Terms of Service

Last Modified: 4/14/25

Welcome to Shiny Gems, operated by Newfruit Media, LLC d/b/a Shiny Gems ("Shiny Gems," "we," or "us"). These Terms of Service (these “Terms”) govern any Sales Order that references them and are made and entered into by and between Shiny Gems and the entity named as the “Customer” in the Sales Order (“Customer” or “you”). 

Please note the arbitration provision set forth below, which, except where and to the extent prohibited by law, requires you to arbitrate any claims you may have against the Shiny Gems based on your use of the Services or in connection with these Terms, the Shiny Gems Data Processing Agreement, or the Shiny Gems Privacy Policy on an individual basis. ARBITRATION ON AN INDIVIDUAL BASIS MEANS THAT YOU WILL NOT HAVE, AND YOU WAIVE, THE RIGHT FOR A JUDGE OR JURY TO DECIDE YOUR CLAIMS, AND THAT YOU MAY NOT PROCEED IN A CLASS, CONSOLIDATED, OR REPRESENTATIVE CAPACITY.

Shiny Gems and Customer agree as follows:

1. Agreement Structure; Services.

1.1. Services. From time to time, Shiny Gems may offer the following (collectively, the “Services”) (a) web-based access to one or more pre-defined or configurable curricula of media literacy and digital citizenship content (the “Content”), and (b) certain other software applications, websites, platforms, mobile applications, or work product developed or provided by Shiny Gems or its Affiliates. References to the Services exclude the LMS and the provision of any support services. For purposes of the Agreement, “Affiliate” means any entity that directly or indirectly (through one or more intermediaries) controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of the Agreement, means ownership or control, directly or indirectly, of more than fifty percent (50%) of the voting interests of the subject entity or the legal power to direct or cause the direction of the general management of such entity, whether by contract or otherwise. 

1.2. Background Technology. Shiny Gems may use other proprietary technology (including any other software, hardware, networks, systems, products, processes, algorithms, data, user interfaces, know-how, techniques, designs, requirements, plans, and other tangible or intangible technical material or information) to provide or support the Services, whether owned or licensed by or on behalf of Vendor or its Affiliates (“Background Technology”). Background Technology includes any Modifications thereto.

1.3. Subscriptions. By executing or otherwise accepting or agreeing to a written or electronic ordering document (a “Sales Order”), Customer may purchase the right to grant Users access to and use of a Service during the applicable Subscription Term, subject to payment of fees and charges pursuant to the Agreement (each, a “Subscription”). Each Sales Order will specify, among other things, (a) that such Sales Order is governed by these Terms, (b) the number of and type of accounts through which Users will access and use the Services (“User Accounts”) for the Subscription, (c) the applicable Fees, and (d) the billing period. For purposes of the Agreement, unless the context requires otherwise, any reference to a Sales Order includes any attachments, exhibits, amendments, supplements, or addenda to such Sales Order. Shiny Gems has no obligation to provide any Services unless such Services are the subject of a Subscription set forth on a binding Sales Order.

1.4. Agreement. All open Sales Orders, together with these Terms, are referred to collectively as the “Agreement.”

1.5. Subscription Term. Subject to Customer’s satisfaction of payment obligations, Shiny Gems will make the applicable Services available for Customer’s and its Users’ use pursuant to the Agreement during the period commencing on the effective date of the applicable Sales Order (the “Order Effective Date”) and continuing until the expiration of the applicable Initial Subscription Term and all Renewal Subscription Terms, if any, unless earlier terminated in accordance with the terms of the Agreement (each, a “Subscription Term”).

1.6. Modifications. Shiny Gems reserves the right, from time to time, to make changes, upgrades, updates, modifications, or enhancements to, or derivative works of (collectively, “Modifications”), the Services, Content, or Background Technology that do not materially diminish the functionality or any mutually agreed upon configuration of the Services during the Subscription Term. Unless otherwise agreed in writing by Shiny Gems and Customer, each such Modification may be made generally available to all Shiny Gems customers that subscribe to the applicable Service(s).

1.7. Mobile Application. Services may be made available through a mobile application, which allows Customer and its Users to use and access a Service (or certain features or functionality thereof) via a mobile or tablet device. To use any mobile application, the applicable User must have a mobile or tablet device that is compatible with such mobile application. For clarity, such access and use of the Service (or any portions thereof) through a mobile application will be subject to the Agreement.

1.8. Learning Management System. The Services are provided through a learning management system (“LMS”), which is provided by a third party (the “LMS Provider”). In addition, all Content and Background Technology is hosted and made available through the LMS, and all Customer Data is processed by and stored within the LMS. As of the date of these Terms, the LMS Provider is EdApp Inc., a division of SafetyCulture Pty Ltd. Customer acknowledges and agrees that access to and use of the LMS by Customer and its Users is subject to additional terms and conditions of the LMS Provider located at https://safetyculture.com/legal/terms-and-conditions/(the “LMS Terms of Use”), and Customer shall, and shall ensure that its Users, comply with the LMS Terms of Use at all times when using or accessing the Service. Customer hereby consents, on behalf of itself and all Users, to the processing of Customer Data by the LMS Provider in accordance with the LMS Terms of Use. Any breach of the LMS Terms of Use by Customer or any User shall be deemed to be a material breach of the Agreement by Customer. Shiny Gems does not warrant or support third-party products or services (including the LMS), whether or not they are designated by Shiny Gems as “certified” or otherwise. Shiny Gems shall use commercially reasonable efforts to work directly with the LMS Provider to resolve any issues with the Service, Content, or Background Technology caused by the LMS. Shiny Gems will not be responsible for any disclosure, modification, or deletion of Customer Data caused by the LMS or the LMS Provider.

