MASTER SUBSCRIPTION AGREEMENT

THIS MASTER SUBSCRIPTION AGREEMENT GOVERNS CUSTOMER’S ACQUISITION AND USE OF CLASSROAM K12 BUILDER, CLASSROAM WALL, CLASSROAM EXPLORATORIUM AND ASSOCIATED SERVICES OFFERED BY EDTERRA EDVENTURES PVT. LTD. (HEREAFTER REFERRED TO AS EDTERRA).

CAPITALIZED TERMS HAVE THE DEFINITIONS SET FORTH HEREIN.

IF CUSTOMER REGISTERS FOR A FREE TRIAL OF SERVICES OFFERED BY EDTERRA, THE APPLICABLE PROVISIONS OF THIS AGREEMENT WILL ALSO GOVERN THAT FREE TRIAL OR THOSE FREE SERVICES.

 

BY ACCEPTING THIS AGREEMENT, BY (1) CHECKING A BOX INDICATING AGREE, 

(2) EXECUTING AN ORDER FORM OR PRICE QUOTE THAT REFERENCES THIS AGREEMENT, OR (3) USING FREE SERVICES, CUSTOMER AGREES TO THE TERMS OF THIS AGREEMENT. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY, INSTITUTION, SOCIETY, TRUST OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM “CUSTOMER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.

 

The Services may not be accessed for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.

 

Direct competitors of EdTerra, (including its services, i.e. Classroam K12 Builder, Classroam Wall, Classroam Exploratorium, etc.) are prohibited from accessing the Services, except with prior written consent of EdTerra.

 

This Agreement was last updated on May 12, 2021. It is effective between Customer and EdTerra as of the date of Customer’s accepting this Agreement.

 

• DEFINITIONS

 

“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. 

 

“Control” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

 

“Agreement” means this Master Subscription Agreement.

 

“Beta Services” means EdTerra services or functionality that may be made available to Customer to try at its option at no additional charge which is clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation, or by a similar description. 

 

“Content” means information obtained by EdTerra from publicly available sources or proprietary content created by its own in-house experts or its third party content providers and made available to Customer through the Services, Beta Services or pursuant to an Order Form, Price Quote or Registration Form. 

 

“Customer” means in the case of an individual accepting this Agreement on his or her own behalf, such individual, or in the case of an individual accepting this Agreement on behalf of a company, institution, society, trust or other legal entity, the company or other legal entity for which such individual is accepting this Agreement, and Affiliates of that company or entity (for so long as they remain Affiliates) which have entered into Order Forms, Price Quotes and/or Registration Forms. 

 

“Customer Data” means electronic data and information submitted by or for Customer to the Services, excluding Content and Non- EdTerra Applications.

 

“Free Services” means Services that EdTerra makes available to Customer free of charge. Free Services exclude Services offered as a free trial and Purchased Services.

 

“Generated Content” means the media projects or other demonstrable outcomes of the proprietary tools (i.e. Young Authors Program, Travel Journalists Program, Terra TV, The Blue Bulb Bloggers Inc., TUTS, Poetry Hour, etc.) that EdTerra makes available to its Customer for a charge or free of charge and over which EdTerra holds copyright.

 

“Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.

 

“Marketplace” means an online directory, catalog or marketplace of applications that interoperate with the Services, including, for example, the K12 Builder add-ons catalog at www.k12builder.in, www.classroamwall.com, or www.exploratorium.class-roam.in and any successor websites.

 

“Order Form” means an ordering document or online order specifying the Services to be provided hereunder that is entered into between Customer and EdTerra or any of their Affiliates, including any addenda and supplements thereto. By entering into an Order Form hereunder, Customer or Customer’s Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto.

 

“Price Quote” means an ordering document specifying the fee/price of individual service and/or program or a set of services and/or programs to be provided hereunder that is entered into between EdTerra and Customer or any of their Affiliates, including any addenda and supplements thereto. By entering into a Price Quote, Order Form or Registration Form hereunder, Customer or Customer’s Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto.

 

“Purchased Services” means Services that Customer or Customer’s Affiliate purchases under an Order Form, Price Quote or online purchasing portal, or through physical/electronic sales process, as distinguished from Free Services or those provided pursuant to a free trial or provided free pursuant to a purchase.

