Last Updated: 19 December 2017
IMPORTANT – READ CAREFULLY: BY CLICKING ON THE "I AGREE", "I ACCEPT" OR SIMILAR BUTTON TO WHICH THIS AGREEMENT IS ATTACHED, YOU ARE ACKNOWLEDGING THAT YOU ARE AUTHORIZED TO ENTER INTO THIS SERVICES AGREEMENT ("AGREEMENT"), AND IF YOU ARE ACCEPTING ON BEHALF OF YOUR EMPLOYER OR OTHER ENTITY ("CUSTOMER"), YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL RIGHT TO BIND SUCH ENTITY AND AGREE TO ALL THE TERMS OF THIS AGREEMENT REGARDING CUSTOMER'S USE OF THE IOKids SERVICE. IF YOU DO NOT AGREE WITH ALL OF THIS AGREEMENT OR ARE NOT AUTHORIZED TO BIND THE CUSTOMER TO THIS AGREEMENT, DO NOT CLICK ON THE "I AGREE", "I ACCEPT" OR SIMILAR BUTTON OR CLICK THE "I DISAGREE" BUTTON OR CLOSE THE WINDOW TO STOP CREATION OF THE IOKIDS ACCOUNT.
1 "Authorized User" shall mean the Customer's employees or consultants who are authorized by Customer to access and use the iOKids Services in accordance with this Agreement. Customer shall ensure that all Authorized Users comply with the terms of this Agreement, and Customer shall be liable for any breach there of.
2 "Customer Data" shall mean data contained in the messages published by Customer or its users to the iOKids Services.
3 "Client Software" shall mean the object and source code software made available to Customer, which Customer can use to access and use the iOKids Service.
4 "Monthly Active Devices" shall mean the total number of universally unique identifiers ("UUIDs") or IP addresses connecting throughout the month. The count is equivalent to the number of unique device connections made during a single month as calculated by the applicable Client Software used by Customer.
5 "Documentation" shall mean the documentation available and updated from time to time on the iOKids Developer Dashboard, Github, or the Dynepic website that describes the iOKids Services.
6 "Edge Transaction" means those API calls to the iOKids Service.
7 "Payment Method" shall mean the method in which the Customer pays for their iOKids Service Selection.
8 “iOKids Developer Dashboard" shall mean the section of the iOKids website which is password protected, allowing the Customer to configure settings about their account, publish brands to the iOKids app, launch app credentials, and see analytics. partner.iokids.net
9 "iOKids Services" shall mean the various product and service offerings of iOKids, which may be updated at any time based on Dynepic’s sole discretion.
10 "iOKids Service Selection" shall mean the specific iOKids Services the Customer has selected.
11 "Service Period" shall mean the length of time Customer purchases the iOKids Services.
12 "Service Tier" shall mean either the pricing tier as specified on the Dynepic websites or within the iOKids Developer Dashboard, or a pricing tier as specified in a separately signed agreement between Customer and Dynepic.
13 "Usage Data" shall mean the Customer usage of the iOKids Services as tracked and reported by iOKids and used to calculate Customer Fees.
14 "Included Usage" shall mean the Customer Monthly Usage limits as outlined in the iOKids Administration Portal and iOKids Service Selection.
B Licenses Grants
1 Subject to payment of applicable fees and compliance with this Agreement, Dynepic grants to Customer a non-exclusive, non-transferable, non-sublicenseable, revocable, limited license during the purchased Service Period to use the iOKids Services as described in the Documentation. Usage of the iOKids Services shall be limited to the iOKids Service Selection specified in Customer's Purchase Confirmation.
