These Terms of Service ("Terms") were last updated on June 13, 2024
SnapInstruct’s mission is to level up people, teams, and organizations. We deliver learning experiences across messaging apps, the web, and other channels, based on content we create and content created by our individual and business users. These Terms apply to all your activities on the SnapInstruct website, messaging apps, mobile applications, APIs, and any other related services where we provide our content (“Services”). These Services and the content delivered therein are copyrighted works belonging to SnapInstruct Inc. (“Company”, “us”, “our”, and “we”), except where indicated in other legal agreements with us. Certain features of the Services may be subject to additional guidelines, terms, or rules, which will be posted on the Services in connection with such features. Without limitation to the preceding sentence, your submission of information, including personal information, through or in connection with the Services is governed by the terms of our privacy policy as updated from time to time, available at www.snapinstruct.com/privacy (“Privacy Policy”).
These Terms of Service, User Agreement, and appendices–the Content Agreement, Reseller Agreement (if applicable), and Purchaser Agreement– (collectively, the "Agreements") govern the relationship between SnapInstruct, its partners, customers, and users. By agreeing to these Terms of Service, you also agree to be bound by the terms of the applicable Agreements, which are incorporated herein.
THESE TERMS SET FORTH THE LEGALLY BINDING TERMS AND CONDITIONS THAT GOVERN YOUR USE OF THE SERVICES. BY ACCESSING OR USING THE SERVICES, YOU ARE ACCEPTING THESE TERMS (ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT), AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THESE TERMS (ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT). YOU MAY NOT ACCESS OR USE THE SERVICES OR ACCEPT THE TERMS IF YOU ARE NOT AT LEAST 18 YEARS OLD. IF YOU DO NOT AGREE WITH ALL OF THE PROVISIONS OF THESE TERMS, DO NOT ACCESS AND/OR USE THE SERVICES.
PLEASE BE AWARE THAT SECTION 10.2 CONTAINS PROVISIONS GOVERNING HOW TO RESOLVE DISPUTES BETWEEN YOU AND COMPANY. AMONG OTHER THINGS, SECTION 10.2 INCLUDES AN AGREEMENT TO ARBITRATE WHICH REQUIRES, WITH LIMITED EXCEPTIONS, THAT ALL DISPUTES BETWEEN YOU AND US SHALL BE RESOLVED BY BINDING AND FINAL ARBITRATION. SECTION 10.2 ALSO CONTAINS A CLASS ACTION AND JURY TRIAL WAIVER. PLEASE READ SECTION 10.2 CAREFULLY.
UNLESS YOU OPT OUT OF THE AGREEMENT TO ARBITRATE WITHIN 30 DAYS: (1) YOU WILL ONLY BE PERMITTED TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION; AND (2) YOU ARE WAIVING YOUR RIGHT TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL.
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User Agreement
1. Accounts
1.1 Account Creation
In order to use certain features of the Services, you must register for an account (“Account”) and provide certain information about yourself as prompted by the account registration form. You may delete your Account at any time, for any reason, by following the instructions on the Services. Company may suspend or terminate your Account in accordance with Section 8.
1.2 Account Responsibilities
You are responsible for maintaining the confidentiality of your Account login information and are fully responsible for all activities that occur under your Account. You agree to immediately notify Company of any unauthorized use, or suspected unauthorized use of your Account or any other breach of security. Company cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements.
2. Access to the Services
2.1 License
Subject to these Terms, Company grants you a non-transferable, non-exclusive, revocable, limited license to use and access the Services.
2.2 Certain Restrictions
The rights granted to you in these Terms are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Services, whether in whole or in part, or any content displayed on the Services, except as otherwise agreed in these Terms; (b) you shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Services; (c) you shall not access the Services in order to build a similar or competitive web services, product, or other services; and (d) except as expressly stated herein, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means. Unless otherwise indicated, any future release, update, or other addition to functionality of the Services shall be subject to these Terms. All copyright and other proprietary notices on the Services (or on any content displayed on the Services) must be retained on all copies thereof.
2.3 Modification
Company reserves the right, at any time, to modify, suspend, or discontinue the Services (in whole or in part) with or without notice to you, except as otherwise agreed in these Terms. SnapInstruct will make commercially reasonable efforts to provide reasonable notice, which may be through posting on the Services or via email, prior to implementing any material modifications to the Services that may adversely affect Customer's use of the Services. You agree that Company will not be liable to you or to any third party for any modification, suspension, or discontinuation of the Services or any part thereof.
2.4 No Support or Maintenance
You acknowledge and agree that Company will have no obligation to provide you with any support or maintenance in connection with the Services, except where specified in these Terms.
2.5 Ownership
Excluding any Partner Content as specific in the Content Agreement in Appendix A, or User Content that you may provide (defined below), you acknowledge that all the intellectual property rights, direct or implied, including copyrights, patents, trade marks, and trade secrets, in the Services and its content are owned by Company or Company’s suppliers. Neither these Terms (nor your access to the Services) transfers to you or any third party any rights, title or interest in or to such intellectual property rights, except for the limited access rights expressly set forth in Section 2.1. Company and its suppliers reserve all rights not granted in these Terms.
2.6 Feedback
If you provide Company with any feedback or suggestions regarding the Services (“Feedback”), you hereby assign to Company all rights in such Feedback and agree that Company shall have the right to use and fully exploit such Feedback and related information in any manner it deems appropriate. Company will treat any Feedback you provide to Company as non-confidential and non-proprietary. You agree that you will not submit to Company any information or ideas that you consider to be confidential or proprietary.
3. User Content
3.1 User Content
“User Content” means any and all information and content that a user submits to, or uses with, the Services (e.g., content in the user’s profile or postings). You are solely responsible for your User Content. You assume all risks associated with use of your User Content, including any reliance on its accuracy, completeness or usefulness by others, or any disclosure of your User Content that personally identifies you or any third party. You hereby represent and warrant that your User Content does not violate our Acceptable Use Policy (defined in Section3.3). You may not represent or imply to others that your User Content is in any way provided, sponsored or endorsed by Company. Since you alone are responsible for your User Content, you may expose yourself to liability if, for example, your User Content violates the Acceptable Use Policy. Company is not obligated to backup any User Content, and your User Content may be deleted at any time without prior notice. You are solely responsible for creating and maintaining your own backup copies of your User Content if you desire.
3.2 License
You hereby grant (and you represent and warrant that you have the right to grant) to Company an irrevocable, nonexclusive, royalty-free and fully paid, worldwide license to reproduce, distribute, publicly display and perform, prepare derivative works of, incorporate into other works, and otherwise use and exploit your User Content, and to grant sublicenses of the foregoing rights, solely for the purposes of including your User Content in the Services. You hereby irrevocably waive (and agree to cause to be waived) any claims and assertions of moral rights or attribution with respect to your User Content.
3.3 Acceptable Use Policy.
The following terms constitute our “Acceptable Use Policy”:
(a) You agree not to use the Services to collect, upload, transmit, display, or distribute any User Content (i) that violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right, (ii) that is unlawful, harassing, abusive, tortious, threatening, harmful, invasive of another’s privacy, vulgar, defamatory, false, intentionally misleading, trade libelous, pornographic, obscene, patently offensive, promotes racism, bigotry, hatred, or physical harm of any kind against any group or individual or is otherwise objectionable, (iii) that is harmful to minors in any way, or (iv) that is in violation of any law, regulation, or obligations or restrictions imposed by any third party.
(b) In addition, you agree not to: (i) upload, transmit, or distribute to or through the Services any computer viruses, worms, or any software intended to damage or alter a computer system or data; (ii) send through the Services unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (iii) use the Services to harvest, collect, gather or assemble information or data regarding other users, including e-mail addresses, without their consent; (iv) interfere with, disrupt, or create an undue burden on servers or networks connected to the Services, or violate the regulations, policies or procedures of such networks; (v) attempt to gain unauthorized access to the Services (or to other computer systems or networks connected to or used together with the Services), whether through password mining or any other means; (vi) harass or interfere with any other user’s use and enjoyment of the Services; or (vi) use software or automated agents or scripts to produce multiple accounts on the Services, or to generate automated searches, requests, or queries to (or to strip, scrape, or mine data from) the Services (provided, however, that we conditionally grant to the operators of public search engines revocable permission to use spiders to copy materials from the Services for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials, subject to the parameters set forth in our robots.txt file).
3.4 Enforcement
We reserve the right (but have no obligation) to review, refuse and/or remove any User Content in our sole discretion, and to investigate and/or take appropriate action against you in our sole discretion if you violate the Acceptable Use Policy or any other provision of these Terms or otherwise create liability for us or any other person. Such action may include removing or modifying your User Content, terminating your Account in accordance with Section 8, and/or reporting you to law enforcement authorities.
4. Defense of third-party claims
You agree to defend, indemnify, and hold harmless the Company, its affiliates, officers, agents, employees, and partners from any third-party claims, actions, suits, proceedings, and demands that arise from your use of the Services. This includes, but is not limited to, your breach of these Terms, infringement or violation of third-party intellectual property rights, or any misuse of the Services by you or users authorized by you. You will cover all reasonable attorneys' fees, damages, and other costs awarded against the Company, as well as settlement amounts agreed upon by the Company. You are required to provide prompt written notice to the Company of any such claims, retain the right to control the defense of any claim (with the Company's option to participate), and may not settle any claim without the Company's prior written consent. Your obligation to indemnify will continue beyond the termination or expiration of these Terms.
4.1 Cooperation and Notice
You commit to fully cooperate with the Company in defending any claim within your indemnification obligations. The Company will give you prompt written notice of any claim requiring your indemnification.
4.2 Settlements
You may not enter into any settlement that imposes liability on or admits wrongdoing by the Company without its express written consent, which will not be unreasonably withheld. Settlements must include a complete release of the Company from all liabilities related to the claim.
5. Third-Party Links & Ads; Other Users
5.1 Third-Party Links & Ads
The Services may contain links to third-party webServicess and services, and/or display advertisements for third parties (collectively, “Third-Party Links & Ads”). Such Third-Party Links & Ads are not under the control of Company, and Company is not responsible for any Third-Party Links & Ads. Company provides access to these Third-Party Links & Ads only as a convenience to you, and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Links & Ads. You use all Third-Party Links & Ads at your own risk, and should apply a suitable level of caution and discretion in doing so. When you click on any of the Third-Party Links & Ads, the applicable third party’s terms and policies apply, including the third party’s privacy and data gathering practices. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction in connection with such Third-Party Links & Ads.
5.2 Other Users
Each Services user is solely responsible for any and all of its own User Content. Since we do not control User Content, you acknowledge and agree that we are not responsible for any User Content, whether provided by you or by others. We make no guarantees regarding the accuracy, currency, suitability, appropriateness, or quality of any User Content. Your interactions with other Services users are solely between you and such users. You agree that Company will not be responsible for any loss or damage incurred as the result of any such interactions. If there is a dispute between you and any Services user, we are under no obligation to become involved.
