This End User License Agreement (this “Agreement”) governs all usage of the Service (defined below) offered by Kikori, Inc., a Delaware corporation (“Kikori”). By using the Service or any part of it in any way, including by downloading the Kikori mobile application or creating a Kikori account, you agree to this Agreement effective on the date that you first do so (the “Effective Date”). Certain other agreements described below incorporate this Agreement.

 

IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY ARE AT LEAST EIGHTEEN YEARS OF AGE OR ANY HIGHER AGE IN THEIR JURISDICTION THAT IS REQUIRED TO FORM A BINDING CONTRACT AND THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT, IN WHICH CASE THE TERM “YOU” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY OR DOES NOT AGREE WITH THIS AGREEMENT, SUCH INDIVIDUAL MAY NOT USE THE SERVICE.

 

This Agreement is subject to occasional revision. If Kikori makes substantial changes, Kikori may notify you by sending an e-mail to the last e-mail address you provided to us (if any) and/or by prominently posting notice of the changes within the interface of the Service itself. You are responsible for providing Kikori with your most current email address. If the last e-mail address that you provided Kikori is not valid, or for any reason is not capable of delivering to you the notice described above, Kikori’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice of the changes described in the notice. Any changes to this Agreement will be effective immediately for you if the revised Agreement is displayed to you before your first use of the Service. Otherwise, changes to this Agreement will be effective 30 calendar days after the earliest of the dates that Kikori either emails you notice of the revision or posts notice of the revision on the Service. Your continued use of the Service following notice of such changes shall indicate your acknowledgement of such changes and agreement to be bound by this Agreement as so amended.

 

Use of the Kikori Service by anyone under 13 years of age is prohibited. You represent that you are at least the age of majority in the jurisdiction where you live or, if you are not, your parent or legal guardian must consent to this Agreement and affirm that they accept it on your behalf and bear responsibility for your use of the Service. If you are accepting this Agreement on behalf of someone else or an entity, you confirm that you have the legal authority to bind that person or entity to this Agreement.

 

Overview

Kikori, Inc. (“Kikori,” “we,” “us,” or “our”) provides the Kikori website, kikoriapp.com (the “Website”) and mobile phone application (the “App,” and together with the Website, the “Service”) pursuant to this Agreement. At Kikori, our mission is to transform classrooms by making experiential education and social emotional learning activities accessible for all teachers via our Service. These activities are easily discoverable, aligned to educational standards, and include the tools necessary to integrate those activities into classrooms with minimal effort.

 

To use the Service, you must create a unique password and always keep it confidential.

The Service allows you, should you choose, to upload written, visual or other content to the Service for potential publication to third parties (collectively, “Your Content”). Uploading Your Content is not necessary for you to use the Service.

 

Access, Use and Intellectual Property

Subject to and conditioned on your compliance with this Agreement, Kikori grants you a non-exclusive, non-transferable license and right to access and use the Service for your Own Use during the Term. “Own Use” in this Agreement means use by you to use the Service, and if you are an educator, then “Own Use” further includes your use to promote and teach content from Kikori in your classroom.

 

This Agreement does not provide you with any Intellectual Property Rights except as it expressly provides. In this Agreement, “Intellectual Property Rights” means any and all copyrights, patents, patent rights, design rights, moral rights, trademark or service mark rights and trade secrets and all registrations, applications, renewals, extensions, or reissues of the foregoing, whether now known or hereafter existing worldwide.

Use Restrictions

You agree that you will not at any time during or permanently after the Term:

• sell, resell, license, sublicense, distribute, rent or lease any part of the Service to any third party for compensation or otherwise.

• use the Service to store, use or transmit material in violation of third-party privacy rights, contractual rights or Intellectual Property Rights.

• submit to the Service, whether as Your Content or otherwise, any material that is offensive or inappropriate; promotes racism, bigotry, hatred or physical harm of any kind against any group, individual, country, religion, or other group.; is pornographic, adult, obscene or sexually explicit in nature; incites aggression or violence; or is harassing, bullying, or discriminatory, as Kikori determines.

• use the Service to store or transmit any code, files, scripts, agents or programs intended to do harm (including viruses, worms, time bombs or Trojan horses), or disable, impair or conduct penetration tests or scans of any hardware, software or other systems that Kikori owns, leases or controls.

• gain unauthorized access to the Service, interfere with it or disrupt its integrity or performance.

• access or use any Intellectual Property Rights owned or made available to you by Kikori, or modify, copy, or create derivative works based on the Service or any part of it.

• use the Service in a way not expressly authorized by this Agreement.

