Terms & Conditions

Last update: August 21, 2024

This Subscription and Distribution Agreement (the “Agreement”) governs Customer’s acquisition and use of Services and Content offered by ExamSpark Inc. dba Campfire Learning, a Delaware Corporation located at 1403 Greenbrier Parkway, Suite 150, Chesapeake, VA 23320 (“Campfire”).

By accepting this Agreement by: (a) clicking a box indicating acceptance; (b) executing an Order Form or Schedule that references this Agreement; (c) executing a written Agreement that incorporates these terms; or (d) using the Services on an evaluation basis, Customer agrees to the terms of this Agreement.

If the individual accepting this Agreement is accepting on behalf of a company or other legal entity, such individual represents that they have the authority to bind such entity to this Agreement, and the term “Customer” shall refer to such entity. If the individual accepting this Agreement does not have such authority or does not agree with the terms and conditions of this Agreement, such individual must not accept this Agreement and may not use the Services or Content.

If Customer is provided with access to the Services or Content on an evaluation basis, the section of this Agreement entitled “Evaluation Services” will govern such access.

The Services and Content may not be accessed for the purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes. Campfire’s competitors are prohibited from accessing the Services, except with Campfire’s prior written consent.

This Agreement is effective as of the date Customer accepts this Agreement.

1. Definitions

In addition to capitalized terms defined elsewhere in this Agreement, the following terms shall have the meanings set forth below:

1.1. “Affiliate” means an entity that controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership of control of more than fifty percent (50%) of the voting interests of the subject entity.

1.2. “Client” means a natural person or a legal organizational entity that has entered into an agreement with Customer that includes the right by Client to use the Service.

1.3. “Client Application” means a Client facing application and made part of the Service, as more fully described in an Order Form or Schedule to this Agreement, which is made available by Campfire to Customer for Customer to provide to Clients on a subscription basis.

1.4. “Client Data” means any digital content, electronic data and information submitted by or for a Client to the Services, excluding Customer Data, Content and Third-Party Applications.

1.5. “Client User” means, an individual associated with a Client who Customer authorizes to use the Services pursuant to Customer’s rights under this Agreement, and to whom a Client (or, when applicable, Campfire at Customer’s request or Customer and Client’s request) has supplied a username and password or other secure credentials to uniquely identify such Client User. Client Users may include, for example, employees, consultants, contractors, agents, teachers and students of Client.

1.6. “Content” means information obtained by Campfire from publicly available sources or its third-party content providers and made available to Customer through the Services. By way of example, Campfire has certain license rights to a third-party assessment item bank which Campfire may make available for use by Customers and Customer’s Clients, as Campfire’s Item Bank, pursuant to an Order Form or Schedule to this Agreement.

1.7. “Customer” means, in the case of an individual accepting this Agreement on his or her own behalf, such individual, or in the case of an individual accepting this Agreement on behalf of a company or other legal entity, the company or other legal entity for which such individual is accepting this Agreement or has entered into one or more Order Forms or Schedules referencing this Agreement.

1.8. “Customer Data” means any digital content, electronic data and information submitted by or for Customer to the Services, excluding Client Data, Content and Third-Party Applications.

1.9. “Customer Marks” means Customer’s trademarks, tradenames, service marks, and logos.

1.10. “Customer User” means, an individual who Customer authorizes to use the Services pursuant to Customer’s rights under this Agreement, and to whom Customer (or, when applicable, Campfire at Customer’s request) has supplied a username and password or other secure credentials to uniquely identify such Client User. Customer Users may include, for example, employees, consultants, contractors, and agents of Customer.

1.11. “Documentation” means all specifications, user manuals, and other materials relating to the Services and provided or made available by Campfire to Customer, as may be modified by Campfire from time to time.

1.12. “Evaluation Services” means those Services that Campfire makes available to Customer without a fee, including as part of an evaluation or proof of concept. Evaluation Services exclude Purchased Services.

1.13. “Order Form” means each written order, schedule or online order specifying the Services (and Content or Professional Services to the extent ordered) to be provided under this Agreement and applicable fees, that is entered into between Customer and Campfire, including any addenda and supplements thereto. By entering into an Order Form, a Customer agrees to be bound by the terms of this Agreement as if it were an original party hereto.

