Effective: 6/10/2017

APPLICATION DEVELOPER AGREEMENT

This Application Developer Agreement (“Agreement”) is entered into between Kami Limited. (“Kami”), and the developer requesting or being granted a Developer Account (“Developer”) on Kami’s website. By submitting your application or by accessing the developer area on Kami’s website, you agree to be bound by these terms and conditions.

Background

Kami provides access to a special functionality and features (the “Kami API”) designed to assist third parties in developing software applications for the learning management system operated by Kami or its providers (“Kami Service”). The Kami API and the Kami Service are more particularly described on the Kami website located at www.kami.com  and www.kami.com/api (the “Kami Website”).

NOW, THEREFORE, intending to be legally bound hereby, Kami and Developer agree as follows:

1. Kami API and Service.

1.1. License Grant. Subject to the terms and conditions of this Agreement, during the term of this Agreement, Kami hereby grants to Developer a non-exclusive, revocable, non-transferable, non-sublicensable license to use the Kami API for the development of software applications (“Apps”) and for the connection of the Apps to the Kami Service.

1.2. Access. Kami agrees to provide Developer with access to the Kami API and the Kami Service during the term of this Agreement solely for the purposes of developing Apps. Kami reserves the right to modify the Kami API and the Kami Service at any time. Kami will endeavor to provide Developer with written notice of any modifications to the Kami Service on the Kami website.

1.3. Changes to Apps. Developer shall immediately inform Kami in the event of: (i) any changes made to any Apps under development or to any App’s concept that would implicate the Kami API or the Kami Service, (ii) the appearance of unauthorized access, if any, to the Kami API or the Kami Service, and (iii) any plans for publishing of any upgrades or sequels of any Apps.

2. Term and Termination

The term of this Agreement shall begin when you accept its terms and conditions on the Kami Website and shall continue until termination of this Agreement. Either party may terminate this Agreement for any reason by giving three (3) days’ prior written notice to the other party. Either party may terminate this Agreement, without notice, (i) upon the institution by or against the other party of insolvency, receivership or bankruptcy proceedings, (ii) upon the other party’s making an assignment for the benefit of creditors, or (iii) upon the other party’s dissolution or ceasing to do business. All license rights to the Kami API and Developer’s access to the Kami Service granted in this Agreement shall immediately terminate upon the expiration or termination of this Agreement. Sections 3, 4, 5 and 6 shall survive expiration or termination of this Agreement for any reason.

3. Intellectual Property Rights and Confidentiality.

3.1. Intellectual Property Rights. Developer hereby recognizes that Kami retains all Intellectual Property Rights in the Kami API and the Kami Service. The provisions of this Agreement shall have no effect on the ownership of the App with which the Kami API and Kami Service will be used.

3.2. End User Data. All data of submitted by end users of the App required by Kami in the framework of the Kami Service shall be solely owned by Kami to the maximum extent permitted by applicable law; provided, however, that Kami shall not resell any such end user data to any third party except in connection with a sale of its assets, merger, acquisition, or similar transaction. If required by applicable law, Developer represents and warrants that it is authorized to communicate such end user data according to applicable law. From time to time during the Term of this Agreement, Kami will provide agreed upon reports of aggregated end user data.

3.3. Confidentiality. Kami and Developer agree not to disclose, or permit any third party or entity access to, the Confidential Information received from the other party. “Confidential Information” means confidential or other proprietary information that is disclosed by one party to the other party under the terms of this Agreement, including, without limitation, software, specifications, documentation and other confidential business information, including the Kami API or the Kami Service. Confidential Information shall not include information which: (i) is or becomes public knowledge without any action by, or involvement of, the recipient of the information; or (ii) is publicly disclosed by the recipient with the prior written approval of the disclosing party.

3.4. No Advertising. Except through specific marketing campaign programs offered by Kami, which Kami may offer in its sole discretion, Developer shall not market, advertise, promote, or otherwise solicit business for, any Developer’s App. For the avoidance of doubt, Developer may not, without Kami’s prior written approval: (a) make or respond to any posts or threads on the public groups or forums located on the Kami Website, or (b) contact, directly or indirectly, through the Kami Website or otherwise, any user of the Kami Service with the intent to market, advertise, promote, or otherwise solicit business for, any Developer’s App.

3.5. Publicity. Kami and Developer may include the other party in a list of Developers or suppliers that Kami or Developer make available to third parties. Developer hereby grants to Kami a non-exclusive, irrevocable, transferable, sublicensable license to use information such as Developer logos, screenshots, feature lists and other information related to the Developer’s Apps solely for the purposes of marketing and promoting the Apps and or the Kami Service to third parties. After three months of use, Developer agrees to accept a reasonable number of reference phone calls from potential Kami Developers for purposes of discussing the Kami API or the Kami Service.

4. Warranty Disclaimer.

KAMI MAKES NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

5. Limitation of Liability.

KAMI’S AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL BE LIMITED TO $500. IN NO EVENT SHALL KAMI BE LIABLE FOR LOST DATA, SYSTEM DOWNTIME, LOSS OF PROFITS OR ANY OTHER ANY SPECIAL, CONSEQUENTIAL OR INDIRECT DAMAGES, HOWEVER CAUSED, ON ANY THEORY OF LIABILITY, AND WHETHER OR NOT KAMI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

6. Miscellaneous.

This Agreement shall be governed by the laws of New Zealand. The parties agree that the courts sitting in New Zealand shall have exclusive jurisdiction and venue regarding any matter arising from this Agreement. This Agreement sets forth the entire agreement and understanding of the parties relating to the subject matter. No amendment to, or any waiver of any rights under, this Agreement shall be effective unless signed in writing by the party to be charged. All notices and other communications hereunder shall be in writing and shall be deemed effective when delivered by hand or by facsimile transmission or email. Except for obligations to make payments, non-performance of either party shall be excused to the extent the performance is rendered impossible by strike, fire, governmental acts, or any other reason beyond the control of the non-performing party. Developer shall not assign this Agreement (in whole or part) without Kami’s prior written consent. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties hereto and their permitted successors and assigns.