5.3 Release
You hereby release and forever discharge Company (and our officers, employees, agents, successors, and assigns) from, and hereby waive and relinquish, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or that relates directly or indirectly to, the Services (including any interactions with, or act or omission of, other Services users or any Third-Party Links & Ads). IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”
6. Disclaimers
THE SERVICES IS PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS, AND COMPANY (AND OUR SUPPLIERS) EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ALL WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT.
PORTIONS OF THE SERVICES MAY INCLUDE CONTENT GENERATED BY ARTIFICIAL INTELLIGENCE (AI). WHILE WE STRIVE FOR ACCURACY, WE DO NOT GUARANTEE THAT AI-GENERATED CONTENT WILL BE ERROR-FREE, RELIABLE, OR SUITABLE FOR ALL PURPOSES. WE ENCOURAGE USERS TO EXERCISE DISCRETION WHEN RELYING ON SUCH CONTENT. IF YOU ENCOUNTER ANY ISSUES OR INACCURACIES WITH AI-GENERATED CONTENT OR ANYWHERE ELSE IN THE SERVICES, PLEASE REPORT THEM AT SNAPINSTRUCT.COM/SUPPORT, WHERE WE WELCOME YOUR FEEDBACK FOR CONTINUOUS IMPROVEMENT.
WE (AND OUR SUPPLIERS) MAKE NO WARRANTY THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS, OR WILL BE ACCURATE, RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, LEGAL, OR SAFE. IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE SERVICES, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO 90 DAYS FROM THE DATE OF FIRST USE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
7. Limitation on Liability
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL COMPANY (OR OUR SUPPLIERS) BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFITS, LOST DATA, COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS, OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THESE TERMS OR YOUR USE OF, OR INABILITY TO USE, THE SERVICES, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO, AND USE OF, THE SERVICES IS AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DEVICE OR COMPUTER SYSTEM, OR LOSS OF DATA RESULTING THEREFROM.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THESE TERMS (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO A MAXIMUM OF FIFTY US DOLLARS. THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT. YOU AGREE THAT OUR SUPPLIERS WILL HAVE NO LIABILITY OF ANY KIND ARISING FROM OR RELATING TO THESE TERMS.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
8.Term and Termination
Subject to this Section, these Terms will remain in full force and effect while you use the Services. We may suspend or terminate your rights to use the Services (including your Account) at any time for any reason at our sole discretion, including for any use of the Services in violation of these Terms. Upon termination of your rights under these Terms, your Account and right to access and use the Services will terminate immediately. You understand that any termination of your Account may involve deletion of your User Content associated with your Account from our live databases. Company will not have any liability whatsoever to you for any termination of your rights under these Terms, including for termination of your Account or deletion of your User Content. Even after your rights under these Terms are terminated, the following provisions of these Terms will remain in effect: Sections 2.2 through 2.6, Section 3 and Sections 4 through 10.
9. Copyright Policy
Company respects the intellectual property of others and asks that users of our Services do the same. In connection with our Services, we have adopted and implemented a policy respecting copyright law that provides for the removal of any infringing materials and for the termination, in appropriate circumstances, of users of our online Services who are repeat infringers of intellectual property rights, including copyrights. If you believe that one of our users is, through the use of our Services, unlawfully infringing the copyright(s) in a work, and wish to have the allegedly infringing material removed, the following information in the form of a written notification (pursuant to 17 U.S.C. § 512(c)) must be provided to our designated Copyright Agent:
1. your physical or electronic signature;
2. identification of the copyrighted work(s) that you claim to have been infringed;
3. identification of the material on our services that you claim is infringing and that you request us to remove;
4. sufficient information to permit us to locate such material;
5. your address, telephone number, and e-mail address;
6. a statement that you have a good faith belief that use of the objectionable material is not authorized by the copyright owner, its agent, or under the law; and
7. a statement that the information in the notification is accurate, and under penalty of perjury, that you are either the owner of the copyright that has allegedly been infringed or that you are authorized to act on behalf of the copyright owner.
Please note that, pursuant to 17 U.S.C. § 512(f), any misrepresentation of material fact (falsities) in a written notification automatically subjects the complaining party to liability for any damages, costs and attorney’s fees incurred by us in connection with the written notification and allegation of copyright infringement.
10. General
10.1 Changes
These Terms are subject to occasional revision, and if we make any substantial changes, we may notify you by sending you an e-mail to the last e-mail address you provided to us (if any), and/or by prominently posting notice of the changes on our Services. You are responsible for providing us with your most current e-mail address. In the event that the last e-mail address that you have provided us is not valid, or for any reason is not capable of delivering to you the notice described above, our dispatch of the e-mail containing such notice will nonetheless constitute effective notice of the changes described in the notice. Continued use of our Services following notice of such changes shall indicate your acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes.
10.2 Dispute Resolution
Please read the following arbitration agreement in this Section (the “Arbitration Agreement”) carefully. It requires you to arbitrate disputes with Company, its parent companies, subsidiaries, affiliates, successors and assigns and all of their respective officers, directors, employees, agents, and representatives (collectively, the “Company Parties”) and limits the manner in which you can seek relief from the Company Parties.
(a) Applicability of Arbitration Agreement. You agree that any dispute between you and any of the Company Parties relating in any way to the Services, the services offered on the Services (the “Services”) or these Terms will be resolved by binding arbitration, rather than in court, except that (1) you and the Company Parties may assert individualized claims in small claims court if the claims qualify, remain in such court and advance solely on an individual, non-class basis; and (2) you or the Company Parties may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall survive the expiration or termination of these Terms and shall apply, without limitation, to all claims that arose or were asserted before you agreed to these Terms (in accordance with the preamble) or any prior version of these Terms. This Arbitration Agreement does not preclude you from bringing issues to the attention of federal, state or local agencies. Such agencies can, if the law allows, seek relief against the Company Parties on your behalf. For purposes of this Arbitration Agreement, “Dispute” will also include disputes that arose or involve facts occurring before the existence of this or any prior versions of the Agreement as well as claims that may arise after the termination of these Terms.
(b) Informal Dispute Resolution. There might be instances when a Dispute arises between you and Company. If that occurs, Company is committed to working with you to reach a reasonable resolution. You and Company agree that good faith informal efforts to resolve Disputes can result in a prompt, low‐cost and mutually beneficial outcome. You and Company therefore agree that before either party commences arbitration against the other (or initiates an action in small claims court if a party so elects), we will personally meet and confer telephonically or via videoconference, in a good faith effort to resolve informally any Dispute covered by this Arbitration Agreement (“Informal Dispute Resolution Conference”). If you are represented by counsel, your counsel may participate in the conference, but you will also participate in the conference.The party initiating a Dispute must give notice to the other party in writing of its intent to initiate an Informal Dispute Resolution Conference (“Notice”), which shall occur within 45 days after the other party receives such Notice, unless an extension is mutually agreed upon by the parties. Notice to Company that you intend to initiate an Informal Dispute Resolution Conference should be sent by email to: legal@snapinstruct.com, or by regular mail to SnapInstruct 40 W 51 St #147 New York, NY 10020. The Notice must include: (1) your name, telephone number, mailing address, e‐mail address associated with your account (if you have one); (2) the name, telephone number, mailing address and e‐mail address of your counsel, if any; and (3) a description of your Dispute. The Informal Dispute Resolution Conference shall be individualized such that a separate conference must be held each time either party initiates a Dispute, even if the same law firm or group of law firms represents multiple users in similar cases, unless all parties agree; multiple individuals initiating a Dispute cannot participate in the same Informal Dispute Resolution Conference unless all parties agree. In the time between a party receiving the Notice and the Informal Dispute Resolution Conference, nothing in this Arbitration Agreement shall prohibit the parties from engaging in informal communications to resolve the initiating party’s Dispute. Engaging in the Informal Dispute Resolution Conference is a condition precedent and requirement that must be fulfilled before commencing arbitration. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the Informal Dispute Resolution Conference process required by this section.
(c) Arbitration Rules and Forum. These Terms evidence a transaction involving interstate commerce; and notwithstanding any other provision herein with respect to the applicable substantive law, the Federal Arbitration Act, 9 U.S.C. § 1 et seq., will govern the interpretation and enforcement of this Arbitration Agreement and any arbitration proceedings. If the Informal Dispute Resolution Process described above does not resolve satisfactorily within 60 days after receipt of your Notice, you and Company agree that either party shall have the right to finally resolve the Dispute through binding arbitration. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims and counterclaims with an amount in controversy under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’ most current version of the Streamlined Arbitration Rules and procedures available at: http://www.jamsadr.com/rules-streamlined-arbitration/ ; all other claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at: http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. A party who wishes to initiate arbitration must provide the other party with a request for arbitration (the “Request”). The Request must include: (1) the name, telephone number, mailing address, e‐mail address of the party seeking arbitration and the account username (if applicable) as well as the email address associated with any applicable account; (2) a statement of the legal claims being asserted and the factual bases of those claims; (3) a description of the remedy sought and an accurate, good‐faith calculation of the amount in controversy in United States Dollars; (4) a statement certifying completion of the Informal Dispute Resolution process as described above; and (5) evidence that the requesting party has paid any necessary filing fees in connection with such arbitration.If the party requesting arbitration is represented by counsel, the Request shall also include counsel’s name, telephone number, mailing address, and email address. Such counsel must also sign the Request. By signing the Request, counsel certifies to the best of counsel’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that: (1) the Request is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution; (2) the claims, defenses and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; and (3) the factual and damages contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.Unless you and Company otherwise agree, or the Batch Arbitration process discussed in Subsection 10.2(h) is triggered, the arbitration will be conducted in the county where you reside. Subject to the JAMS Rules, the arbitrator may direct a limited and reasonable exchange of information between the parties, consistent with the expedited nature of the arbitration. If the JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. Your responsibility to pay any JAMS fees and costs will be solely as set forth in the applicable JAMS Rules.You and Company agree that all materials and documents exchanged during the arbitration proceedings shall be kept confidential and shall not be shared with anyone except the parties’ attorneys, accountants, or business advisors, and then subject to the condition that they agree to keep all materials and documents exchanged during the arbitration proceedings confidential.
