MGENUITY TERMS OF SERVICE

The following Terms of Service (“TOS”) are incorporated by reference into the order or contract under which you, a school district, public or private school or other entity (“You” or the "Subscriber"), have agreed to purchase the right to permit your students, parents, teachers and school administrators (“End Users”) to access and utilize one or more educational services provided by Mgenuity Corporation (each such service, “Service”, and Mgenuity, “Us” or “We”).

1. THE SERVICE

MGENUITY has developed web-based services (“Service” or “Services”) that enable users to access certain courses, content and information (“Content” or “MGENUITY Content”) offered by MGENUITY through our website(s) (the “Website(s)”) by purchasing a subscription. MGENUITY hereby grants Subscriber a non-exclusive, non-transferable license to access and use the Service, and allow each administrator, educator, faculty member, parent, and student enrolled by Subscriber (each a designated “End User”) to access and use the Service, through the Website, solely for educational purposes.

2. ADDITIONAL TERMS

All use of the Service and MGENUITY Content is subject to this Agreement and any additional terms agreed to by the parties in connection with the Service and MGENUITY Content, including, without limitation, any prohibitions on distribution of the MGENUITY Content to students or third parties. Subscriber is responsible for its End Users' use of the Service and the MGENUITY Content.

3. ADDITIONAL SERVICES

MGENUITY may enhance and/or expand the features of the Service from time to time at no additional cost to Subscriber, or may provide additional content, performance or features that may, but are not required to, be added by Subscriber at additional cost to Subscriber. Any professional services to be provided by MGENUITY to Subscriber in connection with the Service shall be set forth in a separate Professional Services Agreement between MGENUITY and Subscriber.

4. APPLICABLE PRIVACY LAWS

MGENUITY is familiar with and agrees to be responsible for compliance with the Children's Online Privacy Protection Act of 1998 ("COPPA"), the Family Educational Rights and Privacy Act and the US Department of Education's implementing regulations at 34 CFR Part 99 (collectively, "FERPA"); and all other applicable country and state laws, rules or regulations concerning the collection, use, and disclosure of Personally Identifiable Information about End Users accessing the Services that are the subject of this Agreement (collectively, "Applicable Privacy Law"). “Personally Identifiable Information”, or “PII”, shall mean any information relating to an identified or identifiable natural person (a “data subject”) including personal data as defined under applicable local law. An identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person. MGENUITY expressly discourages End Users from communicating Personally Identifiable Information to MGENUITY via its Service to the extent that it is possible.

MGENUITY acknowledges that in the course of Subscriber's use of the Services, End Users’ Personally Identifiable Information may be disclosed to MGENUITY. MGENUITY agrees that it will comply with the requirements of Applicable Privacy Law concerning the confidentiality and release of Personally Identifiable Information. MGENUITY acknowledges that it will be considered a "School Official" (as that term is used in FERPA) and agrees that it will comply with the requirements in FERPA concerning the confidentiality and release of Personally Identifiable Information. Per such requirements, MGENUITY agrees that under Applicable Privacy Law, officers, employees, and agents of MGENUITY who access Personally Identifiable Information may use such data only for the purposes for which such data has been made available to MGENUITY. MGENUITY and its contractors, suppliers and licensors shall only use Personally Identifiable Information for the purpose of facilitating the performance, delivery or use of the Services. MGENUITY shall enable Subscriber to maintain compliance with Applicable Privacy Law in connection with Subscriber’s use of the Service.

5. SUBSCRIBER DATA

Definition of Data: Data include all Personally Identifiable Information (PII) and other non-public information. Data include, but are not limited to, student data, metadata, and user content.

Data Collection: MGENUITY will only collect Data necessary to fulfill its duties as outlined in this Agreement.

