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BOOKNOOK SERVICES AGREEMENT

PLEASE READ THIS BOOKNOOK SERVICES AGREEMENT (THIS “AGREEMENT”) CAREFULLY BEFORE USING ANY OF BOOKNOOK, INC.’S (“BOOKNOOK”) PRODUCTS OR SERVICES. THESE TERMS AND CONDITIONS GOVERN YOUR (THE “CUSTOMER” OR “YOU”) USE OF THE BOOKNOOK SOLUTION (AS DEFINED BELOW) AND ANY RELATED SERVICES BOOKNOOK PROVIDES TO YOU, UNLESS YOU AND BOOKNOOK HAVE EXECUTED A SEPARATE WRITTEN AGREEMENT (A “WRITTEN CONTRACT”) WITH RESPECT TO THE BOOKNOOK SOLUTION. BOOKNOOK IS ONLY WILLING TO PROVIDE THE BOOKNOOK SOLUTION AND RELATED SERVICES TO YOU IF YOU ACCEPT ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. BY USING THE BOOKNOOK SOLUTION OR ANY RELATED SERVICES, OR BY SIGNING AN ORDER FORM (AS DEFINED BELOW), YOU ARE CONFIRMING THAT YOU UNDERSTAND THIS AGREEMENT, AND THAT YOU ACCEPT ALL OF ITS TERMS AND CONDITIONS. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A SCHOOL, COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND IT TO THIS AGREEMENT, IN WHICH CASE “YOU” AND “CUSTOMER” WILL MEAN THAT ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, THEN BOOKNOOK IS UNWILLING TO PROVIDE THE BOOKNOOK SOLUTION OR ANY RELATED SERVICES TO YOU, AND YOU MAY NOT USE THE BOOKNOOK SOLUTION OR ANY RELATED SERVICES.

1. Definitions. In addition to terms defined elsewhere in this Agreement, the following capitalized terms will have the meanings set forth in this Section 1.  

1.1 “Authorized Student” means a student attending a Customer-designated school for whom Customer has purchased the right to use the BookNook Solution.

1.2 “BookNook Solution” means BookNook’s proprietary products and services that are set forth on each Order Form and provided to Customer hereunder. 

1.3 “Customer Materials” means Customer’s trademarks and logos provided to BookNook by Customer (if any), and any other materials, data, and similar information, owned or licensed by Customer that are provided by Customer to BookNook in connection with Customer’s use of the BookNook solution. For the sake of clarity, Resultant Data shall not be deemed to be Customer Materials.          

1.4 “Documentation” means the manuals, instructions, documentation and other documents or materials that BookNook makes generally available to its customers and the specific documentation that BookNook provides to Customer hereunder.      

1.5 “Effective Date” is the date on which Customer executed its first Order Form.

1.6 “Harmful Code” means any software, hardware or other technology, device or means, including any virus, worm, malware or other malicious computer code, the purpose of which is to: (i) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any: (a) computer, software, firmware, hardware, system or network, or (b) any application or function of any of the foregoing or the security, integrity, confidentiality or use of any data processed thereby; or (ii) prevent Customer from accessing or using the BookNook Solution as intended by this Agreement. Harmful Code does not include any means that BookNook uses to disable access to the BookNook Solution automatically or with the passage of time (such as a license key).         

1.7 “Intellectual Property Rights” means all patent, copyright (including in both published and unpublished works, registrations and applications therefor), trade secret and rights in know-how, trademark, business domain names, designs, and other proprietary and intellectual property rights recognized in any jurisdiction worldwide, including moral rights.   

1.8 “Losses” means any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys’ fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.

1.9 “Open Source Component” means any software component that is subject to any open-source copyright license agreement, including any GNU General Public License or GNU Library or Lesser Public License, or other obligation, restriction or license agreement that substantially conforms to the Open Source Definition as prescribed by the Open Source Initiative or otherwise may require disclosure or licensing to any third party of any source code with which such software component is used or compiled.