 

“Registration Form” means an agreement document specifying the terms of engagement for an individual service or program or a set of services and/or programs to be provided hereunder that is entered into between EdTerra and Customer or any of its Affiliates, including any addenda and supplements thereto. By duly filling and signing a Registration Form hereunder, Customer or Customer’s Affiliate agree to the terms and conditions specified therein and is also bound by the terms of this Agreement as if it were an original party hereto.

 

“Services” means the products and services that are ordered by Customer under a Price Quote, Order Form, or online purchasing portal, or provided to Customer free of charge (as applicable) or under a free trial, and made available online by EdTerra, including associated EdTerra offline or mobile components, “Services” excludes Content, Generated Content and Non-EdTerra Applications.

 

“EdTerra” means the k12builder.in, classroamwall.com, exploratorium.class-roam.in described in the “EdTerra Contracting Entity, Notices, Governing Law, and Venue” section below.

 

“User” means, in the case of an individual accepting these terms on his or her own behalf, such individual, or, in the case of an individual accepting this Agreement on behalf of a company, institution, society, trust or other legal entity, an individual who is authorized by Customer to use a Service, for whom Customer has purchased a subscription (or in the case of any Services provided by EdTerra without charge, for whom a Service has been provisioned), and to whom Customer (or, when applicable, EdTerra at Customer’s request) has supplied a user identification and password (for Services utilizing authentication). Users may include, for example, employees, students, parents, consultants, contractors and agents of Customer, and third parties with which Customer transacts business.

 

2. EDTERRA RESPONSIBILITIES

 

2.1 Provision of Purchased Services. EdTerra will (a) make the Services and Content available to Customer pursuant to this Agreement, and the applicable Order Forms, Price Quotes and Registration Form, (b) provide applicable EdTerra standard support for the Free/Purchased Services to Customer at no additional charge, and/or upgraded support if purchased, (c) use commercially reasonable efforts to make the online/offline Purchased Services available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which EdTerra shall give advance electronic notice), and (ii) any unavailability caused by circumstances beyond EdTerra’s reasonable control, including, for example, an act of God, act of government, pandemic, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving EdTerra employees), Internet service provider failure or delay, Non-EdTerra Application, or denial of service attack, and (d) provide the Services in accordance with laws and government regulations applicable to EdTerra’s provision of its Services to its customers generally (i.e., without regard for Customer’s particular use of the Services), and subject to Customer’s use of the Services in accordance with this Agreement, Registration Form and the applicable Price Quote and/or Order Form.

 

2.2 Protection of Customer Data and Generated Data. EdTerra will maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data and Generated Data. Those safeguards will include, but will not be limited to, measures designed to prevent unauthorized access to or disclosure of Customer Data (other than by Customer or Users) and Generated Data. Upon the completion of the subscription period, EdTerra will have no obligation to maintain or provide any Customer Data and Generated Data and it will continue to be in possession and control of the same unless legally prohibited.

 

2.3 EdTerra Personnel. EdTerra will be responsible for the performance of its personnel (including its employees and contractors) and their compliance with EdTerra’s obligations under this Agreement, except as otherwise specified in this Agreement.

 

2.4 Beta Services. From time to time, EdTerra may make Beta Services available to Customer at no charge. Customer may choose to try such Beta Services or not at its sole discretion. 

 

2.5 Free Trial. If Customer registers on EdTerra’s or an Affiliate’s website for a free trial, EdTerra holds the discretionary power to deny the applicable Service(s) or to make the applicable Service(s) available to Customer on a trial basis free of charge until the earlier of (a) the end of the free trial period or agreed time period for which Customer registered to use the applicable Service(s), or (b) the start date of any Purchased Service subscriptions ordered by Customer for such Service(s), or (c) termination by EdTerra in its sole discretion. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.

 

ANY CUSTOMER DATA OR GENERATED DATA ENTERED INTO THE SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR CUSTOMER, DURING CUSTOMER’S FREE TRIAL WILL BE PERMANENTLY LOST UNLESS CUSTOMER PURCHASES A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE TRIAL, PURCHASES APPLICABLE UPGRADED SERVICES, OR EXPORTS SUCH DATA, BEFORE THE END OF THE TRIAL

 

PERIOD. CUSTOMER CANNOT TRANSFER DATA ENTERED OR DISPLAYED OR CUSTOMIZATIONS MADE DURING THE FREE TRIAL TO A SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL (E.G., FROM PARTNER SUBSCRIPTION

TO REGULAR OR BASIC SUBSCRIPTION); THEREFORE, IF CUSTOMER PURCHASES A SERVICE

THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL, CUSTOMER MUST EXPORT CUSTOMER DATA AND GENERATED DATA BEFORE THE END OF THE TRIAL PERIOD OR CUSTOMER DATA WILL BE PERMANENTLY LOST.