1.9. Order of Precedence. In the event of a conflict between these Terms and the terms of your Sales Order, the terms of the Sales Order will take precedence over these Terms.

2. Use of Our Service

2.1. Right of Use. Subject to the terms and conditions of the Agreement, Shiny Gems hereby grants Customer, during the applicable Subscription Term, a non-exclusive, non-transferable, non-sublicensable:

(a) right to access and use the Service, solely for use by Users in the jurisdiction(s) listed in the Sales Order (the “Territory”) in accordance with the terms and conditions of the Agreement. Such use is limited to the implementation of the curricula of Content selected by Customer;

(b) right and license to, and to permit Users to, download, copy, make available internally and to its End Users, and use Content solely to the extent made available to Customer for such purposes through the Services; and

(c) license to use the standard user documentation, manuals, and user guides available to Customer and its Users within the Services, in each case, as may be amended or supplemented by Vendor from time to time (the “Documentation”), solely for Customer’s internal business purposes in connection with its use of the Services.

2.2. Restrictions. Customer shall not, and shall not permit any User or other person to, access or use the Services, Content, or Background Technology except as expressly permitted by the Agreement. Without limiting the generality of the foregoing, Customer shall not, and shall not permit any User or other person to, engage in any of the following prohibited activities: (i) distributing, publishing, or otherwise transferring, disclosing, or making available any part of the Services, Content, or Background Technology in any medium, including by any automated or non-automated "scraping"; (ii) copying, translating, modifying or making derivative works of or based upon the Service, the Content, or the Background Technology; (iii) creating Internet “links” to the Service or utilizing framing techniques to enclose the Service or any Content; (iv) taking any action that does or may, as determined in Shiny Gems’ sole discretion, damage, destroy, disrupt, disable, impair, interfere with, or impede or harm in any manner the Service, Content, Background Technology, the Shiny Gems website, or Shiny Gems’ computing systems; (v) uploading invalid data, viruses, worms, or other software agents through the Services or otherwise accessing or using the Services, Content, or Background Technology to send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; (vi) collecting or harvesting any personally identifiable information, including account names, from the Services, unless explicitly permitted otherwise in the Agreement; (vii) using the Services for any commercial solicitation purposes, including to send spam or otherwise duplicative or unsolicited messages in violation of applicable Laws; (viii) impersonating another person, conducting fraud, or hiding or attempting to hide the identity of Customer or any User; (ix) bypassing the measures used by Shiny Gems to prevent or restrict access to the Services; (x) crawling, scraping, or otherwise accessing or using the Services for any competitive or market research purposes; or (xi) removing, deleting, altering, or obscuring any copyright, trademark, patent, or other intellectual property or proprietary rights notices from any Service, Content, Documentation, or Background Technology, including any copy thereof.

2.3. Suspension. Shiny Gems may permanently or temporarily terminate or suspend access to the Services by you or any User without notice or liability for any reason, including if, in the sole determination of Shiny Gems, Customer or any User has violated any provision of the Agreement. 

2.4. Intellectual Property Rights. As between Shiny Gems and Customer, Shiny Gems shall exclusively own all right, title and interest, including all related Intellectual Property Rights, in and to the Background Technology, the Content, the Service and any Modifications thereto (excluding any Customer Data incorporated into the Background Technology, the Content or the Services). All rights not expressly granted to Customer are reserved by Shiny Gems and its licensors. For purposes of the Agreement, “Intellectual Property Rights” means any or all of the following and all rights in, arising out of or associated therewith throughout the world: (a) all inventions (whether or not patentable), improvements thereto and all patents and applications therefor and all reissues, divisions, divisionals, renewals, extensions, provisionals, continuations, continuations-in-part, documents and filings claiming priority to or serving as a basis for priority thereof, (b) works of authorship, copyrights (including computer software programs), copyrights registrations and applications therefor, and all other rights corresponding thereto, (c) trade secrets and all proprietary information, including non-public know how, technology, business methods, technical data and customer lists, and all documentation relating to any of the foregoing, (d) all trademarks, trade names, service names, and service marks, (e) all industrial designs and any registrations and applications therefor, (f) all databases and data collections and all rights therein, (g) all moral rights of authors and inventors, however denominated, (h) all web sites, domain names, internet addresses or related registrations, and (i) any similar or equivalent rights to any of the foregoing

2.5. Customer Feedback. Customer hereby grants to Shiny Gems and its Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Services any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer, its Affiliates, or Users relating to the operation of the Services. Customer acknowledges and agrees that Shiny Gems will own and retain all right, title, and interest in and to any Intellectual Property Rights in any Modification that incorporates any such suggestion, enhancement request, recommendation, correction or other feedback into the Service, and Customer will, and will cause its and its Affiliates’ Personnel to, upon Shiny Gems’ request, assign to Shiny Gems in writing any proprietary interest in any Modification.

2.6. Account Administration.

(a) Each Sales Order will specify whether the User Accounts associated with the applicable Subscription are Self-Administered or Managed. User Accounts are “Self-Administered” if Customer is responsible for account administration for End Users and/or Institution Users (each, a “User,” and, collectively, “Users”). User Accounts are “Managed” if Shiny Gems is responsible for account administration for any Users. Regardless of whether User Accounts are Self-Administered or Managed, upon completing the registration process, Customer will receive an initial unique account ID and password (the “Account Information”) for Customer’s initial Institution User designated during the registration process, which User will also be the “Subscription Administrator” for that Subscription. 