Data Ownership: All information concerning Subscriber (“Subscriber Data”) and Personally Identifiable Information concerning End Users shall belong to Subscriber and shall be considered Confidential Information of Subscriber subject to the terms and conditions of this Agreement. Subscriber assumes sole responsibility for: (a) providing any notices and obtaining any consent needed to the extent required under COPPA or other Applicable Privacy Law in connection with the collection, use and/or disclosure of Personally Identifiable Information from End Users; (b) providing a reasonable means for End Users or End Users’ parents, as applicable, to review Personally Identifiable Information provided by End Users to the extent required by COPPA or other Applicable Privacy Law; and (c) establishing and maintaining reasonable procedures to protect the confidentiality, security, and integrity of the Personally Identifiable Information.

6. USE OF SUBSCRIBER DATA

MGENUITY will use Data only for the purpose of fulfilling its duties and providing services under this Agreement, and for improving services under this Agreement.

As a service MGENUITY to Subscriber, MGENUITY will establish and maintain reasonable procedures in accordance with its policies and practices and Applicable Privacy Law to protect the confidentiality, security, and integrity of Personally Identifiable Information and Subscriber Data received by MGENUITY in connection with provision of the Service to Subscriber. Subscriber acknowledges and agrees that MGENUITY has the right to use the Personally Identifiable Information and Subscriber Data collected in connection with provision of the Service for (a) purposes of performing its obligations under this Agreement, and (b) for research purposes in connection with quality control and the development of revised or new products or services ("Research Purposes"), provided that such Personally Identifiable Information and Subscriber Data will be used by MGENUITY for Research Purposes only in the aggregate and so that the collected data will be de-identified.

De-identification of data: De-identified Data will have all direct and indirect personal identifiers removed. This includes, but is not limited to, name, ID numbers, date of birth, demographic information, location information, and school ID. Furthermore, MGENUITY agrees not to attempt to re-identify de-identified Data and not to transfer de-identified Data to any party.

Marketing and Advertising: MGENUITY will not use any Data to advertise or market to students or their parents.

Data Mining: MGENUITY is prohibited from mining Data for any purposes other than those agreed to by the parties. Data mining or scanning of user content for the purpose of advertising or marketing to students or their parents is prohibited.

Data Sharing: MGENUITY will not share data with any additional party without prior written consent of the End User and Subscriber except as required by law.

Data Destruction: MGENUITY will ensure that all Data in its possession is destroyed or transferred to Subscriber under the direction of Subscriber when the Data is no longer needed for their specified purpose, at the request of the Subscriber.

Data Security: MGENUITY will store and process Data in accordance with industry best practices. This includes appropriate administrative, physical, and technical safeguards to secure Data from unauthorized access, disclosure, and use. MGENUITY will conduct periodic risk assessments and remediate any identified security vulnerabilities in a timely manner. MGENUITY will also have a written incident response plan, to include prompt notification of the Subscriber in the event of a security or privacy incident, as well as best practices for responding to breach of PII. MGENUITY agrees to share its incident response plan upon request.

Modification of Terms of Service: MGENUITY will not change how Data is collected, used, or shared under the terms of this Agreement in any way without advance notice to and consent from the Subscriber.

7. LOCATION OF SERVICES

We own, control and operate the Service from our offices in the United States. We do not represent that materials on the Service or the Website are appropriate or available for use in other global locations. Subscribers who access the Service from outside the U.S. are responsible for compliance with local laws, if and to the extent local laws are applicable.

8. OWNERSHIP

No intellectual property rights of any kind are assigned or transferred to Subscriber under this Agreement. Subscriber is permitted to access and use the Service, Content and any other materials provided hereunder only as expressly set forth in these Terms of Service. Subscriber is not permitted and shall have no right to use the Service or MGENUITY Content for any purpose other than as set forth herein. Subscriber shall not challenge, or assist any person or entity in challenging, MGENUITY’s right, title, and interest in the Service and MGENUITY Content.

