SOFTWARE & HARDWARE SUBSCRIPTION AGREEMENT

This Subscription Agreement (“SA”) by and between Unruly Studios, Inc. (“Unruly”) and the customer identified on a signed Order Form (“Customer”) governs the provision of any Subscriptions, Services, and other materials for the term of the subscription (the “Term”). This SA and the Order Form are collectively referred to as the “Agreement.”  This Agreement will be effective on the date of Customer’s signature on the Order Form (the “Effective Date”).

1. DEFINITIONS.

1.1 “Unruly Technology” means Unruly s proprietary software, hardware, technology, frameworks, platforms, methodologies, facilitation guides, questionnaires, techniques, general purpose consulting and related know-how, logic, coherence and methods of operation of systems, user interfaces, screen designs, presentation materials, and best-practices documentation, including any enhancements, modifications or derivatives thereof, which are provided to Customer. Subscriptions, maintenance, and Services each individually and collectively include elements of Unruly Studios, Inc. Technology.

1.2 “Customer Data and Content” means all data, information and materials provided by Customer for use with the Unruly Studios, Inc. Technology.

1.3 “Dashboard” one or more student, educator, marketing dashboard(s) within the Subscription designed by Unruly and made available to the Customer.

1.4 “Order Form” means one or more Unruly Studios, Inc. order forms specifying the Subscriptions and Services to be provided to Customer by Unruly.

2. WHAT IS INCLUDED IN THE SUBSCRIPTION

2.1 Splats And Other Hardware. During the Term of the Subscription, Unruly will provide the number of Spats and other Hardware designated on the Order to the Customer for the Customer’s use.

2.2 Code Development Application. During the Term of the Subscription, Unruly will allow the Customer to download the Code Development application onto an unlimited number of tablet devises and use the application to create programs to activate Spats and other Unruly Hardware.

2.3. Lesson Plans. During the Term of the Subscription, Unruly will allow the Customer to download all available on-line lesson plans developed by Unruly for use by the Customer’s organization.

2.4 Training Materials. During the Term of the Subscription, Unruly will provide the Customer access to all on-line training videos, instruction manuals, and other material for use by the Customer’s organization.

2.5 Webinars. During the Term of the Subscription, Unruly will notify the Customer of any training webinars and allow an unlimited number of Customer’s staff to attend on-line.

2.6 Personalized Training. Unruly will annually provide a one half hour personalized on-line training course for designated members of the Customer’s organization.

2.7 Cost of Shipping.  During the Term of the Subscription, Unruly will pay all shipping and handling costs for Splats and other items provided to the Customer.

2.8 Support.  During the Term of the Subscription, Unruly will provide webinars, remote text, email and phone support to the Customer’s administrators.  Such support consists solely of assistance with classroom support, usage questions or troubleshooting bugs related to the software supplied by Unruly. Support hours are from 7:00 a.m. to 7:00 p.m. U.S. Eastern Time, Monday through Friday, (except U.S. federal holidays). Times of support are subject to change.

2.9 Replacement Splats.  The Customer will notify Unruly in the event that a Splat or other Unruly product is defective. Unruly will use commercially reasonable efforts to promptly repair or replace the non-conforming Subscription and hardware without charge within 7 business days. Unruly may direct that the Customer return the defective Splat to Unruly’s offices at Unruly’s expense. 

2.10 Dashboard. During the Term of the Subscription, Unruly will make available to the Customer an -online dashboard that will provide statistics on usage of their hardware and software.

3. FEES AND PAYMENT TERMS.

3.1 Initial Payments.  Unruly Studios, Inc. will invoice Customer for all Subscription fees and all other charges immediately at the time of order.  All fees specified in an Order Form are in U.S. Dollars and payments must be submitted in U.S. Dollars.  

3.2 Subscription Renewals. Renewal fees for any follow-on Renewal Term may be increased or decreased by Unruly Studios, Inc. Subscriber will be informed of any increases or decreases not less than 45 days before the end of the Term.  The Subscription will automatically renew unless cancelled in writing by the Customer not less than 30 days before the end of the Term. Subscription renewals will be automatically charged if the customer has a payment method on file. If no payment method is on file, Unruly will invoice Customer 30 days before the end of the Term.

3.2 Payment Due Date.  Payment is due at time of order, unless otherwise provided in the applicable Order Form or Statement of Work, payment from Customer is due within thirty (30) days from the date of invoice.  

3.3 Taxes.  Posted Subscription and other prices do not include applicable sales and VAT taxes.  Customer will be charged applicable sales and VAT taxes or fees unless Customer furnishes Unruly with a valid tax exemption certificate.