2 Dynepic shall have a non-exclusive, non-transferable, worldwide, perpetual, irrevocable license to collect, analyze or use statistical data relating to its delivery of the iOKids Service derived from the Customer Data, solely for the development, tuning, and scaling of the iOKids Service, including the generation of reports for both internal use purposes as well as reports available to the Customer, which may be offered at an additional cost. De-identified, anonymized, and statistical data derived from Customer Data may be used to report platform analytics across the iOKids Service to Customers. Data may be offered at an additional cost. Dynepic will keep all specific Customer Data private, and will not share this data with any third parties (other than its agents and consultants performing services for iOKids who are under contractual obligation to maintain the confidentiality of such information), except as an aggregate across multiple iOKids end users (for example, publicizing the total number of users on the iOKids Service per day) and multiple iOKids customers to prevent the identification of such data as pertaining to any individual Customer and Customer's end users. Dynepic’s use, collection and disclosure of the Customer Data shall comply with applicable law. Dynepic will respond appropriately if it becomes aware of inappropriate use of the iOKids Service. It is the Customer's responsibility to ensure that their Client Software is protected from the ability to transmit, install or impose upon Customer's users any virus, malware, tracking software or system or other technique for the purpose of tracking users, behavioral targeting or any unlawful purpose. Customer’s are responsible for ensuring all content is appropriate for the iOKids platform and meets applicable privacy, security and other laws.
C License Restrictions.
Except as specifically provided in this Agreement, the license grant under this Agreement does not permit Customer or a third party (directly or indirectly, in whole or in part) to: (a) reverse engineer or attempt to derive the source code from or create derivative works of the iOKids Service, or any portion thereof, except as expressly permitted by local law and in such case, solely upon prior written approval by Dynepic; (b) use the iOKids Services in a greater capacity than identified in a Purchase Confirmation; (c) sublicense, distribute or pledge the iOKids Services, (d) access, use, or copy any portion of the iOKids Services to directly or indirectly to develop, promote or support any product or service that is competitive with the iOKids Services, (e) lease, rent or commercially share or otherwise use the iOKids Services for purposes of providing a service bureau or providing third party hosting, application service provider type services; (f) remove any identification, patent, trademark, copyright, or other notice from the iOKids Services or Client Software; (g) interfere with or disrupt the integrity or performance of the iOKids Services or third-party data contained therein; (h) attempt to gain unauthorized access to the iOKids Services or the related systems or networks, including access to other iOKids customer's data; (i) disclose or publish, without Dynepic’s express prior written consent, performance or capacity statistics or the results of any benchmark test performed on the iOKids Services; (j) use any name, mark, or designation of Dynepic, or any of its affiliates or licensors or their respective products or services, unless expressly permitted herein or by Dynepic in advance in writing; (k) use the iOKids Services in connection with any activity that may result in tangible or intangible property damage, or death or serious body injury; and (l) use the iOKids Services including the transmission of Customer Data, in any manner that violates in any law, rule, regulation or any other legal or regulatory requirement imposed by any regulatory or government agency or political subdivision, whether federal, state, local, or foreign. Customer is responsible for processing and handling notices it receives from any third party claiming that Customer's content in connection with the iOKids Services violates such party's rights including without limitation, notices pursuant to the Digital Millennium Copyright Act. Dynepic reserves the right to block, without liability, any Customer Data and Customer account that violates the terms of this Section C. Customer agrees not to send any credit card information including credit card numbers, CSV numbers (three digit codes for Visa and MasterCard, four digit code for American Express) and magnetic stripe information through the iOKids Services. Free accounts may not be used in Product environments and may only be used for testing and development and other non-commercial use, except for launching internal iOKids App Communities and Brand Characters. You are prohibited from load testing the iOKids Services without the prior written approval of and coordination with Dynepic.
D Customer Obligations.