(d) Authority of Arbitrator. The arbitrator shall have exclusive authority to resolve all disputes subject to arbitration hereunder including, without limitation, any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement or any portion of the Arbitration Agreement, except for the following: (1) all Disputes arising out of or relating to the subsection entitled “Waiver of Class or Other Non-Individualized Relief,” including any claim that all or part of the subsection entitled “Waiver of Class or Other Non-Individualized Relief” is unenforceable, illegal, void or voidable, or that such subsection entitled “Waiver of Class or Other Non-Individualized Relief” has been breached, shall be decided by a court of competent jurisdiction and not by an arbitrator; (2) except as expressly contemplated in the subsection entitled “Batch Arbitration,” all Disputes about the payment of arbitration fees shall be decided only by a court of competent jurisdiction and not by an arbitrator; (3) all Disputes about whether either party has satisfied any condition precedent to arbitration shall be decided only by a court of competent jurisdiction and not by an arbitrator; and (4) all Disputes about which version of the Arbitration Agreement applies shall be decided only by a court of competent jurisdiction and not by an arbitrator. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties, except as expressly provided in the subsection entitled “Batch Arbitration.” The arbitrator shall have the authority to grant motions dispositive of all or part of any claim or dispute. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual party under applicable law, the arbitral forum’s rules, and these Terms (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which any award (or decision not to render an award) is based, including the calculation of any damages awarded. The arbitrator shall follow the applicable law. The award of the arbitrator is final and binding upon you and us. Judgment on the arbitration award may be entered in any court having jurisdiction.
(e) Waiver of Jury Trial. EXCEPT AS SPECIFIED IN SECTION 10.2(A) YOU AND THE COMPANY PARTIES HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and the Company Parties are instead electing that all covered claims and disputes shall be resolved exclusively by arbitration under this Arbitration Agreement, except as specified in Section 10.2(a) above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow these Terms as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
(f) Waiver of Class or Other Non-Individualized Relief. YOU AND COMPANY AGREE THAT, EXCEPT AS SPECIFIED IN SUBSECTION 10.2(H) EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS, AND THE PARTIES HEREBY WAIVE ALL RIGHTS TO HAVE ANY DISPUTE BE BROUGHT, HEARD, ADMINISTERED, RESOLVED, OR ARBITRATED ON A CLASS, COLLECTIVE, REPRESENTATIVE, OR MASS ACTION BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND DISPUTES OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. Subject to this Arbitration Agreement, the arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by the party’s individual claim. Nothing in this paragraph is intended to, nor shall it, affect the terms and conditions under the Subsection 10.2(h) entitled “Batch Arbitration.” Notwithstanding anything to the contrary in this Arbitration Agreement, if a court decides by means of a final decision, not subject to any further appeal or recourse, that the limitations of this subsection, “Waiver of Class or Other Non-Individualized Relief,” are invalid or unenforceable as to a particular claim or request for relief (such as a request for public injunctive relief), you and Company agree that that particular claim or request for relief (and only that particular claim or request for relief) shall be severed from the arbitration and may be litigated in the state or federal courts located in the State of New York. All other Disputes shall be arbitrated or litigated in small claims court. This subsection does not prevent you or Company from participating in a class-wide settlement of claims.
(g) Attorneys’ Fees and Costs. The parties shall bear their own attorneys’ fees and costs in arbitration unless the arbitrator finds that either the substance of the Dispute or the relief sought in the Request was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). If you or Company need to invoke the authority of a court of competent jurisdiction to compel arbitration, then the party that obtains an order compelling arbitration in such action shall have the right to collect from the other party its reasonable costs, necessary disbursements, and reasonable attorneys’ fees incurred in securing an order compelling arbitration. The prevailing party in any court action relating to whether either party has satisfied any condition precedent to arbitration, including the Informal Dispute Resolution Process, is entitled to recover their reasonable costs, necessary disbursements, and reasonable attorneys’ fees and costs.
(h) Batch Arbitration. To increase the efficiency of administration and resolution of arbitrations, you and Company agree that in the event that there are 100 or more individual Requests of a substantially similar nature filed against Company by or with the assistance of the same law firm, group of law firms, or organizations, within a 30 day period (or as soon as possible thereafter), the JAMS shall (1) administer the arbitration demands in batches of 100 Requests per batch (plus, to the extent there are less than 100 Requests left over after the batching described above, a final batch consisting of the remaining Requests); (2) appoint one arbitrator for each batch; and (3) provide for the resolution of each batch as a single consolidated arbitration with one set of filing and administrative fees due per side per batch, one procedural calendar, one hearing (if any) in a place to be determined by the arbitrator, and one final award (“Batch Arbitration”).All parties agree that Requests are of a “substantially similar nature” if they arise out of or relate to the same event or factual scenario and raise the same or similar legal issues and seek the same or similar relief. To the extent the parties disagree on the application of the Batch Arbitration process, the disagreeing party shall advise the JAMS, and the JAMS shall appoint a sole standing arbitrator to determine the applicability of the Batch Arbitration process (“Administrative Arbitrator”). In an effort to expedite resolution of any such dispute by the Administrative Arbitrator, the parties agree the Administrative Arbitrator may set forth such procedures as are necessary to resolve any disputes promptly. The Administrative Arbitrator’s fees shall be paid by Company.You and Company agree to cooperate in good faith with the JAMS to implement the Batch Arbitration process including the payment of single filing and administrative fees for batches of Requests, as well as any steps to minimize the time and costs of arbitration, which may include: (1) the appointment of a discovery special master to assist the arbitrator in the resolution of discovery disputes; and (2) the adoption of an expedited calendar of the arbitration proceedings.This Batch Arbitration provision shall in no way be interpreted as authorizing a class, collective and/or mass arbitration or action of any kind, or arbitration involving joint or consolidated claims under any circumstances, except as expressly set forth in this provision.
(i) 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending a timely written notice of your decision to opt out to the following address: SnapInstruct 40 W 51 St #147 New York, NY 10020, or email to legal@snapinstruct.com, within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address and a clear statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of these Terms will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have with us, or may enter into in the future with us.
(j) Invalidity, Expiration. Except as provided in the subsection entitled “Waiver of Class or Other Non-Individualized Relief”, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect. You further agree that any Dispute that you have with Company as detailed in this Arbitration Agreement must be initiated via arbitration within the applicable statute of limitation for that claim or controversy, or it will be forever time barred. Likewise, you agree that all applicable statutes of limitation will apply to such arbitration in the same manner as those statutes of limitation would apply in the applicable court of competent jurisdiction.
(k) Modification. Notwithstanding any provision in these Terms to the contrary, we agree that if Company makes any future material change to this Arbitration Agreement, you may reject that change within 30 days of such change becoming effective by writing Company at the following address: SnapInstruct 40 W 51 St #147 New York, NY 10020, or email to legal@snapinstruct.com. Unless you reject the change within 30 days of such change becoming effective by writing to Company in accordance with the foregoing, your continued use of the Services and/or Services, including the acceptance of products and services offered on the Services following the posting of changes to this Arbitration Agreement constitutes your acceptance of any such changes. Changes to this Arbitration Agreement do not provide you with a new opportunity to opt out of the Arbitration Agreement if you have previously agreed to a version of these Terms and did not validly opt out of arbitration. If you reject any change or update to this Arbitration Agreement, and you were bound by an existing agreement to arbitrate Disputes arising out of or relating in any way to your access to or use of the Services or of the Services, any communications you receive, any products sold or distributed through the Services, the Services, or these Terms, the provisions of this Arbitration Agreement as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms) remain in full force and effect. Company will continue to honor any valid opt outs of the Arbitration Agreement that you made to a prior version of these Terms.
10.3 Export
The Services may be subject to U.S. export control laws and may be subject to export or import regulations in other countries. You agree not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from Company, or any products utilizing such data, in violation of the United States export laws or regulations.
10.4 Disclosures
Company is located at the address in Section 10.8. If you are a California resident, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Product of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
10.5 Electronic Communications
The communications between you and Company use electronic means, whether you use the Services or send us emails, or whether Company posts notices on the Services or communicates with you via email. For contractual purposes, you (a) consent to receive communications from Company in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Company provides to you electronically satisfy any legal requirement that such communications would satisfy if it were be in a hardcopy writing. The foregoing does not affect your non-waivable rights.
10.6 Entire Terms
(a) These Terms constitute the entire agreement between you and us regarding the use of the Services. Our failure to exercise or enforce any right or provision of these Terms shall not operate as a waiver of such right or provision. The section titles in these Terms are for convenience only and have no legal or contractual effect. The word “including” means “including without limitation”. If any provision of these Terms is, for any reason, held to be invalid or unenforceable, the other provisions of these Terms will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Your relationship to Company is that of an independent contractor, and neither party is an agent or partner of the other. These Terms, and your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by you without Company’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. Company may freely assign these Terms. The terms and conditions set forth in these Terms shall be binding upon assignees.
(b) Governing Law. These Terms of Service shall be governed by and construed in accordance with the laws of the State of New York, United States of America, without giving effect to any principles of conflicts of law. Any legal suit, action, or proceeding arising out of, or related to, these Terms of Service shall be instituted exclusively in the federal courts of the United States or the courts of the State of New York, in each case located in the City of New York and County of New York. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.
10.7 Copyright/Trademark Information
Copyright © 2024 SnapInstruct Inc. All rights reserved. Alltrademarks, logos and service marks (“Marks”) displayed on the Services are our property or the property of other third parties. You are not permitted to use these Marks without our prior written consent or the consent of such third party which may own the Marks.
10.8 Contact Information
Address: SnapInstruct 40 W 51 St #147 New York, NY 10020. Telephone: (646) 535-4873. Email: info@snapinstruct.com
10.9 Definitions
"Partner" means a company that provides content to SnapInstruct for the creation of Offerings under the terms of the Content Agreement.
"Reseller" means a company that has signed a separate commercial agreement with SnapInstruct to resell Offerings to Customers under the terms of the Reseller Agreement.
"Affiliate" means any legal entity that controls, is controlled by, or is under common control with a party.
"Customer" means the individual or entity that purchases or accesses the Offerings, either directly from SnapInstruct or through a Partner or Reseller.
"End User" means any person Customer permits to use an Offering or access Customer Data.
"Feedback" means ideas, suggestions, comments, input, or know-how, in any form, that one party provides to the other in relation to recipient's Confidential Information, products, or services. Feedback does not include sales forecasts, future release schedules, marketing plans, financial results, and high-level plans (e.g., feature lists) for future products.
"Offering" means all services, websites (including hosting), solutions, platforms, and products identified in an Order and that SnapInstruct makes available under or in relation to this Agreement, including the software, equipment, technology, and services necessary for SnapInstruct to provide the foregoing. Offering availability may vary by region.
"Order" means an ordering document used to transact the Offering via the Marketplace, Docusign, pdf order form, online form, or other purchase method.
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Appendix A: Content Agreement
1. Preamble
SnapInstruct operates an innovative platform that transforms traditional learning content into interactive courses ("Courses"). Partner owns or controls certain educational content ("Partner Content") and desires to license such Partner Content to SnapInstruct for adaptation and distribution through SnapInstruct's platform as one or more Courses.
1.1 Parties
This Content Agreement ("Content Agreement") is entered into by you (“you” or “Company Representative”) in your role as an official representative of the partner company (“Partner”), and it is a binding agreement between Partner and SnapInstruct Inc., a Delaware Corporation located at 40 West 51st Street, #147, New York, NY 10020 ("SnapInstruct"), effective as of the date of signing by You, whether physical or electronic signature (the "Effective Date"). You certify that you are a company representative empowered to sign binding agreements on behalf of Partner. SnapInstruct and Partner are each referred to herein as a "Party" and collectively as the "Parties."