1.10 “Order Form” means a quote, statement of work or other ordering document for certain BookNook products and services that is entered into between BookNook and Customer and that may contain mutually agreed upon additional terms, each of which are incorporated herein and governed by the terms of this Agreement. For the sake of clarity, a quote that is provided by BookNook to Customer and then signed by Customer shall be deemed to be an Order Form hereunder.

1.11 “Resultant Data” means any information, data and other content that is derived by, from or through Customer’s or an Authorized Users’ (as defined below) access or use of the BookNook Solution, including but not limited to, data and information regarding the provision, use and performance of various aspects of the BookNook Solution and related services.

2. BookNook Solution.

2.1 BookNook Solution. Subject to Customer paying the Fees (as defined below) to BookNook and providing any time, materials and/or services required to be provided by Customer under the applicable Order Form,  BookNook will provide the BookNook Solution to Customer during the Term (as defined below) and Customer, designated members of Customer’s staff and each Authorized Student (collectively, “Authorized Users”) may use the BookNook Solution in accordance with the terms and conditions set forth in this Agreement.

2.2 Support and Maintenance.  In exchange for the Fees set forth on each Order Form, and in addition to the support and maintenance services specified in the applicable Order Form (if any), BookNook will use commercially reasonable efforts to provide reasonable support and maintenance services for the BookNook Solution.

2.3 Restrictions. In addition to any restrictions set forth in each Order Form, Customer will not, and will ensure that its Authorized Users do not, except as this Agreement expressly permits: (i) copy, modify or create derivative works or improvements of the BookNook Solution; (ii) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the BookNook Solution or any part thereof to any third party, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service; (iii) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of the BookNook Solution, in whole or in part; (iv) bypass or breach any security device or protection used by the BookNook Solution; (v) input, upload, transmit or otherwise provide to or through the BookNook Solution, any information or materials that are unlawful or injurious, or contain, transmit or activate any Harmful Code; (vi) damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the BookNook Solution or BookNook’s provision of products and services to any third party, in whole or in part; (vii) remove, delete, alter or obscure any copyright, trademark, patent or other intellectual property or proprietary rights notices from any BookNook Solution, including any copy thereof; (viii) access or use the BookNook Solution in any manner or for any purpose that infringes, misappropriates or otherwise violates any Intellectual Property Right or other right of any third party  or that violates any applicable law; (ix) access or use the BookNook Solution for purposes of competitive analysis of the BookNook Solution, the development, provision or use of a competing software service or product or any other purpose that is to the BookNook’s detriment or commercial disadvantage; (x) otherwise access or use the BookNook Solution beyond the scope of the authorization granted under this Agreement; or (xi) permit any third party to do any of the foregoing.   

2.4 Changes. BookNook reserves the right, in its sole discretion, to make any changes to the BookNook Solution that it deems necessary or useful to: (i) maintain or enhance: (a) the quality or delivery of the BookNook Solution to its customers, (b) the competitive strength of or market for the BookNook Solution, or (c) the BookNook Solution’s cost efficiency or performance; (ii) to comply with applicable laws, rules and regulations; or (iii) to comply with BookNook’s contractual obligations to its suppliers.         

2.5 Open Source Components. The BookNook Solution includes Open Source Components and any use of the Open Source Components by Customer shall be governed by and subject to the terms and conditions governing such Open Source Components.

2.6 Responsibility for Authorized Users. Authorized Users who register for an account in connection with their use of the BookNook Solution must provide accurate and complete registration information. Customer is solely responsible for all actions taken by Authorized Users, the security of Authorized Users’ passwords and any use of Authorized Users’ account. If Customer becomes aware of any unauthorized use of an Authorized User’s password or account, Customer agrees to notify BookNook immediately.