Customer shall be responsible for ensuring that all Authorized Users are bound by the terms and conditions of this Agreement and the usage rights ordered under the Purchase Confirmation, and for the accuracy, quality, integrity and legality of Customer Data and of the means by which Customer acquires or has acquired Customer Data. Customer has sole control over the Customer Data uploaded in the iOKids Services, and acknowledges iOKids has no control of the Customer Data. Customer will ensure that each username and password issued to a Customer will be used only by an Authorized User. Customer is responsible for maintaining the confidentiality of all usernames and passwords. Customer is solely responsible for all activities that occur under these usernames. Customer agrees (a) to only allow Authorized Users to use its account, usernames or passwords, (b) to keep a current list of all Authorized Users, (c) to promptly notify Dynepic if it becomes aware, or should be aware, of any actual or suspected unauthorized use of its account, usernames or passwords, or any other breach or suspected breach of security related to the iOKids Service. Dynepic will not be liable for any loss or damage arising from unauthorized use of any accounts, usernames or passwords; (d) to promptly fix any bugs in Customer's software that causes the iOKids Services to be accessed incorrectly; for example, software that generates incorrect API calls to the iOKids Service, and software that uses incorrect authentication tokens to access the iOKids Service. Dynepic reserves the right to block, without liability, any Customer Data and Customer account that violates the terms of this section. Customer shall be responsible for usage charges in excess of the Included Usage for iOKids Service Selection that the Customer has selected using the iOKids Developer Dashboard or via contract with Dynepic. Customer acknowledges that Dynepic directs its application and iOKids Services to children under 13 years of age and accordingly must comply, and ensure all of its Customers comply, with (i) the Children’s Online Privacy Protection Act, codified at 15 U.S.C. §§6501-6506, and (ii) associated rules and regulations (collectively, "COPPA"). Among other obligations, COPPA requires that Dynepic and its Customers (x) provide notice and obtain verifiable parental consent as necessary prior to the collection of Personal Information, as defined at 15 U.S.C. §6501, from an individual less than 13 years of age, and (y) maintain the confidentiality, security, and integrity of any Personal Information collected from children. Customer shall indemnify, defend, and hold Dynepic harmless from any costs and/or liability it incurs as a result of Customer’s failure to comply with COPPA in connection with iOKids Service provided to Dynepic. Customer agrees to indemnify and hold Dynepic harmless from and against all damages, losses, and expenses of any kind (including reasonable legal fees and costs) related to any claim against it related to Customer’s software, services, actions, content or information. All iOKids Services Customer receives from us are provided to Customer on an "as is" basis, without warranty of any kind. Dynepic reserves the right to audit Customer Software, including applications, to ensure it is safe and does not violate these Terms. If requested, Customer must provide Dynepic with proof that Customer’s software complies with these Terms.
E Term & Termination.
1 Term. The term of this Agreement shall begin upon acceptance of this Agreement as specified in the preamble and shall continue until the earlier of termination as set forth in Sections E (2), E (3) and E (4) below. A Service Period shall commence upon Customer's completion of a Purchase Confirmation.
2 Termination by Customer. The Customer may terminate the Agreement and the Service Period by sending an email to firstname.lastname@example.org. Customer must terminate this Agreement and the Service Period at least fifteen (15) days prior to the completion of the then current month ("Cancellation Period"). The Agreement and Service Period termination will be effective as of the first day of the following month. If cancellation is later than the Cancellation Period, Customer will be charged for one additional month of the iOKids Service Selection.
3 General Termination by Dynepic. Dynepic may terminate this Agreement and any Service Period, without cause, upon providing the other party with thirty (30) days prior written notice, except that the notification period for Customer's use of iOKids Services provided free of charge, shall be fifteen (15) days.
4 Immediate Termination. Dynepic may enforce against Customer Software if it concludes that Customer Software violates these Terms or is negatively impacting the platform. Dynepic will make reasonable attempts to notify Customer in advance, unless Customer’s use causes or has the imminent potential to cause a violation of these Terms. Enforcement is both automated and manual, and can include disabling Customer Software, de-listing Customer iOKids App experiences (e.g. Communities, Brand Characters, etc.), restricting Customer Software’s access to iOKids Services and platform functionality, requiring that Customer delete data, terminating agreements with Customer or any other action that Dynepic deems reasonable and appropriate.