 

NOTWITHSTANDING THE “REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS” SECTION AND “INDEMNIFICATION BY EDTERRA” SECTION BELOW, DURING THE FREE TRIAL OR SUBSCRIPTION PERIOD, THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND EDTERRA SHALL HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY TYPE WITH RESPECT TO THE SERVICES FOR THE FREE TRIAL OR SUBSCRIPTION PERIOD UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW IN WHICH CASE EDTERRA’S LIABILITY WITH RESPECT TO THE SERVICES PROVIDED DURING THE FREE TRIAL OR SUBSCRIPTION PERIOD SHALL NOT EXCEED RS. 50,000/- WITHOUT LIMITING THE FOREGOING, EDTERRA AND ITS AFFILIATES AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO CUSTOMER THAT: (A) CUSTOMER’S USE OF THE SERVICES DURING THE FREE TRIAL OR SUBSCRIPTION PERIOD WILL MEET CUSTOMER’S REQUIREMENTS, (B) CUSTOMER’S USE OF THE SERVICES DURING THE FREE TRIAL OR SUBSCRIPTION PERIOD WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, AND (C) USAGE DATA PROVIDED DURING THE FREE TRIAL PERIOD OR SUBSCRIPTION PERIOD WILL BE ACCURATE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE “LIMITATION OF LIABILITY” SECTION BELOW, CUSTOMER SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO EDTERRA AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF CUSTOMER’S USE OF THE SERVICES DURING THE FREE TRIAL OR SUBSCRIPTION PERIOD, ANY BREACH BY CUSTOMER OF THIS AGREEMENT AND ANY OF CUSTOMER’S INDEMNIFICATION OBLIGATIONS HEREUNDER. 

 

CUSTOMER SHALL REVIEW THE APPLICABLE SERVICE’S DOCUMENTATION DURING THE FREE TRIAL PERIOD OR SUBSCRIPTION PERIOD TO BECOME FAMILIAR WITH THE FEATURES AND FUNCTIONS OF THE SERVICES BEFORE MAKING A PURCHASE.

 

2.6 Free Services. EdTerra may make Free Services available to Customer including Free Subscription Services. Use of Free Services is subject to the terms and conditions of this Agreement. In the event of a conflict between this section and any other portion of this Agreement, this section shall control. Free Services are provided to Customer without charge up to a certain period. Usage over these free services or period of service may be linked to the purchase of additional resources or services by the customers. Customer agrees that EdTerra, in its sole discretion and for any or no reason, may terminate Customer’s access to the Free Services or Services during the subscription period or any part thereof.

 

Customer agrees that any termination of Customer’s access to the Free Services including agreed subscription period may be without prior notice, and Customer agrees that EdTerra will not be liable to Customer or any third party for such termination. Customer is solely responsible for collecting/downloading the Customer Data and Generated Data from the Free Services prior to termination of Customer’s access to the Free Services for any reason, provided that if EdTerra terminates Customer’s account, except as required by law EdTerra will provide Customer a reasonable opportunity to retrieve its Customer Data.

 

NOTWITHSTANDING THE “REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS” SECTION AND “INDEMNIFICATION BY EDTERRA” SECTION BELOW, THE FREE SERVICES INCLUDING SUBSCRIPTION OPTIONS ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND EDTERRA SHALL HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY OFANY TYPE WITH RESPECT TO THE FREE SERVICES UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW IN WHICH CASE EDTERRA’S LIABILITY WITH 

 

RESPECT TO THE FREE SERVICES SHALL NOT EXCEED RS. 50,000/-. WITHOUT LIMITING THE FOREGOING, EDTERRA AND ITS AFFILIATES AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO CUSTOMER THAT: (A) CUSTOMER’S USE OF THE FREE SERVICES OR SUBSCRIPTION PERIOD WILL MEET CUSTOMER’S REQUIREMENTS, (B) CUSTOMER’S USE OF THE FREE SERVICES OR SUBSCRIPTION PERIOD WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, AND (C) USAGE DATA PROVIDED THROUGH THE FREE SERVICES OR SUBSCRIPTION PERIOD WILL BE ACCURATE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE “LIMITATION OF LIABILITY” SECTION BELOW, CUSTOMER SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO EDTERRA AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF CUSTOMER’S USE OF THE FREE SERVICES OR SUBSCRIPTION PERIOD, ANY BREACH BY CUSTOMER OF THIS AGREEMENT AND ANY OF CUSTOMER’S

INDEMNIFICATION OBLIGATIONS HEREUNDER.