9. RESTRICTIONS ON USE

Subscriber shall not, and shall cause its employees, officers, directors, members, managers, partners, agents, third party service, or other designated persons (its "Representatives") not to, take any of the following actions: (a) creating or enabling the creation of derivative works, modifications, or adaptations of the Service or MGENUITY Content; (b) decompiling, reverse engineering or disassembling the Service or MGENUITY Content, (c) distributing or disclosing the Service or MGENUITY Content to third parties; (d) removing or modifying any proprietary marking or restrictive legends placed on the Service or MGENUITY Content; or (e) using any robot or automatic device or program or manual process to monitor, copy or reproduce the Service or MGENUITY Content.

10. TERM AND TERMINATION

This Agreement shall remain in full force and effect unless and until terminated earlier as provided in these Terms of Service. In the event that Subscriber commits a material breach of this Agreement (other than breach of its payment obligations, for which MGENUITY may terminate this Agreement immediately), MGENUITY may terminate this Agreement on five (5) business days’ prior written notice to Subscriber; provided that Subscriber fails to cure such breach within such five (5) business day period. Subscriber may terminate this Agreement by (a) providing MGENUITY with no less than thirty (30) days’ prior written notice or (b) ceasing all access to the Service for three (3) months or longer. No sooner than one (1) year after Subscriber accepts these Terms of Service, MGENUITY may terminate this Agreement on at least sixty (60) days prior written notice.

11. EFFECT OF TERMINATION OR EXPIRATION

Subscriber's permission to use the Service and MGENUITY Content shall end immediately upon any termination or expiration of this Agreement, and Subscriber shall immediately cease any use of the Service or MGENUITY Content upon such termination. The following provisions shall survive any termination or expiration of this Agreement: Section 8 ("Ownership"), Section 9 ("Restrictions on Use"), this Section 11 ("Effect of Termination or Expiration"), Section 12 ("Confidentiality"), Section 13 ("Representations and Warranties; Disclaimer"), Section 14 (“Liability”), 15 ("Indemnification") and Section 16 ("Miscellaneous").

12. CONFIDENTIALITY

The parties acknowledge and agree that, as a result of negotiating, entering into and performing this Agreement, each party (the "Receiving Party") has and will have access to certain confidential information ("Confidential Information") of the other party (the "Disclosing Party"). Personally Identifiable Information of End Users is considered Confidential Information of Subscriber. At all times the Receiving Party shall: (i) use the same standard of care to protect the Confidential Information as it uses to protect its own confidential information of a similar nature, but not less than a commercially reasonable standard of care, (ii) not use the Disclosing Party's Confidential Information other than as necessary to perform its obligations under this Agreement, (iii) not disclose, distribute, or disseminate the Confidential Information to any third party (except to Representatives, as expressly permitted below), and (iv) only disclose the Disclosing Party's Confidential Information to its Representatives on a "need to know” basis; provided that each Representative is bound by confidentiality obligations at least as restrictive as those contained in this Agreement.

13. REPRESENTATIONS AND WARRANTIES; DISCLAIMER

Each party represents and warrants that this Agreement constitutes its valid and binding obligation and is enforceable against it in accordance with its terms. MGENUITY DOES NOT WARRANT THE COMPLETENESS, ADEQUACY, ACCURACY, OR USEFULNESS OF THE SERVICE, THE MGENUITY CONTENT OR ANY OTHER MATERIALS PROVIDED HEREUNDER (COLLECTIVELY, THE "MATERIALS"). THE MATERIALS ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITH ALL DEFECTS. MGENUITY EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, ERROR-FREE OR UNINTERRUPTED OPERATION AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE FOREGOING, MGENUITY MAKES NO WARRANTY THAT (i) THE MATERIALS WILL MEET THE REQUIREMENTS OF SUBSCRIBER, (ii) THE MATERIALS WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE MATERIALS WILL BE ACCURATE OR RELIABLE, OR (iv) ANY ERRORS IN THE MATERIALS WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR COMMUNICATIONS GIVEN BY MGENUITY, ITS EMPLOYEES, OR AGENTS WILL INCREASE THE SCOPE OF THE ABOVE WARRANTY OR CREATE ANY NEW OR ADDITIONAL WARRANTIES. To the extent that MGENUITY may not as a matter of applicable law disclaim an implied warranty, the scope and duration of such warranty will be the minimum permitted under such law.

