KIRA LEARNING SOFTWARE AS A SERVICE AGREEMENT

This Software as a Service Agreement governs Customer’s use of our platform located at kira-learning.org (the “Services”), which is operated by Kira Learning, Inc. (“Kira,” “us,” “our,” and similar designations used herein).

If Customer registers for a free trial of Kira Services, the applicable provisions of this Agreement will also govern that free trial.

Customer accepts and agrees to the terms of this Agreement, by (1) clicking a box indicating acceptance, (2) executing an order form that references this Agreement, or (3) using free Services. If the individual accepting this Agreement is accepting on behalf of a company or other legal entity, such individual represents that they have the authority to bind such entity to these terms and conditions, in which case the term “Customer” shall refer to such entity. If the individual accepting this Agreement does not have such authority, or does not agree with these terms and conditions, such individual must not accept this Agreement and may not use the Services.

KIRA SERVICES ARE INTENDED FOR CUSTOMERS AND USERS IN THE UNITED STATES ONLY. IF CUSTOMER OR ITS USERS ARE NOT IN THE UNITED STATES, CUSTOMER AND SUCH USERS ARE PROHIBITED FROM ACCESSING OR USING THE SERVICES.

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

This Agreement was last updated on December 3, 2023. It is effective between Customer and Kira as of the date of Customer’s accepting this Agreement (the “Effective Date”).

1. DEFINITIONS.

In addition to those capitalized terms defined throughout this Agreement, the following terms have the following meanings:

1.1 “Agreement” means this Kira Learning Software as a Service Agreement.
1.2 “Beta Services” means Kira services or functionality that may be made available to Customer to try at its option at no cost, which is clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation, or by a similar description.
1.3 “Customer” means in the case of an individual accepting this Agreement on his, her, or their own behalf, such individual, or in the case of an individual accepting this Agreement on behalf of a company or other legal entity, the company or other legal entity for which such individual is accepting this Agreement.
1.4 “Customer Data” means electronic data and information submitted by or for Customer to the Services.
1.5 “Documentation” means the applicable Service’s documentation, usage guides and policies, and other instructions and training documents, each as may be updated from time to time, which are provided or made available by Kira to Customer relating to the Service.
1.6 “Malicious Code” means code, files, scripts, agents, devices or programs intended to do harm, including viruses, worms, spiders time bombs, Trojan Horses, disabling devices, or other malware.
1.7 “Order Form” means an ordering document or online order specifying the Services licensed to Customer hereunder.
1.8 “User” means, the Customer (if the Customer is a natural person), or otherwise, an individual who is authorized by Customer to use the Service, and who are employees or students of the Customer.

2. KIRA RESPONSIBILITIES

2.1 Provision of Services. Kira will make the Services available to Customer pursuant to this Agreement, and the applicable Order Forms and Documentation, as an online solution to be used over the Internet only.
2.2 Service Availability. The Service may be unavailable at certain times due to circumstances beyond Kira’s reasonable control, including, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, pandemic or epidemic, strike or other labor problem (other than one involving Kira employees), Internet service provider failure or delay, or denial of service attack.
2.3 Beta Services and Free Trials. From time to time, Kira may make Beta Services available to Customer at no charge or provide a free trial period for Customer to evaluate the Services. Customer may choose to try such Beta Services or use the free trial or not in its sole discretion. Subject to the below disclaimers, any use of Beta Services and free trials is subject to the terms of this Agreement. Kira may end the free trial period in its sole discretion. No service level agreements apply to Beta Services or free trials.

ANY DATA THAT CUSTOMER ENTERS INTO THE SERVICES DURING THE BETA SERVICES OR FREE TRIAL PERIOD MAY BE PERMANENTLY LOST. NOTWITHSTANDING THE “REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS” SECTION AND “INDEMNIFICATION BY KIRA” SECTION BELOW, DURING THE BETA SERVICE OR FREE TRIAL PERIOD, THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND KIRA SHALL HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY TYPE WITH RESPECT TO THE SERVICES UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW IN WHICH CASE KIRA’S LIABILITY WITH RESPECT TO THE SERVICES PROVIDED DURING THE BETA SERVICE PERIOD SHALL NOT EXCEED $1,000.00 USD.

