Invincikids Platform Agreement

PLATFORM AGREEMENT

Last Updated: November 21st, 2022

This Platform Agreement, including our Privacy Policy, which is incorporated herein by reference (together, this “Agreement”), is a legally binding contract between you and Invincikids INC. (“Invincikids,” “us,” “we,” or “our”) regarding your use of the Platform Offering. References to “Customer,” “you”, and “your” refer to the individual accepting this Agreement, creating an Account, executing an Order Form, or otherwise using the Platform Offering. If the Platform Offering is being used on behalf of a company, organization, or other entity by an individual authorized to accept this Agreement on its behalf, then all references to “Customer,” “you,” or “your” refer to such entity and its Affiliates. If you are a company, organization, or other entity, the individual accepting this Agreement on your behalf represents and warrants that they have the authority to bind you to this Agreement. To the extent you are accepting this Agreement on behalf of a company, organization, or other entity and an authorized representative of such entity has, on behalf of such entity, already accepted this Agreement or otherwise entered into a separate agreement regarding the use of the Platform Offering (“Separate Agreement”) prior to the Effective Date (as defined below), the terms and conditions of this Agreement will not apply to you and our and your rights and obligations with respect to the Platform Offering will at all times be governed by, and subject to, the Separate Agreement.

PLEASE READ THE FOLLOWING TERMS CAREFULLY:

BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE, PARTICIPATING IN THE ACCESS PROGRAM, CREATING AN ACCOUNT, EXECUTING AN ORDER FORM, USING THE PLATFORM OFFERING, OR OTHERWISE AFFIRMATIVELY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT (THE DATE UPON WHICH YOU ACCEPT THIS AGREEMENT IS REFERRED TO AS THE “EFFECTIVE DATE”), YOU AGREE THAT YOU HAVE READ AND UNDERSTOOD, AND, AS A CONDITION TO YOUR USE OF THE PLATFORM OFFERING, YOU AGREE TO BE BOUND BY, THE FOLLOWING TERMS AND CONDITIONS, INCLUDING OUR PRIVACY POLICY. IF YOU ARE NOT ELIGIBLE, OR DO NOT AGREE TO THE TERMS AND CONDITIONS SET FORTH HEREIN, THEN YOU DO NOT HAVE OUR PERMISSION TO USE THE PLATFORM OFFERING. YOUR USE OF THE PLATFORM OFFERING, AND OUR PROVISION OF THE PLATFORM OFFERING TO YOU, CONSTITUTES AN AGREEMENT BY US AND BY YOU TO BE BOUND BY THESE TERMS. 

YOU AGREE TO RECEIVE TEXTS FROM OR ON BEHALF OF US AT THE PHONE NUMBER YOU PROVIDE TO US. THESE TEXTS MAY INCLUDE OPERATIONAL MESSAGES ABOUT YOUR USE OF THE PLATFORM OFFERING. YOU UNDERSTAND AND AGREE THAT THESE TEXTS MAY BE CONSIDERED TELEMARKETING UNDER LAW, THEY MAY BE SENT USING AN AUTOMATIC TELEPHONE DIALING SYSTEM OR OTHER AUTOMATED TECHNOLOGY, AND YOUR CONSENT IS NOT A CONDITION OF ANY PURCHASE.

1. Definitions.

   1. “Access Program” means a program through which Customer may receive access to the Platform Offering and Invincikids Devices.

   2. “Account” means an account enabling a Authorized User to access and use the Platform Offering through Authorized User login credentials. 

   3. “Authorized User” means any employee or contractor of Customer that is authorized by Customer to use the Platform Offering on its behalf and has created an Account.

   4. “Affiliate” means an entity directly or indirectly owned or controlled by a party, where “ownership” means the beneficial ownership of fifty percent (50%) or more of an entity’s voting equity securities or other equivalent voting interests and “control” means the power to direct the management or affairs of an entity.

   5. “Content” means the object code, executable form of certain software, content, packages, materials, downloadable applications, programs, and resources, in each case, which are made available to Customer by Invincikids through the Dashboard and to be downloaded, installed, and used on Devices. 

   6. “Customer Data” means any data, content, information, or materials that Customer or any of its Authorized Users submits, uploads, or transmits to the Platform Offering.

   7. “Customer Devices” means the hardware products and related accessories owned or otherwise controlled by Customer that (1) are used by Customer in connection with the Platform Offering, and (2) are compatible with the Content (as specified in the Documentation). 

   8. “Dashboard” means the online dashboard operated by Invincikids (available at [LINK]).

   9. “Devices” means Customer Devices and Invincikids Devices.

   10. “Documentation” means Invincikids’ usage guidelines and standard technical documentation for the Platform Offering that are provided or otherwise made available by Invincikids.

   11. “End User” means any person authorized by Customer to access or use Content on a Device in accordance with Section 3.1.   