1.2. Provision of Partner Content
You and Partner agree that by providing Partner Content to SnapInstruct, you agree that SnapInstruct shall create Courses based on that Partner Content, pursuant to this Content Agreement.
2. Content Rights
2.1 License Grants
(a) Partner hereby grants SnapInstruct a non-exclusive, worldwide, royalty-free license to use, reproduce, modify, adapt, translate, distribute, publicly perform, and display the Partner Content in connection with the creation and delivery of interactive courses through SnapInstruct's platform during the Term.
(b) The license includes the right for SnapInstruct to sublicense the Partner Content to its Customers and End Users solely for use in connection with the Courses.
(c) SnapInstruct acknowledges that Partner retains all ownership rights in the Partner Content, and that SnapInstruct acquires no right, title or interest in such content except for the licenses expressly granted herein.
2.2 Representation & Warranties:
Partner represents and warrants that:
(a) It has the full right, power, and authority to enter into this Content Agreement and to grant the licenses set forth herein;
(b) The Partner Content does not and will not infringe, misappropriate or violate any intellectual property rights, privacy rights, publicity rights, or other rights of any third party;
(c) The Partner Content does not and will not contain any material that is defamatory, obscene, or otherwise unlawful; and
(d) Partner will provide SnapInstruct with prompt written notice of any actual or threatened claims that the Partner Content violates any third party rights.
2.3 Trademarks
Each Party grants the other a limited, non-exclusive license to use its trademarks, trade names, service marks, and logos (the "Marks") on its web sites and app interfaces, and in connection with the marketing and promotion of the courses developed under this Content Agreement. All use of a Party's Marks by the other Party will inure to the benefit of the Mark owner. No Party will take any action that jeopardizes or impairs the other Party's rights in its Marks. Any goodwill arising from one Party's use of the other Party's Marks will inure to the benefit of the Mark owner.
3. Interactive Course Content Development
3.1. Learning Solution Development
SnapInstruct will use commercially reasonable efforts to adapt and transform the Partner Content into a format customized for interactive courses (the “Interactive Course Content”) suitable for delivery through SnapInstruct’s software, services, and content delivery solutions, collectively the “SnapInstruct Platform”.
Partner retains all ownership and control of Partner Content.
SnapInstruct retains all ownership rights to the Interactive Course Content and the Courses created by Snapinstruct, and the SnapInstruct Platform. SnapInstruct retains all right, title, and interest in and to its software, code, and any related intellectual property (the “SnapInstruct IP”) created after signing this Content Agreement. Nothing in this Agreement grants Partner any rights or licenses to such SnapInstruct IP.
3.2 Course Provision
SnapInstruct will have the exclusive right to provide the Interactive Course Content and Courses to Customers and End Users through the SnapInstruct Platform. Partner may not directly provide the Courses to Customers or End Users, except as outlined in Appendix B, the Reseller Agreement.
The end-users' use of the Offerings created under this Content Agreement is subject to the terms of the Purchaser Agreement, which is an appendix to the Terms of Service.
4. Term, Termination, and Renewal
4.1 Agreement Term
This Content Agreement will commence on the Effective Date and continue for an initial term of two (2) years, unless terminated earlier as provided herein. Thereafter, the Content Agreement will automatically renew for successive one (1) year terms unless either Party gives written notice of non-renewal at least sixty (60) days prior to the end of the then-current term.
4.2 Termination Rights
(a) Either Party may terminate this Content Agreement upon written notice if the other Party materially breaches the Content Agreement and fails to cure such breach within thirty (30) days of receiving written notice of the breach.
(b) Either Party may terminate this Content Agreement immediately upon written notice if the other Party: (i) becomes insolvent; (ii) files a petition for bankruptcy or has an involuntary petition filed against it; (iii) makes an assignment for the benefit of creditors; or (iv) has a receiver appointed for a substantial portion of its assets.
(c) SnapInstruct may terminate this Content Agreement upon written notice if Partner or the Partner Content violates SnapInstruct's Platform Policies, Terms of Service, or Privacy Policy, which may be updated from time to time.
(d) Upon termination of this agreement, any attached Reseller Agreement in the Appendix shall also terminate, except for any Post Termination Obligations as listed in section 4.3 or in the Reseller Agreement.
4.3. Post Termination Obligations
Upon expiration or termination of this Content Agreement for any reason: (a) All licenses granted herein will automatically terminate, except that SnapInstruct may continue providing the Courses to Customers and End Users who purchased access or otherwise received access to free or trial Courses prior to the effective date of termination, for the remaining duration of such paid, free, or trial Courses, and will maintain any related rights needed to be able to provide Courses to those Customers and End Users; and (b) SnapInstruct will pay Partner any revenue share, if any, owed through the termination date, in accordance with the Reseller Agreement in Appendix B; and (c) Partner will pay SnapInstruct any revenue share owed through the termination date, if any, in accordance with the Reseller Agreement in Appendix B; and (d) Each Party will cease all use of the other Party's Marks and return or destroy all Confidential Information of the other Party in its possession, subject to applicable law.
5. Confidentiality and Privacy
5.1 Confidentiality
Each Party acknowledges that it will have access to certain confidential information of the other Party, including the terms of this Content Agreement, business plans, technical data, and product information ("Confidential Information"). Each Party will maintain the confidentiality of the other Party's Confidential Information and will not use or disclose such information to any third party except as necessary to perform its obligations or exercise its rights under this Content Agreement. This obligation will not apply to information that: (a) is or becomes publicly available without breach of this Content Agreement; (b) is rightfully received from a third party without confidentiality restrictions; or (c) is independently developed without use of the other Party's Confidential Information. Each Party may disclose Confidential Information as required by law or court order, provided it gives the other Party reasonable prior notice and opportunity to contest the disclosure.
5.2 Privacy
Each Party will comply with all applicable privacy laws and regulations with respect to the collection, use, and disclosure of personal information in connection with this Content Agreement. Partner will provide SnapInstruct with necessary consents and disclosures for any personal information provided to SnapInstruct under this Content Agreement, in compliance with Partner's privacy policy. SnapInstruct will process such personal information in accordance with the SnapInstruct Privacy Policy.
6. Liability and Indemnification
6.1 Indemnification by Partner
Partner will indemnify, defend, and hold harmless SnapInstruct and its affiliates, officers, directors, employees, and agents from any third-party claims, damages, liabilities, and costs (including reasonable attorneys' fees) arising from or related to: (a) Partner's breach of this Content Agreement; (b) any claim that the Partner Content infringes or misappropriates any third party intellectual property rights; or (c) Partner's gross negligence or willful misconduct.
6.2 Indemnification by SnapInstruct
SnapInstruct will indemnify, defend, and hold harmless Partner and its affiliates, officers, directors, employees, and agents from any third-party claims, damages, liabilities, and costs (including reasonable attorneys' fees) arising from or related to: (a) SnapInstruct's breach of this Content Agreement; (b) any claim that the SnapInstruct Platform infringes or misappropriates any third party intellectual property rights; or (c) SnapInstruct's gross negligence or willful misconduct.
6.3 Indemnification Procedure
The indemnified Party will promptly notify the indemnifying Party of any Claim and cooperate in its defense. The indemnifying Party will have sole control over defense and settlement, provided that any settlement requiring the indemnified Party to admit liability or pay money will require its prior consent, not to be unreasonably withheld. The indemnified Party may participate in the defense at its own expense.
6.4 Disclaimer of Certain Damages
EXCEPT FOR LIABILITY ARISING FROM A PARTY'S INDEMNIFICATION OBLIGATIONS, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES, INCLUDING LOST PROFITS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
6.5 Limitation of Liability
EXCEPT FOR LIABILITY ARISING FROM A PARTY'S INDEMNIFICATION OBLIGATIONS, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, EACH PARTY'S AGGREGATE LIABILITY ARISING FROM THIS AGREEMENT WILL NOT EXCEED THE AMOUNTS PAID OR PAYABLE TO THE OTHER PARTY HEREUNDER DURING THE 12 MONTH PERIOD BEFORE THE EVENT GIVING RISE TO LIABILITY.
7. General Legal Provisions
7.1 Force Majeure
Neither Party will be liable for any delay or failure to perform under this Content Agreement due to circumstances beyond its reasonable control, including acts of God, war, terrorism, riots, embargoes, strikes, or other industrial disturbances, or internet or communication failures.
7.2 Arbitration
Any dispute arising out of or relating to this Content Agreement will be resolved by binding arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules. The arbitration will be conducted in New York, New York by a single arbitrator appointed in accordance with the rules. Judgment on the award may be entered in any court of competent jurisdiction. Notwithstanding the foregoing, either Party may seek equitable relief in any court of competent jurisdiction to protect its intellectual property rights or Confidential Information.
7.3 Governing Law and Jurisdiction
This Content Agreement will be governed by and construed in accordance with the laws of the State of New York, without regard to its conflict of law principles. Subject to the arbitration clause, the Parties consent to the exclusive jurisdiction of the state and federal courts located in New York, New York for any litigation relating to this Content Agreement.
7.4 Amendments and Waivers
Any amendment or waiver of this Content Agreement must be in writing and signed by both Parties. No waiver of any breach will be deemed a waiver of any subsequent breach.
7.5 Assignment and Successors
Neither Party may assign this Content Agreement without the prior written consent of the other Party, except that either Party may assign this Content Agreement without consent to a successor in connection with a merger, acquisition, or sale of substantially all of its assets. Any attempted assignment in violation of this section will be void. This Content Agreement will bind and inure to the benefit of the Parties and their respective successors and permitted assigns.
8. Definitions and Interpretations
8.1 Definitions
"Partner" means a company that provides content to SnapInstruct for the creation of Offerings under the terms of the Content Agreement.
“Customers” (or “Customer”) means individuals or entities that purchase or receive free licenses to the Courses, either directly from SnapInstruct or from Partner or an authorized reseller.
“End User” or “End Users” means any person Customer permits to use an Offering or access Customer Data.
“Gross Revenue” means the full price paid by the customer for the item, minus sales taxes collected and returns, if any.
"Net Revenue" means gross amounts received minus taxes, returns and refunds, customer adjustments, payment processing, and any other transaction fees, if any, unless otherwise specified in Appendix B.
‘Purchase Related Support" means means customer support related to the purchase, access, or delivery of Course licenses, including billing
“Course Cost Minimum” means the minimum cost paid by Partner or Reseller to SnapInstruct for a Course, such that the amount paid by the Partner or Reseller to SnapInstruct for a Course is either 70% of Gross Revenue or the Course Cost Minimum, whichever is higher.
“Total Monthly Minimums” means the minimum monthly cost paid by Partner or Reseller to SnapInstruct for all Courses sold.
