PLEASE READ THE FOLLOWING AGREEMENT CAREFULLY AS THESE TERMS
CONSTITUTE A LEGAL AGREEMENT BETWEEN YOU, AS THE APPLET CREATOR, AND CHILD MIND INSTITUTE, INC. AS FURTHER DESCRIBED IN SECTION 13.10, BY CLICKING THE “I AGREE” BOX WHEN CREATING AN ACCOUNT ON THE PLATFORM (AS DEFINED BELOW) OR BY PURCHASING A SUBSCRIPTION VIA AN ORDER FORM (THE “ORDER FORM”), YOU AGREE TO BE BOUND BY ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT.
IF YOU DO NOT AGREE WITH ANY OF THE TERMS OF THIS AGREEMENT AND DO NOT WISH TO BE BOUND BY THE AGREEMENT, PLEASE DO NOT CLICK THE “I AGREE” BOX OR PURCHASE A SUBSCRIPTION, IN WHICH CASE YOU MAY NOT USE OR ACCESS THE SERVICES (AS DEFINED BELOW).
MASTER SERVICES AGREEMENT
Last Updated May 31, 2025
This Master Services Agreement (the “Agreement”), as may be updated from time to time in accordance with Section 13.8 below, is entered into by and between Child Mind Institute, Inc. (“CMI”) and the party that enters into the Agreement by creating an administrator account through the Platform (defined below) and clicking the “I agree” box (“Applet Creator”, and the date on which the Applet Creator enters into the Agreement in this manner, the “Effective Date”).
Section 1. Definitions.
1.1 “Affiliate” means any entity controlling, controlled by or under common control with the referenced
entity. For purposes of this Agreement, “control” means an economic or voting interest of at least fifty
percent (50%) of the referenced entity, or in the absence of such economic or voting interest, the power to
direct or cause the direction of the management and policies of such entity.
1.2 “End User” means each individual end user who has created an account to access the Application as
instructed by Applet Creator.
1.3 “Intellectual Property Rights” means, collectively, intellectual property rights or other similar
proprietary rights, protected, created or arising under the Laws of any jurisdiction, and whether
registered or unregistered, including rights in and to any of the following: (i) patents, utility models
and any similar or equivalent statutory rights with respect to the protections of inventions and any
applications for any of the foregoing; (ii) copyrights, applications for registrations thereof and moral
rights; (iii) trade names, trademarks, service marks, domain names and other Internet addresses
identifiers, logos, slogans and trade dress, including applications for registrations of any of the
foregoing; (iv) trade secrets, know-how, processes, inventions (whether or not patentable), algorithms,
methods, formulae, models, methodologies, business plans, technical data, specifications, research and
development information, product roadmaps, and any other confidential or proprietary information;
(v) databases and data; and (vi) Software.
1.4 “Law” means all statutes, laws, rules, regulations, ordinances, codes, administrative rulings,
judgments, decrees, orders, constitutions, treaties, ministerial instructions, directives, policies, standards
and other requirements or rules of law of any federal, provincial, territorial, municipal, state or foreign
governmental authority or other law or regulation-making entity of competent jurisdiction.
1.5 “Application” means the Curious software application accessible to End Users through a Third Party
App Store or on the Internet, which allows End Users to access and utilize Applets as instructed and made
available by Applet Creator.2
1.6 “Platform” means the Curious software application, including the administrator dashboard available
at admin.mindlogger.org, hosted online by CMI, which allows Applet Creator to create, edit, share, use and
administer Applets, including for the purposes of recording, tracking, and communicating information
about End Users.
1.7 “Party” means each of Applet Creator and CMI, and “Parties” means Applet Creator and CMI
collectively.
1.8 “Personal Information” means any information (i) defined as “personal information”, “personal
data”, “personally identifiable information”, “protected health information” or any analogous term under
any applicable Law or (ii) that identifies, relates to, describes, is reasonably capable of being associated
with, or could reasonably be linked, directly or indirectly, with a natural person or household.
1.9 “Process”, “Processed” or “Processing” means any operation or set of operations that are performed
on Personal Information or on sets of Personal Information, whether or not by automated means.
1.10 “Servers” means the servers to which information (including Personal Information) collected by the Application is transmitted and stored and on which the Platform resides.
1.11 “Services” means the provision of the Platform to Applet Creator, which shall include (i) the hosting of Applets, (ii) Applet Creator’s ability to create, edit, share, use and administer Applets to its End Users through the Application and the Processing of certain Personal Information in connection therewith and (iii)
the provision of Servers to Applet Creator, in each case, in connection with Applet Creator’s access to and use of the Platform.
1.12 “Third Party App Store” means a third party application store, such as Google Play Store or Apple App Store, from which an End User acquires the Application.
1.13 “Usage Policies” means those certain usage policies provided to Applet Creator by CMI from time to time (including in electronic form by posting on CMI’s website) which may include limitations on data storage space, and equipment and/or software requirements.