5 Effect of Termination. Upon expiration or termination of this Agreement, (a) the Service Period shall cease, and all license rights to use the iOKids Services, Client Software and the Documentation shall cease, and Dynepic shall discontinue the provision of the iOKids Services, and (b) Customer shall immediately pay any outstanding invoices, including fees owed for outstanding Service Periods as specified under Section E(2) above. For the avoidance of doubt, Customer is responsible for usage and payment arising from continued calls to iOKids APIs (even if a Customer key is disabled) after expiration or termination of this Agreement.
F Service Delivery and Support.
1 Service Delivery. Dynepic shall provide the service level commitments set forth in Schedule C hereto.
2 Support. Customer may elect to pay additional amounts and Dynepic shall provide the different service level commitments commensurate with the Customer's iOKids Service Selection. If Customer believes there has been a security breach or suspicious activity of the iOKids Service, Customer must immediately contact email@example.com.
G Customer Advertising Commitments & Trademark Usage.
During the Term, Dynepic may include Customer's name and logo on a list of customers of the iOKids Service.
H Fees / Payment.
1 Fees. The fees for each iOKids Service Selection are as specified on the iOKids Developer Dashboard or contract, and are subject to change at any time at Dynepic's sole discretion. iOKids Fees are comprised of any or all of the Service Tier charges charged in advance, and any Metered Usage charges based on the iOKids Service Selection configured by the Customer and based on the Usage Data in excess of the Included Usage.
3 Service Tier Upgrade. Customer is responsible for upgrading their iOKids Service Tier.
4 Starter Plan Pricing. All free accounts begin with a Starter Plan and allows Customer limited iOKids Service features. To upgrade the iOKids Service Selection Tier, Customer must enter into a monthly billing agreement with Dynepic.
5 Payment. Customers are invoiced monthly via credit card payments and other payment mechanism. If payment is not received within fifteen (15) days of the invoice, the iOKids Service shall be terminated. Fees due hereunder will be billed to Customer's credit card and Customer authorizes the card issuer to pay all such amounts and authorizes Dynepic (or its billing agent) to charge the credit card account until Customer or Dynepic cancels or terminates the iOKids Services as set forth above; provided that if payment is not received from the credit card issuer, Customer agrees to pay all amounts due upon demand. Customer must provide current, complete and accurate billing and credit card information. Customer agrees to pay all costs of collection, including attorney's fees and costs, on any outstanding balance. In certain instances, the issuer of the credit card may charge a foreign transaction fee or related charges, which Customer shall be responsible to pay.
6 Billing Contact. Dynepic will send billing correspondence to the email address included in the online iOKids Services account registration page.
7 Payment Disputes. In the event of a good faith dispute as to the calculation of a charge, Customer shall immediately give written notice to Dynepic stating the details of any such dispute and shall promptly pay any undisputed amount. The acceptance by Dynepic of such partial payment shall not constitute a waiver of payment in full by Dynepic of the disputed amount. Any undisputed amounts not paid within fifteen (15) days of receipt shall accrue interest at a rate of five percent (5%) per month or the maximum lawful rate, whichever is less. Notwithstanding anything to the contrary contained in this Agreement, failure to make timely payments of undisputed amounts shall constitute a default hereunder and shall entitle Dynepic to suspend its provision of the iOKids Service on ten (10) business days prior notice and require payment in advance until Customer account is paid in full. Customer may not setoff, deduct or otherwise withhold amounts due hereunder.
8 Taxes and Additional Fees. The fees charged by Dynepic hereunder do not include any taxes, duties or similar charges of any kind. Customer will be responsible for all applicable sales, use, value added, goods and services, consumption, withholding, excise and any other similar taxes or federal, state, local taxes or other government taxes related to the payment under this Agreement (excluding taxes based on Dynepic net income).
9 Refunds. No Refunds will be given.
I Confidential Information.