8.2 Interpretations
The headings in this Content Agreement are for reference only and do not affect the interpretation of this Content Agreement. The use of "including" means "including without limitation." The terms "will" and "shall" are used interchangeably and denote mandatory obligations. The term "may" denotes a permissive, but not mandatory, action.
This Content Agreement, including the appendices and any other documents incorporated by reference, constitutes the entire agreement between the Parties and supersedes all prior agreements and understandings, whether written or oral, relating to the subject matter of this Content Agreement.
If any provision of this Content Agreement is held to be invalid or unenforceable, the remaining provisions will remain in effect to the maximum extent permitted by law. The Parties are independent contractors, and this Content Agreement does not create any partnership, joint venture, or agency relationship between them.
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Appendix B: Reseller Agreement
This optional Reseller Agreement ("Reseller Agreement") is entered into between Partner and SnapInstruct Inc. ("SnapInstruct").
This Reseller Agreement applies only if the Partner has signed a separate commercial agreement with SnapInstruct for resale rights. By signing such a commercial agreement, the Partner agrees to be bound by the terms of this Reseller Agreement in addition to the Terms of Service. "Reseller" means a company that has signed a separate commercial agreement with SnapInstruct to resell Offerings to Customers under the terms of the Reseller Agreement.
Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Content Agreement.
9.1.1 Course Sales
(a) Partner Sales: Partner may sell licenses to the Courses to Customers if Partner signs this Reseller Agreement attached as Appendix B, subject to SnapInstruct's written approval. Partner has the sole discretion to set the end user pricing for such sales. SnapInstruct may suggest a recommended retail price (RRP) for the Courses, which will be outlined in Section 9.2 “Sales and Pricing”. However, this RRP is non-binding and is provided solely for guidance purposes. Partner is free to deviate from the RRP at its own discretion.
(b) SnapInstruct Sales: SnapInstruct may sell licenses to the Courses directly to Customers and End Users at prices determined by SnapInstruct, subject to Partner’s written approval. SnapInstruct may also provide Courses to End Users at Partner either for free or exchange for payment by Partner, subject to the approval of Partner.
(c) Third Party Resellers: SnapInstruct may designate third parties as authorized resellers of the Courses by having such third parties sign the Reseller Agreement, subject to Partner’s written approval. Such resellers have the sole discretion to set end user pricing for their sales. The non-binding RRP suggested by SnapInstruct, if any, will be communicated to these resellers in the same manner as to Partner.
(d) Revenue Share: Regardless of the sales channel or the actual end user price charged, the revenue share arrangement between SnapInstruct and the selling party (Partner or authorized reseller) will be as specified in Section 3.4 and Section 9.2.
9.1.2 Revenue Share and Payments
(a) For licenses sold by SnapInstruct, SnapInstruct will pay Partner a revenue share of 30% of Net Revenue.
(b) For licenses sold by Partner or third party resellers, the reseller will pay SnapInstruct a revenue share of 70% of Gross Revenue, subject to any Course Cost Minimums or Total Monthly Minimums or revenue share adjustments, if any, listed in Section 9.2.
(c) The selling party will provide the other party with a monthly sales report and pay the revenue share owed within 30 days after the end of each month (e.g., June sales reported and paid in July).
9.1.3 Product Support
(a) For Purchase Related Support issues, the selling party will provide support to Customers and End Users and may escalate issues to the other party if needed.
(b) For support issues other than Purchase Related Support, SnapInstruct will provide support directly to Customers and End Users for the Courses and SnapInstruct Platform.
9.1.4 Marketing
(a) Each Party will bear its own costs of marketing the Courses unless otherwise agreed in writing.
(b) Each Party may use the other Party's name, logo, and other trademarks in marketing materials for the Courses, subject to the other Party's standard trademark usage guidelines. Additional joint marketing initiatives may be agreed in writing by the Parties.
9.1.5 Reseller Appointment
By agreeing to this Reseller Agreement Appendix, whether physically or via electronic signature, You and Partner agree to be bound by the terms of this Reseller Agreement if Partner chooses to act as a reseller of Courses, in which case Partner will also be referred to as “Reseller.”
Appointment. Subject to the terms and conditions of this Reseller Agreement, SnapInstruct hereby appoints Reseller as a non-exclusive reseller to market and collect payment for the Courses (as defined in the Content Agreement and listed in Appendix A) to Customers in the Territory. Reseller accepts such appointment and agrees to use commercially reasonable efforts to market and promote the Courses.
Territory. Reseller's rights under this Reseller Agreement are limited to the United States and United Kingdom, except as otherwise noted in Section 9.2 (the "Territory"). Reseller shall not solicit orders for the Courses or engage in any advertising or promotional activities relating to the Courses outside the Territory or in any country subject to U.S. or European export controls.
9.1.6 International Data Transfers
If Reseller or any of its sub-processors are located outside the European Economic Area (EEA), United Kingdom (UK), or Switzerland and will process personal data on behalf of SnapInstruct, Reseller agrees to enter into Standard Contractual Clauses (SCCs) with SnapInstruct to ensure appropriate safeguards for the transfer of personal data.
The Standard Contractual Clauses to be used will be:
a. For transfers out of the UK: The UK Standard Contractual Clauses for data controller to data processor transfers approved by the European Commission in decision 2010/87/EU.
b. For transfers out of the EEA or Switzerland: The Standard Contractual Clauses approved by the European Commission in decision 2021/914, specifically Module Two: Transfer controller to processor.
Reseller shall cooperate with SnapInstruct to complete and execute the appropriate Standard Contractual Clauses and any additional documents required to comply with data protection laws. The executed Standard Contractual Clauses shall be incorporated into and form part of this Reseller Agreement.
In case of conflict between the Standard Contractual Clauses and this Reseller Agreement, the Standard Contractual Clauses shall prevail.
Resale of Courses
Marketing. Reseller shall use commercially reasonable efforts to market and promote the Courses within the Territory. Reseller's marketing activities shall be at its own expense.
Pricing. Reseller has sole discretion to set the pricing at which it markets the Courses to Customers. SnapInstruct may suggest a recommended retail price (RRP) for the Courses, which will be outlined in Section 9.2. However, this RRP is non-binding and provided solely for guidance. Reseller is free to deviate from the RRP at its own discretion.
Licensing. SnapInstruct shall provide the Courses directly to Customers and End Users who purchase through Reseller. The terms of the licenses granted to Customers and End Users shall be as set forth in the Purchaser Agreement and Terms of Service, respectively. No license rights are granted to Reseller.
Taxes. Resellers, including Partners acting as Resellers, are responsible for collecting and remitting any and all taxes, duties, and governmental charges resulting from its sales of the Courses, except for taxes based on SnapInstruct's net income.
Revenue Share and Payment
Partners that provide Partner Content to SnapInstruct and also sell courses as a Reseller shall provide a revenue share to SnapInstruct and abide by the payment terms as set forth in Sections 3.3 and 3.4 of the Content Agreement and Section 9.2 thereto.
3rd party Resellers that only resell content and do not provide Partner Content shall provide a revenue share to SnapInstruct and abide by the payment terms as set forth in Sections 3.3 and 3.4 of the Content Agreement and Section 9.2 thereto.
Customer Support. Reseller shall be responsible for providing Purchase Related Support to its Customers, with escalation to SnapInstruct for second-tier support as needed.
Trademarks. Reseller may use SnapInstruct's trademarks in connection with its marketing of the Courses solely in accordance with Section 2.3 of the Content Agreement. SnapInstruct may use Reseller’s trademarks per Section 2.3 of the Content Agreement.
Term and Termination
Term. This Reseller Agreement shall commence on the Effective Date and continue until terminated in accordance with this Section 6 of the Content Agreement.
Termination for Convenience. Either Party may terminate this Reseller Agreement at any time, with or without cause, upon 90 days' prior written notice to the other Party.
Termination for Cause. Either Party may terminate this Reseller Agreement upon written notice if the other Party materially breaches this Reseller Agreement and fails to cure such breach within 30 days after receiving written notice thereof.
Effect of Termination. Upon termination of this Reseller Agreement: (a) Reseller shall immediately cease marketing the Courses; (b) Reseller shall pay all revenue share amounts due as of the termination effective date; and (c) each Party shall return or destroy the other Party's Confidential Information in its possession. Termination shall not affect Customers' licenses to Courses purchased prior to termination. Sections 3, 6.4, 7 and 8 shall survive termination.
Confidentiality. Each Party shall maintain the confidentiality of the other Party's Confidential Information (as defined in the Content Agreement) and shall use such information solely to exercise its rights and perform its obligations under this Reseller Agreement, except as required by law or court order.
General Provisions
Relationship of Parties. The Parties are independent contractors, and nothing in this Reseller Agreement shall be construed to create a partnership, joint venture or agency relationship between them.
Assignment. Neither Party may assign this Reseller Agreement without the other Party's prior written consent, except in connection with a merger, reorganization, or sale of all or substantially all of its assets. Any attempted assignment in violation of this provision shall be void.
Governing Law. This Reseller Agreement shall be governed by and construed in accordance with the laws of the State of New York, excluding its conflict of law principles. All disputes shall be resolved through binding arbitration in New York, NY in accordance with the Content Agreement.
Entire Agreement. This Reseller Agreement, together with the Content Agreement and any Appendices hereto, constitutes the entire agreement between the Parties concerning the subject matter hereof and supersedes all prior and contemporaneous agreements and communications. This Reseller Agreement may be executed in counterparts and electronically.
9.2 Sales and Pricing
If a recommended retail price (RRP) is to be determined for a course, SnapInstruct shall confirm such RRP in writing to You or Partner.
Course Cost Minimums share be determined in the sole discretion of SnapInstruct and set in writing by SnapInstruct. By selling the Course, the Partner or Reseller agrees to abide by the Course Cost Minimum.
Total Monthly Minimums, if any, shall be determined by mutual agreement of the parties in writing.
The Territory shall be the US and UK, unless otherwise agreed in writing by mutual agreement of the parties.
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Appendix C: Purchaser Agreement
This Purchaser Agreement ("Purchaser Agreement") is between you ("you" or "Customer") and SnapInstruct Inc, the publisher ("Publisher") from which you are procuring or accessing Offerings (defined below) and governs your use of Offerings, whether purchased directly from Publisher, obtained through a free trial or free version, or acquired through a reseller or marketplace, including Microsoft AppSource, Azure Marketplace and any others (collectively, "Marketplace").
This Purchaser Agreement applies to all Customers who purchase Offerings from SnapInstruct or access free versions of the Offerings. By placing an order for Offerings or accessing free versions, the Customer agrees to be bound by the terms of this Purchaser Agreement in addition to the other Terms of Service.
You represent and warrant that you have the authority to accept this Purchaser Agreement, and you also agree to be bound by its terms. This Purchaser Agreement applies to all Orders entered into under this Purchaser Agreement.
Capitalized terms have the meanings given under “Definitions.” Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Content Agreement.