3. USE OF SERVICES AND CONTENT

3.1 Subscriptions. Unless otherwise provided in the applicable Order Form or Documentation, (a) Services are purchased as subscriptions for the term stated in the applicable Order Form or in the applicable online purchasing portal, (b) subscriptions for Services may be added during a subscription term at the same pricing as the underlying subscription pricing, prorated for the portion of that subscription term remaining at the time the subscriptions are added, and (c) any added subscriptions will terminate on the same date as the underlying subscriptions. Customer agrees that its purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Kira regarding future functionality or features.
3.2 Usage Limits. Services are subject to usage limits specified in Order Forms and Documentation. Customer will execute an Order Form for additional quantities of the applicable Services promptly upon Kira’s request, and pay any invoice for excess usage in accordance with the “Invoicing and Payment” section below.
3.3 Usage Restrictions. Customer will not (a) make the Service available to anyone other than Customer or its authorized Users, or use the Service for the benefit of anyone other than Customer, except if otherwise expressly permitted in an Order Form, (b) sell, resell, license, sublicense, distribute, rent or lease the Service, or include the Service in a service bureau or outsourcing offering, (c) use the Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of any privacy rights, (d) use the Service to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Service or third-party data contained therein, (f) attempt to gain unauthorized access to the Service or its related systems or networks, (g) permit direct or indirect access to or use of the Services in a way that circumvents a contractual usage limit, or use the Services to access, copy or use any of Kira’s intellectual property except as permitted under this Agreement, an Order Form, or applicable Documentation, (h) modify, copy, or create derivative works of the Service or any part, feature, function or user interface thereof, (i) frame or mirror any part of the Service, other than framing on Customer’s own intranets or otherwise for its own internal business purposes or as permitted in applicable Documentation, or (j) except to the extent permitted by applicable law, disassemble, reverse engineer, or decompile the Service or access it to (1) build a competitive product or service, (2) build a product or service using similar ideas, features, functions or graphics of the Service, (3) copy any ideas, features, functions or graphics of the Service, or (4) determine whether the Services are within the scope of any patent.
3.4 Customer Responsibilities. Each of Customer’s Users will have their own login credentials, which may not be shared or used by more than one User. Customer will (a) be responsible for Users’ compliance with this Agreement, Documentation and Order Forms, (b) be responsible for the accuracy, quality and legality of Customer Data, the means by which Customer acquired Customer Data, Customer’s use of Customer Data with the Services, Customer’s provision of Customer Data and User data to Kira in connection with the Services, and the interoperation of the Service with any applications not provided by Kira as part of the Service, (c) prevent unauthorized access to or use of the Services, and notify Kira promptly of any such unauthorized access or use, and (d) use the Services only in accordance with this Agreement, the Documentation, and our Acceptable Use Policy (“AUP”) set forth at, Order Forms and applicable laws and government regulations. Any use of the Services in breach of the foregoing by Customer or Users or any action that in Kira’s judgment threatens the security, integrity or availability of any of Kira’s services, may result in Kira’s immediate suspension of the Services. Kira may, in its sole discretion, provide Customer with notice and an opportunity to remedy such violation or threat prior to any such suspension.
3.5 Removal of Content. If Customer receives notice, including from Kira, that any Customer content may no longer be used or must be removed, modified and/or disabled to avoid violating applicable law, third-party rights, or the AUP, Customer will promptly do so. If Customer does not take required action, including deleting any such content, or if in Kira’s judgment continued violation is likely to reoccur, Kira may disable or remove the applicable content.

4. NON-KIRA PRODUCTS AND SERVICES

4.1 Non-Kira Products and Services. Kira or third parties may make available third-party products or services. Any acquisition by Customer of such products or services, and any exchange of data between Customer and any other parties is at Customer’s sole risk. Kira does not warrant or support non-Kira applications or other non-Kira products or services. Kira is not responsible for any disclosure, modification or deletion of Customer Data resulting from access by such non-Kira application or its provider.
4.2 Integration with Non-Kira Applications. The Services may contain features designed to interoperate with non-Kira applications. Kira cannot guarantee the continued availability of such Service features, and may cease providing them without entitling Customer to any refund, credit, or other compensation, if for example and without limitation, the provider of a non-Kira application ceases to make the non-Kira application available for interoperation with the corresponding Service features in a manner acceptable to Kira.

