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QuestMaker Platform Quest Designer Agreement
This Platform Quest Designer Agreement (“Agreement”) is made effective as of the date you accept the terms of the Agreement (“Effective Date”), by and between Opportunity Education Foundation, a non-profit Iowa corporation located at 10156 L Street, Omaha, Nebraska 68127, (“OE”) and the Quest Designer (“Designer” or “You”). OE and Designer may be referred to individually as a “Party” and collectively as the “Parties.”
WHEREAS, OE has created a digital platform and service (the “QuestMaker™ Platform”) to allow designers to create and manage software modules (“Quest(s)”) for use in connection with OE’s educational software (the “Quest Application”);
WHEREAS, Designer wishes to utilize the QuestMaker™ Platform;
WHEREAS, the Parties intend to enter into a Platform License Agreement pursuant to which as expressly provided herein:
A. OE will make available to Designer the QuestMaker™ Platform;
WHEREAS, in furtherance of the objective set forth above, the parties hereto desire to enter into this Agreement.
NOW, THEREFORE, in consideration of covenants and agreements contained herein, the parties hereto agree as follows:
1. Platform License. Subject to the terms and conditions of this Agreement, OE hereby grants to Designer a limited, non-exclusive license for Designer to use the QuestMaker™ Platform in accordance with the terms of this Agreement (the “License”).
2. Client Dashboard. In connection with the delivery of the QuestMaker™ Platform, Designer shall be granted access to a dashboard through which certain user, traffic and other data analysis and statistics shall be available (the “Dashboard”). Designer’s access and use of the Dashboard shall be in accordance with and subject to this Agreement.
3. Support Services. OE will provide support services on the QuestMaker™ Platform via the Designer support portal available through the QuestMaker™ Platform and at firstname.lastname@example.org.
4. Ownership of QuestMaker™ Platform. OE is and at all times shall remain he sole and exclusive owner of all rights and interests to the QuestMaker™ Platform and of any and all intellectual property rights related thereto, including all trademarks, patents, trade names, copyrights, software, licenses, research data, designs, technology, trade secrets, processes, and related intangible property rights, whether or not patentable or copyrightable (“Intellectual Property Rights”), except as otherwise provided under the terms of this Agreement.
5. Ownership and License of Quests. To the extent Designer creates a Quest, Designer is the owner of all copyrights and related intellectual property rights in the Quest and its related content, excluding any of OE’s Intellectual Property Rights in the software that supports or allows access to the Quest (“Designer Intellectual Property”).Designer agrees that any Designer Intellectual Property submitted by Designer shall be its sole responsibility, shall not infringe or violate the rights of any other party or violate any laws, contribute to or encourage infringing or otherwise unlawful conduct, or otherwise be obscene, objectionable, or in poor taste. Designer also agrees that it has obtained all necessary rights and licenses. Designer agrees to provide accurate and complete information in connection with its submission of any materials on QuestMaker™ Platform.Designer hereby grants OE a worldwide, royalty-free, exclusive, irrevocable license to use all Designer Intellectual Property during the Term of this Agreement and continuing after any termination of Designer’s account, without any compensation or obligation to Designer.Designer agree that all Designer Intellectual Property will be accessible to all end users of the Quest Application (“End Users”).OE RESERVES THE RIGHT TO REVIEW ALL QUESTS AND DESIGNER INTELLECTUAL PROPERTY, TO PUBLISH OR REJECT ANY MATERIALS IN ITS SOLE DISCRETION, AND TO REMOVE OR EDIT ANY DESIGNER INTELLECTUAL PROPERTY, AT ANY TIME IN ITS SOLE DISCRETION WITHOUT NOTICE OR LIABILITY.OE has the right, but not the obligation, to monitor any materials submitted by Designer or otherwise available on the QuestMaker™ Platform, to investigate any reported or apparent violation of this Agreement, and to take any action that OE in its sole discretion deems appropriate, including, without limitation, termination hereunder.
6. Relationship with OE. Designer understands and agrees that by accepting this Agreement with OE to become a Designer, no legal partnership or agency relationship is created between Designer and OE. Designer agrees not to represent otherwise. Designer also certifies that it is at least thirteen years of age and it represents that it is legally permitted to register as a Designer. This Agreement is void where prohibited by law and the right to register as a Designer is not granted in such jurisdictions. Unless otherwise agreed or permitted by OE in writing, Designer cannot share or transfer any benefits it receives from OE in connection with being a Designer.