 

3. USE OF SERVICES AND CONTENT

 

3.1 Subscriptions. Unless otherwise provided in the applicable Order Form, Price Quote or Registration Form, (a) Purchased Services allow for creation of Content, Generated Content and entitles the customer to be applicable for the free Subscription option for the specified time period, (b) Additional Programs/Services may be purchased during the subscription period, which automatically extend the Subscription period, and (c) any added subscriptions will terminate automatically, unless renewed through purchase of additional Programs/Services as per the ending of the period specified in the Subscription option. Customer agrees that its purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by EdTerra regarding future functionality or features.

 

3.2 Usage Limits. Services and Generated Content are subject to limits specified in Order Forms and Price Quote. The Service will display only the Generated Content as per the content limit specified in the Programs/Services ordered and executed with EdTerra. The Customer cannot display any video, audio, image, announcement or news unless it is directly associated with the Programs/Services ordered and executed with EdTerra. 

 

3.3 Customer Responsibilities. Customer will (a) be responsible for Users’ compliance with this Agreement, Order Forms, Price Quotes and Registration Form, (b) be responsible for the accuracy, quality and legality of Customer Data, the means by which Customer acquired Customer Data, Customer’s use of Customer Data with the Services, and the interoperation of any Non-EdTerra Applications with which Customer uses Services or Content, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services, Generated Content and Content, and notify EdTerra promptly of any such unauthorized access or use, (d) use Services and Content only in accordance with this Agreement, Registration Form, Order Forms, Price Quotes and applicable laws and government regulations, and (e) comply with terms of service of any Non-EdTerra Applications with which Customer uses Services or Content. Any use of the Services in breach of the foregoing by Customer or Users that in EdTerra’s judgment threatens the security, integrity or availability of EdTerra’s services, may result in EdTerra immediately suspending  the Services, however EdTerra will use commercially reasonable efforts under the circumstances to provide Customer with notice and an opportunity to remedy such violation or threat prior to any such suspension.

 

3.4 Usage Restrictions. Customer will not (a) make any Service, Content or Generated Content available to anyone other than Customer or Users, or use any Service or Content for the benefit of anyone other than Customer or its Affiliates, unless expressly stated otherwise in an Order Form, Price Quote or the Registration Form,  (b) sell, resell, license, sublicense, distribute, make available, rent or lease any Service, Generated Content or Content, or include any Service, Generated Content or Content in a service bureau or outsourcing offering, (c) use a Service or Non-EdTerra Application to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use a Service or Non- EdTerra Application to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of any Service or third-party data contained therein, (f) attempt to gain unauthorized access to any Service, Generated Content or Content or its related systems or networks, (g) permit direct or 

 

indirect access to or use of any Services, Generated Content or Content in a way that circumvents a contractual usage limit, or use any Services to access or use any of EdTerra’s intellectual property except as permitted under this Agreement, an Order Form, Price Quote or the Registration Form, (h) modify, copy, or create derivative works based on a Service or any part, feature, function or user interface thereof, (i) copy Content or Generated Content except as permitted herein or in an Order Form, Registration Form or the  Price Quote, (j) frame or mirror any part of any Service, Generated Content or Content, other than framing on Customer’s own intranets or otherwise for its own internal business purposes, (k) except to the extent permitted by applicable law, disassemble, reverse engineer, or decompile a Service, Generated Content or Content or access it to (1) build a competitive product or service, (2) build a product or service using similar ideas, features, functions or graphics of the Service, (3) copy any ideas, features, functions or graphics of the Service, or (4) determine whether the Services are within the scope of any patent.