   12. “High Risk Activities” means activities where use or failure of the Platform Offering could lead to death, property damage, personal injury, or environmental damage, including life support systems, emergency services, nuclear facilities, autonomous vehicles, or air traffic control.

   13. “Invincikids Devices” means the hardware products and related accessories that may be provided to Customer by Invincikids as part of the Platform Offering pursuant to an Order Form. 

   14. “Invincikids Technology” means any: (a) works of authorship, including computer programs (whether in source code or in executable code form), architecture, technical information, hardware, and equipment; (b) inventions (whether or not patentable), discoveries and improvements; (c) proprietary and confidential information, trade secrets and know-how; (d) databases, data compilations, and collections and technical data; (e) methods, procedures, practices, protocols, techniques, and processes; and (f) any other technology; in each case, which is a tangible embodiment of such technology and used by Invincikids to provide or otherwise make available the Platform Offering 

   15. “Laws” means all relevant local, state, federal and international laws, regulations, and conventions, including those related to data privacy and data transfer, international communications, and export of technical or personal data.

   16. “Order Form” means the ordering document executed by Customer and Invincikids.

   17. “Partner” means a member of the Access Program.

   18. “Personal Data” means any information or data that constitutes “personal data,” personal information,” “personally identifiable information,” “nonpublic personal information,” or any similar concept under the applicable laws, rules, and regulations of any relevant jurisdiction governing privacy, data protection, security, or the processing of data or information.

   19. “Platform Offering” means the Dashboard, Content, Documentation, and the Invincikids Devices as set forth in the applicable Order Form. The Platform Offering does not include Customer Devices.

   20. “Privacy Policy” means the Privacy Policy available at www.invincikids.org/privacy-policy.

   21. “Prohibited Data” means any (a) special categories of data enumerated in European Union Regulation 2016/679, Article 9(1) or any successor legislation, (b) patient, medical or other protected health information regulated by the Health Insurance Portability and Accountability Act (as amended and supplemented) (“HIPAA”), (c) credit, debit or other payment card data subject to the Payment Card Industry Data Security Standards (PCI DSS), (d) other information subject to regulation or protection under specific Laws such as the Children’s Online Privacy Protection Act or Gramm-Leach-Bliley Act (or related rules or regulations), (e) social security numbers, driver’s license numbers or other government ID numbers, (f) Personal Data, or (f) any data similar to the above protected under foreign or domestic Laws.

   22. “Purpose” means the Customer’s internal, non-commercial business purposes that further and are consistent with Invincikids’ mission, as a non-profit organization, to increase access to and use of immersive technology in the healthcare field.

   23. “Scope Limitations” means any usage limits or restrictions imposed on, and communicated to, Customer by Invincikids from time to time through the Dashboard or otherwise. 

   24. “Usage Data” means any performance, analytical, or usage data or information relating to Customer’s (including its Users’) access to or use of the Platform Offering that is generated or otherwise collected by the Platform Offering, but excluding Customer Data. 

   25. “Users” means Authorized Users and End Users.

2. Overview. Invincikids’ mission is to develop and provide immersive technology solutions designed to improve pain management for children’s healthcare.

3. The Platform Offering. 

   1. License. Subject to the terms and conditions of this Agreement, the Documentation, and any Scope Limitations, Invincikids hereby grants to Customer, during the term of this Agreement, a limited, personal, worldwide, non-exclusive, non-transferable (except in accordance with Section 15.3), non-sublicensable right, exercisable by and through Users, to: (a) access and use the Dashboard; (b) download and install Content on Customer Devices (but only to the extent Invincikids does not provide Customer with Invincikids Devices as part of the Platform Offering); (c) access and use Content on Devices; and (d) reproduce, without modification, and internally use a reasonable number of copies of the Documentation; in each case, solely in connection with the Customer’s use of the Platform Offerings in accordance with the Purpose. The foregoing rights set forth in (a) and (b) above are only exercisable by and through Authorized Users and not End Users. In no event will Customer be provided the source code to any Content. 

   2. Access Program. If you would like to participate in the Access Program, you must submit an application through the Invincikids website (available at https://www.ikconsortium.org/accessprogramsignup). Invincikids may, in its sole discretion approve or reject your application to the Access Program. If approved, you may access additional Content and Invincikids Devices.

   3. Invincikids Devices. Partners may order Invincikids Devices via an Order Form. Invincikids Devices are subject to estimated availability, but please note that availability of Invincikids Devices cannot be guaranteed. We reserve the right to impose quantity limits on Invincikids Devices to be provided to you. Any Invincikids Devices provided to you by us as part of the Platform Offering are leased and not sold to you and nothing in this Agreement will be deemed to give you any right or option to purchase such Invincikids Devices. We will at all times retain title to all Invincikids Devices that are provided to you by us as part of the Platform Offering, and risk of loss in the Invincikids Devices will transfer to you upon placement with a common carrier for shipment. During any period of time that Invincikids Devices are within your possession, control, or care, you will be solely responsible for any loss of, or damage to, such Invincikids Devices (except for ordinary wear and tear), and you will compensate us for the same (not to exceed the full replacement cost of such Invincikids Devices). You are solely responsible for storing, maintaining, and using the Invincikids Devices in accordance with the Documentation and will implement procedures and processes to prevent damage, theft, or loss of the Invincikids Devices. You agree to pay any shipping and handling charges with respect to shipments of Invincikids Devices to your designated location, as well as any insurance coverage obtained by Invincikids in connection therewith.         