• disassemble, reverse engineer, or decompile any part of the Service, or access it to (1) build a product or service competitive to Kikori, (2) build a product or service copying or using ideas, features, functions or graphics of the Service, or (3) determine whether the Service or any part of it is within the scope of any patent.

 

Your Content

Kikori shall not at any time own or claim to own Your Content. Your Content will remain your property at all times.

 

By uploading Your Content to the Service, you grant Kikori a worldwide, non-exclusive, transferable, sublicensable (through multiple tiers), irrevocable, royalty-free, fully paid-up right, license and authorization to use, copy, store, make copies and derivative works of, display Your Content and distribute and publish Your Content to the public to the extents described herein and in Kikori’s Privacy Policy (the “Content License”). The Content License includes, without limitation, Kikori’s rights to make Your Content available to other Kikori users in accordance with this Agreement; to provide Your Content to third parties for use and publication by those third parties pursuant to Kikori’s agreements with them; and to display Your Content in Kikori’s promotional materials. When publishing Your Content, Kikori will provide attribution to you (including by publishing your name as its contributor) except where Kikori’s arrangements with third parties do not permit such attribution.

 

Kikori has the sole discretion to determine whether to publish or remove from publication at any time any Your Content that you choose to upload. Once Kikori publishes Your Content, if you so request in writing at least 60 days before the end of the then-current semester (“semester” meaning a period from January through June or September through December), Kikori will remove Your Content from publication at the end of that semester. We take this approach in order to ensure fairness to educators who may have already begun using published portions of Your Content at the time that you request its removal.

 

The Content License begins upon your uploading Your Content to the Service and lasts forever or until Kikori removes it from publication as this Agreement provides.

 

Termination and Suspension of the Service

Any use of the Service in breach of this Agreement by you that in Kikori’s judgment threatens the security, availability or functioning of the Service may result in Kikori’s immediate termination of this Agreement as between you and Kikori.

 

Kikori may temporarily suspend your access to any part or all of the Service if: (i) Kikori reasonably determines that (A) there is a threat to the Service; (B) your use of the Service disrupts or poses a security risk to the Service, to Kikori or to any other person; or (C) you have used the Service for fraudulent or illegal activities; (ii) Kikori receives a court order or law enforcement request directing such suspension; or (iii) you breach this Agreement. In the case of any suspension pursuant to parts (i) or (ii) in this paragraph, Kikori will use commercially reasonable efforts to provide written notice before the suspension, to provide updates regarding resumption of access to the Service following the suspension, and to resume providing access to the Service promptly after the event giving rise to the suspension is cured, but you acknowledge that such notice is not always possible.

 

Modifications

It may be necessary for Kikori to perform repairs or maintenance or remotely patch or upgrade the Service, which may temporarily degrade the quality of the Service or result in a partial or complete outage of the Service.

 

Feedback

If you provide Kikori with comments or suggestions about the Service (“Feedback”), you hereby grant Kikori a perpetual, irrevocable, non-exclusive, worldwide, royalty-free license to copy and store any Feedback and use it to develop new products, improve or modify the Service or as Kikori otherwise wishes.

 

WARRANTIES

You represent and warrant that you shall not use the Service or any content accessed via the Service in any way that violates any agreement between you and any current or former employer; any school, school district or other organization in connection with which you provide educational or education-related services; or any other third party.

 

LIMITATIONS OF LIABILITY AND DISCLAIMERS OF WARRANTIES

KIKORI PROVIDES THE SERVICE ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, KIKORI DISCLAIMS ANY AND ALL WARRANTIES AND CONDITIONS OF MERCHANTABILITY, TITLE, ACCURACY AND COMPLETENESS, UNINTERRUPTED OR ERROR-FREE SERVICE, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR TRADE USAGE.

 

KIKORI MAKES NO PROMISES WITH RESPECT TO, AND EXPRESSLY DISCLAIMS ALL LIABILITY FOR: (i) YOUR CONTENT AND OTHER CONTENT POSTED BY ANY USER OR THIRD PARTY; (ii) ANY THIRD-PARTY WEBSITE, THIRD-PARTY PRODUCT, OR THIRD-PARTY SERVICE LISTED ON OR ACCESSIBLE THROUGH THE SERVICE; OR (iii) UNAUTHORIZED ACCESS, USE OR ALTERATION OF YOUR CONTENT. KIKORI MAKES NO WARRANTY THAT: (a) THE SERVICE WILL MEET ANY USER’S REQUIREMENTS OR SATISFACTION OR PRODUCE ANY PARTICULAR EDUCATIONAL RESULTS OR (b) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE.