(b) A Subscription Administrator may submit requests through the Service for new User Accounts under a Managed Subscription. Each request must designate whether the User Account is for (i) an end user that is a student or other minor who will access and use the Services to view and interact with the Content (a “Participant User”), (ii) an end user who is a parent or legal guardian of a Participant User (a “Guardian User” and, together with Participant Users, “End Users”), or (iii) an employee, contractor, agent, or other representative of Customer who will use and access the administrative features and functionality of the Services, including a teacher or other facilitator (an “Institution User”). Customer shall assign a Guardian User for any Participant User who is under the age of thirteen, and such Guardian User shall be authorized to accept the EULA on behalf of the applicable Participant User. Following receipt of any such request, subject to the terms and conditions of the Agreement, Shiny Gems will send a registration link to the email address of the applicable User(s) as provided by the Subscription Administrator in such request. Following registration of a Managed User Account, the User Account will be associated with Customer’s Subscription and will be subject to Customer’s rights and obligations under the Agreement.

(c) Subject to the terms and conditions of the Agreement, a Subscription Administrator may register new User Accounts under a Self-Administered Subscription. Customer shall be responsible for collecting all registration information and consents required to register new User Accounts under Self-Administered Subscriptions and for designating each new User Account as a Participant User, Guardian User, or Institution User. Upon the submission of valid registration information and confirmation that Customer has received all required consents, the Service will notify the applicable User via email of their User Account and prompt the User to login using their initial Account Information.

(d) The Account Information may be used only by the Users to which such Account Information was provided, and Customer shall be responsible for ensuring that each User maintains the confidentiality of the Account Information. Customer shall notify Shiny Gems immediately of any unauthorized use or loss of any Account Information or any other breach of security with respect to the access to or use of the Services by Customer or any User. Account Information is subject to cancellation or suspension by Shiny Gems at any time if Shiny Gems reasonably believes that such Account Information is being misused, used by an unauthorized user, or if Customer or any User has materially breached the Agreement or the End User Terms and Conditions of the Service (the “EULA”). The reissuance or reactivation of any Account Information shall be in the sole discretion of Shiny Gems.

(e) Customer may have multiple Subscription Administrators for each Subscription, and Customer may designate only competent, trained Users as Subscription Administrators. Shiny Gems will be entitled to rely on the instructions of any Subscription Administrator without further inquiry to or approval from Customer.

2.7. Use of the Services. Customer will, and will ensure that its Users, use the Services, Content, and Background Technology, as applicable, in all material respects in accordance with the Agreement, any applicable Documentation, the Shiny Gems Privacy Policy and any other applicable policies (“Policies”). Customer will be solely responsible for its Users’ use of and access to the Services, Content, and Background Technology, as applicable, and for all activity (including misuse or unauthorized use) occurring under its User Account Information to the extent not caused by Shiny Gems or its Personnel. Customer will ensure that all Users agree to and abide by the EULA posted on the Service or provided otherwise in writing. 

2.8. Technology. As between Customer and Shiny Gems, Customer is solely responsible for all of its and its Users’ information technology infrastructure and networks, whether operated directly by Customer or through the use of third-party services. 

3. Personal Information and Student Data. Personal Data and Student Data that is collected by Shiny Gems will be subject in all cases to the Shiny Gems Privacy Policy. In addition, if Customer engages Shiny Gems to process Personal Data on behalf of Customer as a part of the Services, such Personal Data and Student Data will also be subject to the Shiny Gems Data Processing Agreement. Customer acknowledges and agrees that, unless the Shiny Gems Data Processing Agreement is a part of this Agreement, (i) each of Shiny Gems and Customer is individually and solely responsible for their own collection and processing of Personal Data under applicable Privacy Laws, including, where applicable under Privacy Laws, bearing responsibility as a “controller,” “business,” or “covered entity,” and (ii) except for direct damages in breach of contract claims caused by a breach of Section 4 of these Terms, neither party will have any liability to the other party for any losses, damages, costs, or expenses (whether direct, indirect, consequential, incidental or otherwise) in relation to Personal Data or Privacy Laws. Personal Data and Student Data have the definitions given to such terms in the Shiny Gems Privacy Policy.

4. Confidentiality

4.1. Definition. "Confidential Information" means any information marked or otherwise identified in writing by Customer or Shiny Gems as proprietary or confidential or that, under the circumstances surrounding the disclosure, should be known to constitute proprietary or confidential information. Confidential Information of each party shall include, without limitation, information regarding its respective business, strategies, plans, suppliers, clients, finances, business plans, product development, technology, and software. For the avoidance of doubt, Shiny Gems' Confidential Information shall include (a) the terms and conditions of the Agreement, including, but not limited to, the Shiny Gems Data Processing Agreement, and (b) the non-public, proprietary aspects, designs, and features of the Services, Content, and Background Technology.

4.2. Duty of Confidentiality. Neither party will use the other party’s Confidential Information except for the purpose of exercising its rights or carrying out its obligations under the Agreement. Each party will disclose the other party’s Confidential Information to its employees, agents, representatives, and consultants only on a need-to-know basis and subject to reasonable confidentiality obligations on such persons. Each party will protect the other party’s Confidential Information using reasonable care to prevent the unauthorized use or disclosure of such Confidential Information.