1. License to Offerings
1.1 License grant
Offerings are licensed and not sold. Upon acceptance of an Order, and subject to Customer’s compliance with this Purchaser Agreement, Publisher grants Customer a nonexclusive and limited license to use the ordered Offerings. These licenses are solely for Customer’s own use and business purposes and are nontransferable except as expressly permitted under this Purchaser Agreement or applicable law.
Offerings may contain or be provided with components that are subject to open-source software licenses. Any use of those components may be subject to additional terms and conditions and Customer agrees that any applicable licenses governing the use of the components will be incorporated by reference in this Purchaser Agreement.
1.2 Duration of licenses
Licenses granted on a subscription basis expire at the end of the applicable subscription period set forth in the Order, unless renewed. Licenses granted for metered Offerings billed periodically based on usage continue as long as Customer continues to pay for its usage of the Offerings. All other licenses become perpetual upon payment in full.
1.3 End Users
Customer will control access to and use of the Offerings by End Users and is responsible for any use of the Offerings that does not comply with this Purchaser Agreement.
1.4 Affiliates
Customer may order Offerings for use by its Affiliates. If it does, the licenses granted to Customer under this Purchaser Agreement will apply to such Affiliates, but Customer will have the sole right to enforce this Purchaser Agreement against Publisher. Customer will remain responsible for allobligations under this Purchaser Agreement and for its Affiliates’ compliance with this Purchaser Agreement and any applicable Order(s).
1.5 Reservation of Rights
Publisher reserves all rights not expressly granted in this Purchaser Agreement. Offerings are protected by copyright and other intellectual property laws and international treaties. No rights will be granted or implied by waiver or estoppel. Rights to access or use Offerings on a device do not give Customer any right to implement Publisher’s patents or other intellectual property in the device itself or in any other software or devices.
1.6 Restrictions
Except as expressly permitted in this Purchaser Agreement, Documentation or an Order, Customer must not (and is not licensed to):
a. copy, modify, reverse engineer, decompile, or disassemble any Offering, or attempt to do so;
b. install or use any third-party software or technology in any way that would subject Publisher’s intellectual property or technology to any other license terms;
c. work around any technical limitations in an Offering or restrictions in Documentation;
d. separate and run parts of an Offering on more than one device;
e. upgrade or downgrade parts of an Offering at different times;
f. use an Offering for any unlawful purpose;
g. transfer parts of an Offering separately; or
h. distribute, sublicense, rent, lease, or lend any Offerings, in whole or in part, or use them to offer hosting services to a third party.
1.7 License transfers
Customer may only transfer fully-paid, perpetual licenses to (1) an Affiliate or (2) a third party solely in connection with the transfer of hardware to which, or employees to whom, the licenses have been assigned as part of (A) a divestiture of all or part of an Affiliate or (B) a merger involving Customer or an Affiliate. Upon such transfer, Customer must uninstall and discontinue using the licensed Offering and render any copies unusable. Customer must notify Publisher of a License transfer and provide the transferee a copy of this Purchaser Agreement and any other documents necessary to show the scope, purpose, and limitations of the licenses transferred. Attempted license transfers that do not comply with this section are void.
1.8 Feedback
Any Feedback is given voluntarily, and the provider grants to the recipient, without charge, a non-exclusive license under provider’s owned or controlled non-patent intellectual property rights to make, use, modify, distribute, and commercialize the Feedback as part of any of recipient’s products and services, in whole or in part and without regard to whether suchFeedback is marked or otherwise designated by the provider as confidential. The provider retains all other rights in any Feedback and limits the rights granted under this section to licenses under its owned or controlled non-patent intellectual property rights in the Feedback (which do not extend to any technologies that may be necessary to make or use any product or service that incorporates, but are not expressly part of, the Feedback, such as enabling technologies).
2. Privacy
2.1 EU Standard Contractual Clauses
To the extent applicable, the parties will abide by the requirements of European Economic Area and Swiss data protection law regarding the collection, use, transfer, retention, and other processing of Personal Data from the European Economic Area and Switzerland. All transfers of Customer Data out of the European Union, European Economic Area, and Switzerland will be governed by the Standard Contractual Clauses, as designated by the European Commission, made available by the Publisher at the applicable URL for such terms or as otherwise communicated to Customer.
2.2 Personal Data
Customer consents to the processing of Personal Data by Publisher and its Affiliates, and their respective agents and Subcontractors, as provided in this Purchaser Agreement. Before providing Personal Data to Publisher, Customer will obtain all required consents from third parties (including Customer’s contacts, partners, distributors, administrators, and employees) under applicable privacy and Data Protection Laws.
2.3 Processing of Personal Data; GDPR
To the extent Publisher is a processor or subprocessor of Personal Data subject to the GDPR, the Standard Contractual Clauses govern that processing and the parties also agree to the following terms in this subsection (“Processing of Personal Data; GDPR”):
a. Processor and Controller Roles and Responsibilities. Customer and Publisher agree that Customer is the controller of Personal Data and Publisher is the processor of such data, except when (a) Customer acts as a processor of Personal Data, in which case Publisher is a subprocessor or (b) stated otherwise in any Offering-specific terms. Publisher will process Personal Data only on documented instructions from Customer. In any instance where the GDPR applies and Customer is a processor, Customer warrants to Publisher that Customer’s instructions, including appointment of Processor as a processor or subprocessor, have been authorized by the relevant controller.
b. Processing Details. The parties acknowledge and agree that:
i. the subject-matter of the processing is limited to Personal Data within the scope of the GDPR;ii. the duration of the processing will be for the duration of the Customer’s right to use the Offering and until all Personal Data is deleted or returned in accordance with Customer instructions or the terms of this Purchaser Agreement;
iii. the nature and purpose of the processing will be to provide the Offering pursuant to this Purchaser Agreement;
iv. the types of Personal Data processed by the Offering include those expressly identified in Article 4 of the GDPR; and
v. the categories of data subjects are Customer’s representatives and end users, such as employees, contractors, collaborators, and customers, and other data subjects whose Personal Data is contained within any data made available to Publisher by Customer.
c. Data Subject Rights; Assistance with Requests. Publisher will make information available to Customer in a manner consistent with the functionality of the Offering and Publisher’s role as a processor of Personal Data of data subjects and the ability to fulfill data subject requests to exercise their rights under the GDPR. Publisher will comply with reasonable requests by Customer to assist with Customer’s response to such a data subject request. If Publisher receives a request from Customer’s data subject to exercise one or more of its rights under the GDPR in connection with an Offering for which Publisher is a data processor or subprocessor, Publisher will redirect the data subject to make its request directly to Customer. Customer will be responsible for responding to any such request including, where necessary, by using the functionality of the Offering. Publisher will comply with reasonable requests by Customer to assist with Customer’s
response to such a data subject request.
d. Use of Subprocessors. Customer consents to Publisher using the subprocessors listed at the applicable Publisher URL or as otherwise communicated to Customer. Publisher remains responsible for its subprocessors’ compliance with the obligations herein. Publisher may update its list of subprocessors from time to time, by providing Customer at least 14 days notice before providing any new subprocessor with access to Personal Data. If Customer does not approve of any such changes, Customer may terminate any subscription for the affected Offering without penalty by providing, prior to expiration of the notice period, written notice of termination that includes an explanation of the grounds for non-approval.
e. Records of Processing Activities. Publisher will maintain all records required by Article 30(2) of the GDPR and, to the extent applicable to the processing of Personal Data on behalf of Customer, make them available to Customer upon request.
2.4 Security
Publisher will take appropriate security measures that are required by Data Protection Laws and in accordance with good industry practice relating to data security.2.5 Support Data. Publisher may collect and use Support Data internally to provide technical support for the Offering. Publisher will not use Support Data for any other purpose unless otherwise agreed in writing by the parties.
3. Confidentiality
3.1 Non-Disclosure Agreement
The parties will treat all confidential information exchanged between the parties under this Purchaser Agreement in accordance with the separate nondisclosure agreement (“NDA”) executed by the parties. If no separate NDA is in effect, the following provisions apply to the parties’ exchange of confidential information.
3.2 Confidential Information
“Confidential Information” is non-public information that is designated “confidential” or that a reasonable person should understand is confidential, including, but not limited to, Customer Data, Support Data, the terms of this Purchaser Agreement, and Customer’s account authentication credentials. Confidential Information does not include information that: (1) becomes publicly available without a breach of a confidentiality obligation; (2) the receiving party received lawfully from another source without a confidentiality obligation; (3) is independently developed; or (4) is a comment or suggestion volunteered about the other party’s business, products, or services.
3.3 Protection of Confidential Information
Each party will take reasonable steps to protect the other’s Confidential Information and will use the other party’s Confidential Information only for purposes of the parties’ business relationship. Neither party will disclose Confidential Information to third parties, except to its Representatives, and then only on a need-to-know basis under nondisclosure obligations at least as protective as this Purchaser Agreement. Each party remains responsible for the use of Confidential Information by its Representatives and, in the event of discovery of any unauthorized use or disclosure, must promptly notify the other party.
3.4 Disclosure required by law
A party may disclose the other’s Confidential Information if required by law, but only after it notifies the other party (if legally permissible) to enable the other party to seek a protective order.
3.5 Duration of Confidentiality obligation
These obligations apply: (1) for Customer Data, until it is deleted by Publisher; and (2) for all other Confidential Information, for a period of five years after a party receives the Confidential Information.
4. Service Levels, Support, and Customer Obligations
4.1 Service Levels
Publisher commits to using reasonable best efforts to ensure the availability and support of the Offering. Any specific service level agreement ("SLA") that provides for defined availability and support levels will not be included in this Purchaser Agreement but may be covered under a separate agreement, should such an arrangement be established between Publisher and Customer.
4.2 Support
Publisher commits to providing support services using reasonable best efforts. Any commitments beyond best efforts support will be detailed in a separate agreement between the Publisher and Customer.
4.3 Customer obligations
Customers are obligated to adhere strictly to the terms of this agreement, including all referenced policies and procedures. They must use the services provided by the Publisher solely for lawful and intended purposes, ensuring compliance with all applicable laws, regulations, and guidelines. Additionally, customers are responsible for maintaining the confidentiality of their account information and for the security of their system access, and to Cooperate with any audits or investigations conducted by the Publisher related to the use of the services. Any misuse of the services, violation of the agreement terms, or unauthorized access attempts must be promptly reported to the Publisher.
5. Verifying compliance
5.1 Customer must keep records relating to Offerings it and its Affiliates use or distribution. At Publisher’s expense, Publisher may verify Customer’s and its Affiliates’ compliance with this Purchaser Agreement by directing an independent auditor (under nondisclosure obligations) to conduct an audit or ask Customer to complete a self-audit process. Customer must promptly provide any information and documents that Publisher or the auditor reasonably requests related to the verification and access to systems running the Offerings. If verification or self-audit reveals any unlicensed use, Customer must order sufficient licenses to cover the period of its unlicensed use. The audits may be conducted more frequently, if required by the party’s auditors and/or regulators, of books and records related to this Purchaser Agreement. The expenses for all such audit will be borne by the party conducting the audit. All information and reports related to the verification process will be Confidential Information and used solely to verify compliance.