4. CUSTOMER OBLIGATIONS.

4.1 Customer Control.  Customer will be solely responsible for administering and monitoring the use of login IDs and passwords provided by Authorized Administrators within the Subscription. Unruly is not responsible for any damages resulting from Customer’s failure to manage the confidentiality of its login ID and passwords and Customer is responsible for any actions arising out of use or misuse of Customer’s login IDs.

4.2 Prohibited Uses and Customer Restrictions.  Customer must not modify, rent, sublease, sublicense, assign, copy, lend, adapt, translate, sell, distribute, derive works from, decompile, disassemble or reverse engineer any Unruly software or hardware product provided under this Agreement, except as explicitly permitted hereunder.  The Subscription and Services must be used solely by Customer, and not (by implication or otherwise) other division, subsidiary or affiliate of Customer.  Customer must not permit a competitor of Unruly Studios, Inc. to access the Unruly Technology, except with Unruly’s prior written consent.  Customer must not:  (a) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs in, to or from the Unruly Technology; (b) interfere with or disrupt the integrity or performance of the Unruly Technology, or the data contained therein; (c) use the Unruly Technology in a manner inconsistent with its applicable documentation; or (d) attempt to gain unauthorized access to the Unruly Technology or related systems or networks.

4.3 Acceptable Use Policy.  Customer’s use of the Subscription will comply with Unruly Acceptable Use Policy (“AUP”) available at http://www.UnrulyStudios.com. The AUP may be modified from time to time to incorporate new legal or security requirements, or requirements established by third parties who interact with the Subscription.

4.4 Return of Unruly Materials. At the end of the subscription term, Customer agrees to package and return to Unruly all Splats and other Unruly Technology within 14 days. Unruly will pay all shipping costs.

5. OWNERSHIP, RIGHTS & CONFIDENTIAL INFORMATION.

5.1 Customer Ownership and License.  Customer has sole responsibility for the accuracy, quality and right to use of all its Customer Data and Content.  Customer grants to Unruly and its suppliers a non-exclusive, fully paid-up license to use, reproduce, store, modify and publicly display Customer Data and Content, to the extent necessary for Unruly and its suppliers to perform their obligations under this Agreement.

5.2 Results. Customer acknowledges and agrees that Unruly may (a) anonymize and aggregate benchmarking results of Customer use of the Unruly Technology with results of other customers’ use (collectively “Results”); and (b) use and disclose the Results for any purpose provided that the Results do not individually identify Customer and/or Customer Data.

6. INDEMNIFICATION.

6.2 Customer Indemnification.  Customer will indemnify, defend and hold harmless Unruly from and against any claim brought against Unruly arising out of a breach or an alleged breach by Customer of the provisions of the AUP.

6.3 Mutual Indemnification. Each Party will indemnify and defend the other Party against any third party claims arising from the indemnifying Party’s gross negligence or willful misconduct.

6.4 General Indemnification Terms.  In case of any indemnified claim under this Section 6, the indemnified party will (a) give written notice to the indemnified party within thirty (30) days of becoming aware of an indemnified claim; (b) provide control of the defense of the claim to the indemnifying party, including the right to settle; provided however, that the indemnifying party will not settle any such suit or claim without the indemnified party’s prior written consent, which will not be unreasonably withheld or delayed; and (c) provide reasonable cooperation in the defense thereof.

6.5 Indemnification and Liability.  Customer shall indemnify, defend and hold harmless Unruly Studios, Inc. and the Customer acknowledges that there are hazards associated with the physical activity equipment provided, including, but not limited to physical or permanent bodily injury, death, or damage to property. The Customer shall take precautions to make the play area safe and assume all responsibility for injuries to persons or damages to property, and shall release and hold Unruly Studios, Inc. harmless from any and all claims arising out of the Customer’s use or the Customer’s permission to use the product, express or implied. 

7. WARRANTY.

7.1 Limited Subscription Warranty.  Unruly warrants that the Technology provided in this Subscription will perform in all material respects with the functions described in the then-current product documentation included in the Subscription for the Term of the subscription.  This warranty does not apply if the Subscription is not administered by Customer in accordance with this Agreement and accompanying AUP, or any applicable instructions and training provided by Unruly.  If the Subscription fails to operate as warranted in this Section 7.1 and Customer notifies Unruly in writing of the nature of the non-conformance (“Notice”), Unruly will use commercially reasonable efforts to promptly repair or replace the non-conforming Subscription and hardware without charge.  If, after a reasonable opportunity to cure, Unruly Studios, Inc. does not remedy the non-conformance, Customer may no later than sixty (60) days after giving the Notice, terminate the Subscription portion of the Order Form and receive a pro rata refund of the Subscription fees for the remaining period of the Subscription.  The foregoing provides Customer’s sole remedy for breach of the warranty.

