Exclusions of Remedies; Limitation of Liability.

IN NO EVENT WILL XLNTBRAIN BE LIABLE TO CUSTOMER FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF XLNTBRAIN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. THE CUMULATIVE LIABILITY OF XLNTBRAIN TO CUSTOMER FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY, WILL NOT EXCEED TOTAL AMOUNT OF ALL FEES PAID TO PROVIDER BY COMPANY UNDER SECTION 5.1 DURING THE TWELVE (12)-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.

7.3 Essential Basis of the Agreement.

Customer acknowledges and understands that the disclaimers, exclusions and limitations of liability set forth in this Section 8 form an essential basis of the agreement between the Parties, that the Parties have relied upon such disclaimers, exclusions and limitations of liability in negotiating the terms and conditions in this Agreement, and that absent such disclaimers, exclusions and limitations of liability, the terms and conditions of this Agreement would be substantially different.

8. INDEMNIFICATION.

8.1 Indemnification of Customer.

XLNTBRAIN agrees to indemnify, defend and hold harmless Customer from and against any and all losses, liabilities, costs (including reasonable attorneys’ fees) or damages resulting from any claim by any third party that: (a) the Application Service and/or the Application Documentation infringes such third party’s U.S. patents issued as of the Effective Date, or infringes or misappropriates, as applicable, such third party’s copyrights or trade secret rights under applicable laws of any jurisdiction within the United States of America; or (b) XLNTBRAIN’s gross negligence or willful misconduct, provided that Customer promptly notifies XLNTBRAIN in writing of the claim, cooperates with XLNTBRAIN, and allows XLNTBRAIN sole authority to control the defense and settlement of such claim. If such a claim is made or appears possible, Customer agrees to permit XLNTBRAIN, at XLNTBRAIN’s sole discretion, to enable it to continue to use the Application Service or the Application Documentation, as applicable, or to modify or replace any such infringing material to make it non-infringing. If XLNTBRAIN determines that none of these alternatives is reasonably available, Customer shall, upon written request from XLNTBRAIN, cease use of, and, if applicable, return, such materials as are the subject of the infringement claim. This Section 9.1 shall not apply if the alleged infringement arises, in whole or in part, from (i) modification of the Application Service or the Application Documentation by Customer, or (ii) combination, operation or use of the Application Service with other software, hardware or technology not provided by XLNTBRAIN, or (iii) related to the Customer Content (any of the foregoing circumstances under clauses (i), (ii), and (iii) a “Customer Indemnity Responsibility”). IN NO EVENT SHALL XLNTBRAIN’S LIABILITY UNDER THIS SECTION 9 EXCEED CAP ON LIABILITY SET FORTH IN SECTION 8.2. THIS SECTION STATES XLNTBRAIN’S ENTIRE OBLIGATION AND LIABILITY WITH RESPECT TO ANY CLAIM OF INFRINGEMENT.

8.2 Customer’s Indemnity Obligations.

Customer agrees to hold, harmless, indemnify, and, at XLNTBRAIN’s option, defend XLNTBRAIN from and against any losses, liabilities, costs (including reasonable attorneys’ fees) or damages resulting from (a) Customer’s gross negligence or willful misconduct;; or (b) a Customer Indemnity Responsibility, provided that XLNTBRAIN promptly notifies Customer in writing of the claim, cooperates with Customer, and allows Customer sole authority to control the defense and settlement of such claim; provided that Customer will not settle any third-party claim against XLNTBRAIN unless such settlement completely and forever releases XLNTBRAIN from all liability with respect to such claim or unless XLNTBRAIN consents to such settlement, and further provided that XLNTBRAIN will have the right, at its option, to defend itself against any such claim or to participate in the defense thereof by counsel of its own choice.

9. TERM AND TERMINATION.

9.1 Term.

The term of this Agreement will commence on the Effective Date and will continue for a period of one (1) year thereafter, unless earlier terminated in accordance with this Section 10, and will automatically renew for successive one (1) year terms, unless either Party provides written notice of its desire not to renew at least sixty (60) days prior to the expiration of the then-current term (the initial term, together with any renewal terms, collectively, the “Term”).

9.2 Termination for Convenience.

Either Party may terminate this Agreement at any time upon sixty (60) days’ notice to other Party.

9.3 Termination for Breach.

Either Party may, at its option, terminate this Agreement in the event of a material breach by the other Party. Such termination may be effected only through a written notice to the breaching Party, specifically identifying the breach or breaches on which such notice of termination is based. The breaching Party will have a right to cure such breach or breaches within thirty (30) days of receipt of such notice, and this Agreement will terminate in the event that such cure is not made within such thirty (30)-day period.