   4. Users. Only Users may access or use the Platform Offering and each Authorized User must register an Account. By agreeing to this Agreement, you represent and warrant to us that: (a) you have not previously been suspended or removed from accessing or using the Platform Offering; and (b) your registration and your use of the Platform Offering is in compliance with Laws. When registering for an Account, Customer and its Authorized Users will be required to provide Invincikids with certain registration information (including, the Customer’s full corporate name, email address, and other contact information). Customer acknowledges and agrees, on behalf of itself and its Authorized Users, that the information provided to Invincikids is accurate, complete, and not misleading, and that Customer will keep, and will require that its Authorized Users keep, such information accurate and up to date at all times. Each Account is personal to that Authorized User and may not be transferred, sold, or otherwise assigned to or shared with any other third party.  Each Authorized User must keep its login credentials for its Account confidential and not share them with anyone else. Customer is responsible and liable for its Authorized Users’ compliance with this Agreement and any acts or omissions associated with their Accounts as if such act or omission was that of Customer. Customer will immediately notify Invincikids at team@invincikids.org if it becomes aware of, or has a reasonable basis to believe that, any of its Authorized Users’ login credentials or their Accounts have been compromised or are no longer secure. Invincikids collects and uses Account information as described in its Privacy Policy.

   5. Restrictions. Except as otherwise expressly permitted herein, Customer and its Users will not (and will not permit anyone else to) do any of the following: (a) distribute, rent, lease, sell, sublicense, or otherwise permit third parties to access or use the Platform Offering; (b) use the Platform Offering on behalf of, or to provide any product or service to, third parties (e.g., as a service bureau); (c) use the Platform Offering to develop a similar or competing product or service; (d) reverse engineer, decompile, disassemble, or seek to access the source code of any part of the Platform Offering or Invincikids Technology (except to the extent expressly permitted by Law, in which case Customer must provide Invincikids with at least seven (7) days’ prior written notice before exercising its right under Law); (e) modify, alter, or create derivative works of the Platform Offering or copy any element of the Platform Offering; (f) remove, alter, or obscure any proprietary notices displayed or otherwise contained on the Platform Offering; (g) perform or conduct any benchmarking or similar activities (including publishing benchmarks or performance information about the Platform Offering); (h) circumvent, disable, or otherwise interfere with the operation, security, or other technical features or measures of the Platform Offering or of the Invincikids Technology (including any access or usage restrictions); (i) conduct any security or vulnerability testing of the Platform Offering; or (j) transmit or upload any viruses, Trojan Horses, backdoors, malware, or any other forms of harmful or malicious materials to or through the Platform Offering.

   6. Prohibited Uses. Customer acknowledges and agrees that it will not use the Platform Offering with Prohibited Data or for High Risk Activities. In no event will Invincikids have any liability to Customer or to any third party for Prohibited Data or use of the Platform Offering in connection with High Risk Activities. Customer will use, and will require that each of its Users use, its best efforts to prevent any unauthorized access to or use of the Platform Offering and will immediately notify Invincikids at team@invincikids.org if it becomes aware of, or has a reasonable basis to believe that, any unauthorized access to or use of the Platform Offering has occurred. If there is any unauthorized access or use by any third party who obtained access to the Platform Offering directly or indirectly through Customer or its Authorized Users (including through their Accounts), Customer will take, and will cause its Authorized Users to take, all steps necessary to terminate the unauthorized access or use by such third party. Customer and its Authorized Users will provide all cooperation and assistance requested by Invincikids to prevent or terminate unauthorized access to or use of the Platform Offering.

   7. Modifications to the Platform Offering or Access Program. Invincikids reserves the right to modify or discontinue all or any part of the Platform Offering or Access Program at any time (including by limiting or discontinuing certain features or functionality of the Platform Offerings or Access Program), temporarily or permanently, without notifying Customer. Invincikids will have no liability for any change or modification to the Platform Offering or Access Program or any suspension or termination of access to or use of the Platform Offering or Access Program as a result thereof. 