Section 2. Services
On the terms and subjects to the conditions set forth in this Agreement, CMI shall provide to Applet Creator, and Applet Creator shall receive, access to the Services during the Term. Subject to the terms and conditions of this Agreement and the Usage Policies, CMI hereby grants to Applet Creator a non-exclusive, revocable, non-transferable, non-sublicenseable right to access and use the Services, including for the avoidance of doubt the Platform and the Third Party Applets (defined below) contained therein, during the Term solely as permitted in this Agreement. Other
than as set forth in Section Section 4, the license granted in this Section 0 does not imply any rights to future upgrades or updates to, or versions of, the Platform, and Applet Creator does not have any right under this Agreement to obtain or use any source code for the Platform or the Application. All rights not expressly granted herein by CMI to Applet Creator are reserved by CMI and its licensors.
Applet Creator specifically acknowledges that the Services (including, for the avoidance of doubt the Platform nor the Application) are not developed or licensed for use in any inherently dangerous, time-sensitive or mission critical applications. Without limiting Section Section 10, Applet Creator agrees that CMI shall not be liable for any claims or damages arising from such use if Applet Creator uses the Services in connection with such applications.3
2.1 CMI reserves the right, at any time and its sole discretion, to enhance, correct or otherwise modify, or to suspend or discontinue the Services, including the availability of any feature or content, account access or any promotion offered by CMI, with or without notice to Applet Creator. In the event CMI materially
disables the core functionality of, or suspends or discontinues in its entirety, the Services, CMI will use reasonable efforts to provide Applet Creator with prior written notice; provided that Applet Creator acknowledges that such notice may not be feasible in all circumstances and that CMI shall have no liability whatsoever for its failure to provide such notice to Applet Creator.
2.2 Applet Creator shall be fully responsible for its and its Affiliates use of the Services.
2.3 In connection with the Services, Applet Creator shall not:
(a) Interfere with, degrade, or adversely affect any software, system, network or data used by any person including CMI and other users of the Services (including by ensuring that Applet Creator does not upload any viruses or other harmful code in connection with its access to or use of the Services or by placing an undue burden upon the CPUs, servers or other resources used to provide the Services);
(b) Violate any applicable Laws, the rights of others or otherwise use the Services to commit, attempt to commit or facilitate the commission of a crime, other illegal or tortious acts, infringement of any Intellectual Property Rights, fraudulent activities, deceptive impersonation or any activities that may violate any third party’s privacy or publicity rights;
(c) Interfere with or in any manner compromise any of CMI’s operational and security measures or mechanisms;
(d) Alter, modify, delete, or otherwise interfere with or in any manner compromise any content, data and/or features accessible in connection with the provision or receipt of the Services, including the content delivery and display functionality thereof; or
(e) Authorize, permit or otherwise acquiesce in any other party engaging in any of the activities set forth in (a) – (d) above, or attempting to do so.
2.4 With respect to the Platform, Applet Creator shall not:
(a) remove, deface, cover or otherwise obscure any proprietary rights notice or identification on the Platform (including without limitation any copyright notice or other notice of Intellectual Property Rights ownership);
(b) use the Platform in any way inconsistent with the Usage Policies or usage parameters provided to Applet Creator; (c) attempt to hack the Platform or any communication initiated by the Platform or the Application or to defeat or overcome any encryption or other technical protection methods implemented by CMI with respect to the Platform or the data or content transmitted, Processed or stored by CMI or other users of the Services;
(d) except for the use of Third Party Applets as permitted hereunder, collect any information or communication relating to CMI’s third party Applet Creator institutions that utilize the Services by monitoring, or intercepting any process of, or communication initiated by, Services or by developing or using any software or any other process or method that engages or assists in engaging in any of the foregoing;
(e) use any type of bot, spider, virus, clock, timer, counter, worm, software lock, drop dead device, packet-sniffer, Trojan-horse routing, trap door, time bomb or any other codes or instructions that are4 designed to be used to provide a means of surreptitious or unauthorized access to the Platform or any computer system or that are designed to monitor, distort, delete, damage or disassemble the Platform; or
(f) authorize, permit or otherwise acquiesce in any other party engaging in any of the activities set
forth in (a) – (f) above, or attempting to do so.
2.5 Applet Creator is solely responsible for the selection, implementation, installation, maintenance and
performance of any and all equipment, software and services used in conjunction with its access and use of
the Services (except for CMI’s computer systems and networks), including Applet Creator’s internal
network infrastructure.
Section 3. Account Registration and Maintenance.
3.1 In order to use the Services, Applet Creator must create an administrator account via the Platform. In
connection therewith, Applet Creator must (a) provide up-to-date, complete and accurate registration
information as requested by CMI via the Platform, which may include Applet Creator’s name, phone
number and email address (“Account Information”) and (b) be at all times in compliance with the terms
and conditions of this Agreement and applicable Law. Applet Creator specifically agrees that CMI may
rely on the accuracy of the Account Information provided by Applet Creator to CMI, and that CMI will
have no liability whatsoever, whether to Applet Creator or to any third party, for any claims or damages
resulting from inaccurate Account Information provided to CMI.