7. Restrictions. Designer agrees not to exploit the QuestMaker™ Platform provided by OE in any unauthorized way, including but not limited to, by trespass, burdening network capacity or using the QuestMaker™ Platform other than for authorized purposes. Copyright and other intellectual property laws protect the QuestMaker™ Platform and related content provided to Designer, and Designer agrees to abide by and maintain all notices, license information, and restrictions contained therein. Unless expressly permitted herein or otherwise permitted in a separate agreement with OE, Designer may not modify, publish, network, rent, lease, loan, transmit, sell, participate in the transfer or sale of, reproduce, create derivative works based on, redistribute, perform, display, or in any way exploit the QuestMaker™ Platform. Designer may not decompile, reverse engineer, disassemble, or attempt to derive the source code of any software or security components of the QuestMaker™ Platform (except as and only to the extent any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by any licensing terms accompanying the foregoing). Use of the QuestMaker™ Platform to violate, tamper with, or circumvent the security of any computer network, software, passwords, encryption codes, technological protection measures, or to otherwise engage in any kind of illegal activity, or to enable others to do so, is expressly prohibited. OE retains ownership of all its rights in the QuestMaker™ Platform, and except as expressly set forth herein, no other rights or licenses are granted or to be implied under any OE intellectual property.
8. OE Independent Development and Feedback. Nothing in this Agreement will impair OE’s right to develop, acquire, license, market, promote or distribute products, software or technologies that perform the same or similar functions as, or otherwise compete with, any other products, software or technologies that you may develop, produce, market or distribute. In the absence of a separate written
agreement to the contrary, OE shall be free to use any information, suggestions, recommendations, or feedback you provide to OE pursuant to this Agreement for any purpose, subject to any applicable patents or copyrights.
9. Confidentiality. The terms of this Agreement and information and data that either Party has received or will receive from the other Party and other matters relating to the respective businesses of the Parties is proprietary and confidential information of the disclosing Party (“Confidential Information”), including without limitation any information that is marked as “confidential” or should be reasonably understood to be confidential or proprietary to the disclosing Party and any reference manuals compiled or provided hereunder. Each Party agrees that for the Term and for two (2) years thereafter, it will not disclose to any third Party nor use for any purpose not permitted under this Agreement any Confidential Information disclosed to it by the other Party. The nondisclosure obligations set forth in this Section shall not apply to information that the receiving Party can document is generally available to the public (other than through breach of this Agreement by the receiving Party) or was already lawfully in the receiving Party's possession at the time of receipt of the information from the disclosing Party.Each Party agrees that it will not use any Confidential Information of the other Party for any purposes prohibited by United States law.
10. Use of OE Trademarks and Copyrights. You agree to follow OE’s trademark and copyright guidelines as published at: link and as may be modified from time to time. You agree not to use the marks “Opportunity Education,” “Next Generation Learning,” or any other marks belonging or licensed to OE in any way except as expressly authorized in writing by OE in each instance or as permitted in OE’s Trademark and Copyright Guidelines. You agree that all goodwill arising out of your authorized use of OE’s marks shall inure to the benefit of and belong to OE.
11. Term and Termination of Platform License. OE may terminate or suspend you as a Designer at any time in OE’s sole discretion. If OE terminates you as a Designer, OE reserves the right to deny your reapplication at any time in OE’s sole discretion. You may terminate your participation as a registered Designer at any time, for any reason, by deleting Your Designer account.Designer’s license of Quest and other Designer Intellectual Property to OE will survive the termination of Designer’s account whether by OE or at will. Upon any termination or, at OE’s discretion, suspension, all rights and licenses granted to you by OE will cease, including your right to access the QuestMaker™ Platform, and Designer agrees to destroy any and all Confidential Information that is in your possession or control. At OE’s request, Designer agrees to provide certification of such destruction to OE. To the extent OE charges Designer any fee, no refund or partial refund of any fees paid hereunder or any other fees will be made for any reason. Following termination of this Agreement, Sections 4-8, and 10-15 shall continue to bind the parties.