   8. Operation of Devices. You acknowledge and agree that: (a) the Devices are only intended to interoperate and to be used in connection with the Platform Offering; (b) certain features and functionalities relating to the Devices and the other components of the Platform Offering may only be accessible if they maintain a stable connection to the Internet; (c) you are solely responsible for obtaining, maintaining, storing, safeguarding, and operating the Customer Devices and ensuring they are compatible with the Platform Offering; and (d) you will not remove, relocate, transfer, or otherwise move the Invincikids Devices from the location(s), facility(ies), office(s), or premises in which you are authorized to use them. Invincikids is not responsible or liable to you or your Users for the improper functioning of Devices or interruptions to your access to such features and functionality, in each case, that are due to a failure of your or your Users’ Internet connectivity or that otherwise arise from systems, networks, information technology, or other infrastructure used by you or your Users in connection with the Platform Offering.

   9. Scope Limitations. We reserve the right, in our sole discretion, to impose Scope Limitations on your use of the Platform Offering. We will notify you of Scope Limitations prior to your use of the component of the Platform Offering to which such Scope Limitations apply (including through an Order Form). To the extent you would like to request a modification, amendment, or other change to the Scope Limitations, please submit a request to team@invincikids.org and we will accept or reject any such request in our sole discretion. Any modification, amendment, or other change to the Scope Limitations will be set forth in an amended Order Form. 

4. Support. During the term of this Agreement, Invincikids will use reasonable efforts designed to preserve the quality of the Platform Offering and to respond to issues relating to the Platform Offering that are reported to us at team@invincikids.org (except that Customer hereby acknowledges and agrees that Invincikids is under no obligation to respond to or resolve all issues reported to us or to provide any updates, upgrades, or other technical or maintenance support to Customer or any Users with respect to the Platform Offering). 

5. Data.

   1. Customer Data. Customer hereby grants Invincikids a non-exclusive, royalty-free, fully paid-up, worldwide license, during the term of this Agreement, to use and otherwise exploit Customer Data solely for purposes of providing the Platform Offering and as otherwise permitted under this Agreement, including to collect, generate, and derive Usage Data. 

   2. Obligations. Invincikids will implement reasonable technical and organizational measures designed to protect the Platform Offering and Customer Data from unauthorized access, use, or disclosure. Customer is solely responsible for its Customer Data, including its content and accuracy, and for backing up Customer Data. 

   3. Usage Data. Invincikids may collect, generate, and derive Usage Data for Invincikids’ lawful business purposes, including to: (a) use it to monitor, operate, improve, and support the Platform Offering and its performance, security, and stability; (b) create analytics, benchmarking, and performance data and reports; (c) track usage to ensure compliance with Scope Limitations; and (d) develop new products and services. Customer will not interfere with the collection of Usage Data. As between the parties, Invincikids owns all right, title, and interest, including all intellectual property and other proprietary rights in and to, the Usage Data, the know-how and analytical results generated in the processing and use of Usage Data, and any and all new products, services, and developments, modifications, customizations, or improvements to the Platform Offering or Invincikids Technology made based on the Usage Data. Invincikids will not use or disclose Usage Data in any manner that identifies Customer or its Users.

6. Suspension of Platform Offering. Invincikids may immediately suspend access to the Platform Offering if: (a) Invincikids reasonably believes, in its reasonable, good faith discretion, that Customer or any of its Users has used the Platform Offering in an unauthorized manner or that Customer’s use of the Platform Offering exceeds the Scope Limitations; or (b) Invincikids reasonably believes, in its reasonable, good faith discretion, that Customer’s or its Users’ acts or omissions may pose a risk of harm to others or to the security, operation, availability, stability, or integrity of the Platform Offering. Where practicable and at its reasonable, good faith discretion, Invincikids will use reasonable efforts to provide Customer and its Authorized Users with prior notice of the suspension. Invincikids will use reasonable efforts to restore Customer’s and its Users’ access to the Platform Offering in accordance with this Agreement once the basis of such suspension is resolved to Invincikids’ satisfaction.

7. Fees. The Platform Offering is currently provided free of charge by Invincikids. Invincikids reserves the right to determine and to make changes to the pricing for the Platform Offering in its sole discretion on a going-forward basis. Any such changes in pricing will be reflected in the applicable Order Form.

8. Warranties and Disclaimers.

   1. Warranties. Customer represents and warrants to Invincikids that: (a) this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against Customer in accordance with its terms; (b) no authorization or approval from any third party is required in connection with Customer’s execution, delivery, or performance of its obligations under this Agreement; (c) it will comply with all Laws; (d) it has provided all notices to and obtained all necessary and sufficient rights, permissions, capacity, consents, and authority to fully comply with its obligations under this Agreement; and (e) it will not, and will not allow any third party, to directly or indirectly, subject any Invincikids Devices provided to Customer to any mechanic’s lien, encumbrance, or other security interest.