1.14. “Professional Services” means work performed for Customer by Campfire its Affiliates, or its or their respective permitted subcontractors under an Order Form or a statement of work (“SOW ”) attached as a Scheule to this Agreement. Professional Services may include but are not limited to implementation, configuration, customization, content migration and/or training services.

1.15. “Purchased Services” means Services that Customer purchases under an Order Form or pursuant to a Schedule to this Agreement, as distinguished from Evaluation Services.

1.16. “Services” means the products and services that are ordered by Customer under an Order Form or Schedule or provided to Customer under an evaluation made available to Customer Users or Client Users on a subscription basis, online by Campfire, including any associated offline components. “Services” exclude Content and Third-Party Applications unless otherwise specified on an Order Form or Schedule. Where applicable and if specified on an Order Form or Schedule, Customer’s rights to and use of certain Content or Third-Party Applications will be subject to the terms and conditions of an Order Form or Schedule made part of this Agreement.

1.17. “Territory” means the United States unless stated otherwise on an Order Form or Schedule.

1.18. “Third-Party Applications” means Web based, mobile, offline, or other software functionality that interoperates with a Service, that is provided by Customer or a third-party. Third-Party Applications, other than those obtained or provided by Customer, will be identified as such.

2. Campfire Responsibilities

2.1. Provision of Purchased Services. Campfire will: (a) make the Purchased Services and Content available to Customer, and to Clients in the event use by Clients is permitted under an Order Form or the terms of a Schedule to this Agreement; (b) provide support for the Purchased Services in accordance with Campfire’s then-current standard support policy; and (c) comply with laws and government regulations applicable to Campfire’s provision of the Purchased Services to its customers, subject to Customer Users’ and Client Users’ use of the Purchased Services in accordance with this Agreement, applicable Order Form(s), Schedule(s) and the Documentation.

2.2. Security and Protection of Customer Data and Client Data. During the term of this Agreement, Campfire will maintain appropriate administrative, physical, and technical security measures designed to protect the security, confidentiality, and integrity of, and prevent the unauthorized disclosure of, Customer Data and Client Data.

2.3. Professional Services. Where the parties have agreed to Campfire’s provision of Professional Services, the details of such Professional Services will be set out in an Order Form or SOW attached as a Schedule to this Agreement. The Order Form or SOW, as applicable, will include: (a) a description of the Professional Services; (b) the schedule for the performance of the Professional Services; and (c) the fees applicable for the performance of the Professional Services. Each Order Form or SOW, as applicable, will incorporate the terms and conditions of this Agreement.

2.4. Evaluation Services. If Customer is approved by Campfire for Evaluation Services, Campfire will make the applicable Evaluation Services available to Customer free of charge until the earlier of: (a) the end of the evaluation period communicated by Campfire to Customer; or (b) the start date of any Purchased Services subscriptions ordered by Customer for such Service(s); or (c) termination by Campfire in its sole discretion. For the purposes of evaluations, Section ”Customer Marks” below shall not apply.

ANY CUSTOMER DATA CUSTOMER ENTERS INTO THE EVALUATION SERVICES AND ANY CUSTOMIZATIONS MADE TO THE EVALUATION SERVICES BY OR FOR THE CUSTOMER DURING THE EVALATION PERIOD WILL BE PERMANENTLY LOST UNLESS CUSTOMER PURCHASES A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE EVALUATION SERVICES OR EXPORTS SUCH CUSTOMER DATA BEFORE THE END OF THE TRIAL PERIOD.

NOTWITHSTANDING THE “REPRESENTATIONS, WARRANTIES AND DISCLAIMERS” SECTION BELOW AND “INDEMNIFICATION BY CAMPFIRE” SECTION BELOW, EVALUATION SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND CAMPFIRE SHALL HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY TYPE WITH RESPECT TO THE EVALUATION SERVICES UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW IN WHICH CASE CAMPFIRE’S LIABILITY WITH RESPECT TO THE EVALUATION SERVICES SHALL NOT EXCEED $1,000.00. WITHOUT LIMITING THE FOREGOING, CAMPFIRE AND ITS AFFILIATES AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO CUSTOMER THAT: (A) CUSTOMER’S USE OF THE EVALUATION SERVICES WILL MEET CUSTOMER’S REQUIREMENTS; (B) CUSTOMER’S USE OF THE EVALUATION SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR; AND (C) USAGE DATA RELATED TO EVALUATION SERVICES WILL BE ACCURATE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE “LIMITATION OF LIABILITY” SECTION BELOW, CUSTOMER SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO CAMPFIRE AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF CUSTOMER’S USE OF THE EVALUATION SERVICES, ANY BREACH BY CUSTOMER OF THIS AGREEMENT AND ANY OF CUSTOMER’S INDEMNIFICATION OBLIGATIONS HEREUNDER.