2.7 Professional Services. In connection with providing the BookNook Solution to Customer, BookNook and Customer may agree in an Order Form upon training, consulting or other professional services (collectively, the “Professional Services”) to be performed by BookNook.  Customer agrees to provide BookNook with any required Customer Materials needed for BookNook to perform the Professional Services, and hereby grants BookNook a royalty-free, non-exclusive, worldwide license to use such Customer Materials for the sole purpose of enabling BookNook to perform the Professional Services. Except with respect to the Customer Materials, BookNook retains all right, title and interest in and to (i) anything it uses or develops in connection with performing Professional Services for Customer, including, among other things, software, tools, specifications, ideas, concepts, inventions, processes, techniques, and know-how; and (ii) anything it delivers to Customer during the course of performing Professional Services.

3. Fees and Payment Terms.

3.1 Fees and Invoicing. As consideration for BookNook providing Customer with the BookNook Solution and the services set forth herein or in an Order Form, Customer will pay BookNook the fees set forth in each Order Form (collectively, the “Fees”). Unless otherwise agreed upon on in an Order Form, Customer will be invoiced for all Fees upfront at the start of an Order Form Term, and Customer will: (i) pay all invoices within 30 days after the date of the applicable invoice; and (ii) make all payments hereunder in US dollars.          

3.2 Taxes. As between Customer and BookNook, Customer accepts sole responsibility for the payment of any taxes, charges or assessments imposed on Customer, the BookNook Solution, or the fees to be paid to BookNook by any foreign or domestic national, state, or local government bodies, or subdivisions thereof, and any penalties or interest (other than income taxes imposed on BookNook’s revenue).     

3.3 No Deductions or Setoffs. All amounts payable to BookNook under this Agreement shall be paid by Customer to BookNook in full without any setoff, deduction, or withholding for any reason. All Fees paid hereunder are non-refundable.

4. Term and Termination

4.1 Term. This Agreement begins on the Effective Date and continues in full force and effect until the date that is twelve (12) months from the date on which there are no longer any outstanding Order Forms, unless terminated earlier pursuant to this Agreement (the “Term”). The term for the provision of the BookNook Solution (the “Order Form Term”) will be as set forth in each applicable Order Form, but if no such Order Form Term is specified in the applicable Order Form, the term of such Order Form shall be twelve (12) months from the effective date of such Order Form. Each Order Form (including Customer’s obligation to pay the applicable Fees) will automatically renew for additional successive Order Form Terms of equivalent length, unless one party provides written notice to the other at least thirty (30) days prior to the expiration of the then-current Order Form Term that it wishes to terminate the applicable Order Form at the end of the then-current Order Form Term.  Notwithstanding the foregoing, any non-recurring Professional Services provided for in an Order Form shall not automatically renew unless otherwise agreed to in writing by the parties.

4.2 Termination. Either party may terminate this Agreement or any Order Form with immediate effect, in whole or in part, by giving the other party prior written notice, if the other party: (i) commits a material breach of any of its obligations under this Agreement or an Order Form (as applicable), which breach is not cured within 30 days following receipt of written notice, or the parties agree (acting reasonably) cannot be cured within 30 days; (ii) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (iii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency laws; (iv) makes or seeks to make a general assignment for the benefit of its creditors; or (v) applies for or has appointed a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.  In addition, BookNook may terminate or suspend this Agreement (in whole or in part (i.e., as to any specific Order Form)) immediately upon written notice to Customer if (a) Customer breaches Section 2.3 or otherwise violates BookNook’s Intellectual Property Rights or (b) Customer fails to pay any portion of the Fees when due. 

4.3 Effect of Termination; Survival.  When this Agreement or any Order Form terminates or expires: (i) Customer will no longer have the right to use the BookNook Solution referenced in each terminated or expired Order Form; and (ii) all Fees specified in any Order Form(s) that have not yet been paid by Customer as of the date of such termination or expiration will be immediately due and will be paid in accordance with Section 3. Sections 1, 3, 4.3, 5, 6, 8 and 9-11 (together with all other provisions hereof, including, without limitation, all Order Forms, exhibits and other attachments hereto, that may be reasonably interpreted as surviving termination or expiration of this Agreement) will survive the termination or expiration of this Agreement.           