5. FEES AND PAYMENT

5.1 Fees. Customer will pay all fees specified in Order Forms. Payment obligations are non-cancelable and fees paid are non-refundable, and quantities purchased cannot be decreased during the relevant subscription term.
5.2 Invoicing and Payment. Customer will provide Kira with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Kira. If Customer provides credit card information to Kira, Customer authorizes Kira to charge such credit card for all Services listed in the Order Form for the initial subscription term and any renewal subscription term(s) as set forth in the “Term of Purchased Subscriptions” section below. Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, Kira will invoice Customer in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced fees are due net 30 (thirty) days from the invoice date. Customer is responsible for providing complete and accurate billing and contact information to Kira and notifying Kira of any changes to such information.
5.3 Overdue Charges. If any invoiced amount is not received by Kira by the due date, then without limiting Kira’s rights or remedies, (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) Kira may condition future subscription renewals and Order Forms on payment terms shorter than those specified in the “Invoicing and Payment” section above.
5.4 Suspension of Service and Acceleration. If any amounts owed by Customer under this or any other agreement for services is ten (10) days or more overdue, Kira may, without limiting its other rights and remedies, accelerate Customer’s unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Services until such amounts are paid in full.
5.5 Payment Disputes. Kira, in its sole discretion, may elect to not exercise its rights under the “Overdue Charges” or “Suspension of Service and Acceleration” section above if Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.
5.6 Taxes. Kira’s fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder. If Kira has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, Kira will invoice Customer and Customer will pay that amount unless Customer provides Kira with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Kira is solely responsible for taxes assessable against it based on its income, property and employees.

6. PROPRIETARY RIGHTS AND LICENSES

6.1 Reservation of Rights. Subject to the limited rights expressly granted hereunder, Kira and its licensors reserve all of their right, title and interest in and to the Services and all content Kira makes available thereon, including all of their related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein.
6.2 License by Customer to Kira. Customer hereby grants Kira and its applicable contractors a worldwide, limited, royalty free, fully paid up, transferable (solely as permitted in this Agreement), sublicensable (solely to its service providers) license to access, copy, record, use, publish, display, perform, create derivative works of, distribute, host, and transmit, any non-Kira applications and program code created by or for Customer using a Service or for use by Customer with the Services, and Customer Data, each as appropriate for Kira and its contractors to provide and ensure proper operation of the Services and associated systems in accordance with this Agreement.
6.3 License by Customer to Use Feedback. Customer hereby grants to Kira a worldwide, perpetual, irrevocable, royalty-free, fully paid up license to access, copy, record, use, publish, display, perform, create derivative works of, distribute, host, and transmit, and make and incorporate into its services any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer or Users relating to the operation of Kira’s or its affiliates’ services.
6.4 Federal Government End Use Provisions. Kira provides the Services, including related software and technology, for ultimate federal government end use in accordance with the following: The Services consist of “commercial items,” as defined at FAR 2.101. In accordance with FAR 12.211-12.212 and DFARS 227.7102-4 and 227.7202-4, as applicable, the rights of the U.S. Government to use, modify, reproduce, release, perform, display, or disclose commercial computer software, commercial computer software documentation, and technical data furnished in connection with the Services shall be as provided in this Agreement, except that, for U.S. Department of Defense end users, technical data customarily provided to the public is furnished in accordance with DFARS 252.227-7015. If a government agency needs additional rights, it must negotiate a mutually acceptable written addendum to this Agreement specifically granting those rights.