3. Use of Services and Content

3.1. Subscriptions. Unless otherwise provided in the applicable Order Form, Schedule or Documentation, Purchased Services and access to Content are purchased as subscriptions for the term stated in the applicable Order Form or Schedule.

3.2. Usage Limits. Services and Content may be subject to usage limits as specified in an Order Forms or Schedule. If Customer exceeds a contractual usage limit, Campfire may work with Customer to seek to reduce Customer’s usage so that it conforms to that limit. If, notwithstanding Campfire’s efforts, Customer is unable or unwilling to abide by a contractual usage limit, Customer will execute an or an amendment to this Agreement for additional quantities of the applicable Services or Content promptly upon Campfire’s request, and/or pay any invoice for excess usage in accordance with the “Invoicing and Payment” section below.

3.3. User Access. Each Customer User and Client User will use a unique username and password to access the Services. Customer Users and Client Users may only access the Services during one (1) concurrent login session. The unique usernames and passwords cannot be shared or used by more than one individual Customer User or Client User to access the Services. Unless agreed otherwise, Customer agrees to provide to Campfire information and other assistance as necessary to enable Campfire to establish Customer Users’ and Client Users’ access to the Services and will verify all Customer User and Client User requests for access to the Services. Customer is solely responsible for all activities that occur under Customer User and Client User accounts.

3.4. Customer Responsibilities. Customer will: (a) use the Services and Content only in accordance with this Agreement, Order Forms, Schedules, Addenda and Documentation and applicable laws and government regulations; (b) be responsible for Customer Users’ and Client Users’ compliance with this Agreement, Order Forms Schedules, Addenda and Documentation; (c) be responsible for the accuracy, quality and legality of Customer Data and Client Data, including the means by which Customer acquired Customer Data and Client Data, and Customer’s use of Customer Data and Client Data with the Services; and (d) use commercially reasonable efforts to prevent unauthorized access to or use of the Services and Content, and notify Campfire promptly of any such unauthorized access or use. Any use of the Services or Content in breach of the foregoing by Customer or Customer Users or Client Users that in Campfire’s judgment threatens the security, integrity or availability of Campfire’s Services, may result in Campfire’s immediate suspension of the Services, however Campfire will use commercially reasonable efforts to provide notice and an opportunity to remedy such violation or threat prior to any such suspension.

3.5 Use Restrictions. Customer will not, and will ensure its Customer Users and its Client Users will not: (a) make the Services or Content available to anyone other than Customer or its Customer Users or its Client Users, or use the Services or Content for the benefit of anyone other than Customer its Affiliates and Clients, except as expressly allowed in an Order Form, Schedule, Addendum or this Agreement; (b) modify, adapt, alter, or translate the Services; (c) sublicense, lease, sell, resell, rent, loan, or distribute the Services or Content, or any part thereof, or include the Services or Content in a service bureau or outsourcing offering, except as expressly allowed in an Order Form, Schedule, Addendum or this Agreement; (d) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Services or any part thereof, except as permitted by law; (e) interfere in any manner with the operation of the Services or the hardware and network used to operate the same, or attempt to probe, scan or test vulnerability of the Services without prior authorization of Campfire; (f) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights; (g) modify, copy, disclose (except as expressly authorized in this Agreement) or make derivative works based on any part of the Services or Content; (h) access or use the Services or Content, or any feature, information or functionality thereof, to build a similar or competitive product or service; (i) attempt to access the Services through any unapproved interface; (j) generate content, materials or other intellectual property from the Services or Content through the use of machine learning or artificial intelligence; (k) remove, alter, or obscure any proprietary notices (including copyright and trademark notices) of Campfire or its licensors on the Services or Content or any copies thereof; (l) upload to the Services any Customer Data or Client Data that contains any sensitive personal information (such as financial, medical, or other sensitive personal information such as government IDs, passport numbers, protected health information, credit card data, or social security numbers); or (m) otherwise use the Services and Content in any manner that exceeds the scope of use permitted under an applicable Order Form, Schedule, Addendum or this Agreement.