14. LIABILITY

IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY (OR TO ANY OTHER PERSON CLAIMING RIGHTS DERIVED FROM SUCH PARTY'S RIGHTS) FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, INDIRECT, PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND INCLUDING BUT NOT LIMITED TO, LOST TIME, LOST MONEY, LOST DATA, LOST PROFITS OR GOOD WILL, WHETHER IN CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR OTHERWISE, AND WHETHER OR NOT SUCH DAMAGES ARE FORESEEN OR UNFORESEEN WITH RESPECT TO ANY USE OF THE MATERIALS OR OTHERWISE ARISING FROM OR RELATING TO THESE TERMS OF SERVICE AND IN NO EVENT SHALL THE LIABILITY OF MGENUITY OR ITS LICENSORS FOR WHATEVER CAUSE EXCEED THE FEES PAID BY YOU IN CONNECTION WITH YOUR USE OF THE MATERIALS EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. To the extent the foregoing exclusion of liability is not permitted under applicable law, MGENUITY’s liability in such case will be limited to the greatest extent permitted by law.

15. INDEMNIFICATION

MGENUITY shall indemnify, defend and hold harmless Subscriber from and against any and all liabilities, losses, damages, costs and expenses, including reasonable attorneys' fees, related to or arising out of any claim by a third party that the technology platform underlying the Service infringes or misappropriates the intellectual property rights of such third party. To the extent permitted by law, Subscriber shall indemnify, defend and hold harmless MGENUITY and its parent, affiliates, successors and assigns and their respective officers, employees and agents from and against any and all liabilities, claims, demands, losses, damages, costs and expenses, including reasonable attorneys' fees, related to or arising out of use of the Service by Subscriber, except to the extent that such claim is subject to indemnification by MGENUITY hereunder.

16. MISCELLANEOUS

The Agreement contains the entire understanding of the parties with respect to the subject matter hereof and supersedes all prior agreements and commitments with respect thereto; provided, however, that if Subscriber has entered into a separate written agreement with MGENUITY regarding the subject matter hereof, that agreement will supersede this Agreement to the extent of any conflict. There are no other oral or written understandings, terms or conditions with respect to the subject matter of the Agreement, and neither party has relied upon any representation, express or implied, not contained in the Agreement. The rights and remedies of the parties are cumulative and not alternative. No waiver of any rights is to be charged against any party unless such waiver is in writing signed by an authorized representative of the party so charged. Neither the failure nor any delay by any party in exercising any right, power, or privilege under the Agreement will operate as a waiver of such right, power, or privilege, and no single or partial exercise of any such right, power, or privilege will preclude any other or further exercise of such right, power, or privilege or the exercise of any other right, power, or privilege. No modification of or amendment to the Agreement will be effective unless in writing signed by authorized representatives of both parties. If any provision of the Agreement is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of the Agreement will remain in full force and effect, and, if legally permitted, such offending provision will be replaced with an enforceable provision that as nearly as possible effects the parties' intent. Subscriber may not assign or otherwise transfer any of its rights or obligations under the Agreement without the prior written consent of MGENUITY, which consent MGENUITY may grant or withhold in its sole and absolute discretion. Subject to the foregoing, the Agreement will be binding upon and inure to the benefit of the parties hereto and their permitted successors and assigns. Any purported or attempted assignment or other transfer or delegation in violation of this Section shall be null and void.

17. CONTACT INFORMATION

Mgenuity Corporation
475 Wall Street
Princeton, NJ 08540
info at Mgenuity dot com

18. DATE

This document was last modified on 11/5/2018