   2. Disclaimers. THE PLATFORM OFFERING IS PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. INVINCIKIDS DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING: (a) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (b) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. INVINCIKIDS DOES NOT WARRANT THAT ACCESS TO OR USE OF THE PLATFORM OFFERING WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND INVINCIKIDS DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY CUSTOMER OR ITS USERS FROM THE PLATFORM OFFERING (INCLUDING ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE PLATFORM OFFERING) OR FROM THE INVINCIKIDs ENTITIES (AS DEFINED BELOW) WILL CREATE ANY WARRANTY REGARDING ANY OF THE INVINCIKIDs ENTITIES OR THE PLATFORM OFFERING. THE INVINCIKIDs ENTITIES ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE PLATFORM OFFERING OR CUSTOMER’S OR ITS USERS’ USE THEREOF. CUSTOMER UNDERSTANDS AND AGREES THAT CUSTOMER’S AND ITS USERS’ USE OF ANY PORTION OF THE PLATFORM OFFERING IS AT ITS AND THEIR OWN DISCRETION AND RISK, AND THAT THE INVINCIKIDs ENTITIES ARE NOT RESPONSIBLE FOR ANY DAMAGE TO CUSTOMER’S OR ITS USERS’ REAL OR PERSONAL PROPERTY (INCLUDING ANY COMPUTER SYSTEM OR DEVICES USED IN CONNECTION WITH THE PLATFORM OFFERING), ANY BODILY INJURY (INCLUDING DEATH), OR ANY LOSS OF DATA, INCLUDING CUSTOMER DATA. THE LIMITATIONS, EXCLUSIONS, AND DISCLAIMERS IN THIS SECTION 8 (WARRANTIES AND DISCLAIMERS) APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. IT IS CUSTOMER’S SOLE RESPONSIBILITY TO ENSURE THAT ANY USER IS IN THE PROPER CONDITION (PHYSICAL, MENTAL, OR OTHERWISE) TO USE THE PLATFORM OFFERING.  INVINCIKIDS EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED UPON CUSTOMER’S AND ANY USER’S ACCESS TO OR USE OF THE PLATFORM OFFERING, INCLUDING ANY RESULTS THEREOF. Invincikids does not disclaim any warranty or other right that Invincikids is prohibited from disclaiming under Law.

9. Term and Termination.

   1. Term. This Agreement commences on the Effective Date and will continue in full force and effect, unless earlier terminated. The subscription terms for the Platform Offerings and Invincikids Devices are set forth in the applicable Order Form.

   2. Termination. Either party may terminate this Agreement or an Order Form, effective on written notice to the other party, if the other party materially breaches this Agreement or an Order Form, and such breach (a) is incapable of cure, or (b) being capable of cure, remains uncured thirty (30) days after the non-breaching party provides the breaching party with written notice of such breach. Either party may terminate this Agreement upon thirty (30) days’ prior written notice to the other party.    

   3. Effect of Termination. Upon expiration or termination of this Agreement: (A) Customer’s access to the Platform Offering will cease, (B) all Order Forms then in effect will terminate unless otherwise mutually agreed upon by the parties in writing, and (C) Customer will return to Invincikids any Invincikids Devices provided to Customer (reasonable wear and tear excepted). At the disclosing party’s request or upon termination of this Agreement, the receiving party will return or delete (at the disclosing party’s option) all of the disclosing party’s Confidential Information in the receiving party’s possession or control. Except for Content, copies of Confidential Information (including Customer Data) may be retained in the receiving party’s standard electronic backups after deletion but will remain subject to this Agreement’s confidentiality restrictions and such backups copies may only be used for the sole purpose of ensuring compliance with this Agreement. The receiving party shall not acquire any express or implied rights of ownership in or control of the disclosing party’s Confidential Information other than the limited right to retain an electronic copy pursuant to this Section.

   4. Survival. All causes of action, and the following Sections will survive any expiration or termination of this Agreement: 1 (Definitions), 3.3 (Users), 3.4 (Restrictions), 3.5 (Prohibited Uses), 3.7 (Operation of Devices), 5.1 (Permitted Use), 5.3 (Usage Data), 7 (Fees), 8 (Warranties and Disclaimers), 9.3 (Effect of Termination), 9.4 (Survival), 10 (Intellectual Property), 11 (Limitations of Liability), 12 (Indemnification), 13 (Confidentiality), 14 (Publicity), and 15 (General Terms). Except where an exclusive remedy is provided, exercising a remedy under this Agreement, including termination, does not limit other remedies a party may have, including those available at law or in equity.

10. Intellectual Property. 

    1. Reservation of Rights. The visual interfaces, graphics, design, compilation, information, data, computer code, Content, and other elements of the Platform Offering are protected by intellectual property and other laws and are the property of InvinciKids or its third-party licensors.  Neither party grants the other any rights or licenses not expressly set forth in this Agreement. Except for Invincikids’ right to use Customer Data as set forth in this Agreement, as between the parties, Customer retains all intellectual property and other proprietary rights in Customer Data and Customer Devices. Except for Customer’s right to use the Platform Offering as set forth in this Agreement, Invincikids, its licensors, and its suppliers retain all intellectual property and other proprietary rights in the Platform Offering and Invincikids Technology, including any modifications, enhancements, or improvements to any of the foregoing. 