3.6. Removal of Content and Third-Party Applications. If Customer receives notice, including from Campfire, that Content or a Third-Party Application may no longer be used or must be removed, modified and/or disabled to avoid violating applicable law, third-party rights, Customer will promptly do so. If Customer does not take required action, including deleting any Content Customer may have downloaded from the Services, in accordance with the above, or if in Campfire’s judgment continued violation is likely to reoccur, Campfire may disable the applicable Content, Service and/or Third-Party Application. If requested by Campfire, Customer shall confirm deletion and discontinuance of use of such Content and/or Third-Party Application in writing and Campfire shall be authorized to provide a copy of such confirmation to any such third-party claimant or governmental authority, as applicable. In addition, if Campfire is required by any third-party rights holder to remove Content or receives information that Content provided to Customer may violate applicable law or third-party rights, Campfire may discontinue Customer’s access to Content through the Services.

3.7. Third-Party Integrations. The Services may integrate with certain third-party websites and applications. Third-Party Applications shall be governed solely by the terms and conditions applicable to such Third-Party Applications, as agreed to between Customer and the Third-Party Application providers. Campfire does not endorse or support and is not responsible for Third-Party Applications, including without limitation, the privacy and data security policies and practices related to Third-Party Applications. Customer may enable integrations between the Services and Third-Party Applications, and by doing so: (a) instructs Campfire to share Content or Customer Data or Client Data (including, to the extent necessary, any personal data) with the providers of such Third-Party Applications in order to facilitate the integration; and (b) grants Campfire permission to allow Third-Party Applications and its providers to access Content or Customer Data or Client Data and information about Customer’s usage of the Third-Party Applications as appropriate for the interoperation of Third-Party Applications with the Services. Customer is responsible for providing all instructions to the Third-Party Application providers about the use and protection of Customer Data and Client Data. Campfire and Third-Party Application providers are not processors or sub-processors of personal data with respect to each other.

4. Customer Obligations

4.1 Customer Sales and Marketing Obligations. In the event that Customer is permitted to make the Services available to Clients, then Customer shall make reasonable efforts to: (a) market and sell the Services within the Territory; (b) enter into a written agreement with each Client that includes terms and conditions with respect to the Services which are substantially similar to, and no less restrictive than, those set forth in the “Use of Services and Content” Section above and with respect to the Content, if ordered, are substantially similar to and no less restrictive than those set forth in the Item Bank Addendum; (c) provision access to the Services for Clients; (d) handle the following relationship matters with Clients; contract management, billings, collections, product and technical support inclusive of first line support; (e) meet periodically with Campfire to review and discuss the business direction for sales and marketing of the Services; (f) set payment and delivery terms appropriate for Clients; (g) report technical issues, Content related issues and Client feedback to Campfire related to the Services; and (h) report all sales of the Services as more fully described below.

4.2. Customer Reporting of Client Sales. As part of the Client provisioning process Customer shall provide Campfire: (a) the Client name; (b) the number of students associated with such Client sale; and (c) the term of such Client’s subscription.

5. Fees and Payments

5.1. Fees. Customer will pay to Campfire all fees set forth in Order Forms or a Schedule attached to this Agreement (the “Fees”). Except as otherwise set forth in and Order Form, Schedule or this Agreement, payment obligations are non-cancelable, and Fees paid are non-refundable. Except as otherwise set forth in an Order Form, Schedule or this Agreement, Campfire may increase the Fees upon renewal of each Order Form or after the Initial Term by providing written notice to Customer at least forty-five (45) days prior to the commencement of the applicable Order Form Renewal or Renewal Term.

5.2. Invoices and Payments. Campfire will invoice Customer for all Fees either annually in advance or in accordance with any different billing frequency stated in the applicable Order Form or Schedule. Unless otherwise stated in the Order Form, Schedule or this Agreement, full payment for invoiced Fees is due within thirty (30) days of issuance.

5.3. Late Payments. Customer will be responsible for reasonable costs and expenses incurred by Campfire in the collection of any overdue Fees. If any Fees are thirty (30) days or more overdue, Campfire may, without limiting its other rights and remedies, immediately suspend Services until such amounts are paid in full, provided that Campfire will use commercially reasonable efforts to give Customer at least five (5) days’ prior written notice that its account is overdue before suspending Services.

5.4. Payment Disputes. Campfire will not exercise its rights under the “Late Payments” section above if Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.