4.3. Exclusions. The obligations set forth in this Section 4 will not apply to any information that: (i) was rightfully known to the receiving party prior to its disclosure by the disclosing party, free of any obligation of confidentiality; (ii) is or becomes publicly available other than by any wrongful act of the receiving party; (iii) is disclosed to the receiving party by a third party who does not owe an obligation of confidentiality to the disclosing party; or (iv) is developed independently by the receiving party without use of or reference to the disclosing party’s Confidential Information. In addition, if any Confidential Information is required to be disclosed pursuant to statute, regulation, or order of a court, the receiving party will, to the extent not prohibited by applicable Law, notify the disclosing party of such requirement to permit the disclosing party to seek a protective order for such Confidential Information. If the disclosing party is unable to obtain a protective order, the receiving party may disclose only that portion of the Confidential Information that, under the advice of counsel, it is legally required to disclose.

5. Representations and Warranties; Disclaimers

5.1. Mutual Representations and Warranties. Each party represents and warrants to the other party that (a) it has the legal power to enter into the Agreement and conduct its business, (b) the Agreement is legally enforceable against such party in accordance with its terms (except as may be limited by applicable Law), and (c) no consent or notice to any governmental authority is required in connection with the execution, delivery and performance by such party of the Agreement.

5.2. Limited Warranty by Shiny Gems. Shiny Gems warrants that the Services will perform substantially in accordance with the Documentation under normal use and circumstances. The foregoing warranty shall not apply to performance issues of the Services: (i) caused by factors outside of the reasonable control of Shiny Gems; (ii) that result from any actions or inactions by Customer, any User, or any third party; or (iii) that result from the operating environment, equipment, or third-party software or solutions used by Customer or any User to use or access the Services, Content, or Background Technology.

 

5.3. Warranties by Customer. Customer represents and warrants to Shiny Gems that: 

(a) All Customer Data provided under the Agreement has been or will be obtained by Customer in compliance with all applicable local, state, national, and foreign laws, rules, treaties, regulations, ordinances, and other decrees of any governmental authority (“Laws”), including Laws, in any and all relevant jurisdictions worldwide, that relate to (a) the confidentiality, collection, use, handling, processing, protection, destruction, transfer or free movement of personal data, personally identifiable information or customer information, (b) electronic data privacy, (c) trans-border data flow and/or (d) data protection (“Privacy Laws”); and

(b) Customer has and will maintain all rights and licenses necessary to provide and make Customer Data available to Shiny Gems and its Personnel, as needed for them to provide the Services and perform their other obligations and exercise their rights contemplated by the Agreement, including to access and store Customer Data in accordance with the terms of the Agreement or process Customer Data in other ways agreed between the parties, and such processing will not infringe or violate any rights of any third party or applicable Laws

5.4. Disclaimer of Warranties.  EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THE AGREEMENT, THE SERVICES, CONTENT, AND BACKGROUND TECHNOLOGY ARE PROVIDED “AS-IS,” “WITH ALL FAULTS” AND “AS AVAILABLE,” AND SHINY GEMS AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICES, ANY CONTENT, OR ANY BACKGROUND TECHNOLOGY. ALL OTHER REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, ARE HEREBY SPECIFICALLY DISCLAIMED. WITHOUT LIMITING THE FOREGOING, SHINY GEMS MAKES NO WARRANTY OF ANY KIND REGARDING ANY THIRD PARTY MATERIALS OR THIRD PARTY APPLICATIONS, INCLUDING THE LMS (ALL OF WHICH ARE PROVIDED “AS IS”) OR THAT THE SERVICES, CONTENT, OR BACKGROUND TECHNOLOGY, OR ANY RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE OR FREE OF HARMFUL CODE. 

6. Limitations of Liability.

6.1. Indirect Damages Waiver. EXCEPT FOR THE PARTIES’ INDEMNITY OBLIGATIONS, ANY BREACH OF SECTION 2.2 BY CUSTOMER OR ANY USER, A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS SET FORTH IN SECTION 4 ABOVE, OR A VIOLATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY TYPE OR KIND ARISING OUT OF THE AGREEMENT (INCLUDING LOSS OF DATA, USE OR OTHER ECONOMIC ADVANTAGE, BUSINESS INTERRUPTION, OR COVER), WHETHER IN AN ACTION IN CONTRACT, BREACH OF WARRANTY, OR TORT, REGARDLESS OF CAUSE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

6.2. Liability Cap. EXCEPT FOR THIRD PARTY CLAIMS RESULTING FROM A PARTY’S GROSS NEGLIGENCE OR INTENTIONAL OR WILLFUL MISCONDUCT, CUSTOMER’S BREACH OF ITS PAYMENT OBLIGATIONS, OR ANY BREACH OF SECTION 2.2 BY CUSTOMER OR ANY USER, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF A PARTY AND ITS AFFILIATES FOR LOSSES OR DAMAGES IN ANY AND ALL ACTIONS, HOWEVER BASED, ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT (INCLUDING SUCH PARTY’S INDEMNITY OBLIGATIONS HEREUNDER) EXCEED THE AMOUNTS ACTUALLY PAID OR PAYABLE BY CUSTOMER UNDER THE SALES ORDER GIVING RISE TO SUCH CLAIM IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.

6.3. Limitation on Disclaimers and Liability Exclusions. Certain states do not allow the exclusion of implied warranties or limitation of liability for incidental, consequential or certain other damages. The disclaimers, limitations of liability, and exclusions set forth herein will not apply to the extent prohibited by applicable Law.