 

3.5 Removal of Content and Non-EdTerra Applications. If Customer receives notice that Content, Generated Content or a Non-EdTerra Application must be removed, modified and/or disabled to avoid violating applicable law, third-party rights, or the Acceptable Use and External Facing Services Policy, Customer will promptly do so. If Customer does not take required action in accordance with the above, or if in EdTerra’s judgment continued violation is likely to reoccur, EdTerra may disable the applicable Content, Generated Content, Service and/or Non-EdTerra Application. If requested by EdTerra, Customer shall confirm such deletion and discontinuance of use in writing and EdTerra shall be authorized to provide a copy of such confirmation to any such third party claimant or governmental authority, as applicable. In addition, if EdTerra is required by any third party rights holder to remove Content, Generated Content or receives information that Content or Generated Content provided to Customer may violate applicable law or third-party rights, EdTerra may remove such Content, Generated Content or discontinue Customer’s access to Content and Generated Content through the Services.

 

5. FEES AND PAYMENT

 

5.1 Fees. Customer will pay all fees specified in Order Forms, Price Quotes and Registration Form. Except as otherwise specified herein or in an Order Form, Price Quote and Registration Form, (i) fees are quoted and charged on an individual basis for a chosen program and its inclusions,(ii) the Subscription options offered are based on the actual number of programs opted, announced and undertaken by the Customer, (ii) payment obligations including cancellations and refunds are subject to the terms and conditions mentioned in the Price Quote, Order Form, Registration Form or Agreement, and (iv) number of programs specified cannot be decreased for the opted Subscription.

 

5.2 Invoicing and Payment. Customer is responsible for ensuring that the applicable program fee is duly and timely collected and deposited with EdTerra. EdTerra shall raise applicable invoice(s) in accordance with Government norms and applicable taxes. In the event of an online payment, EdTerra may ask for an additional transaction fee, in accordance with what the online payment service or gateway may deduct from the transacted amount. Unless otherwise stated, all program fee is collected as per the terms and conditions specified in the Order Forms, Price Quotes, Registration Form or Agreement. Customer is responsible for providing complete and accurate billing and contact information to EdTerra and for notifying EdTerra of any changes to such information. All payments, cancellations and refunds are governed by the payment terms and conditions as specified in the Order Form, Price Quote and Registration Form.

 

5.3 Overdue Charges. If any component of the program fee is not received by the specified due date, then without limiting EdTerra’s rights or remedies, (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) EdTerra may condition future subscription renewals on payment terms shorter than those specified in the Order Form, Price Quote, Registration Form or Agreement. 

 

5.4 Suspension of Service and Acceleration. If any fee owing by Customer or its Affiliates under this or any other agreement is 30 days or more overdue, EdTerra may, without limiting its other rights and remedies, accelerate Customer’s unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Services until such amounts are paid in full, for which, EdTerra will give Customer at least 07 days’ prior notice that its fee is overdue.

 

5.5 Payment Disputes. EdTerra will not exercise its rights under the “Overdue Charges” or “Suspension of Service and Acceleration” section above if Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute. In the event such a dispute or disputes cannot be settled mutually then all parties related to this agreement submit and consent to the exclusive jurisdiction and venue  of the courts of Delhi. 

 

5.6 Taxes. EdTerra program fees includes applicable GST and other surcharges. In the event the Customer is required to deduct and deposit any TDS or surcharges on any and all payments made to EdTerra, the Customer is responsible for depositing all deductions/taxes associated with its purchases hereunder unless Customer provides EdTerra with a valid tax exemption certificate authorized by the appropriate tax authority.

 

6. PROPRIETARY RIGHTS AND LICENSES

 

6.1 Reservation of Rights. Subject to the limited rights expressly granted hereunder, EdTerra, its Affiliates, its licensors and Content Providers reserve all of their right, title and interest in and to the Services, Content, Generated Content, including all of their related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein.

 

6.2 Access to and Use of Content and Generated Content. Customer has the right to access and use applicable Content and Generated Content subject to the terms of applicable Order Forms, Price Quote, Registration Form, and this Agreement.

 

6.3 License by Customer to EdTerra. Customer grants EdTerra, its Affiliates and applicable contractors a worldwide, limited-term license to host, copy, use, transmit, and display any Non-EdTerra Applications and program code created by or for Customer using a Service or for use by Customer with the Services, Customer Data and Generated Data each as appropriate for EdTerra to provide and ensure proper operation of the Services and associated systems in accordance with this Agreement. If Customer chooses to use a Non- EdTerra Application with a Service, Customer grants EdTerra permission to allow the Non- EdTerra Application and its provider to access Customer Data and information about Customer’s usage of the Non- EdTerra Application as appropriate for the interoperation of that Non- EdTerra Application with the Service. Subject to the limited licenses granted herein, EdTerra acquires no right, title or interest from Customer or its licensors under this Agreement in or to any Customer Data, Non- EdTerra Application or such program code.