7. SECURITY; CONFIDENTIALITY

7.1 Protection of Customer Data. Kira will maintain reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data, as described in the Documentation.
7.2 Confidential Information of Kira. “Confidential Information” means all information disclosed or made available by Kira to Customer, whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information of Kira includes: the Services; all Documentation; the terms and conditions of this Agreement and all Order Forms (including pricing); business and marketing plans; technology and technical information; product plans and designs; and business processes disclosed. However, Kira’s Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to Kira, (ii) was known to Customer prior to its disclosure by Kira without breach of any obligation owed to Kira, as evidenced by written records, (iii) is received from a third party without knowledge of any breach of any obligation owed to Kira, or (iv) was independently developed by Customer without access to or use of Kira’s Confidential Information, as evidenced by written records.
7.3 Compelled Disclosure. Notwithstanding the provisions of this Section, nothing in this Agreement shall prevent Customer from disclosing Confidential Information of Kira to the extent Customer is legally required or compelled to do so by any governmental investigative or judicial agency or body pursuant to proceedings over which such agency or body has jurisdiction; provided, however, that prior to making any such required or compelled disclosure, Customer shall, at its own cost and expense: (i) assert the confidential nature of the Confidential Information to such agency or body; (ii) promptly notify Kira in writing of such order or requirement to disclose; (iii) disclose only the portion of Confidential Information which Customer’s legal counsel advises that Customer is legally required to produce and use reasonable efforts to obtain assurance that confidential treatment will be afforded to those portions of the Confidential Information; and (iv) cooperate fully with Kira in protecting against or limiting any such disclosure and/or obtaining a protective order, confidential treatment and/or any other remedy narrowing the scope of the required or compelled disclosure and protecting its confidentiality. In the event that a protective order, confidential treatment and/or other remedy is not obtained, or if Kira waives compliance with the provisions of this Agreement as applied to such required or compelled disclosure, then Customer may, without liability, disclose Kira’s Confidential Information to the extent that it is legally required or compelled to disclose it pursuant to the applicable subpoena, court order or other order from the applicable governmental body.

8. REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS

8.1 Mutual Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.
8.2 Kira Warranties. Kira warrants that during an applicable subscription term (a) this Agreement, the Order Forms and the Documentation will describe the Services with material accuracy, and (b) the Services will perform materially in accordance with the applicable Documentation. For any breach of a warranty above, Customer’s exclusive remedies are those described in the “Termination” and “Refund or Payment upon Termination” sections below.
8.3 Customer Warranties. Customer represents and warrants to Kira that, the Customer Data and Customer feedback and their use by Kira: (a) do not and shall not violate any applicable law, rule, or regulation (including any and all applicable privacy and data security regulations); and (b) do not and shall not violate the third party rights of any person or entity in any way (including without limitation any intellectual property, privacy, or publicity rights).
8.4 Disclaimers. Customer understands that Kira cannot and does not guarantee or warrant that the Services will be free of viruses or other destructive code. Customer is responsible for implementing sufficient procedures and checkpoints to satisfy its own particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to Kira’s Services for any reconstruction of any lost data. TO THE FULLEST EXTENT PROVIDED BY LAW, KIRA WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY THIRD PARTY MALICIOUS ACTIONS OR MALICIOUS CODE, THAT MAY INFECT CUSTOMER’S OR ITS USERS’ COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA, OR OTHER PROPRIETARY MATERIAL DUE TO USE OF OR ACCESS TO OR USE OF THE SERVICES. CUSTOMER’S USE OF THE SERVICES IS AT CUSTOMER’S OWN RISK. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER KIRA NOR ANY PERSON ASSOCIATED WITH KIRA MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE SERVICES. WITHOUT LIMITING THE FOREGOING, NEITHER KIRA NOR ANYONE ASSOCIATED WITH KIRA REPRESENTS OR WARRANTS THAT THE SERVICES WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT THE SERVICES OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF MALICIOUS CODE, OR THAT THE SERVICES WILL OTHERWISE MEET CUSTOMER’S NEEDS OR EXPECTATIONS. TO THE FULLEST EXTENT PROVIDED BY LAW, KIRA HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, TITLE, AND FITNESS FOR PARTICULAR PURPOSE. THE FOREGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