Applet Creator will be required to register and provide certain information to allow Applet Creator to
use the Services, such as one or more user IDs and passwords (the “Access Information”). CMI
will securely store the Access Information. The Access Information is provided on the
understanding that it is personal to Applet Creator; Applet Creator will not permit anyone other
than Applet Creator or its authorized representatives to obtain access to the Services (including, for
the avoidance of doubt, the Platform) using the Access Information. CMI is not responsible or liable
in any way for any use of the Services (whether authorized or unauthorized) by any party accessing
the Services using Applet Creator’s Access Information, and Applet Creator accepts all
responsibility for such use and any consequences resulting therefrom.
Section 4. Standard Updates and Support Services. CMI will provide to Applet Creator standard
updates to the Services that are made generally available to CMI’s third-party Applet Creators during the
term of this Agreement. CMI will provide commercially reasonable support for the Services during the
term of this Agreement by answering Applet Creator’s questions submitted by email or phone. If Applet
Creator desires additional functionality or premium feature improvements, CMI may make such
functionality or improvements available to Applet Creator pursuant to a separate written agreement for a
cost to be negotiated between the Parties in good faith.
Section 5. Monitoring Violations; Remedial Actions.
5.1 Notwithstanding anything to the contrary herein, Applet Creator acknowledges and agrees CMI has
the right to (i) monitor Applet Creator’s use of the Services for the purpose of ensuring compliance with,
and enforcing, the terms of this Agreement, including those set forth in Section Section 6; and (ii) if CMI
has reason to believe Applet Creator has violated the terms of this Agreement, including those set forth in
Section Section 6, or applicable Law, take any action that it deems appropriate (in its sole discretion),
including issuing warnings to Applet Creator, removing data or information, immediately suspending
Applet Creator’s access to the Services (including, for the avoidance of doubt, the Platform), reducing
certain functionalities or the performance of the Services, terminating Applet Creator accounts or profiles
or reporting to law enforcement, regulatory agencies or other third parties any conduct that CMI believes
violates this Agreement or applicable Law.5
5.2 Applet Creator will cooperate with CMI and provide information requested by CMI to assist CMI or
relevant authorities in investigating or determining whether there has been a breach of this Agreement or
applicable Law. Applet Creator agrees to promptly and accurately report to CMI any actual or apparent
errors, problems, nonconformities or other difficulties in the Services, along with any other information
reasonably requested by CMI to aid in resolving such errors, problems, nonconformities or other difficulties,
and Applet Creator hereby consents to the collection, processing, transmission and disclosure of such
information by CMI for the purposes of CMI’s internal use to develop or improve the Services (including,
for the avoidance of doubt, the Platform and the Application) or other CMI products or services.
Section 6. Intellectual Property Rights
The Platform, the Application and the content and features contained therein (including all information,
software, Third Party Applets, text, images, video, audio and the design) are owned by CMI, its
licensors or other providers of such material (including other third party Applet Creators) and are
protected by applicable United States and international copyright, trademark, patent, trade secret
and other Intellectual Property Rights Laws. CMI and its licensors intend to vigorously enforce
their respective rights, including its Intellectual Property Rights.
CMI’s name, the terms “Child Mind Institute”, “CMI”, “Curious,
” “MindLogger,” CMI’s logo, and all
other names, logos, product and service names, designs, and slogans used by CMI are trademarks
of CMI, its Affiliates or its licensors. Applet Creator agrees not to use such marks without CMI’s
prior written permission.
In connection with the Services, Applet Creator may (i) create, post, submit, publish, upload or
otherwise make available (“Submit”) mental-health assessments created by Applet Creator to the
Platform to be provided to End Users via the Application (those assessments Applet Creator
Submits, “Applet Creator Applets”) in accordance with this Section Section 6, and (ii) may use,
edit, share, reproduce, display, publish, save, store, create derivative works, distribute and
otherwise make available to End Users via the Application mental-health assessments Submitted
to the Platform by other third party Applet Creators (the “Third Party Applets”), in each case,
solely for Applet Creator’s internal business purposes (the Applet Creator Applets and the Third
Party Applets, collectively, the “Applets”).