5.2 Upon request, Publisher will make available to Customer all information necessary to conduct an audit and demonstrate compliance under GDPR provisions for the processing of Personal Data. Customer may request information through a security questionnaire or self-attestation.
6. Representation and warranties
6.1 Publisher continuously represents and warrants that:
a. it has full rights and authority to enter into, perform under, and grant the rights in, this Purchaser Agreement;
b. its performance will not violate any agreement or obligation between it and any third party;
c. the Offering will substantially conform to the Documentation;
d. the Offering will not:
i. to the best of Publisher’s knowledge, infringe or violate any third party patent, copyright, trademark, trade secret, or other proprietary right; or
ii. contain viruses or other malicious code that will degrade or infect any products, services, software, or Customer’s network or systems, and
e. while performing under this Purchaser Agreement, Publisher will comply with law, including Data Protection Laws and Anti-Corruption Laws, and will provide training to its employees regarding Anti-Corruption Laws.
6.2 Disclaimer
Except as expressly stated in this Purchaser Agreement, the Offering is provided as is. To the maximum extent permitted by law, Publisher disclaims any and all other warranties (express, implied or statutory, or otherwise) including of merchantability or fitness for a particularpurpose, whether arising by a course of dealing, usage or trade practice, or course of performance.
7. Defense of third-party claims
7.1 By Customer
The Customer agrees to defend, indemnify, and hold harmless the Publisher and its affiliates, officers, agents, employees, and partners from and against any and all third-party claims, actions, suits, proceedings, and demands arising from or in any way related to the Customer’s or any authorized user’s use of the Services, including but not limited to violations of this Purchaser Agreement, infringement or violation of the intellectual property rights or other rights of any third parties, or any other misuse of the Services. This indemnification obligation covers all reasonable attorneys' fees incurred, damages, and other costs that are finally awarded against the Publisher or its Affiliates in a court of competent jurisdiction, as well as amounts paid by the Publisher or its Affiliates under a court-approved settlement. The Customer will provide the Publisher with prompt written notice of any such claims and allow the Customer the right to assume the exclusive defense and control of any claim, subject to the Publisher's right to participate with counsel of its own choosing, and will not in any event settle any claim without the prior written consent of the Publisher. The Customer’s indemnification obligations under this section will survive the termination or expiration of this Purchaser Agreement.
7.2 By Publisher
Publisher will defend Customer from and against any and all third party claims, actions, suits, proceedings, and demands alleging that: (i) the use of the Offering as permitted under the Contract infringes or misappropriates a third party’s intellectual property rights and (ii) any violation of applicable law including Data Protection Laws (a “Claim Against Customer”), and will indemnify Customer for all reasonable attorney’s fees incurred and damages and other costs finally awarded against Customer in connection with or as a result of, and for amounts paid by Customer under a settlement Publisher approve of in connection with a Claim Against Customer; provided, however, that the Publisher has no liability if a Claim Against Customer arises from: (1) Customer Data or non-Publisher products, including third-party software; and (2) any modification, combination or development of the Offering that is not performed or authorized in writing by Publisher, including in the use of any application programming interface (API). Customer must provide Publisher with prompt written notice of any Claim Against Customer and allow Publisher the right to assume the exclusive defense and control and cooperate with any reasonable requests assisting Publisher’s defense and settlement of such matter. This section states Publisher sole liability with respect to, and Customer’s exclusive remedy against Publisher for, any Claim Against Customer.
7.3 Notwithstanding anything contained in the above subsections (a) and (b), (1) an indemnified party will always be free to choose its own counsel if it pays for the cost of such counsel; and (2) no settlement may be entered into by an indemnifying party, without the express written consent of the indemnified parties (such consent not to be unreasonably withheld), if: (A) the third party asserting the claim is a government agency; (B) the settlement arguably involves the making of admissions by the indemnified parties; (C) the settlement does not include a full release of liability for the indemnified parties; or (D) the settlement includes terms other than a full release of liability for the indemnified parties and the payment of money.
7.4 International Data Transfers
If Personal Data originates from the European Economic Area (EEA), United Kingdom (UK), or Switzerland and is transferred to SnapInstruct's US-based servers for processing, the Parties agree that the Standard Contractual Clauses (SCCs) shall apply to such data transfers to ensure appropriate safeguards.
The Standard Contractual Clauses to be used will be: a. For transfers out of the UK: The UK Standard Contractual Clauses for data controller to data processor transfers approved by the European Commission in decision 2010/87/EU.
b. For transfers out of the EEA or Switzerland: The Standard Contractual Clauses approved by the European Commission in decision 2021/914, specifically Module Two: Transfer controller to processor.
The specific details of the Standard Contractual Clauses, including the information required by Annex 1 and the technical and organizational measures implemented by SnapInstruct, can be found in the Data Privacy Addendum (Appendix A to the SnapInstruct Privacy Policy).
In case of conflict between the Standard Contractual Clauses and this Purchaser Agreement or the Terms of Service, the Standard Contractual Clauses shall prevail.
8. Limitation of Liability
For each Offering, each party’s maximum, aggregate liability to the other under this Purchaser Agreement is limited to direct damages finally awarded in an amount not to exceed the amounts Customer was required to pay for the Offerings during the term of the applicable licenses, subject to the following:
a. Subscriptions
For Offerings ordered on a subscription basis, Publisher’s maximum liability to Customer for any incident giving rise to a claim will not exceed the amount Customer paid for the Offering during the 12 months before the incident or $500,000, whichever is greater. For Offerings ordered on a subscription basis, Publisher’s maximum liability to Customer for any unauthorized access, use, or disclosure of Customer Data due to a breach of Publisher’s obligations under Section II(6) (Security), Publisher’s maximum liability to Customer will not exceed two times (2x) the amount Customer paid for the Offering during the 12 month before the incident or $2,000,000, whichever is greater.
b. Free Offerings and distributable code
For Offerings provided free of charge and code that Customer is authorized to redistribute to third parties without separate payment to Publisher, Publisher’s liability is limited to direct damages finally awarded up to US$5,000.
c. No Indirect Damages
In no event will either party be liable for indirect, incidental, special, punitive, or consequential damages, or loss of use, loss of profits, or interruption of business, however caused or on any theory of liability.
d. Exceptions
No limitation or exclusions will apply to liability arising out of either party’s: (1) confidentiality obligations under Section 3 (except for liability related to Customer Data, which will remain subject to the limitations and exclusions above); (2) defense obligation under Section 7; (3) violation of the other party’s intellectual property rights; or (4) gross negligence, willful misconduct, or fraud.
9. Pricing and Payment
Publisher will provide Customer with various options for the payment of services rendered under this Purchaser Agreement. At the discretion of the Publisher, payment may be made through the Microsoft Commercial Marketplace, utilizing Microsoft's billing and payment infrastructure, via Stripe for digital payment processing, or through Shopify's e-commerce platform. Additionally, Publisher may issue invoices directly to Customer, which can be paid through traditional payment methods, including bank transfers or checks. The specific terms, including payment schedules, applicable fees, and any processing charges, will be detailed in the applicable Order or communicated to the Customer at the time of purchase. Customer agrees to pay all amounts due in accordance with the payment terms provided in the Order and to comply with the terms and conditions of the Microsoft Commercial Marketplace Terms of Use, Stripe's services agreement, or Shopify's terms of service, as applicable.
All sales are final and non-refundable, except as required by applicable law. Publisher, in its sole discretion, may issue refunds on a case-by-case basis for exceptional circumstances. However, Publisher is under no obligation to provide refunds, and the decision to issue a refund, if any, will be made solely by Publisher after considering the specific circumstances of the request.
Customer acknowledges and agrees that: a. Purchases made through third-party platforms (e.g., Microsoft Commercial Marketplace, Stripe, or Shopify) may be subject to additional refund policies or restrictions imposed by those platforms. In such cases, the third-party platform's refund policy will supersede Publisher's refund policy. b. Refunds, if issued, may be subject to processing fees or other charges imposed by payment processors or third-party platforms. Such fees or charges will be deducted from the refund amount. c. Refund requests must be submitted in writing to Publisher within 30 days of the original purchase date. Requests submitted after this period may be denied. d. Publisher reserves the right to modify or discontinue its refund policy at any time without prior notice. Any changes to the refund policy will be effective immediately upon posting on Publisher's website or notification to Customer.
By purchasing or using Publisher's services, Customer acknowledges and agrees to this refund policy. If Customer does not agree to this policy, they should not proceed with the purchase or use of Publisher's services.
10. Term and Termination
10.1 Term
This Purchaser Agreement is effective until terminated by a party, as described below. The term for each Order will be set forth therein.
10.2 Termination without cause
Unless otherwise set forth in an Order, either party may terminate this Purchaser Agreement or any Order without cause on 60 days’ notice. Termination without cause will not affect Customer’s perpetual licenses, and licenses granted on a subscription basis willcontinue for the duration of the subscription period(s), subject to the terms of this Purchaser Agreement. Publisher will not provide refunds or credits for any partial subscription period(s) if the Purchaser Agreement or an Order is terminated without cause.
10.3 Termination for cause
Without limiting other remedies it may have, either party may terminate this Purchaser Agreement or any Order immediately on notice if (i) the other party materially breaches the Purchaser Agreement or an Order, and fails to cure the breach within 30 days after receipt of notice of the breach; or (ii) the other party becomes Insolvent. Upon such termination, the following will apply:
a. All licenses granted under this Purchaser Agreement will terminate immediately except for fully-paid, perpetual licenses.
b. All amounts due under any unpaid invoices will become due and payable immediately. For metered Offerings billed periodically based on usage, Customer must immediately pay for unpaid usage as of the termination date.
c. If Publisher is in breach, Customer will receive a credit for any subscription fees, including amounts paid in advance for unused consumption for any usage period after the termination date.
10.4 Suspension
Publisher may suspend use of the Offering without terminating this Purchaser Agreement during any period of material breach. Publisher will give Customer reasonable notice before suspending the Offering. Suspension will only be to the extent reasonably necessary.
10.5 Refund
For Offerings ordered on a subscription basis that are $100,000 or more, if Publisher breaches any of the foregoing warranties and those breaches remain uncured for 30 days, Customer may terminate this Purchaser Agreement and Publisher will provide Customer a full refund of all fees paid to Publisher.
10.6 Survival
The terms of this Purchaser Agreement, including the applicable Order, that are likely to require performance, or have application to events that may occur, after the termination or expiration of this Purchaser Agreement or any Order, will survive termination or expiration, including all indemnity obligations and procedures.