1 Definition. The term "Confidential Information" means all information disclosed by one party (the "Disclosing Party") to the other party (the "Receiving Party") pursuant to this Agreement, which the Disclosing Party designates as confidential at the time of disclosure, or a reasonable person should know to be confidential. In addition to the foregoing, the Parties agree that the iOKids Services, software (object code and source code), the Documentation, training materials, customer listings, future offerings and products, business plans, investors, pricing, including the fees paid hereunder, iOKids user account information, user IDs and passwords shall be deemed Confidential Information without any further need to designate such information as confidential. Confidential Information shall not include any information which is: (i) already publicly known, (ii) created by the Receiving Party without reference to any Confidential Information, (iii) otherwise known to the Receiving Party through no wrongful conduct of the Receiving Party, (iv) required to be publicly disclosed by law or court order, provided the Disclosing Party is given reasonable advance notice of the obligation to produce Confidential Information to the extent permitted by such law or court order, or (v) is required by potential investors or necessary pursuant to acquisition or merger activity directly related to the Receiving Party, as part of the associated due diligence process. Confidential Information shall remain the sole property of the Disclosing Party, and each party acknowledges and agrees that it does not acquire any rights therein.
2 Protection of Confidential Information. The Receiving Party shall hold the Disclosing Party's Confidential Information in confidence and may only disclose such information to employees and consultants on a need to know basis to those who are subject to confidentiality obligations substantially similar to those set forth in this Agreement. The Receiving Party will not use or disclose the Confidential Information of the Disclosing Party except as contemplated under this Agreement. Each party agrees to use the same level of care to protect the other party's Confidential Information from unauthorized use or disclosure as it uses to protect its own such information, but in no event with less than reasonable care. Receiving Party shall, as soon as reasonably practical after discovering a breach of this Confidentiality section, report to the Disclosing Party any unauthorized use of, disclosure of or access to the Disclosing Party's Confidential Information, subject to any reasonable restrictions placed on the timing of such notice by a law enforcement or regulatory agency investigating the incident; and take all reasonable measures to prevent any further unauthorized disclosure or access. The parties shall be entitled to seek injunctive or other equitable relief without the necessity of posting a bond even if otherwise normally required. Such injunctive or equitable relief shall not be exclusive remedy for any breach of confidentiality, but shall be in addition to all other rights and remedies available at law or in equity.
J Dynepic Warranties.
1 Limited Warranty. Dynepic warrants it has full power and authority to enter into and perform the Agreement.
2 Disclaimer. EXCEPT FOR THE EXPRESS WARRANTY AS SET FORTH IN SECTION J.1 THE IOKIDS SERVICES AND CLIENT SOFTWARE ARE PROVIDED “AS IS" AND ALL OTHER EXPRESS OR IMPLIED INDEMNITIES AND WARRANTIES ARE HEREBY DISCLAIMED WITH RESPECT TO THE IOKids SERVICES (INCLUDING THE CLIENT SOFTWARE), INCLUDING BUT NOT LIMITED TO WARRANTIES OF ACCURACY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, OR ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE.
K Customer Warranties.
Customer warrants that (a), if a legal entity, it is a duly formed entity (i.e., corporation or limited liability company) in good standing under the laws of the state of its incorporation or organization; (b) it is qualified to transact business in all locations where the nature of its operations requires such qualification; (c) it has full power and authority to enter into and perform this Agreement; (d) the execution and delivery of this Agreement have been duly authorized; (e) Customer has all right necessary to provide, access and modify the Customer Data, including rights to grant the license to Dynepic as specified under Section B.2, and to distribute such Customer Data across the Internet using the iOKids Services; (f) the Customer Data does not violate any applicable law, including any law or regulation regarding the transmission of technical data exported from the United States or any other applicable country, any law or regulation regarding privacy rights, or any law or regulation regarding harassment or defamation or other tort; (g) Customer shall employ reasonable professional standards in performance of its rights and obligations under this Agreement, and shall avoid deceptive, misleading or unethical practices that may be detrimental to Dynepic or the IOKids Services; (h) Customer will not access any information or data provided or controlled by any other end user of Dynepic and will abide by and will not circumvent or otherwise disable any security or data protection measures implemented by Dynepic; and (i) Customer will not, and will not permit any third party to, upload, post, email transmit or otherwise make available using the iOKids Services any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software, hardware or telecommunications equipment.