Applet Creator acknowledges and agrees that, as between Applet Creator and CMI, CMI or its licensors
exclusively own and shall retain all right, title and interest in and to the Platform, the Application,
the Third Party Applets and in and to the Services, with any changes, improvements or
modifications thereto and derivative works thereof, and all Intellectual Property Rights embodied
or incorporated therein. Applet Creator acknowledges and agrees that CMI shall own any
suggestions, enhancement requests, feedback and recommendations provided by Applet Creator
relating to the Services (including, for the avoidance of doubt, the Platform or Application) and
hereby assigns to CMI all right, title and interest in and to any Intellectual Property Rights
embodied in any of the foregoing. Applet Creator acknowledges and agrees that (i) the Services
are protected by copyright Laws and other Laws relating to Intellectual Property Rights and
(ii) pursuant to Section 0, Applet Creator has a license to access and use the Services during the
term of this Agreement subject to the terms and conditions set forth herein, but nothing herein shall
confer upon Applet Creator any other right, title or interest in or to any of the Services. As between
Applet Creator, CMI and any third party Applet Creators of CMI, subject to the license set forth in
Section Section 6(a)(i), Applet Creator retains all Intellectual Property Rights in and to the Applet
Creator Applets, including the copyright in and to Applet Creator’s assessments, content created
and/or uploaded in any media, to the extent applicable.
(a) Applet Creator Applets.6
(i) With respect to each Applet Creator Applet that Applet Creator Submits to the Platform,
Applet Creator hereby grants to CMI, its Affiliates and its third party Applet Creators a
perpetual, irrevocable, non-exclusive, royalty-free, fully paid-up, transferable,
sublicensable (including to service providers, as applicable), worldwide license to use,
edit, share, reproduce, display, publish, save, store create derivative works, distribute and
otherwise make available to its end users the Applet Creator Applets (including as
incorporated into such derivative works), in each case, solely for non-commercial use and
in accordance with this Agreement. Without limiting the foregoing, use by a service
provider of a third party Applet Creator in connection with the actual or contemplated
provision of services to such third party Applet Creator (including, for the avoidance of
doubt, CMI’s provision of the Applet Creator Applets to other third party Applet Creators
of CMI in connection with the provision of the Platform and related services to such third
party Applet Creator) is deemed non-commercial for the purposes of this Agreement.
(ii) With respect to each Applet Creator Applet, Applet Creator represents and warrants that
(i) it owns or otherwise has all necessary rights, consents, waivers and authorizations to
grant the rights and licenses in the Applet Creator Applets granted in Section
Section 6(a)(i), above and (ii) each of the Applet Creator Applets will comply with this
Agreement without causing a violation of the rights of others. Applet Creator further
acknowledges and agrees that, with respect to the Applet Creator Applets, (a) Applet
Creator will not Submit or upload any content that is unlawful, defamatory, libelous,
inaccurate or that a reasonable person could deem to be objectionable, profane, indecent,
pornographic, harassing, threatening, hateful or otherwise inappropriate and (b) that
Applet Creator is responsible for the Applet Creator Applets, and Applet Creator, not CMI,
has full responsibility for such content, including its legality, reliability, accuracy and
appropriateness.
(iii) Applet Creator shall remain solely responsible for the Applet Creator Applets and the
consequences arising therefrom. Applet Creator acknowledges and agrees that CMI is
only providing a platform for Applet Creator to Submit the Applet Creator Applets. CMI
reserves the right, but is in no way obligated, to reject or remove any of the Applet Creator
Applets, including those that CMI believes, in its sole discretion, are inappropriate or
otherwise violate this Agreement.
(b) Applet Creator acknowledges and agrees that Applet Creator will use any Third Party Applets
only in a manner compliant with this Agreement. Applet Creator further acknowledges and agrees that
Applet Creator is responsible for any Third Party Applets it accesses, uses, edits, shares, reproduces,
displays, publishes, saves, creates derivative works, distributes or otherwise makes available to End Users,
and that CMI and its other third party Applet Creators are not responsible or liable to Applet Creator for
the content or accuracy of any Third Party Applet downloaded by Applet Creator or any other third party
Applet Creator that accesses or uses the Platform.
Section 7. Data Collection and Processing via the Application
7.1 Applet Creator acknowledges and agrees that an integral part of the Services, and the sole purpose of
the Application, is the collection of information (including Personal Information) from End Users through
the Application. Such information is then Processed by, and when applicable transmitted to authorized third
parties by, CMI. Nothing herein transfers any ownership of such information to CMI; however, Applet
Creator hereby grants CMI a license to use such information solely to provide Applet Creator with the
Services (as contemplated hereunder) and to comply with any mandatory requirements of Law.
The Parties shall (i) comply with their respective obligations under applicable privacy Laws with
respect to the Processing of Personal Information provided or made available pursuant to this7
Agreement, including by providing notices to and receiving consent from data subjects where
applicable, (ii) cooperate with the other Party to notify applicable government bodies or data
subjects in the event of a data or other security breach where required by applicable privacy Laws
and (iii) implement appropriate technical and organizational measures to maintain the security of
and to protect the Personal Information accessed hereunder against any accidental or unlawful
Processing, destruction or accidental loss, alteration, unauthorized disclosure or access. Upon
reasonable request by either Party, to the extent required by or reasonably advisable to comply with
applicable privacy Laws, CMI will prepare and the Parties shall execute a data processing
agreement or addendum, or Business Associate Agreement, to this Agreement further delineating
the Parties’ responsibilities with respect to the Processing of Personal Information.