11. Arbitration and Dispute Resolution
11.1 Purchaser Agreement to Arbitrate
The parties agree that any disputes or claims arising out of or in connection with this Purchaser Agreement, including disputes relating to its interpretation, violation, invalidity, non-performance, or termination, shall be finally settled by binding arbitration. This includes disputes arising from or concerning their interpretation, violation, invalidity, non-performance, or termination, regardless of the legal theory.
11.2 Arbitration Process
The arbitration shall be conducted by a neutral arbitration service agreed upon by both parties. If the parties cannot agree on a service, the arbitration shall be conducted according to the rules of the American Arbitration Association (AAA), or another established alternative dispute resolution provider mutually agreed upon by the parties.
11.3 Costs of Arbitration
The costs of arbitration, including administrative and arbitrator fees, shall be shared equally by the parties unless the arbitrator determines that the fees should be allocated differently as part of the award based on the circumstances of the case. Each party shall bear its own costs and attorneys' fees related to the arbitration proceedings.
11.4 Opt-Out Option
Customers have the right to opt out of this arbitration agreement. To do so, the customer must notify the Publisher in writing within 30 days of entering into this Purchaser Agreement. Such notice must be sent to the Publisher's address specified in the Purchaser Agreement or via email to a designated email address.
11.5 Exclusions from Arbitration
Disputes related to the infringement or other misuse of intellectual property rights may be brought in a court of competent jurisdiction without first undergoing arbitration.
11.6 Confidentiality
The arbitration proceedings and any result thereof shall be kept confidential by the parties, except as required by law or for the purposes of enforcement or appeal.
11.7 Enforceability
If any part of this arbitration agreement is deemed unenforceable, the remainder shall still be enforceable to the fullest extent permitted by law. This arbitration agreement shall survive the termination or expiration of the Purchaser Agreement.
12. Miscellaneous
12.1 Entire Agreement
This Purchaser Agreement supersedes all prior and contemporaneous communications, whether written or oral, regarding the subject matter covered in this Purchaser Agreement. If there is a conflict between any parts of this Purchaser Agreement, the following order of precedence will apply:
a. Order;
b. this Purchaser Agreement;c. Service Level Agreement (SLA); and
d. Documentation.
12.2 Independent contractors
The parties are independent contractors. Customer and Publisher each may develop products independently without using the other’s Confidential Information.
12.3 Agreement not exclusive
Customer is free to enter into agreements to license, use, and promote the services of others.
12.4 Amendments
The Publisher reserves the right to modify or amend the terms of this Purchaser Agreement from time to time. Any such modifications will be effective upon the Publisher's posting of the new terms or sending them to the Customer for electronic signature, whichever method the Publisher chooses. The Customer's continued use of the Services after being notified of the changes to the Purchaser Agreement constitutes acceptance of those changes. The Publisher will ensure that any changes to the Purchaser Agreement are fair and reasonable and will provide the Customer with reasonable notice before any changes take effect, allowing the Customer the opportunity to review and accept the changes through an electronic signature process.
12.5 Assignment
Either party may assign this Purchaser Agreement to an Affiliate, but it must notify the other party in writing of the assignment. Customer consents to the assignment to an Affiliate or third party, without prior notice, of any rights Publisher may have under this Purchaser Agreement to receive payment and enforce Customer's payment obligations, and all assignees may further assign such rights without further consent. Furthermore, either party may assign this Purchaser Agreement without the consent of the other party in connection with a merger, reorganization, acquisition, or other transfer of all or substantially all of such party’s assets. Any other proposed assignment of this Purchaser Agreement must be approved by the non-assigning party in writing. Assignment will not relieve the assigning party of its obligations under the assigned Purchaser Agreement. Any attempted assignment without required approval will be void.
12.6 Severability
If any part of this Purchaser Agreement is held to be unenforceable, the rest of the Purchaser Agreement will remain in full force and effect.
12.7 Waiver
Failure to enforce any provision of this Purchaser Agreement will not constitute a waiver. Any waiver must be in writing and signed by the waiving party.
12.8 No third-party beneficiaries
This Purchaser Agreement does not create any third-party beneficiary rights except as expressly provided by its terms.
12.9 Export Control Compliance
The services and products provided under this Purchaser Agreement, including technical data, are subject to the export control laws and regulations of the United States of America. The Customer agrees not to, directly or indirectly, export, re-export, or transfer these services and products or any technical data acquired from the Publisher or produced from such data, to any country, entity, or individual without obtaining prior authorization from the competent government authorities as required by those laws and regulations. This includes adhering to the U.S. export control laws and any applicable international and local laws in the countries where the Customer operates or distributes the services and products. Compliance with these regulations remains the responsibility of the Customer, and the Customer agrees to indemnify, defend, and hold harmless the Publisher from any breach of such laws and regulations.
12.10 Notices
Notices must be in writing and will be treated as delivered on the date received at the address, date shown on the return receipt, email transmission date, or date on the courier or fax confirmation of delivery. Notices to Publisher must be sent to the address stated in the Order. Notices to Customer will be sent to the individual at the address Customer identifies on its account as its contact for notices. Publisher may send notices and other information to Customer by email or other electronic form.
12.11 Applicable law
This Purchaser Agreement and any disputes arising out of or related to it, including but not limited to claims for breach, consumer protection, unfair competition, and tort claims, shall be governed by and construed in accordance with the laws of the State of New York, United States of America, without regard to its conflict of law principles. This applies regardless of where the Offering was acquired, whether in the United States, Canada, or any other country.
12.12 Order of precedence
The body of this Purchaser Agreement will take precedence over any conflicting terms in other documents that are part of this Purchaser Agreement that are not expressly resolved in those documents. Terms in an amendment control over the amended document and any prior amendments concerning the same subject matter.
12.13 Government procurement rules
By accepting this Purchaser Agreement, Customer represents and warrants that: (1) it has complied and will comply with all applicable government procurement laws and regulations; (2) it is authorized to enter into this Purchaser Agreement; and (3) this Purchaser Agreement satisfies all applicable procurement requirements.
12.14 Compliance with laws
Publisher will comply with all laws and regulations applicable to its provision of the Offerings. Publisher will obtain and maintain any approvals, licenses, filings, or registrations necessary to its performance, and will comply with all law (including law related to export, corruption, money laundering, or any combination of these). Customer must also comply with laws applicable to their use of the Offerings.
12.15 Construction
Neither party has entered this Purchaser Agreement in reliance on anything not contained or incorporated in it. This Purchaser Agreement is in English only. Any translation of this Purchaser Agreement into another language is for reference only and without legal effect. If a court of competent jurisdiction finds any term of the Purchaser Agreement unenforceable, the Purchaser Agreement will be deemed modified as necessary to make it enforceable, and the rest of the Purchaser Agreement will be fully enforced to affect the parties’ intent. Lists of examples following “including”, “e.g.”, “for example”, or the like are interpreted to include “without limitation,” unless qualified by words such as “only” or “solely.” This Purchaser Agreement will be interpreted according to its plain meaning without presuming that it should favor either party. Unless stated or context requires otherwise:
a. all internal references are to this Purchaser Agreement and its parties;
b. all monetary amounts are expressed and, if applicable, payable, in U.S. dollars;
c. URLs are understood to also refer to successors, localizations, and information or resources linked from within websites at those URLs;
d. a party’s choices under this Purchaser Agreement are in its sole discretion, subject to any implied duty of good faith;
e. “written” or “in writing” means a paper document only, except where email is expressly authorized;
f. “days” means calendar days;g. “may” means that the applicable party has a right, but not a concomitant duty,
h. “partner,” if used in this Purchaser Agreement or related documents, is used in its common, marketing sense and does not imply a partnership;
i. “current” or “currently” means “as of the Effective Date” but “then-current” means the present time when the applicable right is exercised or performance rendered or measured;
j. “notify” means to give notice under subsection (i) above.
13. Definitions
“Affiliate” means any legal entity that controls, is controlled by, or is under common control with a party.
“Anti-Corruption Laws” means all laws against fraud, bribery, corruption, inaccurate books and records, inadequate internal controls, money-laundering, and illegal software, including the U.S. Foreign Corrupt Practices Act. “Control” means ownership of more than a 50% interest of voting securities in an entity or the power to direct the management and policies of an entity.
“Confidential Information” is defined in the “Confidentiality” section.
“Customer Data” means all data, including all text, sound, software, image or video files that are provided to Publisher or its Affiliates by, or on behalf of, Customer and its Affiliates through use of the Offering. Customer Data does not include Support Data.
“Data Protection Law” means any law applicable to Publisher or Customer, relating to data security, data protection and/or privacy, including Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to processing of personal data and the free movement of that data (“GDPR”), and any implementing, derivative or related legislation, rule, regulation, and regulatory guidance, as amended, extended, repealed and replaced, or re-enacted.
“Documentation” means all user manuals, handbooks, training material, requirements, and other written or electronic materials Publisher makes available for, or that result from use of, the Offering.
“End User” means any person Customer permits to use an Offering or access Customer Data.“Feedback” means ideas, suggestions, comments, input, or know-how, in any form, that one party provides to the other in relation to recipient’s Confidential Information, products, or services. Feedback does not include sales forecasts, future release schedules, marketing plans, financial results, and high-level plans (e.g., feature lists) for future products.
“Insolvent” means admitting in writing the inability to pay debts as they mature; making a general assignment for the benefit of creditors; suffering or permitting the appointment of a trustee or receiver for all or any of its (i.e., the non-terminating party’s) assets, unless such appointment is vacated or dismissed within 60 days from the date of appointment; filing (or having filed) any petition as a debtor under any provision of law relating to insolvency, unless such petition and all related proceedings are dismissed within 60 days of such filing; being adjudicated insolvent or bankrupt; having wound up or liquidated; or ceasing to carry on business.
“Offering” means all services, websites (including hosting), solutions, platforms, and products identified in an Order and that Publisher makes available under or in relation to this Purchaser Agreement, including the software, equipment, technology, and services necessary for Publisher to provide the foregoing. Offering availability may vary by region.
“Order” means an ordering document used to transact the Offering via the Marketplace.
“Personal Data” means any information relating to an identified or identifiable natural person.
“Representatives” means a party’s employees, Affiliates, contractors, advisors and consultants.
“Standard Contractual Clauses” means the standard data protection clauses for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection, as described in Article 46 of the GDPR.
“Subcontractor” means any third party: (1) to whom Publisher delegates its obligations under this Purchaser Agreement, including a Publisher Affiliate not contracting directly with Customer through an Order; or (2) who, in performing under a contract between it and Publisher or a Publisher Affiliate, stores, collects, transfers or otherwise processes Personal Data (obtained or accessed in connection with performing under this Purchaser Agreement) or other Customer Confidential Information.
“Support Data” means all data, including all text, sound, video, image files, or software, that are provided to Publisher by or on behalf of Customer (or that Customer authorizes Publisher to obtain from an Offering) through an engagement with Publisher to obtain technical support for the Offering covered under this Purchaser Agreement.
“Use” means to copy, download, install, run, access, display, use or otherwise interact with.