L Limitation of Liability.
DYNEPIC'S AGGREGATE LIABILITY TO CUSTOMER, WHETHER FOR NEGLIGENCE, BREACH OF CONTRACT, BREACH OF WARRANTY, OR ANY OTHER CAUSE OF ACTION, SHALL BE LIMITED TO THE LESSER OF THE PRICE PAID OR DUE FOR THE IOKIDS SERVICES TO WHICH THE INCIDENT RELATES, OR $2,500. DYNEPIC SHALL NOT BE LIABLE TO THE CUSTOMER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION, LOST INCOME, LOST REVENUE, LOST PROFITS, BUSINESS INTERRUPTION, DAMAGES FOR GOODWILL, PROCUREMENT OF SUBSTITUTE SERVICES, ARISING OUT OR IN ANY WAY RELATED TO THIS AGREEMENT, THE USE OR THE INABILITY TO USE THE IOKIDS SERVICES. IN NO EVENT SHALL DYNEPIC BE LIABLE FOR ANY DAMAGES HOWEVER ARISING AS RELATED TO THE CLIENT SOFTWARE AS PROVIDED UNDER THIS AGREEMENT, EXCEPT AS SPECIFICALLY PERMITTED UNDER SECTION M.1. EVEN IF ADVISED OF THE POSSIBILITY OF SUCH CLAIM. THESE LIMITATIONS WILL APPLY DESPITE THE FAILURE OF ESSENTIAL PURPOSE.
1 Customer Exclusive Remedies. If the iOKids Services or any part thereof becomes the subject of a claim for infringement, or in Dynepic’s reasonable discretion is likely to become subject to such a claim, Dynepic will have the right, at its option, to: (i) replace either or both of the iOKids Services and the Client Software with non-infringing technology that is materially, functionally equivalent or superior; (ii) modify either or both of iOKids Services and the Client Software so as to become non-infringing without materially affecting functionality; or (iii) obtain a license for Customer to continue using either or both of the iOKids Services and the Client Software. If (a) an injunction is issued by a court of competent jurisdiction barring Customer's exercise of the license rights granted under this Agreement, or (b) the alternatives specified in (i), (ii) or (iii) above are not available to Dynepic on a commercially reasonable basis, then Customer will cease using the infringing technology and Dynepic will refund the pro-rata portion of the pre-paid fees attributable to such technology for the amount of the Service Period Customer is not able to use the iOKids Services. This section states the entire liability and obligation of Dynepic, and the sole and exclusive remedy of Customer with respect to any alleged or actual infringement of the iOKids Services (including the Client Software) provided under this Agreement.
2 Customer's Indemnification. Customer agrees that Customer's use of the iOKids Services, and the use of the Customer Data and information that Customer places on the iOKids Services site shall not: (a) infringe any third party's copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy; (b) include any illegal conduct or any violation any law, statute, ordinance or regulation (including without limitation those governing export control, dealer agreements, unfair competition, anti-discrimination or false advertising); or (c) be defamatory, trade libelous, unlawfully threatening or unlawfully harassing or obscene. Customer shall indemnify, defend and hold iOKids harmless from any third party claims including without limitation those claims arising from: (1) Customer's breach of the subsections (a), (b) and (c) of this subsection; (2) breach of the warranties as set forth in Section K; (3) modifications or alterations to the iOKids Services; (4) any representations or warranties made by Customer regarding the iOKids Services. Dynepic will promptly notify Customer in writing of such claim, and Customer shall have the sole control of such defense and all negotiations for any settlement or compromise, although Dynepic will provide reasonable assistance in the same at Customer's request and expense.
Customer acknowledges and agrees that the iOKids Services, the Client Software, and Dynepic's trademarks, and all proprietary rights contained therein, as well as any modifications, enhancements or derivative works (including all feedback relating to the use of the iOKids Services and the Client Software) relating thereto, are and will remain the exclusive property of Dynepic or its licensors. Dynepic reserves all rights not expressly granted to Customer in this Agreement. As between the parties, Customer retains all ownership in and to the Customer Data subject to the license granted under Section B.2.