9.4 Effect of Termination.

Upon any termination of this Agreement, Customer will (a) immediately discontinue all use of the Application Service and any XLNTBRAIN Confidential Information; and (iii) promptly pay to XLNTBRAIN all amounts due and payable under this Agreement. Customer understands and agrees that all fees paid by Customer to XLNTBRAIN prior to termination of this Agreement are non-refundable.

9.5 Survival.

The provisions of Sections 2.3, 5, 6, 7, 8, 9, 10.5, 10.6 and 11 will survive the termination of this Agreement.

10. MISCELLANEOUS.

10.1 Entire Agreement.

This Agreement sets forth the entire agreement and understanding between the Parties with respect to the subject matter of this Agreement and, supersedes and merges all prior oral and written agreements, discussions and understandings between the Parties with respect to the subject matter of this Agreement, and neither of the Parties will be bound by any conditions, inducements or representations other than as expressly provided for in this Agreement.

10.2 Independent Contractors.

In making and performing this Agreement, Customer and XLNTBRAIN act and will act at all times as independent contractors, and, except as expressly set forth herein, nothing contained in this Agreement will be construed or implied to create an agency, partnership or employer and employee relationship between them. Except as expressly set forth herein, at no time will either Party make commitments or incur any charges or expenses for, or in the name of the other Party.

10.3 Notices.

All notices required by or relating to this Agreement will be in writing and will be sent by means of certified mail, postage prepaid, to the Parties at their respective addresses set forth in the preamble to this Agreement, or addressed to such other address as the receiving Party may have given by written notice in accordance with this provision. All notices required by or relating to this Agreement may also be communicated by facsimile, provided that the sender receives and retains confirmation of successful transmittal to the recipient. Such notices will be effective on the date indicated in such confirmation. In the event that either Party delivers any notice by means of facsimile transmission in accordance with the preceding sentence, such Party will promptly thereafter send a duplicate of such notice in writing by means of certified mail, postage prepaid, to the receiving Party, addressed as set forth above or to such other address as the receiving Party may have previously substituted by written notice to the sender.

10.4 Amendments; Modifications.

This Agreement may not be amended or modified except in a writing duly executed by authorized representatives of both Parties.

10.5 Assignment; Delegation.

Customer shall not assign any of its rights or delegate any of its duties under this Agreement without the express, prior written consent of XLNTBRAIN, and, absent such consent, any attempted assignment or delegation will be null, void and of no effect.

10.6 No Third Party Beneficiaries.

The Parties acknowledge that the covenants set forth in this Agreement are intended solely for the benefit of the Parties, their successors and permitted assigns. Nothing herein, whether express or implied, will confer upon any person or entity, other than the Parties, their successors and permitted assigns, any legal or equitable right whatsoever to enforce any provision of this Agreement.

10.7 Severability.

If any provision of this Agreement is invalid or unenforceable for any reason in any jurisdiction, such provision will be construed to have been adjusted to the minimum extent necessary to cure such invalidity or unenforceability. The invalidity or unenforceability of one or more of the provisions contained in this Agreement will not have the effect of rendering any such provision invalid or unenforceable in any other case, circumstance or jurisdiction, or of rendering any other provisions of this Agreement invalid or unenforceable whatsoever.

10.8 Waiver.

No waiver under this Agreement will be valid or binding unless set forth in writing and duly executed by the Party against whom enforcement of such waiver is sought. Any such waiver will constitute a waiver only with respect to the specific matter described therein and will in no way impair the rights of the Party granting such waiver in any other respect or at any other time. Any delay or forbearance by either Party in exercising any right hereunder will not be deemed a waiver of that right.

10.9 Force Majeure.

Except with respect to payment obligations hereunder, if a Party is prevented or delayed in performance of its obligations hereunder as a result of circumstances beyond such Party’s reasonable control, including, by way of example, war, riot, fires, floods, epidemics, or failure of public utilities or public transportation systems, such failure or delay will not be deemed to constitute a material breach of this Agreement, but such obligation will remain in full force and effect, and will be performed or satisfied as soon as reasonably practicable after the termination of the relevant circumstances causing such failure or delay, provided that if such Party is prevented or delayed from performing for more than ninety (90) days, the other Party may terminate this Agreement upon thirty (30) days’ written notice.

10.10 Governing Law.

THIS AGREEMENT WILL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF MARYLAND, WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES THEREOF OR TO THE UNITED NATIONS CONVENTION ON THE INTERNATIONAL SALE OF GOODS.

10.11 U.S. Government End-Users.

Each of the Application Documentation and the software components that constitute the Application Service is a “commercial item” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the Application Service and the Application Documentation with only those rights set forth therein.

10.12 Counterparts.

This Agreement may be executed in any number of counterparts, each of which when so executed will be deemed to be an original and all of which when taken together will constitute one Agreement.