7.2 Notwithstanding Section 0, to the extent the information described in Section 7.1 contains Personal
Information relating to End Users, Applet Creator is solely responsible for obtaining all relevant
permissions and consents to enable Applet Creator to grant the license set forth in Section 7.1, and to enable
CMI to Process such information through the Application and on the Servers. CMI will have no liability
whatsoever respecting any claim by Applet Creator, End Users or any other third party whose information
(including Personal Information) is collected or Processed in connection with Applet Creator’s receipt of
the Services, whether related to privacy or otherwise, in relation to CMI’s use of such information to provide
the Services, and Applet Creator agrees to indemnify, defend and hold CMI harmless against any such
claims. Applet Creator agrees to obtain from all End Users all authorizations and consents (including, in
the case of End Users under the age of thirteen (13), “verifiable parental consent” (as defined under the
Children’s Online Privacy Protection Act)) necessary for Applet Creator’s Processing of any such End User
Personal Information in conjunction with the Services, including obtaining permission and all necessary
rights from End Users to use their feedback to develop Applet Creator’s product plans.
7.3 Applet Creator acknowledges that information (including Personal Information) obtained through the
Services is not under the control of CMI, and CMI is not responsible or in any way liable for the content of
such information, including its accuracy, reliability, effectiveness, standards compliance, copyright
compliance, legality, decency or any other aspect of such content. CMI does not assess information
(including Personal Information) for its quality, usefulness or otherwise. Under no circumstance will CMI
be liable for any loss or damage caused by Applet Creator’s reliance on such content or information
(including Personal Information) obtained through the Services, and it is solely Applet Creator’s
responsibility to evaluate the accuracy, completeness or usefulness of any such content and information.
7.4 Applet Creator acknowledges and agrees that CMI will exercise no control over Applet Creator’s
receipt or use of the Services, and that Applet Creator is solely responsible for complying with the
provisions of this Agreement and all applicable Laws respecting Applet Creator’s use of the Services,
including all privacy Laws applicable to the collection and use of information (including Personal
Information) obtained through the Services. Notwithstanding the foregoing, CMI reserves the right to
review any material stored in files or programs on the Servers, and has the right to edit or remove any
material that, in its sole discretion, believes may be unlawful, obscene, abusive, or otherwise objectionable
and/or to report such material to the appropriate authorities. CMI reserves the right to revoke service for
any abusive conduct or fraudulent use of the Services and to cease the Services, temporarily or permanently,
in the event that Applet Creator’s use of the Services or the provision of the Services constitutes, in CMI’s
reasonable judgment, a threat to CMI’s or any third party’s computer systems, networks, files, materials or
other data.
7.5 Applet Creator acknowledges that, due to the nature of the Services, information (including Personal
Information) uploaded to the Application may be hosted on Servers residing in jurisdictions other than the
United States. By using the Services, Applet Creator acknowledges that its information (including Personal
Information) may become, during the period that it is hosted on such Servers, subject to the Laws of the
jurisdiction in which those Servers reside and/or to the terms of agreements between CMI and its third party
Server providers respecting the hosting of such information on such Servers. Although CMI has made8
reasonable efforts to verify that its agreements with such third party Server providers are reasonably
protective of Applet Creator’s information (including Personal Information), Applet Creator acknowledges
that CMI has no liability for any acts or omissions of third parties in relation to such Servers or the
information (including Personal Information) stored on them. Applet Creator therefore hereby releases CMI
from all liability for any governmental or third party action taken in such jurisdictions with respect to such
information (including End User’s Personal Information, data, and any results, such as metrics and analytic
reports, based on such data) and/or the Servers on which such data resides, and Applet Creator
acknowledges that it retains sole responsibility to back up and retain copies of such information, data and
reports.
Section 8. Confidentiality.
8.1 For purpose of this Section 8,
“Confidential Information” means all non-public information
disclosed in connection with the Services by either Party (with respect to such information, the “Disclosing
Party”) to the other party (with respect to such information, the “Receiving Party”) prior to or after the
Effective Date that is designated as “confidential” or that, given the nature of the information or the
circumstances surrounding its disclosure, reasonably should be understood to be confidential, including
non-public information relating to the Disclosing Party’s business, systems, operations, strategic plans,
customers or vendors, pricing, technology, methods, processes, financial data, forecasts, programs,
products or services. Confidential Information shall not include any information that (i) was known by the
Receiving Party prior to its receipt from the Disclosing Party; (ii) is or becomes publicly known or available
without breach of this Agreement; (iii) is rightfully disclosed to the Receiving Party by a third party without
breach of confidentiality obligations; or (iv) is independently developed by the Receiving Party without use
of any Confidential Information of the Disclosing Party.