1 Entire Agreement. This Agreement, and any other references, exhibits or attachments, constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes any and all written or oral prior and contemporaneous agreements and understandings between the parties concerning such subject matter. Any amendment shall be in writing and signed by authorized representatives of each party. If any one or more of the provisions of the Agreement shall for any reason be held to be invalid, illegal or unenforceable, the same shall not affect any of the other portions of this Agreement. Failure or delay by either party in exercising any right under this agreement shall not operate as a waiver of such right. The descriptive headings of the sections of this Agreement are inserted for convenience only and do not constitute a part of this Agreement. IOKids, at its sole discretion, reserves the right to modify the terms and conditions as set forth under this Agreement at any time. In such case, iOKids shall notify (via email or other written communication) Customer of an updated Agreement available for online acceptance. Dynepic shall provide Customer with at least seven (7) days to accept the terms of the updated agreement. After such period, the updated agreement shall govern the provision of iOKids Services upon the commencement of a new month of iOKids Services. Customer shall be required to accept the updated Agreement if it desires to continue to use the iOKids Services.
2 Assignment. This Agreement, and any rights or obligations hereunder, shall not be assigned or sublicensed by Customer, including by operation of law, without prior written consent from Dynepic. Dynepic may assign this Agreement without the consent of the Customer. Any attempted assignment or transfer in violation of the foregoing shall be void and shall result in the immediate and automatic termination of this Agreement. Subject to this restriction, this Agreement will be binding upon and inure to the benefit of the parties hereto, their successors and assigns.
3 Force Majeure. Except for payment for fees due hereunder, neither party shall be liable for any losses arising out of the delay or interruption of its performance of obligations under this Agreement due to any act of God, act of governmental authority, act of public enemy, terrorism, war, riot, flood, civil commotion, severe weather conditions, unplanned system downtime, or any other cause beyond the reasonable control of the party delayed.
4 Export. iOKids Services, Client Software and the Documentation are subject to U.S. export control laws, including without limitation the U.S. Export Administration Act and its associated regulations and may be subject to export or import regulations of other countries. Customer hereby agrees that it will not export or re-export the iOKids Services, Client Software or Documentation in any form in violation of any applicable export or import laws of any jurisdiction.
5 Survival of Terms. Any provision of this Agreement that contemplates performance or observance subsequent to any termination or expiration of this Agreement, including, without limitation, all provisions with respect to confidentiality, limitation on liabilities, and indemnification, shall survive any termination or expiration of this Agreement and continue in full force and effect.
6 Compliance with Laws. CUSTOMER REPRESENTS AND WARRANTS THAT IT SHALL COMPLY WITH THE U.S. CHILDREN’S ONLINE PRIVACY PROTECTION ACT AND ALL LOCAL APPLICABLE CHILD PROTECTION LAWS.
7 Choice of law. This Agreement and any disputes related thereto shall be governed by and construed in accordance with the laws of South Carolina as if performed wholly within that state and without giving effect to its conflict of laws principles. The United Nations Convention on Contracts for the International Sales of Goods does not apply to this Agreement. The parties agree that the exclusive venue for any dispute arising hereunder shall be the federal or state courts located in the City and County of Charleston and the parties waive any objection to personal jurisdiction or venue in any forum located in that county.
8 Relationship. This Agreement shall not be interpreted to create an agency or consignment relationship, and neither party is a partner, employee, agent or joint venture partner of, or with, the other. Neither party may make any contracts, warranties or representations or assume or create any other obligations, express or implied, in the other party's name or on its behalf. Each party acknowledges that this Agreement is non-exclusive and either party may contract with third parties for the procurement or sale of comparable products or services.