5. Proprietary Material; Data.

5.1 BookNook. As between Customer and BookNook, BookNook owns and reserves all of its and its licensors’ right, title and interest in and to: (i) the BookNook Solution; (ii) the Documentation; (iii) any and all enhancements, improvements, developments, derivative works or other modifications made to the foregoing; (iv) the Resultant Data (subject to Section 5.4); (v) BookNook’s Confidential Information; and (vi) all Intellectual Property Rights in the foregoing (collectively, the “BookNook Intellectual Property”). Except as may expressly be set forth in this Agreement, no right, title, or interest to any of the BookNook Intellectual Property is transferred or licensed to Customer. All rights not expressly granted to Customer in this Agreement are reserved by BookNook and its licensors.                     

5.2 Customer.  As between Customer and BookNook, Customer owns and reserves all of its and its licensors’ right, title and interest to: (i) the Customer Materials; (ii) Customer’s Confidential Information; and (iii) all Intellectual Property Rights in the foregoing (collectively, the “Customer Intellectual Property”). Subject to the terms of this Agreement, Customer grants to BookNook a limited, nonexclusive, worldwide, royalty-free, fully paid-up, sublicensable, transferable (in accordance with Section 11.5) license to use, store, adapt, modify, translate, publish, reproduce and distribute the Customer Materials during the Term as necessary for BookNook to provide the BookNook Solution, any Deliverables and related services to Customer under this Agreement and as otherwise necessary for BookNook to perform its obligations or exercise its rights under this Agreement.  Except as may expressly be set forth in this Agreement, no right, title, or interest to any of the Customer Intellectual Property is transferred or licensed to BookNook.   

5.3 Feedback. If Customer provides suggestions, feedback or other input to BookNook concerning the functionality and performance of the BookNook Solution, including identifying potential errors and improvements (collectively, “Feedback”), then Customer hereby grants BookNook and its affiliates a perpetual, irrevocable, worldwide, royalty-free, fully paid-up right and license to all Feedback and all Intellectual Property Rights therein (except patent rights and trademark and branding rights) to use, perform, display, reproduce, create derivative works, and otherwise exploit such Feedback for any purpose.  The foregoing license shall be fully transferable and sublicensable.         

5.4 Resultant Data. Notwithstanding anything to the contrary set forth herein, BookNook shall have the right to collect and analyze Resultant Data, and  BookNook will be free (during and after the Term hereof) to (i) use such Resultant Data to improve and enhance the BookNook Solution and for other development, diagnostic and corrective purposes in connection with the BookNook Solution and other BookNook offerings; (ii) disclose such data solely in an aggregated and de-identified form in connection with its business (including for marketing purposes); and (iii) disclose such Resultant Data to Customer’s funders and/or key stakeholders so long as such Resultant Data is de-identified so as not to identify any individual students.

6. Confidential Information.

6.1 Definition of Confidential Information and Obligations.  Each party (the “Receiving Party”) acknowledges that by reason of its relationship to the other party (the “Disclosing Party”) under this Agreement, the Receiving Party will have access to certain information and materials, including the terms of this Agreement and each Order Form, concerning the Disclosing Party’s business, plans, technology, products and services that are confidential and of substantial value to the Disclosing Party, which value would be impaired if such information were disclosed to third parties (“Confidential Information”). The Receiving Party agrees that it shall not use in any way for its own account or the account of any third party, nor disclose to any third party, any such Confidential Information revealed to it by the Disclosing Party, except as expressly otherwise provided in this Agreement. The Receiving Party shall treat the Disclosing Party’s Confidential Information in confidence and protect it with the same degree of care as the Receiving Party uses to protect its own confidential or proprietary information, but with no less than reasonable care. 