9. MUTUAL INDEMNIFICATION

9.1 Indemnification by Kira. Kira will defend Customer against any claim, demand, suit or proceeding made or brought against Customer by a third party alleging that the Services infringe or misappropriate such third party’s intellectual property rights (a “Claim Against Customer”), and will indemnify Customer from any damages, attorney fees and costs finally awarded against Customer as a result of, or for amounts paid by Customer under a settlement approved by Kira in writing of, a Claim Against Customer, provided that Customer (a) promptly gives Kira written notice of the Claim Against Customer, (b) gives Kira sole control of the defense and settlement of the Claim Against Customer (except that Kira may not settle any Claim Against Customer unless it unconditionally releases Customer of all liability), and (c) gives Kira all reasonable assistance, at Kira’s expense. If Kira receives information about an infringement or misappropriation claim related to a Service, Kira may in its discretion and at no cost to Customer (i) modify the Services so that they are no longer claimed to infringe or misappropriate, without breaching Kira’s warranties under “Kira Warranties” above, (ii) obtain a license for Customer’s continued use of that Service in accordance with this Agreement, or (iii) terminate Customer’s subscriptions for that Service upon thirty (30) days’ written notice and refund Customer any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply if (I) the allegation does not state with specificity that the Services are the basis of the Claim Against Customer; (II) a Claim Against Customer arises from the use or combination of the Services or any part thereof with software, hardware, data, or processes not provided by Kira, if the Services or use thereof would not infringe without such combination; (III) a Claim Against Customer arises from Services under an Order Form for which there is no charge; or (IV) a Claim against Customer arises from third party content or services or Customer’s breach of, or failure to use the Services in accordance with, this Agreement, the Documentation or applicable Order Forms.
9.2 Indemnification by Customer. Customer will defend Kira and its affiliates, employees, officers, directors, partners, shareholders, agents, attorneys, third-party advisors, successors and permitted assigns against any claim, demand, suit or proceeding made or brought against Kira by a third party (a) alleging that the combination of a non-Kira application or configuration provided by Customer and used with the Services, infringes or misappropriates such third party’s intellectual property rights, or (b) arising from (i) Customer’s use of the Services in an unlawful manner or in violation of the Agreement, the Documentation, or Order Form, (ii) any Customer Data, Kira’s use of or access to Customer Data, or Customer’s use of Customer Data with the Services, or (iii) a non-Kira application provided by Customer (each a “Claim Against Kira”), and will indemnify and hold Kira and its affiliates, employees, officers, directors, partners, shareholders, agents, attorneys, third-party advisors, successors and permitted assigns harmless from any damages, attorney fees and costs incurred by or awarded against Kira as a result of, or for any amounts paid by Kira under a settlement approved by Customer in writing of, a Claim Against Kira, provided that Kira (A) promptly gives Customer written notice of the Claim Against Kira, (B) gives Customer sole control of the defense and settlement of the Claim Against Kira (except that Customer may not settle any Claim Against Kira unless it unconditionally releases Kira of all liability), and (C) gives Customer all reasonable assistance, at Customer’s expense. The above defense and indemnification obligations do not apply if a Claim Against Kira arises from Kira’s material breach of this Agreement, the Documentation or applicable Order Forms.
9.3 Exclusive Remedy. This “Mutual Indemnification” section states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any third-party claim described in this section.

10. LIMITATION OF LIABILITY

10.1 Limitation of Liability. IN NO EVENT SHALL KIRA, ITS AFFILIATES, OR THEIR LICENSORS, SERVICE PROVIDERS, OR ANY OF THEIR RESPECTIVE EMPLOYEES, AGENTS, OFFICERS, OR DIRECTORS BE LIABLE BE LIABLE UNDER THIS AGREEMENT TO CUSTOMER FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, STATUTORY, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING FOR LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF USE, LOSS OF TIME, LOSS OR CORRUPTION OF CUSTOMER DATA, LOSS OF USE OF CUSTOMER DATA, INCONVENIENCE, LOSS OF BUSINESS OPPORTUNITIES, OR DAMAGE TO GOODWILL OR REPUTATION, REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. KIRA’S AGGREGATE LIABILITY HEREUNDER WILL BE LIMITED TO AN AMOUNT EQUAL TO THE SUM OF THE FEES PAID BY CUSTOMER TO KIRA DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE EVENT GIVING RISE TO THE CLAIM.
10.2 ANY CLAIM MADE PURSUANT TO THIS SECTION MUST BE MADE WITHIN ONE YEAR OF THE INCIDENT TO WHICH IT RELATES OR FOREVER BE BARRED.
10.3 THE FOREGOING DISCLAIMERS WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.