 

6.4 License by Customer to Use Social Media Platforms. Customer grants to EdTerra and its Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into its services the Generated Data along with ideas, photos, articles, media files, media outputs, testimonials, or other feedback provided by Customer and its Affiliates. 

 

7. CONFIDENTIALITY

 

7.1 Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information of Customer includes Customer Data; Confidential Information of EdTerra includes the Services and Content, and the terms and conditions of this Agreement and all Order Forms, Price Quotes (including pricing), Registration Form, and other documents. Confidential Information of each party includes business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without 

breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party. For the avoidance of doubt, the non-disclosure obligations set forth in this “Confidentiality” section apply to Confidential Information exchanged between the parties in connection with the evaluation of additional EdTerra services.

 

7.2 Protection of Confidential Information. As between the parties, each party retains all ownership rights in and to its Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. Neither party will disclose the terms of this Agreement, Registration Form, Price Quote or any Order Form to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this “Confidentiality” section. Notwithstanding the foregoing, EdTerra may disclose the terms of this Agreement, Registration Form and any applicable Order Form or Price Quote to a subcontractor or Non- EdTerra Application Provider to the extent necessary to perform EdTerra’s obligations under this Agreement, under terms of confidentiality materially as protective as set forth herein.

 

7.3 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.

 

8. REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS

 

8.1 Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.

 

8.2 EdTerra Warranties. EdTerra warrants that during an applicable Subscription period (a) this Agreement, the Order Forms, Price Quotes and Registration Form will accurately describe the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data, (b) EdTerra will not materially decrease the overall security of the Services, (c) the Services will perform materially in accordance with the applicable Documentation, and (d) subject to the “Integration with Non- EdTerra Applications” section above, EdTerra will not materially decrease the overall functionality of the Services. For any breach of a warranty above, Customer’s exclusive remedies are those described in the “Termination” section below.

 

8.3 Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. CONTENT AND BETA SERVICES ARE PROVIDED “AS IS,” AND AS AVAILABLE EXCLUSIVE OF ANY WARRANTY WHATSOEVER.

 

9. MUTUAL INDEMNIFICATION

9.1 Indemnification by EdTerra. EdTerra will defend Customer against any claim, demand, suit or proceeding made or brought against Customer by a third party alleging that any Purchased Service infringes or misappropriates such third party’s intellectual property rights (a “Claim Against Customer”), and will indemnify Customer from any damages, attorney fees and costs finally awarded against Customer as a result of, or for amounts paid by Customer under a settlement approved by EdTerra in writing of, a Claim Against Customer, provided Customer (a) promptly gives EdTerra written notice of the Claim Against Customer, (b) gives EdTerra sole control of the defense and settlement of the Claim Against Customer (except that EdTerra may not settle any Claim Against Customer unless it unconditionally releases Customer of all liability), and (c) gives EdTerra all reasonable assistance, at EdTerra’s expense. If EdTerra receives information about an infringement or misappropriation claim related to a Service, EdTerra may in its discretion and at no cost to Customer (i) modify the Services so that they are no longer claimed to infringe or misappropriate, without breaching EdTerra’s warranties under “EdTerra Warranties” above, (ii) obtain a license for Customer’s continued use of that Service in accordance with this Agreement, or (iii) terminate Customer’s subscriptions for that Service upon 30 days’ written notice and refund Customer any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply if (1) the allegation does not state infringe or misappropriate, without breaching EdTerra’s warranties under “EdTerra Warranties” above, (ii) obtain a license for Customer’s continued use of that Service in accordance with this Agreement, or (iii) terminate Customer’s subscriptions for that Service upon 30 days’ written notice and refund Customer any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply if (1) the allegation does not state with specificity that the Services are the basis of the Claim Against Customer; (2) a Claim Against Customer arises from the use or combination of the Services or any part thereof with software, hardware, data, or processes not provided by EdTerra, if the Services or use thereof would not infringe without such combination; (3) a Claim Against Customer arises from Services under an Order Form or Price Quote for which there is no charge; or (4 ) a Claim against Customer arises from Content, Generated Content, a Non- EdTerra Application or Customer’s breach of this Agreement, the Price Quote or applicable Order Forms.