6.2 Exclusions.  Confidential Information does not include any information that the Receiving Party can demonstrate by written records: (i) was rightfully known to the Receiving Party prior to its disclosure under this Agreement by the Disclosing Party; (ii) is independently developed by the Receiving Party without use of, or reference to, any Confidential Information of the Disclosing Party; (iii) is or becomes publicly known through no wrongful act of the Receiving Party; (iv) has been rightfully received from a third party whom the Receiving Party has reasonable grounds to believe is authorized to make such disclosure without restriction; (v) has been approved for public release by the Disclosing Party’s prior written authorization; or (vi) must be produced or disclosed pursuant to applicable law, regulation or court order,  or upon request by an examiner, auditor or regulator provided that the Receiving Party provides prompt advance notice thereof to enable the Disclosing Party to seek a protective order or otherwise prevent such disclosure.  In addition, either party may disclose the existence and terms of this Agreement (a) to its auditors, (b) to existing and potential investors who are performing due diligence in connection with a fundraising round, or (c) in connection with a potential acquisition of substantially the entire business, assets and/or equity of such party or a private or public offering of such party’s securities.       

6.3 Return. Upon the earlier of the Disclosing Party’s request or the termination or expiration of this Agreement and/or Order Form(s), the Receiving Party shall, at the Disclosing Party’s option, promptly return to the Disclosing Party or destroy all Confidential Information including all copies thereof, in whatever medium in its possession or control; and in either event, will certify in writing to the Disclosing Party that such actions have all been completed. Notwithstanding the foregoing, the Receiving Party may retain (i) any Confidential Information required to be retained to comply with applicable laws or regulatory requirements; and (ii) any Confidential Information contained in computer files maintained pursuant to the Receiving Party’s customary archiving or back-up procedures; provided, however, that all such retained Confidential Information shall continue to remain subject to the provisions of this Section 6.

7. Privacy and Security. All information collected by BookNook will be used, stored and processed in accordance with BookNook’s privacy policy located at https://www.booknooklearning.com/privacy/. BookNookwill maintain industry-standard administrative, technical, and physical safeguards to protect any information and data collected by BookNook from Customer. BookNook will, on an ongoing basis, ensure that its information security program and safeguards are designed, maintained, updated and adjusted, as necessary, to protect against reasonably foreseeable internal and external risks.Unless Customer receives prior express written authorization from BookNook, Customer may not process via the BookNook Solution, or submit to BookNook, any Customer Materials that include any: (i) “personal health information,” as defined under the Health Insurance Portability and Accountability Act of the United States of America; (ii) government issued identification numbers, including Social Security numbers, driver’s license numbers and other state or national issued identification numbers; (iii) financial account information, including bank account numbers; (iv) payment card data, including credit card or debit card numbers; or (v) biometric information, such as fingerprints or voiceprints.

8. Representations and Warranties.

8.1 Mutual. Each party represents and warrants to the other that: (i) it has the right, power, and authority to enter into this Agreement and perform its obligations hereunder; (ii) it will, at all times, comply with all applicable laws, statutes, treaties and regulations to which it is subject; and (iii) it has all the necessary rights to grant the rights and licenses hereunder. 

8.2 By BookNook. BookNook shall use reasonable efforts consistent with prevailing industry standards to maintain the BookNook Solution in a manner which minimizes errors and interruptions in the BookNook Solution and shall perform the Professional Services in a professional and workmanlike manner. The BookNook Solution may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by BookNook or by third-party providers, or because of other causes beyond BookNook’s reasonable control, but BookNook shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption.  However, BookNook does not warrant that the BookNook Solution will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the BookNook Solution. 

8.3 Disclaimer of Warranties. EXCEPT AS OTHERWISE SET FORTH IN THIS AGREEMENT, THE BOOKNOOK SOLUTION, DELIVERABLES AND ANY RELATED SEREVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND, TO THE MAXIMUM EXTENT PERMITTED BY MANDATORY LAW, BOOKNOOK EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. 