7. Indemnification.

7.1. Customer Indemnity.  Subject to applicable Law, and without waiving sovereign immunity, Customer will indemnify, defend and hold harmless Shiny Gems, its Affiliates, and its and their respective licensors, officers, directors, employees, agents, successors, and assigns (collectively, “Shiny Gems Indemnitees”) from and against any and all claims, demands, actions, suits, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees and costs) (collectively “Losses”) incurred by a Shiny Gems Indemnitee in connection with any third party claim, to the extent that such claim arises from: (i) any use of or access to the Services, including any data or content transmitted or received, by or on behalf of Customer or any User; (ii) any actual or alleged violation or breach of any term of the Agreement, including without limitation any breach, alleged breach, or inaccuracy of the representations and warranties above, by Customer or any User; (iii) any violation of any third-party right, including without limitation any right of privacy or Intellectual Property Rights, by Customer or any User; (iv) any gross negligence, willful misconduct, or violation of any applicable Law by Customer or any User; (v) any use of or access to any Customer Data (including, as applicable in accordance with these Terms, Personal Data and Student Data) by Shiny Gems or its Personnel in accordance with the Agreement; (vi) any other party’s access and use of the Services with the Account Information of any User; or (vii) any Excluded Claim (defined below).   

7.2. Shiny Gems’ Indemnity.  Shiny Gems will indemnify, defend and hold harmless Customer and its officers, directors, and employees, and each of their successors and assigns (collectively, “Customer Indemnitees”) from and against any and all Losses incurred by Customer in connection with any third party claim, to the extent that such claim arises from an allegation that Customer’s use of the Services in accordance with the Agreement infringes or misappropriates such third party’s rights in, to, or under any United States patent, copyright, or trademark. However, Shiny Gems shall have no obligation under the Agreement for any claim arising from any actual or alleged infringement or misappropriation resulting from or caused by (a) access to or use of the Services, Content, or Background Technology in combination with any products, services, systems, software, or other materials or processes not provided by Shiny Gems or specified in the Documentation or the Agreement, (b) the LMS or the LMS Provider, (c) Customer Data, (d) any modification of the Services, Content, or Background Technology made without Shiny Gems’ specific written approval, (e) failure to timely implement any Modifications made available to Customer, or (f) any misuse of the Services, Content, or Background Technology (collectively, “Excluded Claims”).

7.3. In the event the Services, Content, or Background Technology are, or, in Shiny Gems’ sole discretion, are likely to become, subject to a claim of infringement or misappropriation (except to the extent such claim is an Excluded Claim) of any Intellectual Property Right of a third party, Shiny Gems, at its sole option and expense, shall (subject to the following sentence): (a) procure for Customer the right to continue receiving access to or using the Services, Content, or Background Technology, or (b) modify or replace the Services, Content, or Background Technology, in whole or in part, to be non-infringing, without materially reducing features and functionality. If neither of the foregoing two options is reasonably available to Shiny Gems, Shiny Gems may terminate the affected Sales Order(s), in whole or in part, by notice to Customer. THIS SECTION, 7.3, TOGETHER WITH THE TERMINATION RIGHTS IN SECTION 10.3, SET OUT CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND SHINY GEMS’ SOLE AND EXCLUSIVE LIABILITY IN RESPECT OF ANY ACTUAL, THREATENED, OR ALLEGED CLAIM THAT THE SERVICES, CONTENT, OR BACKGROUND TECHNOLOGY, OR ANY SUBJECT MATTER OF THE AGREEMENT, INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS.

7.4. Indemnification Procedures.  The indemnified party shall promptly give the indemnifying party notice of any claim subject to indemnification, but the failure to promptly notify the indemnifying party will not relieve the indemnifying party of any liability, except to the extent that the indemnifying party is prejudiced. Subject to this Section 7.4, the indemnifying party will assume control of the defense of such claim. The indemnifying party must not settle any claim without the indemnified party’s written consent, which may not be unreasonably withheld. Each party shall provide the other with reasonable assistance in connection with any claim that is the subject of indemnification hereunder. The indemnified party may participate in the defense of any claim, at the indemnified party’s option and expense. Notwithstanding the foregoing, if the indemnified party reasonably determines that a claim may adversely affect it or its Affiliates other than as a result of indemnified monetary damages, the indemnified party may assume the defense of such claim at its expense; provided, that the indemnified party must not settle any claim without the indemnifying party’s written consent, which may not be unreasonably withheld.

8. Customer Data and User Generated Content

8.1. Customer Data. “Customer Data” means (a) all electronic data and information uploaded or submitted to the Services by or on behalf of Customer or any User, including registration information for User Accounts and any Personal Data and Student Data (“Customer-Provided Data”); (b) the content generated by Users in connection with their use of certain Service functionality, including responses to prompts in lessons and quizzes, notes, survey responses, goals, and free-text fields (such content being “User Generated Content”); and (c) the content of any reports, summaries, output, or other data, information or materials derived solely from, or incorporating only, Customer Provided Data and/or User Generated Content, and that are created, generated, or processed via the Services by Customer or any User, which, in each case, is not publicly available. Notwithstanding the foregoing, if the Shiny Gems Data Processing Agreement is not part of this Agreement, Personal Data will not be deemed to be Customer Data except to the extent that Customer (or a representative of Customer, which expressly excludes End Users) provides such Personal Data directly to Shiny Gems. Shiny Gems claims no ownership rights over any Customer Data, and, as between Shiny Gems and Customer, Customer retains sole ownership of Customer Data. 