5.5. Taxes. The Fees do not include taxes, duties, levies, or similar government assessments of any kind, including value-added, sales, use, or withholding taxes assessable by any jurisdiction (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder. Customer will not withhold any taxes from any amounts due to Campfire. If Campfire has a legal obligation to pay or collect any Taxes for which Customer is responsible, Campfire will invoice Customer and Customer will pay that amount unless Customer provides Campfire with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Campfire is solely responsible for taxes assessable against it based on its income, property, and employees.

6. Term and Termination

6.1. Term of Order Forms. If an Order Form is entered into by Customer, the initial term of each Order Form will begin on such Order Form Term Start date and continue for the duration of the subscription term set forth therein. Order Forms shall contain terms for renewal as set forth therein.

6.2. Term of Agreement. This Agreement shall begin on the earliest date of (a) clicking a box indicating acceptance; (b) the Order Form Start Date of the first Order Form executed by Customer that references this Agreement; (c) the Effective Date of a written Agreement entered into by the parties that incorporates these terms; or (d) Customer’s use of the Services on an evaluation basis and shall continue for the duration specified in the following paragraph, unless earlier terminated in accordance with this Agreement (the “Term”).

6.3. Agreement Term Duration. If one or more Order Forms are entered into by Customer, this Agreement will continue for a duration as long as any Order Form remains in effect. If a written Agreement is entered into by the parties, the initial duration of the Agreement (the “Initial Term”) and the terms associated with any future renewals (each a “Renewal Term”) shall be identified therein. If Customers use of the Service is for evaluation purposes, the duration of this Agreement will continue as set forth in the section Evaluation Services above. For the avoidance of doubt, “Term” means the Initial Term and, any subsequent Renewal Term.

6.4. Termination for Cause. Either party may terminate an Order Form, Schedule or this Agreement immediately upon notice to the other party if: (a) the other party materially breaches this Agreement, and such breach remains uncured more than thirty (30) days after receipt of written notice of such breach; or (b) the other party: (i) becomes insolvent; (ii) files a petition in bankruptcy that is not dismissed within sixty (60) days of commencement; or (c) makes an assignment for the benefit of its creditors.

6.5. Effect of Termination. Upon the earlier of expiration or termination of this Agreement, the rights and licenses granted to Customer hereunder will immediately terminate, Customer will cease use of the Services, Content, and Documentation, and Customer will return or destroy all copies of the Content and Documentation in its possession or control. Termination or expiration will not relieve Customer of its obligation to pay all Fees that accrued prior to such expiration or termination.

6.6. Return of Customer Data and Client Data. Upon request by Customer made within thirty (30) days after the effective date of termination or expiration of this Agreement, Campfire will make Customer Data and Client Data available to Customer. After such thirty (30) day period, Campfire will have no obligation to maintain any Customer Data or Client Data and will thereafter delete or destroy all copies of Customer Data and Client Data in its systems or otherwise in its possession or control, unless legally prohibited.

6.7. Survival. The sections titled “Fees and Payments,” “Effect of Termination,” “Survival,” “Proprietary Rights and Licenses,” “Confidentiality,” “Disclaimers,” “Mutual Indemnification,” “Limitation of Liability,” and “Miscellaneous” will survive any termination or expiration of this Agreement, and the section titled “Security and Protection of Customer Data and Client Data” will survive any termination or expiration of this Agreement for so long as Campfire retains possession of Customer Data and Client Data.

7. Proprietary Rights and Licenses

7.1. Reservation of Rights. Campfire, its Affiliates and licensors and third-party content providers reserve all right, title and interest in and to the Services, Content and Documentation, including all of their related intellectual property rights, and any and all related and underlying technology and documentation, and any derivative works, enhancements, modifications, or improvements of any of the foregoing, including any modifications or improvements conceived, produced or developed under or in accordance with this Agreement by Campfire. No rights are granted to Customer hereunder other than as expressly set forth herein.

7.2. Access to and Use of Content. Customer has the right to access and use applicable Content subject to the terms of applicable Order Forms, Schedules, Addenda and this Agreement.

7.3. Customer Data and Client Data. The Customer Data and Client Data are owned exclusively by Customer or Clients. Customer grants to Campfire, its Affiliates and applicable contractors a non-exclusive, worldwide, royalty-free license to host, copy, use, display and transmit Customer Data and Client Data as appropriate for Campfire to provide and ensure proper operation of the Services to Customer and Clients.