11. TERM AND TERMINATION

11.1 Term of Agreement. This Agreement commences on the date Customer first accepts it and continues until all subscriptions hereunder have expired or have been terminated.
11.2 Term of Purchased Subscriptions. The term of each subscription shall be as specified in the applicable Order Form. Except as otherwise specified in an Order Form, subscriptions will automatically renew for additional one year terms, unless either party gives the other written notice (email acceptable) at least thirty (30) days before the end of the relevant subscription term. Except as expressly provided in the applicable Order Form, renewal of subscriptions will be at Kira’s applicable list price in effect at the time of the applicable renewal for the applicable subscription volume and length.
11.3 Termination. A party may terminate this Agreement for cause (i) upon thirty (30) days’ written notice to the other party of a material breach if such breach remains uncured at the expiration of such 30-day period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Notwithstanding the foregoing, Customer agrees that Kira may, in its sole discretion, terminate or suspend Customer’s access to and use of the Services at any time, for any violation of the terms and conditions of this Agreement.
11.4 Refund or Payment upon Termination. If this Agreement is terminated by Customer in accordance with the “Termination” section above other than for Customer’s breach, Kira will refund Customer any prepaid fees covering the remainder of the term of all Order Forms after the effective date of termination. In no event will termination relieve Customer of its obligation to pay any fees payable to Kira for the period prior to the effective date of termination.
11.5 Surviving Provisions. The sections titled “Fees and Payment,” “Proprietary Rights and Licenses,” “Confidentiality,” “Disclaimers,” “Mutual Indemnification,” “Limitation of Liability,” “Refund or Payment upon Termination,” “Removal of Content,” “Surviving Provisions” and “General Provisions” will survive any termination or expiration of this Agreement, and the section titled “Protection of Customer Data” will survive any termination or expiration of this Agreement for so long as Kira retains possession of Customer Data.

12. GENERAL PROVISIONS

12.1 Export Compliance. The Services may be subject to export laws and regulations of the United States and other jurisdictions. Kira and Customer each represents that it is not on any U.S. government denied-party list. Customer will not permit any User to access or use the Service in a U.S.-embargoed country or region or in violation of any U.S. export law or regulation.
12.2 Anti-Corruption. Each party represents that it has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other party in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction.
12.3 Entire Agreement and Order of Precedence. This Agreement is the entire agreement between Kira and Customer regarding Customer’s use of the Services and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. The parties agree that any contrary term or condition stated in a Customer purchase order or in any other Customer order documentation (excluding Order Forms) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order Form, (2) this Agreement, and (3) the Documentation. Titles and headings of sections of this Agreement are for convenience only and shall not affect the construction of any provision of this Agreement.
12.4 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. Each party will be solely responsible for payment of all compensation owed to its employees, as well as all employment-related taxes.
12.5 Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement.
12.6 Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right, unless such waiver is in a signed writing by the party so waiving.
12.7 Severability. The provisions of this Agreement shall be severable in the event that any of the provisions hereof are held by a court of competent jurisdiction to be invalid, void or otherwise unenforceable, and the remaining provisions shall remain enforceable to the fullest extent permitted by law and this Agreement will be construed in all respects as if such invalid or unenforceable provision will be replaced with a valid and enforceable provision as similar as possible to the one replaced.
12.8 Assignment. Neither party may assign this Agreement, in whole or in part, without the other party’s prior written consent, and any attempted assignment without such consent will be void. Notwithstanding the foregoing, Kira may assign this Agreement, in whole or in part, without Customer’s consent, to an affiliate, a subsidiary or a third party in the event of any reorganization, merger, or a sale of all or substantially all of Kira’s assets or business, including in connection with any bankruptcy or similar proceeding. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
12.9 Governing Law; Jurisdiction; Venue. This Agreement will be construed, interpreted, and applied in accordance with the laws of the state of New York (excluding its body of law controlling conflicts of law). Both parties hereby agree to the exclusive jurisdiction and venue of the federal and state courts located in the city, county and state of New York. Each party hereby irrevocably submits itself to the jurisdiction of such courts, and waives any objection it may have to the laying of such venue. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT.
12.10 Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices related to this Agreement will be in writing and sent by email info@kira-learning.com or in the case of Kira providing notices, through the Services. Such notices will be effective upon (a) the same business day such notices are delivered, if transmitted before 5:00 PM Pacific Standard Time, or (b) on the second business day after such notices are delivered, if transmitted after 5:00 PM Pacific Standard Time.