8.2. Restrictions on User Generated Content.Customer shall not, and Customer shall ensure that its Users do not, submit User Generated Content or Personal Data that violates the restrictions set forth in the EULA. Shiny Gems does not exercise editorial control over any content or materials generated or provided by any user of the Services, including User Generated Content and Personal Data. However, Shiny Gems reserves the right, without any obligation, to monitor Customer’s and its Users’ use of the Services at any time, as Shiny Gems reasonably deems appropriate, and to remove any materials that, in Shiny Gems’ sole discretion, may be illegal, may subject Shiny Gems to liability, may violate the Agreement, or are inconsistent with Shiny Gems’ purpose for the Service.

8.3. Disclaimer. Shiny Gems takes no responsibility and assumes no liability whatsoever for any Customer Data or Personal Data that Customer or any User submits or transmits via the Services or otherwise. Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Provided Data and User Generated Content, and for securing any necessary rights for processing and handling of all Customer Provided Data and User Generated Content as provided in the Agreement. 

8.4. Customer Data License Grant. Customer hereby grants to Shiny Gems and its Personnel an irrevocable, royalty-free, sub-licensable, transferable, fully paid, non-exclusive, worldwide right and license to use, reproduce, modify, publish, list information regarding, edit, translate, distribute, syndicate, perform, display, and make derivative works of all Customer Data, in whole or in part, and in any form, media, or technology, whether now known or hereafter developed, for use in connection with Shiny Gems’ business, including providing the Services and promoting and redistributing part or all of the Services (and derivative works thereof) in any media formats and through any media channels. The foregoing license includes all rights and permissions in or relating to Customer Data necessary for Shiny Gems and its Personnel to enforce the Agreement, exercise their respective rights, and perform their respective obligations.

8.5. Aggregated Data. Customer hereby grants to Shiny Gems and its Personnel the right to analyze, use, and disclose, during and after the Term, anonymous or aggregated data derived from Customer Data, for analysis, reporting, or any other business purposes of Shiny Gems (e.g. related to operating, maintaining and improving any Service, Content, and Background Technology) or for generating statistical data and metrics that may be made available to customers or third parties; provided that such use and disclosure does not associate Customer with such data or otherwise identify Customer, any User, or any other customer or Person. This provision shall survive termination of the Agreement.

8.6. DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED IN THE AGREEMENT, SHINY GEMS HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION, OR RECOVERY OF CUSTOMER DATA OR PERSONAL DATA.

9. Payment Terms

9.1. Invoicing and Fees. In consideration of Shiny Gems’ provision of the Services, Customer shall pay all fees or charges specified in all Sales Orders hereunder (“Fees”), in accordance with the terms and conditions set forth in the Agreement. All Fees will be invoiced at the time or times set forth in the applicable Sales Order. Except to the extent prohibited by applicable Law and as provided by Section 10.6(b), all payment obligations under the Agreement are non-cancellable and all amounts paid are non-refundable and are deemed earned upon receipt.

9.2. Timing of Payments. Customer will pay all invoices within thirty (30) days of its receipt thereof, except that Customer may withhold payment of any amount disputed in good faith. If Customer does not make payment in a timely manner, Shiny Gems may suspend Customer's and its Users’ access to the Services until such time as payment of the Fees are made current. Customer will continue to be charged Fees during the period of any such suspension.

9.3. Taxes. Unless otherwise stated, Shiny Gems’ fees and charges do not include any taxes, levies, duties or similar governmental assessments of any nature assessable by any local, state, provincial, federal or foreign jurisdiction (“Taxes”). Customer is responsible for paying all Taxes associated with its use of Services or other activity hereunder, including those that Shiny Gems is legally obligated to collect from Customer (subject to any valid tax exemption certificate authorized by the appropriate taxing authority). For clarity, Shiny Gems is solely responsible for Taxes assessable against it based on its income, property, and employees.

9.4. Fee Increases. Shiny Gems may increase any or all Fees during the Initial Subscription Term and each Renewal Subscription Term annually upon sixty (60) days’ notice to Customer. 

10. Term and Termination

10.1. Effective Date and Term. The Agreement commences on the Order Effective Date of Customer’s initial Sales Order (the “Effective Date”) and, unless earlier terminated in accordance with the Agreement, continues until the Subscription Terms for all Sales Orders have expired or been terminated (“Term”).

10.2. Sales Order Term. Each Sales Order will be effective on the Order Effective Date and, unless earlier terminated in accordance with the Agreement, will continue for the initial term specified in the Sales Order (the “Initial Subscription Term”). After the Initial Subscription Term, the Sales Order will automatically renew for successive twelve (12) month periods (each, a “Renewal Subscription Term”), unless either party elects not to renew the Sales Order, in whole or in part, by delivering written notice to the other party at least sixty (60) days prior to expiration of the Initial Subscription Term or Renewal Subscription Term, as applicable. Renewal Subscription Terms shall be subject to the fee increases described in Section 9.4.

10.3. Termination for Convenience. Either party may terminate any Sales Order (or any Subscription thereunder) for any reason or for no reason by providing the other party at least ninety (90) days’ prior written notice. 

10.4. Termination for Cause. Either party shall have the right to terminate the Agreement, in whole or in part, immediately upon written notice to the other party: (a) if the other party breaches or fails to perform or observe any material term or condition of the Agreement and such default has not been cured within thirty (30) days after written notice of such default to the other party; or (b) if the other party (i) terminates or suspends its business, (ii) becomes subject to any bankruptcy or insolvency proceeding under federal or state statute, (iii) becomes insolvent or subject to direct control by a trustee, receiver, or similar authority, or (iv) has wound up or liquidated, voluntarily or otherwise.