    2. Feedback; Reports. If Customer or any of its Users provides Invincikids with feedback, input, or suggestions relating to the Platform Offering or any other Invincikids products or services (“Feedback”), Customer hereby grants Invincikids an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right and license to exploit the Feedback in any manner and for any purpose, including to improve the Platform Offering and create other products and services. Invincikids will have no obligation to provide Customer or its Authorized Users with attribution for any Feedback provided to Invincikids. From time to time, Invincikids may contact Customer or its Authorized Users to participate in satisfaction surveys and to obtain testimonials, success stories, and other feedback regarding their and End Users’ use of the Platform Offering, and any data or information provided by Customer and/or its Authorized Users in connection therewith is deemed to be Feedback. No more than once per fiscal quarter, Invincikids may request, and Customer will promptly provide, a reasonably detailed summary regarding its and its Users’ use of the Platform Offering, which will include, at a minimum: (a) a list of all  location(s), facility(ies), office(s), or premises where Devices are being used; (b) the number of End Users who have used the Platform Offering during the reporting period and any Feedback provided to Customer by them; and (c) aggregated, de-identified demographic information regarding such End Users. 

11. Limitations of Liability.

    1. Consequential Damages Waiver. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE INVINCIKIDS ENTITIES BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO THIS AGREEMENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY INVINCIKIDS ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE. 

    2. Liability Cap. TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE INVINCIKIDS ENTITIES TO CUSTOMER FOR ALL CLAIMS BETWEEN THE PARTIES ARISING OUT OF OR RELATING TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO $100.00 (USD).

    3. Nature of Claims and Failure of Essential Purpose. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THIS AGREEMENT. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 11 (LIMITATIONS OF LIABILITY) WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

12. Indemnification.

    1. Indemnification by Customer. Customer will indemnify, defend and hold harmless Invincikids, its Affiliates, and their respective directors, officers, employers, agents, successors, assigns, licensors, and suppliers (collectively “Invincikid Entities”) from and against any and all claims, demands, or actions made by a third party (including Users) (“Claims”), and all liabilities, settlements, costs, damages and fees (including reasonable attorneys’ fees and costs) incurred or suffered by the Invincikid Entities from Claims arising from or in connection with: (a) Customer’s or its Authorized Users’ breach or non-fulfillment of any representation, warranty, or covenant in this Agreement, violation of any Law, or any act or omission constituting fraud, gross negligence, or willful misconduct; (b) any use of the Platform Offering or Devices by Users; (c) Customer Data; (d) any dispute with an End User; or (e) any bodily injury (including death) or damage to real or personal property suffered by a third party (including Users) in connection with Customer’s or its Users’ access to or use of the Platform Offering or Devices. The applicable Invincikid Entity will provide Customer with: (1) reasonable written notice of the Claim; (2) the exclusive right to control and direct the investigation, defense and settlement of the Claim (provided that no settlement admitting liability on the part of the Invincikid Entities may be made without the express written consent of the applicable Invincikid Entity); and (3) reasonable assistance and cooperation at Customer’s sole cost and expense. Invincikids may participate in a Claim with its own counsel at its own expense. Customer will indemnify the Invincikid Entities from and pay (i) all damages, costs, and attorneys’ fees finally awarded against the Invincikid Entities with respect to any Claim; (ii) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by the Invincikid Entities in connection with the defense of a Claim (other than attorneys’ fees and costs incurred after Customer has accepted defense of the Claim); and; (iii) all amounts that Customer agrees to pay to any third party to settle any Claim.

13. Confidentiality. 

    1. Definition. “Confidential Information” means information disclosed to the receiving party under this Agreement that is designated by the disclosing party as proprietary or confidential or that should be reasonably understood to be proprietary or confidential due to its nature and the circumstances of its disclosure. Invincikids’ Confidential Information includes the terms and conditions of this Agreement, the Documentation, Platform Offering, Invincikids Technology, Feedback, and Usage Data. 

    2. Obligations. As the receiving party, each party will (a) hold Confidential Information in confidence and not disclose it to third parties except as permitted in this Agreement and (b) only use Confidential Information to fulfill its obligations and exercise its rights in this Agreement. The receiving party may disclose Confidential Information to its employees, agents, (sub)contractors and other representatives (“Representatives”) having a legitimate need to know such Confidential Information in order to perform or evaluate the receiving party’s obligations under this Agreement; provided that (a) the receiving party will remain liable for the acts and omissions of such Representatives with respect to the Confidential Information of the disclosing party, and (b) such Representatives are bound by written confidentiality obligations or professional obligations prohibiting the unauthorized disclosure or use of Confidential Information that are at least as protective as the terms of this Section 13.

    3. Exclusions. The confidentiality obligations set forth in this Section 13 (Confidentiality) do not apply to information that the receiving party can document: (a) is or becomes public knowledge through no fault of the receiving party; (b) it rightfully knew or possessed prior to receipt from the disclosing party under this Agreement without an obligation to maintain its confidentiality; (c) it rightfully received from a third party without an obligation to keep such information confidential; or (d) it independently developed without using or referencing the disclosing party’s Confidential Information. 