Except as needed to fulfill its obligations or as otherwise permitted under this Agreement, the Receiving
Party shall not disclose to any third party (except as expressly permitted herein) or use for its own
benefit, or the benefit of a third party, the Confidential Information of the Disclosing Party, without
the Disclosing Party’s prior written consent. The Receiving Party shall limit disclosure of the
Disclosing Party’s Confidential Information to its directors, officers, employees, agents,
contractors and advisors who have a need to know and who are under obligations of confidentiality
no less protective of the Disclosing Party’s Confidential Information than as set forth herein.
Additionally, the Receiving Party shall (i) take reasonable measures to avoid unauthorized
disclosure, dissemination or use of the Confidential Information of the Disclosing Party, exercising
at least the same degree of care in safeguarding the Confidential Information of the Disclosing
Party as the Receiving Party would exercise with respect to its own Confidential Information of
similar nature, but in no event less than a reasonable degree of care; and (ii) notify the Disclosing
Party promptly upon discovery of any unauthorized disclosure, dissemination or use of Confidential
Information of the Disclosing Party and cooperate with the Disclosing Party to regain possession
of such Confidential Information and prevent its further unauthorized disclosure, dissemination and
use. The Receiving Party may disclose Confidential Information of the Disclosing Party where
required by Law, provided that Receiving Party shall, where permitted, notify the Disclosing Party
prior to such disclosure in order to afford the Disclosing Party an opportunity to seek a protective
order to prevent or limit disclosure of its Confidential Information to third parties. Notwithstanding
anything to the contrary herein in this Section Section 8, the Receiving Party may retain copies
Confidential Information of the Disclosing Party to the extent (i) stored in back-up/archival storage
in accordance with its policies or (ii) required to comply with applicable Law.
8.2 The confidentiality obligations set forth in this Section Section 8 with respect to any Confidential
Information of the Disclosing Party shall remain in effect during the term of this Agreement and for a period
of three (3) years after the expiration or earlier termination thereof.
Section 9. Warranties; Disclaimer.9
(a) Each Party represents and warrants to the other Party that (i) it is duly organized, validly existing
and in good standing; and (ii) the execution and delivery of this Agreement and the transactions
contemplated hereby have been duly and validly authorized by all necessary action.
(b) Applet Creator represents and warrants that it (i) has the right and the authority to enter into
this Agreement, to use the Services, and to Submit any content to the Platform or otherwise provide such
content and data to CMI; (ii) is not located in a country that is subject to a U.S. government embargo, or
that has been designated by the U.S. government as a “terrorist supporting” country; and (iii) is not listed
on any U.S. government list of prohibited or restricted parties.
(c) THE SERVICES AND THE APPLICATION ARE PROVIDED TO APPLET CREATOR “AS
IS” WITHOUT WARRANTY OR CONDITIONS OF ANY KIND, WHETHER EXPRESSED OR
IMPLIED, INCLUDING THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY
AND FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, SECURITY OR
ACCURACY. CMI ASSUMES NO RESPONSIBILITY FOR ANY ERRORS, OMISSIONS OR
INACCURACIES WHATSOEVER IN THE INFORMATION PROVIDED THROUGH THE SERVICES
OR APPLICATION. UNDER NO CIRCUMSTANCES WILL CMI BE LIABLE FOR ANY LOSS OR
DAMAGE CAUSED BY APPLET CREATOR’S RELIANCE ON INFORMATION OBTAINED
THROUGH ACCESS TO OR USE OF THE SERVICES OR THE APPLICATION. IT IS APPLET
CREATOR’S RESPONSIBILITY TO EVALUATE THE ACCURACY, COMPLETENESS AND
USEFULNESS OF ANY INFORMATION PROVIDED, AND USE OF THE SERVICES AND THE
APPLICATION IS SOLELY AT APPLET CREATOR’S OWN RISK. CMI has no special relationship
with or fiduciary duty to Applet Creator, and Applet Creator acknowledges that CMI has no control over,
and no duty to take any action regarding any acts or omissions taken by Applet Creator or any other user
of the Services or the Application, including without limitation, how Applet Creator or any other user may
interpret or use materials accessed or developed through the Services or the Application, or what actions
Applet Creator may take as a result of having been exposed to information obtained through the Services
or Application.
Section 10. Limitation of Liability
10.1 The only type of damages that can be recovered against CMI arising from or related to this Agreement
including without limitation in relation to the provision of the Services, shall be Applet Creator’s direct
damages, if any, arising from CMI’s gross negligence, willful misconduct or willful breach of this
Agreement. CMI SHALL HAVE NO LIABILITY WHATSOEVER TO APPLET CREATOR OR ANY
THIRD PARTY CLAIMING BY OR THROUGH APPLET CREATOR FOR THE ACCURACY,
TIMELINESS OR CONTINUED AVAILABILITY OF THE SERVICES. Without limiting the foregoing,
Applet Creator’s only right with respect to any problems or dissatisfaction with the Services is to
discontinue the use of such Services.