 

9.2 Indemnification by Customer. Customer will defend EdTerra and its Affiliates against any claim, demand, suit or proceeding made or brought against EdTerra by a third party alleging (a) that any Customer Data or Customer’s use of Customer Data with the Services, (b) a Non- EdTerra Application provided by Customer, or (c) the combination of a Non- EdTerra Application provided by Customer and used with the Services, infringes or misappropriates such third party’s intellectual property rights, or arising from Customer’s use of the Services or Content in an unlawful manner or in violation of the Agreement, Registration Form, Price Quote or Order Form (each a “Claim Against EdTerra” ), and will indemnify EdTerra from any damages, attorney fees and costs finally awarded against EdTerra as a result of, or for any amounts paid by EdTerra under a settlement approved by Customer in writing of, a Claim Against EdTerra, provided EdTerra (a) promptly gives Customer written notice of the Claim Against EdTerra, (b) gives Customer sole control of the defense and settlement of the Claim Against EdTerra (except that Customer may not settle any Claim Against EdTerra unless it unconditionally releases EdTerra of all liability), and (c) gives Customer all reasonable assistance, at Customer’s expense. The above defense and indemnification obligations do not apply if a Claim Against EdTerra arises from EdTerra’s breach of this Agreement, the Documentation or applicable Price Quotes and Order Forms.

 

9.3 Exclusive Remedy. This “Mutual Indemnification” section states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any third party claim described in this section.

 

10. LIMITATION OF LIABILITY

10.1 Limitation of Liability. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EACH PARTY TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER AND ITS AFFILIATES HEREUNDER FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY 

WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT CUSTOMER’S AND ITS AFFILIATES’ PAYMENT OBLIGATIONS UNDER THE “FEES AND PAYMENT” SECTION ABOVE.

 

10.2 Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE.

THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.

 

11. TERM AND TERMINATION

11.1 Term of Agreement. This Agreement commences on the date Customer first accepts it and continues until all subscriptions hereunder have expired or have been terminated.

 

11.2 Term of Purchased Subscriptions. The term of each subscription shall be as specified in the applicable Agreement, Price Quote, or Order Form. Except as otherwise specified in an Order Form or Price Quote, subscriptions will automatically renew for additional periods equal to the expiring subscription term, unless either party gives the other written notice (email acceptable) at least 30 days before the end of the relevant subscription term. Notwithstanding anything to the contrary, any renewal in which subscription volume or the number of successfully concluded programs fall below the minimum number of programs specified in the Subscription model, the services will be withdrawn at the end of the specified subscription period. 

 

11.3 Termination. A party may terminate this Agreement for cause (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.

 

12. GENERAL PROVISIONS

 

12.1 Entire Agreement and Order of Precedence. This Agreement is the entire agreement between EdTerra and Customer regarding Customer’s use of Services, Content and Generated Content and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. The parties agree that any term or condition stated in a Customer purchase order or in any other Customer order documentation (excluding Order Forms) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order Form or Price Quote, (2) Registration Form, and (3) this Agreement. Titles and headings of sections of this Agreement are for convenience only and shall not affect the construction of any provision of this Agreement.

 

12.2 Relationship of the Parties. The parties are independent entities. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. Each party will be solely responsible for payment of all compensation owed to its employees, as well as all employment-related taxes.

 

12.3 Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement.

 

12.4 Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.

 

12.5 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.

 

12.6 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (including all Order Forms), without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice. In the event of such a termination, EdTerra shall attempt to discontinue its services with immediate effect. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.

 

12.7 Governing Law and Venue: By entering into this Agreement the Customer and Affiliates consent to the exclusive jurisdiction and venue of the courts of Delhi to settle any and all disputes and/or lawsuits arising out of or in connection with this Agreement. EdTerra is registered under the Companies Act as M/s Edterra Edventures Pvt. Ltd.  and upon entering into this Agreement, the address to which Customer and Affiliates should direct notices under this Agreement is; 506, Vikrant Tower, Rajendra Place, New Delhi – 110 008.

 

12.8 Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices related to this Agreement will be in writing and will be effective upon (a) personal delivery, (b) the second business day after mailing, or (c), except for notices of termination or an indemnifiable claim (“Legal Notices”), which shall clearly be identifiable as Legal Notices, the day of sending by email.