    4. Remedies. The receiving party agrees that any breach or threatened breach of this Section 13 (Confidentiality) may cause substantial, irreparable harm to the disclosing party for which damages would be an inadequate remedy and, as such, the disclosing party may seek equitable relief, in addition to other remedies available at law or in equity, for any breach or threatened breach of this Section 13 (Confidentiality) without the necessity of posting bond or proving actual damages.

    5. Required Disclosures. Nothing in this Agreement prohibits the receiving party from making disclosures of the disclosing party’s Confidential Information, including disclosures of Customer Data, if required by Law, subpoena or court order; provided (if permitted by Law) the receiving party notifies the disclosing party in writing prior to any such disclosure, provides the disclosing party with an opportunity to obtain, and reasonably cooperates in any effort by the disclosing party to obtain, a protective order or confidential treatment of the Confidential Information to be disclosed.

14. Publicity. Neither party may make any public announcement relating to this Agreement except with the other party’s prior written consent or as required by Laws. Notwithstanding the foregoing, Invincikids may reference Customer’s name and include Customer’s trademarks, logos, and other branding elements (“Marketing Materials”) in Invincikids’ customer lists, promotional materials, in connection with its marketing, advertising, promotional, or sales practices or activities, and to identify Customer as the source of Feedback; provided that Customer may require that Invincikids cease further use of Marketing Materials upon written notice to Invincikids (except that Invincikids will not be obligated to cease its use of any tangible materials containing, embodying, or including Marketing Materials that are in existence at the time of Invincikids’s receipt of such notice from Customer). 

15. General Terms.

    1. Export Control. Customer will, and will ensure that its Users, comply with all Laws relating to the export of licensed software, including the Export Administration Regulations (15 CFR 730-774), the International Traffic in Arms Regulations (22 CFR 120-130), the various economic sanctions regulations administered by the US Department of the Treasury (31 CFR 500-600), and any laws or regulations that may prohibit or require a license for the export or retransfer of certain software in source code or binary code to specified countries, entities, and persons.  Customer will be solely responsible and liable for its and its Users’ compliance with such Laws and for determining the applicability of any such Laws to its activities contemplated under this Agreement.  Customer: (a) represents and warrants that it is not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country; and (b) agrees not to access or use the Platform Offering in violation of any U.S. export embargo, prohibition or restriction.

    2. Government Users. Elements of the Platform Offering are commercial computer software. If Customer or any of its Users is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Platform Offering or any related documentation of any kind, including technical data and manuals, is restricted by the terms of this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. All other use is prohibited.

    3. Assignment. Neither party may assign this Agreement, in whole or in part, without the prior written consent of the other party, except that Invincikids may assign this Agreement without Customer’s consent in connection with a merger, reorganization, acquisition or other transfer of all or substantially all its assets or voting securities. Any attempted assignment in violation of this Section 15.3 will be null and void and of no effect. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns.

    4. Governing Law, Jurisdiction and Venue. This Agreement is governed by the laws of the State of California without regard to conflicts of laws provisions and without regard to the United Nations Convention on the International Sale of Goods. Any dispute between the parties that is not resolved through negotiation will be resolved exclusively by final and binding arbitration conducted in accordance with the then-current Comprehensive Arbitration Rules and Procedures of the Judicial Arbitration and Mediation Services (“JAMS”). The arbitration will be conducted by a single arbitrator selected by agreement of the parties or, if the parties cannot agree, an arbitrator appointed in accordance with the JAMS rules.  The parties, their representatives, the arbitrator, and other participants shall keep confidential the existence, content, and result of the arbitration. The arbitration will be conducted in the English language; the location of such arbitration shall be in Palo Alto, California. Each party will bear its own costs in the arbitration. The arbitrator will have full power and authority to determine issues of arbitrability and to interpret or construe the provisions of the agreement documents and to fashion appropriate remedies (including temporary, preliminary, interim, or permanent injunctive relief); provided that the arbitrator will not have any right or authority: (a) in excess of the authority that a court having jurisdiction over the parties and the dispute would have absent this arbitration agreement; or (b) to award damages in excess of the types and limitation of damages found in the Agreement. Judgment upon the award may be entered in any court of competent jurisdiction. Notwithstanding the agreement to arbitrate, each Party may apply at any time to a court of competent jurisdiction for appropriate injunctive relief or for other interim or conservatory measures, and by doing so will not breach or waive the agreement to arbitrate or impair the powers of the arbitrator. 

