This Subscription Agreement (“Agreement”) by and between Unruly Studios, Inc. (“Unruly”) and the customer identified on a signed Order Form (“Customer”) governs the terms of Customer’s subscription to Unruly Services, and other materials for the term of the subscription (the “Term”). This Agreement will be effective on the date of Customer’s signature on the Order Form (the “Effective Date”).
1.1 “App” means any Unruly Studios software application, including, but not limited to, the Unruly Studios Android and/or iPad and/or iPhone and/or web browser software application.
1.2 “Authorized Users” means the end-users (or number and/or location of end-users) of the Services on behalf of whom Customer has entered this Agreement.
1.3 “Customer Data and Content” means all data, information, and materials provided by or on behalf of the Customer for use with the Services.
1.4 “Customer Events” includes training and informational webinars, events, and competitions.
1.5 “Order Form” means one or more Unruly Studios, Inc. order forms specifying the Services to be provided to Customer by Unruly.
1.6 “Services” means the provision of the Splats and other Unruly Technology, as well as access to Lesson Plans, Training Materials, Customer Events, and Training, all as set forth in Section 2. Unruly Services include ongoing upgrading of the product and related technology, communications with teachers and administrators in support of their use of the product, as well as the benefits of related research and development, improvements, and supplements supporting the Unruly offerings, the Website, and/or the App.
1.7 “Splats” or “Unruly Splats” means the programmable floor buttons that light up, make noise, and sense when they’re stomped on. Splats are Unruly hardware and a part of the Unruly Technology.
1.8 “Unruly Technology” means Unruly’s proprietary software, hardware, including the Unruly Splats, Website, the Unruly App, 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, including the Unruly mobile application, which are made available to Customer.
1.9 “Website” means the Unruly website at https://www.unrulysplats.com/ and any related sites and/or subsites (including the Unruly Portal and the Unruly Forum.)
2. THE SERVICES
2.1 Elements of the Services:
2.1.1. Splats. Unruly will provide the Customer with the number of Splats designated on the Order Form.
2.1.2. Unruly Technology. Unruly will allow the Customer to use certain Unruly Technology, which includes use of the Website as well as downloading the Unruly mobile or web application (the “Unruly App”) onto tablet devices in accordance with this Agreement and use the Unruly App to create programs to activate Splats and other Unruly Technology.
2.1.3. Lesson Plans. Unruly will allow the Customer to download all online lesson plans available on the Website.
2.1.4. Training Materials. Unruly will provide the Customer access to all on-line training videos, instruction manuals, and other material available on the Website.
2.1.5. Customer Events. Unruly will notify the Customer of Customer Events offered in support of the Services.
2.1.6. Training. Unruly will annually provide online training with additional support upon request.
2.2 Support. During the Term, Unruly will provide remote text, email, video call, and phone support to the Customer’s Users. Such support consists solely of assistance with classroom support, usage questions, or troubleshooting bugs related to the Unruly Technology supplied by Unruly. Support hours are from 9:00 a.m. to 6:00 p.m. U.S. Eastern Time, Monday through Friday, (except U.S. federal holidays). Times of support are subject to change.
2.3 Replacement Splats. The Customer will notify Unruly in the event that a Splat is defective. Unruly will use commercially reasonable efforts to repair or replace the non-performing Splat without charge within 14 business days of receipt at Unruly headquarters. Unruly will direct the Customer to return the defective Splat to Unruly’s offices, at Unruly’s expense if within the United States.
2.4. Availability of Services. Subject to the need to perform periodic and routine maintenance, Unruly takes reasonable measures to make the Services available 24 hours a day, seven days a week, and to maintain saved information. However, technical failures, acts of God, and routine and unscheduled maintenance may render Services unavailable at times (including during normal business or school hours), and/or may result in the loss of information. Unruly shall not be liable to Customer or anyone else for any loss of information or for the non-availability of the Services unless such loss of information or non-availability of a Service has resulted from Unruly’s gross negligence or willful misconduct.
3. FEES AND PAYMENT TERMS.
3.1 Initial Payments. Unruly will invoice Customer for all Subscription fees and all other charges immediately at the time of order. All amounts due specified in an Order Form are in U.S. Dollars and payments must be submitted in U.S. Dollars within thirty (30) days of invoicing. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Services.
3.2 Subscription Renewals. Renewal fees for any follow-on Renewal Term may be increased or decreased by Unruly. Customer 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 canceled by the Customer not less than 90 days before the end of the Term. Cancellation should be initiated by verbal notification to an Unruly representative, followed by a written confirmation by Customer. Subscription renewal fees will be automatically charged if the Customer has a payment method on file. If no payment method is on file, Unruly will invoice Customer thirty (30) days before the end of the current Term.
3.3 Taxes. Posted Subscription fees and other charges 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 Unruly Studios. Unruly is not liable for any damages arising from Customer’s failure to manage the confidentiality of its login ID and passwords and Customer is responsible for any actions arising out of the use or misuse of Customer’s login IDs.