12. No Warranty. OE AND ITS AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, AND LICENSORS (COLLECTIVELY, “OE” FOR PURPOSES OF THIS SECTION 12 AND 13) DO NOT PROMISE THAT THE QUESTMAKER™ PLATFORM, SITE, CONTENT, SERVICES (INCLUDING, FUNCTIONALITY OR FEATURES OF THE FOREGOING), OR ANY OTHER INFORMATION OR MATERIALS THAT YOU RECEIVE HEREUNDER AS A DESIGNER (COLLECTIVELY, THE “SERVICE” FOR PURPOSES OF THIS SECTION 12 AND 13) WILL BE ACCURATE, RELIABLE, TIMELY, SECURE, ERROR FREE OR UNINTERRUPTED, OR THAT ANY DEFECTS WILL BE CORRECTED. THE SERVICE IS PROVIDED ON AN “AS-IS” AND “AS-AVAILABLE” BASIS AND THE SERVICE IS SUBJECT TO CHANGE WITHOUT NOTICE. OE CANNOT ENSURE THAT ANY CONTENT (INCLUDING FILES, INFORMATION OR OTHER DATA) YOU ACCESS OR DOWNLOAD FROM THE SERVICE WILL BE FREE OF VIRUSES, CONTAMINATION OR DESTRUCTIVE FEATURES. FURTHER, OE DOES NOT GUARANTEE ANY RESULTS OR IDENTIFICATION OR CORRECTION OF PROBLEMS AS PART OF THE SERVICE AND OE DISCLAIMS ANY LIABILITY RELATED THERETO. OE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF ACCURACY, NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. OE DISCLAIMS ANY AND ALL LIABILITY FOR THE ACTS, OMISSIONS AND CONDUCT OF ANY THIRD PARTIES IN CONNECTION WITH OR RELATED TO YOUR USE OF THE SERVICE. YOU ASSUME TOTAL RESPONSIBILITY AND ALL RISKS FOR YOUR USE OF THE SERVICE, INCLUDING, BUT NOT LIMITED TO, ANY INFORMATION OBTAINED THEREON. YOUR SOLE REMEDY AGAINST OE FOR DISSATISFACTION WITH THE SERVICE IS TO STOP USING THE SERVICE. THIS LIMITATION OF RELIEF IS A PART OF THE BARGAIN BETWEEN THE PARTIES. TO THE EXTENT THAT OE MAKES ANY PRE-RELEASE SOFTWARE, HARDWARE OR OTHER PRODUCTS, SERVICES OR INFORMATION RELATED THERETO AVAILABLE TO YOU AS AN OE DESIGNER, YOU UNDERSTAND THAT OE IS UNDER NO OBLIGATION TO PROVIDE UPDATES, ENHANCEMENTS, OR CORRECTIONS, OR TO NOTIFY YOU OF ANY PRODUCT OR SERVICES CHANGES THAT OE MAY MAKE, OR TO PUBLICLY ANNOUNCE OR INTRODUCE THE PRODUCT(S) OR SERVICE AT ANY TIME IN THE FUTURE.
13. Disclaimer of Liability. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, IN NO EVENT WILL OE BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES RESULTING FROM DELAY OF DELIVERY, FOR LOSS OF PROFITS, DATA, BUSINESS OR GOODWILL, FOR BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO THIS AGREEMENT OR YOUR USE OR INABILITY TO USE THE SERVICE, HOWEVER CAUSED, WHETHER UNDER A THEORY OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCTS LIABILITY, OR OTHERWISE, EVEN IF OE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. IN NO EVENT SHALL OE’S TOTAL LIABILITY TO YOU UNDER THIS AGREEMENT FOR ALL DAMAGES (OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW IN CASES INVOLVING PERSONAL INJURY) EXCEED THE AMOUNT OF FIFTY DOLLARS ($50.00).
14. Third-Party Materials. Third-party software, including open source software, provided by OE to you as a Designer may be subject to its own licensing terms, in which case such licensing terms shall govern your use of that particular third-party software. Mention of third-parties and third-party products in any materials, documentation, advertising or promotions provided to you as a Designer is for informational purposes only and constitutes neither an endorsement nor a recommendation. All third-party product specifications and descriptions are supplied by the respective vendor or supplier, and OE shall have no responsibility with regard to the selection, performance, or use of these vendors or products. All understandings, agreements, or warranties, if any, take place directly between the vendors and the prospective users.
15. Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of Nebraska, excluding its conflict of law provisions. The parties further submit to and waive any objections to personal jurisdiction of and venue in any of the following forums: U.S. District Court for the District of Nebraska, or the Fourth Judicial District Court of Nebraska, for any disputes arising out of this Agreement.
16. Amendment. OE reserves the right to modify this Agreement at its discretion at any time. You will be responsible for complying with any such modifications (including but not limited to new terms, updates, revisions, supplements, modifications, and additional rules, policies, or terms and conditions) (“Additional Terms”) communicated to you by OE. All Additional Terms are hereby incorporated into this Agreement by this reference and your continued use of the QuestMaker™ Platform will indicate your acceptance of any Additional Terms.
17. Communications. OE may send communications to you from time to time. Such communications may be in the form of telephone calls and/or emails and may include, but not be limited to, marketing materials, technical information, and updates and/or changes regarding your role as a Designer. By agreeing to this Agreement, you consent that OE may provide you with such communications.
18. Miscellaneous. This Agreement constitutes the entire agreement between the Parties with respect to its subject matter and supersedes all prior or contemporaneous understanding regarding such subject matter. If any provision is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.No addition to or removal or modification of any of the provisions of this Agreement will be binding upon OE unless made in writing and signed by an authorized representative of OE. This Agreement will bind Your successors but may not be assigned, in whole or in part, by You without the written consent of OE and any non-conforming assignment shall be null and void. No failure of either party to exercise or enforce any of its rights under this Agreement shall act as a waiver of such right.The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.