9 Notices. All notices related to this Agreement shall be in writing. Notices will be effective if dispatched by hand (which shall be deemed given upon delivery), e-mail, or reliable overnight delivery service (which shall be deemed given one business day after mailing), unless otherwise stated in this Agreement, sent to the CEO of Dynepic, to Dynepic's address: PO Box 297, Folly Beach, SC 29439, and the Customer, to the respective address as set forth in the Customer’s agreement or online registration, unless otherwise indicated by a party subject to the requirements of this subsection.
Schedule A - Service Level Terms
Subject to Customer’s payment of the Service Fees, Dynepic will provide the Service Levels and Support as described here in:
A Service Level.
Dynepic endeavors to make the iOKids Services available with 99.0% availability. Dynepic measures Service Unavailability by consecutive seconds over the period of a calendar month.
1 Service Availability: means the iOKids APIs are available for Customer use and is measured by consecutive seconds over the period of a calendar month (other than Scheduled Maintenance). Availability is calculated on iOKids data gathered through internal Dynepic and third party monitoring tools.
2 Scheduled Maintenance: The period during which Dynepic is performing maintenance on the iOKids Service, for which the Customer has been previously alerted per the terms specified in the Scheduled Maintenance Notification paragraph below. Scheduled Maintenance is not considered Service Unavailability for purposes of iOKids’ Service Unavailability SLA.
3 Customer Product Offerings: The software developed by the Customer that makes use of the iOKids Service, including any iOKids Client libraries (“Libraries”) that have not been modified by the Customer.
4 iOKids Client Libraries: The iOKids Client Libraries made available by Dynepic. The iOKids Client Libraries are designed to be embedded within the Customer Product Offerings to facilitate the use of the iOKids Service.
5 iOKids Services: Services provided to the customer by Dynepic.
C Scheduled Maintenance Notification
In the event that Dynepic needs to conduct Scheduled Maintenance, Dynepic will (a) give Customer at least 72 hours of notice via email of any scheduled downtime for the Services, and (b) make commercially reasonable efforts to minimize the downtime.
D Service Credits for Service Unavailability
1 Service Credit Request. To receive a Service Credit, Customer must submit a request by sending an e-mail message to firstname.lastname@example.org within ten (10) days of the last reported Service Unavailability. If the Service Unavailability is confirmed by Dynepic and the number of Service Unavailability seconds qualifies the Customer for a Service Credit, then Dynepic will issue the Service Credit to the Customer within one Billing Cycle following the month in which the request occurred.
2 Payment Procedures and Eligibility. Dynepic will apply any Service Credits only against future iOKids Service payments otherwise due from Customer. Service Credits shall not entitle the Customer to any refund or other payment from Dynepic. Service Credits may not be transferred or applied to any other iOKids account. Any Service Unavailability occurring prior to a successful Service Credit claim cannot be used for future claims. Customers are only eligible for a Service Credit if their iOKids account is in good standing (i.e., there are no past-due unpaid iOKids invoices) during a Service Unavailability event. Unless otherwise provided in the iOKids Agreement, the Customer's sole and exclusive remedy, and Dynepic’s sole liability, for any unavailability or non-performance of the iOKids Services or other failure by Dynepic to provide the iOKids Services is the receipt of a Service Credit (if eligible) in accordance with the terms of this SLA.
3 Service Credit Exclusions. Service Unavailability explicitly excludes problems due to (a) Customer usage that exceeds reasonable use, unless Customer provides Dynepic at least 7 business days advance notice of such usage, (b) Explicit denial of service events, though Dynepic will use commercially reasonable efforts to counter any denial of service event if one occurs, (c) Failure of two (2) or more geographically disparate Dynepic data centers simultaneously, (d) Customer's attempts to overload, crash, load test, subvert, or otherwise misuse the iOKids Service in any way not explicitly allowed in the iOKids Services Customer Agreement, (e) Force Majeure as defined in the iOKids Services Customer Agreement, (f) Scheduled Maintenance, (g) problems within the Customer Product Offerings that create the perception of Service Unavailability but are not due to errors with the iOKids Services, (h) use of Client Software libraries that are not the most recent version of the Client Software libraries, and (i) Customer Product Offerings that use modified versions of the Client Software libraries.