4.2 Prohibited Uses and Customer Restrictions. Customer will not modify, rent, sublease, sublicense, assign, copy, lend, adapt, translate, sell, distribute, derive works from, decompile, disassemble or reverse engineer any Unruly Technology, except as explicitly permitted hereunder. The Services must be used solely by Customer and its Authorized Users, and not (by implication or otherwise) any other division, subsidiary or affiliate of Customer that was not accounted for under this Agreement. Customer will not permit any third party to access the Unruly Technology or to use the Services, except with Unruly’s prior written consent, which may be withheld for any reason or for no reason. Customer will 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.
4.4 Communications. Customer authorizes Unruly to send electronic mail, phone calls, and SMS text messages to teachers and school administrators (if such Authorized User has opted-in to receiving SMS messages) in support of the Services, including, but not limited to:
If you do not want your teachers and/or school administrators to receive such emails, please notify Unruly at firstname.lastname@example.org.
Either party may terminate this Agreement immediately for default if the other party fails to cure all material defaults in its performance within ten (10) days of its receipt of written notice of its default(s) from the terminating party.
Immediately upon the termination or expiration of any of this Agreement, Customer and its Authorized Users shall immediately cease use of all Service(s).
6. OWNERSHIP, RIGHTS & CONFIDENTIAL INFORMATION.
6.1 Customer Ownership and License. Customer has sole responsibility for the accuracy, quality of its Customer Data and Content and for securing the right to submit and for Unruly to use its Customer Data and Content as a part of the Services under this Agreement. Customer grants to Unruly and its subcontractors 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 subcontractors to deliver the Services and perform their obligations under this Agreement. By making available any Customer Data and Content to Unruly, including on or through the Services, Customer grants to Unruly a nonexclusive license to view, download, reproduce, modify, create derivative works of, distribute and display Customer Data and Content solely for the purposes of (a) providing the Services and (b)product development, research, or other purposes, provided that the foregoing does not individually identify Customer and/or the identity of individual Authorized Users.
6.2 Results. Customer acknowledges and agrees that Unruly may (a) anonymize and aggregate benchmarking results of Customer use of the Services 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 the identity of individual Authorized Users.
7.2 Mutual Indemnification. Each party will indemnify and defend the other party against any third-party claims to the extent arising from the indemnifying party’s gross negligence or willful misconduct.
7.3 General Indemnification Terms. In case of any indemnified claim under this Section 7, the indemnified party will (a) give written notice to the indemnifying party promptly upon becoming aware of a claim for which indemnification may be sought; (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.
8.2 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 NON-INFRINGEMENT. THE CUSTOMER EXPRESSLY AGREES THAT THE USE OF THE SERVICES IS AT ITS SOLE RISK. Unruly does not warrant that the Services or the data stored through the use thereof are not susceptible to intrusion, attack, or computer virus infection.
9. LIMITATION OF LIABILITY.
UNDER NO CIRCUMSTANCES, INCLUDING BUT NOT LIMITED TO BREACH OF CONTRACT, TORT, OR NEGLIGENCE, WILL UNRULY BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS) THAT ARISE OUT OF OR ARE RELATED TO YOUR USE OF THE SERVICES. IN NO EVENT SHALL UNRULY’S AGGREGATE LIABILITY TO CUSTOMER FOR ANY LOSS, DAMAGE, OR CLAIM RELATED TO OR ARISING OUT OF THE SERVICES EXCEED THE GREATER OF: (I) $250.00 OR (II) THE TOTAL AMOUNTS, IF ANY, ACTUALLY PAID BY YOU TO UNRULY DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY.
Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, Unruly’s liability shall be limited to the maximum extent permitted by law.
10.2 Compliance with Laws. Unruly agrees to comply with all laws applicable to Unruly in the provision of Services hereunder. Customer agrees to comply with all laws applicable to Customer in its receipt and use of Services hereunder.
10.3 Notices. 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 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.
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 this Agreement, which will be provided to the Customer for review and comment prior to release. Unruly may issue a press release announcing the results obtained by Customer from using the Services, subject to the prior approval of Customer, not to be unreasonably withheld or delayed.
10.5 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. Any assignment or transfer in violation of this Section will be null and void.
10.6 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.
10.7 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 within thirty (30) days after written notice by either party demanding mediation. Unruly and Customer will equally share costs of the mediation. 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.
10.8 Force Majeure. Except for Customer’s payment obligations, neither party will be liable to the other party for any delay or failure of Unruly 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 Customers in providing required resources or support or performing any other requirements hereunder.
10.9 No Waiver. No failure or delay in enforcing any right or exercising any remedy will be deemed a waiver of any right or remedy.
10.10 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, 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.
Customer’s execution of an Order Form, payment for Services under such Order Form and/or use of Unruly Services shall conclusively demonstrate Customer’s acceptance of the terms of this Subscription Agreement.