9. Limitation of Liability. IN NO EVENT WILL BOOKNOOK OR ITS SUPPLIERS BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY DAMAGES WHATSOEVER WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (I) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (II) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (III) FOR ANY MATTER BEYOND BOOKNOOK’S REASONABLE CONTROL; OR (IV) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO BOOKNOOK UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE FIRST CLAIM, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

10. Indemnity.

10.1 BookNook Indemnification. BookNook shall indemnify, defend and hold harmless Customer and Customer’s officers, directors, employees, and agents (each, a “Customer Indemnitee”) from and against any and all Losses incurred by such Customer Indemnitee arising out of or relating to any claim, suit, action or proceeding (each, an “Action”) by a third party to the extent that such Losses arise from any: (i) allegation in such Action that Customer’s use of the BookNook Solution (excluding Customer Materials and Open Source Components) in compliance with this Agreement infringes a U.S. Intellectual Property Right; or (ii) gross negligence or willful misconduct by BookNook in connection with this Agreement. The foregoing obligation does not apply to any Action or Losses arising out of or relating to any: (a)  access to or use of the BookNook Solution not in accordance with this Agreement; (b) modification of BookNook Solution other than by BookNook; (c)  failure to timely implement any modifications, upgrades, replacements or enhancements made available to Customer by or on behalf of BookNook; (d) portion or component of the BookNook Solution made in whole or in part in accordance with Customer specifications; (e) any combination of the BookNook Solution with other products, processes or materials, unless the claim would have arisen irrespective of such combination; or (f) Customer’s failure to timely implement any modifications, upgrades, replacements or enhancements made available to Customer by or on behalf of BookNook.

10.2 Customer Indemnification. Customer shall indemnify, defend and hold harmless BookNook and each of its officers, directors, employees, and agents (each, a “BookNook Indemnitee”) from and against any and all Losses incurred by such BookNook Indemnitee in connection with any Action by a third party to the extent that such Losses arise out of or relates to any: (i) Customer Materials and (ii) gross negligence or willful misconduct by Customer or any Authorized User in connection with this Agreement. 

10.3 Indemnification Procedure. Each party shall promptly notify the other party in writing of any Action for which such party believes it is entitled to be indemnified pursuant to Section 10.1 or 10.2, as the case may be. The party seeking indemnification (the “Indemnitee”) shall cooperate with the other party (the “Indemnitor”) at the Indemnitor’s sole cost and expense. The Indemnitor shall immediately take control of the defense and investigation of such Action and shall employ counsel reasonably acceptable to the Indemnitee to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee’s failure to perform any obligations under this Section 10.3 will not relieve the Indemnitor of its obligations under this Section 10.3 except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.           

10.4 Mitigation. If the BookNook Solution, or any component thereof, is, or in BookNook’s opinion is likely to be, claimed to infringe, misappropriate or otherwise violate any third-party Intellectual Property Right then, BookNook may, at its option and expense: (i) obtain the right for Customer to continue to use the BookNook Solution materially as contemplated by this Agreement; (ii) modify or replace the BookNook Solution, in whole or in part, to seek to make the BookNook Solution (as so modified or replaced) non-infringing, while providing materially equivalent features and functionality, in which case such modifications or replacements will constitute BookNook Solution, as applicable, under this Agreement; or (iii) by written notice to Customer, terminate this Agreement and require Customer to immediately cease any use of the BookNook Solution, and provide to Customer a prorated refund of any Fees pre-paid by Customer as of such termination.

10.5 THIS SECTION 10 SETS FORTH CUSTOMER’S SOLE REMEDIES AND BOOKNOOK’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED OR ALLEGED ACTIONS THAT THIS AGREEMENT OR ANY SUBJECT MATTER HEREOF (INCLUDING THE BOOKNOOK SOLUTION) INFRINGES, MISAPPROPRIATES OR OTHERWISE VIOLATES ANY THIRD-PARTY INTELLECTUAL PROPERTY RIGHT.   

11. Miscellaneous.

11.1 Governing Law, Jurisdiction.This Agreement and all rights and obligations of the parties will be exclusively governed by, and construed and interpreted in accordance with the laws of the State of California (without regard to conflict of law principles). Each party irrevocably and unconditionally submits to the exclusive jurisdiction of the federal or state courts sitting in the County of San Francisco, California, and any appellate court of such court, solely for the purpose of any suit, action or proceeding brought to enforce its obligations under this Agreement or in any way relating to this Agreement. The parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act will not apply to this Agreement.   In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.