 

THE MAXIMUM EXTENT PERMITTED BY LAW, KIKORI WILL NOT BE LIABLE TO YOU UNDER ANY THEORY OF LIABILITY. WITHOUT LIMITING THE FOREGOING, YOU AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, KIKORI SPECIFICALLY WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES, LOSS OF PROFITS, BUSINESS INTERRUPTION, REPUTATIONAL HARM, OR LOSS OF DATA (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES ARE FORESEEABLE) ARISING OUT OF OR IN ANY WAY CONNECTED WITH YOUR USE OF, OR INABILITY TO USE, THE SERVICE.

WITHOUT LIMITING THE FOREGOING, KIKORI’S MAXIMUM AGGREGATE LIABILITY TO YOU FOR LOSSES OR DAMAGES THAT YOU SUFFER IN CONNECTION WITH THE SERVICE OR THIS AGREEMENT IS LIMITED TO THE LOWER OF (A) THE AMOUNT, IF ANY, PAID BY YOU TO KIKORI IN CONNECTION WITH THE SERVICE IN THE TWELVE (12) MONTHS PRIOR TO THE ACTION GIVING RISE TO LIABILITY OR (B) $5,000.00.

 

MEDIATION AND ARBITRATION

We would like the opportunity to address any concerns you may have regarding our Services. By using the Service, you agree to take reasonable steps to resolve any dispute that may arise by emailing us at info@kikoriapp.com and outlining the issues you have. We will also take reasonable steps to resolve this dispute informally. Furthermore, you and Kikori collectively agree to resolve any claims relating to our provision of the Service, and this Agreement, through the arbitration.

 

If a dispute from your use of our Services is not resolved through negotiation, the parties agree first to try in good faith to settle the dispute by mediation administered in Suffolk County, Massachusetts by a single mediator mutually agreed to by the disputing parties pursuant to the then obtaining rules of the American Arbitration Association under its Commercial Mediation Procedures before resorting to arbitration. The costs of mediation shall be shared equally amongst the parties.

 

Any dispute or controversy arising from your use of our Services that is not resolved through mediation shall be settled by arbitration in Suffolk County, Massachusetts by a single arbitrator mutually agreed to by the disputing parties pursuant to the then obtaining rules of the American Arbitration Association, but without any requirement that the parties utilize the arbitration services of the American Arbitration Association. Such arbitration shall be the sole and exclusive remedy for such disputes except as otherwise provided in this Agreement. Any award rendered shall be final and conclusive upon the parties, and a judgment may be entered in any court having jurisdiction.

In any arbitration proceeding with respect to any dispute arising from this Agreement, the prevailing party shall be entitled to recover the costs of the proceeding and reasonable attorney fees from the other party.

 

General

This Agreement constitutes the entire agreement between Kikori and you relating to the Service. This Agreement shall be governed by Delaware law. Subject to the binding arbitration clause above, you agree to submit to the personal and exclusive jurisdiction of any federal or state court having jurisdiction in Suffolk County, Massachusetts. The failure of Kikori to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. If any provision of this Agreement is held to be invalid or unenforceable by a court, the remaining provisions of this Agreement will remain in effect. These Terms constitute the entire agreement between Kikori and you regarding our Services and supersede and replace any prior agreements we might have had between Kikori and you regarding the Services.

 

We may assign or delegate this Agreement, in whole or in part, to any person or entity at any time with or without your consent. You may not assign or delegate any rights or obligations under this Agreement without our prior written consent, and any unauthorized assignment or delegation by you is void.

 

Changes to the Terms

Kikori reserves the right to alter this Agreement at any time without notice, with any such changes taking effect when published by Kikori. By continuing to access or us our Service after any revision becomes valid, you agree to be bound by the revised Agreement.

Indemnity

 

To the fullest extent permitted by applicable law, you agree to defend, indemnify, and hold harmless Kikori, our officers, directors, employees, affiliates, parents, subsidiaries, related entities and agents, from and against any claims, actions or demands, including without limitation reasonable legal and accounting fees, alleging or resulting from your submission of Your Content and/or use of the Service.

 

Links

Kikori has not reviewed all of the websites linked to the Service and is not responsible for the contents of any such linked websites. The inclusion of any link does not imply endorsement by Kikori of the linked website. Use of any such linked website is at the user’s own risk.

 

If you are a California resident using the Service, you may specifically waive California Civil Code §1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.

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CONTACT US.

If you have any questions about this Agreement, please contact us at info@kikoriapp.com.

Last updated: March, 2024