10.5. Other Termination Rights. Shiny Gems may also terminate any relevant Service under any Sales Order without liability therefor, immediately by written notice to Customer in the event that (a) a change in applicable Law requires a material change in the Service or the manner in which the Service is then provided, and Shiny Gems cannot make such change (i) without incurring material costs that it is not willing to incur, or (ii) within the time period as may be directed by applicable Law; or (b) Shiny Gems, in its sole discretion, determines that it no longer has the right or ability to provide Content, or to utilize the LMS or any other third party application or third party materials, that is required in order to provide the Service.

10.6. Effect of Expiration or Termination. 

(a) Upon any expiration or termination of the Agreement, all Sales Orders will automatically terminate, all rights to the Services will cease, and Customer and its Users will cease all use of the Services. Any termination of a specific Sales Order will not serve to terminate any other Sales Order or (unless there are no other then-current Sales Orders) the Agreement. Upon any termination of the Agreement, in whole or in part, by Shiny Gems for cause or by Customer for convenience, all unpaid Fees for the affected Subscriptions shall become immediately due and payable. 

(b) If Customer terminates this Agreement in accordance with Section 10.3 (Termination for Cause) or if Shiny Gems terminates this Agreement in accordance with Section 10.2 (Termination for Convenience) or Section 10.4 (Termination for Mandatory Changes), Customer is entitled to a prorated refund of any prepaid Fees for the affected Subscriptions. Customer is not entitled to any refund of prepaid Fees for any Subscription that is terminated for any other reason. In no event will termination relieve Customer of its obligation to pay any Fees payable for the period before the effective date of termination.

(c) Within five (5) business days after expiration or termination of the Agreement, Customer shall return to Shiny Gems or, upon Shiny Gems' request, destroy, at Customer’s expense, all Shiny Gems Confidential Information and materials containing any such Confidential Information, including all copies thereof.

(d) Following any expiration or termination of the Agreement, Shiny Gems may delete all Customer Data in its possession or under its control but will be permitted to retain indefinitely all data that has been aggregated in accordance with Section 8.5 or which has been made publicly available without breach of the Agreement. Shiny Gems has no obligation to return any Customer Data, or to grant Customer or any User with access to Customer Data following expiration or termination of the Agreement, except to the extent required by applicable Law. Shiny Gems may charge an additional fee for the additional costs incurred by Shiny Gems if Shiny Gems agrees to return Customer Data. 

(e) The following Sections will survive any expiration or termination of these Terms: 2.4, 2.5, 3, 4, 5.4, 6, 7, 8, 9, 10.6, 11, and 12.

11. Governing Law and Dispute Resolution. 

11.1. Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of Maryland, without regard to its conflict of laws principles. 

11.2. Binding Arbitration. The parties hereby irrevocably and unconditionally agree that any dispute between them arising out of or relating to this Agreement shall be settled exclusively by binding arbitration upon a written demand by either party. This applies to Customer, its Affiliates and its and their successors, as well as to Shiny Gems, its Affiliates, and its successors and assigns to the fullest extent permissible under applicable Law.

11.3. Class Action Waiver. Any arbitration proceeding under this Section 11 will take place on an individual basis. Class arbitrations and class or representative proceedings of any kind are not permitted, and Customer expressly waives its ability to participate in a class or representative proceeding against Shiny Gems or its Affiliates. If the arbitration clause is found inapplicable to Customer’s dispute with Shiny Gems, this class waiver will continue to apply in litigation. Customer agrees that this class waiver is an essential element of the agreement between Customer and Shiny Gems and that this class waiver may not be severed. In the event that this class waiver is deemed invalid or unenforceable, then the entire agreement to arbitrate in this Section 11 will be null and void.

11.4. Arbitration Procedures. Any dispute or claim subject to arbitration pursuant to this Section 11 must be submitted to binding arbitration in Baltimore, Maryland, and shall be administered pursuant to the rules and procedures of the Judicial Arbitration and Mediation Society (“JAMS”). To the greatest extent permissible under applicable Law, the arbitrator will be bound by and will strictly enforce this Agreement, including any limitations of liability contained herein, and may not limit, expand or otherwise modify any of the provisions of the foregoing. Each party will bear its own expenses in the arbitration and will share equally the costs of the arbitration; provided, however, that the arbitrator will award the applicable party any costs and fees to which it may be entitled under Section 7 in connection with any indemnification claim. Customer agrees that its transactions with Shiny Gems evidence transactions in interstate commerce, and that the Federal Arbitration Act therefore governs the interpretation and enforcement of this Section 11 (notwithstanding the application of Maryland Law to any underlying claims). Customer also agrees that this Section 11 survives any termination of the Agreement or these Terms.

11.5. Venue. To the extent any dispute or claim is not submitted to arbitration pursuant to this Section 11, each party hereby expressly and irrevocably consents to the exclusive jurisdiction of the state courts located in St. Mary's County, Maryland or in the U.S. District Court for the District of Maryland in connection with any action to enforce the provisions of this Agreement, to recover damages or other relief under this Agreement, or otherwise arising under or by reason of this Agreement.

12. General

12.1. No partnership. The relationship between Customer and Shiny Gems under the Agreement is that of customer and service provider only. Nothing in the Agreement will be construed so as to constitute a partnership, joint venture, or agency relationship. Neither party will have any power or authority to bind the other in any transaction with a third-party. Unless otherwise expressly agreed by the parties, the services rendered hereunder shall be on a nonexclusive basis and the party rendering them shall be free to accept other engagements at all times.