10.2 EXCEPT FOR THE LIMITED DIRECT DAMAGES SPECIFIED ABOVE, TO THE MAXIMUM
EXTENT PERMITTED BY LAW, IN NO EVENT SHALL CMI BE LIABLE FOR ANY DAMAGES
WHATSOEVER (INCLUDING, WITHOUT LIMITATION, INDIRECT, SPECIAL, INCIDENTAL,
EXEMPLARY OR CONSEQUENTIAL OR PUNITIVE DAMAGES, FAILURES TO TRANSMIT OR
RECEIVE ANY DATA, PROBLEMS, LOSS OR DAMAGE ASSOCIATED WITH ANY ACCESS TO
OR USE OF THE SERVICES, OR OTHER PECUNIARY LOSS ARISING OUT OF OR RELATED TO
THIS AGREEMENT) WHETHER OR NOT SUCH DAMAGES WERE FORESEEN OR UNFORESEEN
INCLUDING THE USE OF OR INABILITY TO ACCESS OR USE THE SERVICES, EVEN IF CMI
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Section 11. Indemnification. Applet Creator agrees to indemnify, defend and hold harmless CMI, its
parents, subsidiaries, Affiliates, officers and employees, including costs and attorneys’ fees, from any claim
or demand made by any third party due to or arising out of: (a) Applet Creator’s receipt or use of the10
Services (including, for the avoidance of doubt access to or use of the Platform or any content obtained by
Applet Creator through its access thereto), (b) Applet Creator’s use or misuse of the Services, (c) any breach
of this Agreement by Applet Creator, (d) the infringement by Applet Creator, or any third party obtaining
access to the Services through Applet Creator’s Access Information, of any Intellectual Property Rights or
other right of any person or entity, including in connection with the Applet Creator Applets or (e) Applet
Creator’s violation of any third-party rights or any applicable Laws.
Section 12. Termination
12.1 The term of this Agreement shall be either (a) as specified in the Order Form; or (b) for one (1) year,
and shall automatically renew thereafter on an annual basis upon the same terms and conditions as set forth
herein (the “Term”).
12.2 Either Party may terminate this Agreement for any reason upon thirty (30) days’ written notice to the
other Party. Additionally, CMI may terminate this Agreement and/or immediately cease to provide the
Services without any liability whatsoever if CMI is prevented from providing any portion or all of any
Services due to the acts or omissions of Applet Creator or any third party, or by any Law, regulation,
requirement or ruling issued in any form whatsoever by judicial or other governmental body or in the event
of any third party claims against CMI, Applet Creator or any other third party Applet Creator of CMI
relating to the use of the Services. Nothing herein shall be construed to require CMI to seek a waiver of any
Law, rule or restriction, or seek judicial review or appeal of any court order. Upon any termination of this
Agreement for any reason (whether by Applet Creator or by CMI), Applet Creator must cease all use of the
Services (including, for the avoidance of doubt, the Platform).
12.3 Without limiting any of its other remedies, CMI may limit Applet Creator’s activity, issue a warning,
temporarily suspend, indefinitely suspend or terminate Applet Creator’s account and refuse to provide
Services to Applet Creator if: (a) Applet Creator breaches this Agreement or the documents it incorporates
by reference; (b) CMI is unable to verify or authenticate any information Applet Creator provides; or (c)
CMI believes that Applet Creator’s actions may cause financial loss or legal liability for Applet Creator,
other third party Applet Creators or CMI.
12.4 CMI reserves the right to investigate suspected violations of this Agreement. Applet Creator hereby
authorizes CMI to cooperate with (1) law enforcement authorities in the investigation of suspected criminal
violations and (2) system administrators at Internet service providers, networks or computing facilities, and
other content providers in order to enforce the terms and conditions of this Agreement.
12.5 The above-described actions are not CMI’s exclusive remedies and CMI may take any other legal,
equitable or technical action it deems appropriate in the circumstances. CMI will not have any liability to
Applet Creator or any third party in relation to the termination of this Agreement for any reason whatsoever.
12.6 Any provision of this Agreement which expressly states that it is to continue in effect after termination
or expiration of this Agreement, or which by its nature would survive the termination or expiration of this
Agreement, shall do so.
Section 13. General
13.1 Independent Contractors: Each Party shall perform its obligations hereunder as an independent
contractor, and nothing contained in this Agreement shall be construed to create or imply a joint venture,
Applet Creatorship, principal-agent, or employment relationship between the Parties. Except as expressly
authorized by CMI in writing, Applet Creator shall neither act nor purport to be acting as the legal agent of
CMI, nor enter into any agreement on behalf of CMI or otherwise bind or purport to bind CMI in any
manner whatsoever.11
13.2 Notices: Any notices, reports or other communications required or permitted to be given under this
Agreement shall be in writing and shall be sufficient if delivered by hand or sent by registered mail or
courier. Any such notices to CMI shall be addressed to Attn: Curious, Child Mind Institute, 215 E. 50th St.,
New York, NY 10022, [email protected]. Any such notices to Applet Creator shall be addressed
to the contact identified on the Order Form.