11.2 Entire Agreement. This Agreement, together with all Order Forms, which are incorporated into and made a part of this Agreement, contain the entire understanding of the parties relating its subject matter and supersedes any prior written or oral agreement or understandings between the parties with respect to its subject matter of this Agreement. Notwithstanding the foregoing, if you have executed a Written Contract with respect to the BookNook Solution and related services, that Written Contract, and not this Agreement, will govern your use of the BookNook Solution and such related services. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.        

11.3 Publicity. Provided that BookNook complies with Customer’s brand guidelines as advised from time to time: (i) BookNook shall have the right to list Customer as a customer in written, oral and electronic materials which include the names of BookNook’s customers; and (ii) provide Customer as a customer reference for BookNook. Except as expressly permitted in this Agreement, BookNook shall not use any trademark, service mark, trade name, or other name or logo of Customer in any advertising or publicity and shall not issue any public statement concerning this Agreement without the prior written consent of Customer.

11.4 Severability. If any provision of this Agreement shall be held to be invalid or unenforceable, the remainder of this Agreement shall remain in full force and effect. To the extent any express or implied restrictions are not permitted by applicable laws, these express or implied restrictions shall remain in force and effect to the maximum extent permitted by such applicable laws. The parties will work in a spirit of partnership to find an arrangement that approximates as nearly as possible the inoperative terms.  

11.5 Assignment. Neither party is allowed to assign or transfer any of its rights or obligations in this Agreement, in whole or in part, by operation of law or otherwise, without the other party’s prior written consent, and any attempt to do so without such consent will be null and void. Notwithstanding the foregoing, either party may assign this Agreement in its entirety, upon written notice to the other party but without the requirement to obtain consent, in connection with a merger, acquisition, corporate reorganization, or sale of the party’s equity or assets..                  

11.6 Force Majeure. Except with respect to obligations to make payments under this Agreement, neither party shall be deemed in default under this Agreement, nor shall it hold the other party responsible for, any cessation, interruption or delay in the performance of its obligations under this Agreement due to causes beyond its reasonable control including, but not limited to:  earthquake, flood, fire, storm or other natural disaster, act of God, labor controversy or threat thereof, civil disturbance or commotion, disruption of the public markets, war or armed conflict or any change in or the adoption of any law, ordinance, rule, regulation, order, judgment or decree.           

11.7 Relationship of the Parties. BookNook is an independent contractor of Customer.  This Agreement shall not be construed to and does not create a relationship of agency, partnership, employment or joint venture.  Neither party has the authority to bind the other or create any legal obligation or responsibility for the other without the other party’s prior written consent. The inclusion of portions of this Agreement in BookNook’s arrangements with its consultants or subcontractors shall not create a contractual relationship between a consultant or subcontractor of BookNook and Customer.   

11.8 Notice.  Any legal notice, request, demand or other communication required or permitted under this Agreement should be in writing, should reference this Agreement, and will be deemed to be properly given: (i) upon receipt, if delivered personally; (ii) upon confirmation of receipt by the intended recipient, if by e-mail; (iii) five (5) business days after it is sent by registered or certified mail, with written confirmation of receipt; or (iv) three (3) business days after deposit with an internationally recognized express courier, with written confirmation of receipt. Notices should be sent to the address(es) set forth in the applicable Order Form, unless the parties notify each other that those addresses have changed.     

11.9 Amendments. Alterations or modifications of this Agreement will be valid only if made in writing signed by both parties.

11.10 Waivers. A party’s obligations under this Agreement can only be waived in writing signed by an authorized representative of the other party, which waiver will be effective only with respect to the specific obligation described. The failure of a party to enforce any right or provision in this Agreement will not constitute a waiver of such right or provision unless in writing.

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