12.2. Remedies. Customer agrees that Shiny Gems will be entitled to seek equitable relief, including injunction and specific performance, in the event of any breach or threatened or intended breach of Section 2.2, Section 4, or Section 8.2 of these Terms. All rights and remedies provided in this Agreement are cumulative and not exclusive, and the exercise by either party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law or in equity.

 

12.3. Publicity. Neither party may use the other party’s trademarks, trade names, corporate names, or service marks or otherwise refer to the other party, directly or indirectly, in any media releases, public announcements or promotional or marketing materials, without written approval from the other party, which may be given in such party’s sole discretion. Approvals may be given via email.

12.4. Notices. 

(a) Except as otherwise required by the Agreement, Shiny Gems may give any notice required by the Agreement by means of a general notice on the Service or via email to Customer’s email address on record in Shiny Gems’ account information. Notices provided via email will be deemed given and received on the transmission date of the email. Notwithstanding the foregoing, Shiny Gems shall provide Customer with notice in writing, by certified mail or overnight courier, return receipt requested, at the address specified in the Sales Order with respect to any request for indemnification, notice of dispute, or notice of breach or termination.

(b) Customer may give any notice required by the Agreement by any of the following means, and, in each case, such notice shall be deemed given when received by Shiny Gems: (a) email with receipt notification to  info@shinygems.com, or (b) notice in writing, by certified mail or overnight courier, return receipt requested, to Shiny Gems at the following address: 23415 Three Notch Rd. Ste 2008, PMB 149, California, MD, 20619.

12.5. Integration; Severability. The Agreement, including these Terms and the Sales Orders, sets forth the entire understanding and agreement of the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous oral or written representations, agreements, and understandings. No terms stated in any Customer purchase order, privacy agreement, vendor agreement or other Customer form agreement will be incorporated into or form any part of the Agreement unless such document is signed by an officer of Shiny Gems, explicitly references a Sales Order, and states that it is intended to modify such Sales Order. If any provision of this Agreement is determined to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.

12.6. Interpretation. The headings used in the Agreement are used for convenience only and are not to be considered in construing or interpreting the Agreement. The parties agree that the terms and conditions of the Agreement are the result of negotiations between the parties and that the Agreement will not be construed in favor of or against any party by reason of the extent to which any party or its professional advisors participated in the preparation of the Agreement. For purposes of the Agreement, unless the context requires otherwise: (a) the words “include,” “includes,” and “including” are deemed to be followed by the words “without limitation”, and (b) the words “herein,” “hereof,” “hereby,” “hereto,” and “hereunder” refer to the Agreement as a whole.

12.7. Modifications. A Sales Order may be modified only by mutual written agreement between the parties. Shiny Gems reserves the right, at any time and from time to time, to update, revise, supplement, and otherwise modify these Terms or any Policies and to impose new or additional rules, policies, terms, or conditions on use of the Services by Customer or its Users. Shiny Gems will communicate changes to these Terms by posting the new version on the Services or its website here, or as otherwise determined by Shiny Gems in its sole discretion, at which time such updated Terms will be immediately effective. Customer is responsible for regularly reviewing these Terms and Shiny Gems’ Policies. Customer’s continued use of any Services after such notification of changes to these Terms will constitute Customer’s acceptance of any and all such changes. Notwithstanding the foregoing, Shiny Gems will notify Customer of any material changes to these Terms.

12.8. Third Party Beneficiaries. Except as specified in the Agreement, the Agreement does not create any obligations of, or any rights, causes of action, or benefits, in favor of any Person other than Customer (and its successors and permitted assigns) and Shiny Gems and its applicable Affiliates (and their respective successors and permitted assigns).

12.9. Assignment. Customer may not assign its rights or delegate its obligations under the Agreement, in whole or in part, without the prior written consent of Shiny Gems, which consent shall not be unreasonably delayed or withheld. Any other non-permitted assignment will be void and of no effect. Subject to the foregoing, the Agreement will be binding upon and inure to the benefit of each party and its respective successors and permitted assigns.

12.10. Subcontracting. Shiny Gems may subcontract obligations under the Agreement but will remain liable to Customer for any subcontracted obligations.

12.11. Waiver. The failure or delay of a party to enforce any right or provision in the Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing.

12.12. Compliance with Laws. Each party will comply with all Laws applicable to such party’s performance of its obligations under the Agreement, including all applicable export Laws and Privacy Laws. Shiny Gems will have the right to suspend access to all or any portion of the Services to the extent required in order to avoid a violation of any applicable Law.

12.13. Force Majeure. Neither party will be liable for failure or delay in performance of its obligations (other than payment obligations) hereunder to the extent caused by circumstances beyond its reasonable control, including acts of God, natural disasters, terrorism, riots, or war.

12.14. Exclusion for Official Use. If Customer is a federal, state, or local government entity in the United States using the Services in its official capacity and legally unable to accept the controlling law, jurisdiction, or venue clauses above, then those clauses do not apply to Customer. For such U.S. federal government entities, the Agreement and any action related thereto will be governed by the Laws of the United States of America (without reference to conflict of laws) and, in the absence of federal Law and to the extent permitted under federal Law, the Laws of the State of Maryland (excluding choice of law).

12.15. Electronic Signatures. Any Sales Order (including these Terms as incorporated therein) and related documents may be executed and accepted by means of electronic or digital signatures. Any such electronic or digital signature will be deemed to satisfy all requirements imposed on electronic or digital signatures under the Electronic Signatures in Global and National Commerce Act (E-SIGN), and any similar Laws relating to the validity or enforceability of electronic or digital signatures.

12.16. Counterparts. Each Sales Order may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of a Sales Order delivered by facsimile, email, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of such Sales Order.