7.2 Services Warranty.  Unruly warrants that all Services performed hereunder will be performed in a professional manner.

7.4 Disclaimer of Warranties.  EXCEPT AS PROVIDED IN THIS AGREEMENT, UNRULY MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.  Unruly does not warrant that the Subscription or the data stored through the use of the Subscription are not susceptible to intrusion, attack or computer virus infection.

8. LIMITATON OF LIABILITY.

8.1 Liability Cap.  IN NO EVENT WILL UNRULY BE LIABLE UNDER ANY THEORY OF LIABILITY, FOR DAMAGES WHICH, IN THE AGGREGATE, EXCEED THE AMOUNT OF THE FEES PAID BY CUSTOMER FOR THE SUBSCRIPTION AND SERVICES GIVING RISE TO SUCH DAMAGES IN THE ONE (1) YEAR PERIOD PRIOR TO THE CLAIM.

8.2 Disclaimer of Damages.  IN NO EVENT WILL UNRULY BE LIABLE, FOR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, BUSINESS INTERRUPTION OR LOST PROFITS EVEN IF NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGE, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.

10. GENERAL.

10.1 Entire Agreement.  This Agreement constitutes the entire agreement between the parties relating to the subject matter.  

10.2 Compliance with Laws. Unruly agrees to comply with all laws applicable to Unruly in the provision of Subscriptions and Services hereunder.  Customer agrees to comply with all laws applicable to Customer in its receipt and use of Subscriptions and Services hereunder.

10.3 Notices.  Notices under this Agreement will be in writing, signed and provided to the contact and address indicated in the Order Form, provided that a party may change such contact or address by written notice to the other party.  All notices under this Agreement will be in writing and sent by (a) personal delivery, including confirmed scan delivered by email; (b) overnight courier; or (c) first class mail, certified or registered, return receipt requested.  Notices to Unruly Studios, Inc. will be addressed to the attention of:  Chief Executive Officer.

10.4 Publicity. Unruly Studios, Inc. may identify Customer as a customer of Unruly. Unruly may prepare and issue a press release announcing the relationship formed by the Agreement, which will be provided to Customer for review and comment prior to release.  Unruly may issue a press release announcing the results obtained by Customer from using the Subscription, subject to the prior approval of Customer, not to be unreasonably withheld or delayed.

10.7 Assignment. Customer may not assign this Agreement or otherwise transfer any rights hereunder whether by operation of law, change of control, or in any other manner, without the prior written consent of Unruly Studios, Inc.. Any assignment or transfer in violation of this Section will be null and void.

10.8 Choice of Law.  This agreement will be governed and interpreted in accordance with the laws of the state of Delaware without regard to the conflicts of law provisions of any state or jurisdiction. Any action will be brought in the state or federal courts located in Delaware.

10.9 Dispute Resolution.  Any dispute between the parties arising out of this Agreement will be mediated in confidential mediation proceedings by a mutually acceptable mediator to be chosen by. within thirty (30) days after written notice by either party demanding mediation.  Unruly and Customer will equally share costs of the mediation.  The use of any of the above-mentioned procedures will not be construed under the doctrines of laches, waiver, or estoppel to affect the rights of either party adversely.  Nothing in this Section will prevent Unruly from collecting fees due under Section 3, nor will it prevent either party from resorting to judicial proceedings, if (a) good faith efforts to resolve the dispute under these procedures have been unsuccessful; (b) the claim or dispute involves intellectual property rights; or (c) interim relief from a court is necessary to prevent serious and irreparable injury to that party or to others.

10.10 Force Majeure.  Except for Customer’s payment obligations, neither party will be liable to the other party for any delay or failure of Unruly Studios, Inc. to perform its obligations hereunder if such delay or failure arises from any cause or causes beyond the reasonable control of such other party.  Such causes include, but are not limited to, acts of God, floods, fires, loss of electricity or other utilities, or delays by Customer in providing required resources or support or performing any other requirements hereunder.

10.11 No Waiver.  No failure or delay in enforcing any right or exercising any remedy will be deemed a waiver of any right or remedy.

10.12 Severability and Reformation. Each provision of this Agreement is a separately enforceable provision.  If any provision of this Agreement is determined to be or becomes unenforceable or illegal, such provision will be reformed to the minimum extent necessary in order for this Agreement to remain in effect in accordance with its terms as modified by such reformation.

The Parties have accepted this Subscription Agreement by the signing of any Order Form(s) referencing it.