13.3 No Waiver: No waiver by either Party of a breach or omission by the other Party under this
Agreement shall be binding on the waiving Party unless it is expressly made in writing and signed by the
waiving Party. Any waiver by a Party of a particular breach or omission by the other Party shall not affect
or impair the rights of the waiving Party in respect of any subsequent breach or omission of the same or
different kind.
13.4 Assignment, Subcontracting and Succession: Except as expressly permitted herein, neither this
Agreement nor any of the rights or obligations hereunder may be assigned, transferred or subcontracted, in
whole or in part, by Applet Creator without the prior consent of CMI which shall not be unreasonably
withheld, conditioned or delayed. CMI can freely assign, transfer or subcontract, in whole or in part, this
Agreement or any of its rights or obligations hereunder without consent of Applet Creator. This Agreement
shall be binding upon the Parties and their respective lawful successors and permitted assigns.
13.5 Severability: If any one or more of the provisions of this Agreement shall for any reason be held to
be invalid, illegal, or unenforceable in any respect, any such provision shall be severable from this
Agreement, in which event this Agreement shall be construed as if such provision had never been contained
herein.
13.6 Governing Law: This Agreement shall be governed by and construed under the Laws of the state of
New York, without regard to conflict of laws principles. Each Party hereto irrevocably waives any objection
on the grounds of venue, forum non-conveniens or any similar grounds and irrevocably consents to service
of process by mail or in any other manner permitted by applicable Law and consents to the jurisdiction of
the courts located in the state or federal courts located in New York County, New York.
13.7 Dispute Resolution.
(a) The Parties agree that (i) any dispute, claim or controversy arising out of or relating to this
Agreement shall be settled by arbitration administered by the American Arbitration Association in
accordance with its Commercial Arbitration Rules, (ii) the tribunal will consist of one arbitrator and will
take place in the State of New York, (iii) the award rendered by the arbitrator shall be final and binding on
the Parties and (iv) the judgment may be entered upon the arbitration award in accordance with applicable
Law in any court in the State of New York having jurisdiction thereof. Notwithstanding any provision in
this Agreement to the contrary with respect to applicable substantive Law, the Parties further agree that any
arbitration conducted pursuant to this Agreement shall be governed by the United States Federal Arbitration
Act (presently 9 U.S.C. Sec. 1-16). Except for a judgment upon the award rendered by the arbitrator, this
Section 13.7(a) waives the Parties’ right to seek relief in court but shall not preclude a Party from seeking
provisional remedies in aid of arbitration from a court of appropriate jurisdiction. Notwithstanding the
foregoing, the Parties agree that either Party may seek injunctive or other equitable relief in state or federal
court located in the State of New York in the event of actual or threatened infringement or misappropriation
of intellectual property rights.
(b) THE PARTIES HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE (I) ANY
RIGHT IT MAY HAVE TO A TRIAL BY JURY IN CONNECTION WITH ANY LEGAL DISPUTE
BETWEEN THE PARTIES AND (II) ALL RIGHTS TO HAVE ANY DISPUTE BE BROUGHT, HEARD,
ADMINISTERED, RESOLVED, OR ARBITRATED ON A CLASS, REPRESENTATIVE, OR
COLLECTIVE BASIS.12
13.8 Entire Agreement/Modification. This Agreement constitutes the entire agreement between the
Parties and supersedes all previous agreements and understandings relating to the subject matter hereof.
This Agreement may not be altered, amended, or modified except by a written instrument signed by the
duly authorized representatives of both Parties.
13.9 Counterparts. This Agreement may be executed in counterparts, or facsimile counterparts, each of
which when executed by either of the Parties shall be deemed to be an original and such counterparts shall
together constitute one and the same Agreement.
13.10 Electronic Agreement. Applet Creator acknowledges and agrees that by clicking on the “I AGREE”
button (or similar buttons or links as may be designated by CMI to show Applet Creator’s acceptance of
this Agreement and/or Applet Creator’s agreement to download, install or otherwise access and use the
Software), Applet Creator is entering into a legally binding contract. Applet Creator hereby agrees to the
use of electronic communication in order to enter into contracts, place orders and create other records and
to the electronic delivery of notices, policies and records of transactions initiated or completed through the
Software. Furthermore, Applet Creator hereby waives any rights or requirements under any Laws in any
jurisdiction which require an original (non-electronic) signature or delivery or retention of non-electronic
records, to the extent permitted under applicable mandatory Law. A printed version of this Agreement and
of any notice given in electronic form shall be admissible in judicial or administrative proceedings based
upon or relating to this Agreement to the same extent and subject to the same conditions as other business
documents and records originally generated and maintained in printed form.
13.11 Publicity. CMI reserves the right to make announcements, press releases, publications, presentations
and other public statements that reference Applet Creator’s identity as an Applet Creator, without Applet
Creator’s prior written approval, provided that CMI does not disclose Applet Creator’s Confidential
Information in the course of such publicity or misrepresent Applet Creator’s relationship with CMI.