    5. Notices. By using the Platform Offering, Customer consents to receiving certain electronic communications from Invincikids as further described in the Privacy Policy. Please read the Privacy Policy to learn more about our electronic communications practices. Customer hereby agrees that any notices, agreements, disclosures, or other communications that Invincikids may send to Customer electronically will satisfy any legal communication requirements, including that those communications be in writing. Any notice to, or consent required of, Invincikids under this Agreement must be in writing and will be deemed given: (a) upon receipt if by personal delivery, (b) upon receipt if by certified or registered U.S. mail (return receipt requested), or (c) one day after dispatch if by a commercial overnight delivery service. Notices to Invincikids must be provided to Chariot Kids, Inc. d/b/a Invincikids, P.O. Box 594. Menlo Park, CA 94026 or to such other address as Invincikids may specify in writing.  

    6. Communications. Customer hereby agrees that Invincikids and those acting on Invincikids’ behalf may send Customer and its Authorized Users text (SMS) messages at the phone number(s) provided to Invincikids. These messages may include operational messages about Customer’s or its Authorized Users’ use of the Platform Offering, as well as marketing messages. Text messages may be sent using an automatic telephone dialing system. Standard data and message rates may apply whenever you send or receive such messages, as specified by your carrier. IF YOU WISH TO OPT OUT OF MARKETING TEXT MESSAGES FROM INVINCIKIDS, YOU CAN EMAIL team@invincikids.org OR REPLY TO ANY SMS MESSAGE FROM INVINCIKIDS WITH “STOP” OR TEXT THE WORD “STOP” TO THE NUMBER FROM WHICH YOU ARE RECEIVING THE MESSAGES. IF YOU WISH TO OPT OUT OF ALL TEXT MESSAGES FROM INVINCIKIDS, YOU CAN EMAIL team@invincikids.org OR TEXT THE WORD “STOPALL” TO THE NUMBER FROM WHICH YOU ARE RECEIVING THE MESSAGES. HOWEVER, YOU ACKNOWLEDGE THAT OPTING OUT OF RECEIVING ALL MESSAGES MAY IMPACT YOUR USE OF THE PLATFORM OFFERING. You may continue to receive text messages for a short period while we process your request, including messages confirming the receipt of your opt-out request. Your agreement to receive marketing texts is not a condition of any use of the Platform Offering. We may send you emails concerning our products and services, as well as those of third parties. You may opt out of promotional emails by following the unsubscribe instructions in the promotional email itself. 

    7. Entire Agreement. This Agreement is the parties’ entire agreement regarding its subject matter and supersedes any prior or contemporaneous agreements regarding its subject matter. In this Agreement, headings are for convenience only and “including” and similar terms are to be construed without limitation. This Agreement may be executed in counterparts (including electronic copies and PDFs), each of which is deemed an original and which together form one and the same agreement. InvinciKids will not be bound by, and specifically objects to, any term, condition, or other provision that is different from or in addition to this Agreement (whether or not it would materially alter this Agreement) that is offered, submitted, or otherwise provided by Customer in any receipt, acceptance, confirmation, correspondence, or otherwise, unless InvinciKids specifically agrees to such provision in writing and signed by an authorized agent of InvinciKids.

    8. Waivers and Severability. Waivers must be signed by the waiving party’s authorized representative and cannot be implied from conduct. If any provision of this Agreement is held invalid, illegal, or unenforceable, it will be limited to the minimum extent necessary so the rest of this Agreement remains in effect. The failure to require performance of any provision will not affect Invincikids’ right to require performance at any other time after that, nor will a waiver by Invincikids of any breach of any provision of this Agreement be a waiver of any subsequent breach or a waiver of the provision itself.

    9. Force Majeure. Invincikids is not liable for any delay or failure to perform any of its obligation under this Agreement due to events beyond its reasonable control, including: (a) acts of God; (b) flood, fire, earthquake, other potential disaster(s) or catastrophe(s), such as epidemics, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or actions; (e) embargoes or blockades; (f) national or regional emergency; (g) strikes, labor stoppages or slowdowns, or other industrial disturbances; (h) inability to obtain sufficient supplies, transportation, services, materials, technology, or other essential commodity or service required in the conduct of its business; and (i) any material change in or the adoption of any applicable law, regulation, judgment or decree that prevents, or alters Invincikids’ ability to perform its obligation under this Agreement (each a “Force Majeure Event”).

    10. Subcontractors. Invincikids may use subcontractors and permit them to exercise Invincikids’ rights and to perform Invincikids’ obligations on behalf of Invincikids, but Invincikids remains responsible for their compliance with this Agreement.

    11. Independent Contractors. The parties are independent contractors, not agents, partners, or joint venturers.

    12. Third Party Components. The Platform Offering may include or incorporate third-party software components that are generally available free of charge under licenses granting recipients broad rights to copy, modify, and distribute those components (“Third-Party Components”). Although the Platform Offering is provided to you subject to this Agreement, nothing in this Agreement prevents, restricts, or is intended to prevent or restrict you from obtaining Third-Party Components under the applicable third-party licenses or to limit your use of Third-Party Components under those third-party licenses.