7.4. Feedback. Customer acknowledges that all suggestions, ideas, enhancement requests, feedback, recommendations and creative and other work product of whatever type or nature conceived, produced, or developed under or directly in connection with this Agreement by Campfire and materials of any nature furnished by Campfire, including the Service and all enhancements and modifications to the Services performed in accordance with this Agreement (collectively “Work Product”) shall be and remain the property of Campfire, and Customer conveys all rights and title to all Work Product to Campfire, unless explicitly stated otherwise in an Order Form Addendum or Schedule to this Agreement. No rights are granted to Customer hereunder other than as expressly set forth herein.

7.5. Aggregated Information. Campfire may aggregate, collect, and analyze information relating to the provision, use and performance of the Services and Content and may use (during and after the Term) such information to develop and improve the Services, Content and other Campfire offerings, including disclosure of such information to third-parties in an aggregated and anonymized format such that no Customer nor any individual or household can be identified.

7.6. Customer Marks. The Customer Marks are the exclusive property of Customer. Campfire may use Customer’s name and Customer Marks in its Customer list (including on Campfire’s website, social media and in sales and marketing materials) in the same way it uses the names of its other customers. Campfire shall use Customer Marks in accordance with Customer’s applicable branding guidelines if provided to Campfire and Campfire may not use Customer’s name or Customer Marks in any other way without Customer’s prior written consent (with email consent deemed sufficient).

7.7 Non-Exclusive Rights. Customer fully understands and acknowledges that the Services, Content and rights granted pursuant to this Agreement are mutually non-exclusive, and that Campfire may continue to provide the Services and Content and grant licenses, by itself and through third-parties, in and to the Services and Content, to the same or other entities as Customer and that Customer may market and sell other products substantially similar to ExamSpark’s Services from other sources.

8. Confidentiality

8.1. Definition of Confidential Information. “Confidential Information” shall mean any information disclosed by either party (the “Disclosing Party”) to the other party (the “Receiving Party”), either directly or indirectly in writing, orally, or by inspection of tangible objects (a) that the disclosing party identifies as confidential or proprietary; or (b) that reasonably appears to be confidential or proprietary because of legends or other markings, the circumstances of disclosure, or the nature of the information itself. Confidential Information of Customer includes Customer Data and Client Data; Confidential Information of Campfire includes the Services and Content, all technical information relating thereto, and the terms and conditions of this Agreement (including pricing). Confidential Information does not include information that the Receiving Party can document: (i) is or becomes generally available to the public other than through a wrongful act of the Receiving Party; or (ii) was lawfully in its possession or known by it prior to receipt from the Disclosing Party; or (iii) was rightfully disclosed to it without restriction by a third-party who is not bound by any confidentiality obligations with respect thereto; or (iv) is independently developed by the Receiving Party, its employees or third-party contractors without use of or reference to the Confidential Information. For clarity, the non-disclosure obligations set forth in this “Confidentiality” section apply to Confidential Information exchanged between the parties in connection with the evaluation of additional Campfire services and offerings.

8.2. Protection of Confidential Information. All Confidential Information disclosed by Disclosing Party shall remain the property of the Disclosing Party. The Disclosing Party reserves all rights in its Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to: (a) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement; and (b) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. Neither party will disclose the terms of this Agreement or any Order Form, Schedule to any third-party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this “Confidentiality” section. Notwithstanding the foregoing, either party may disclose the terms of this Agreement and any applicable Order Form or Schedule to a contractor to the extent necessary to perform its obligations under this Agreement, under terms of confidentiality materially as protective as set forth herein.

8.3. Compelled Disclosure. Either party may disclose Confidential Information to the extent required by law, provided that the Receiving Party gives the Disclosing Party reasonable advance notice of such required disclosure and cooperates with the Disclosing Party so that the Disclosing Party may obtain appropriate confidential treatment for such Confidential Information.

9. Representations, Warranties and Disclaimers

9.1. Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.

9.2. Campfire Warranties. Campfire warrants that during the Term that (a) Campfire will not) materially decrease the overall functionality and security of the Services and Content; and (b) the Services will perform materially in accordance with the applicable Documentation.

9.3. Warranty Remedies. Customer will notify Campfire of any non-conformance of the Services or Content under a warranty above within thirty (30) days. Provided that Customer notifies Campfire within such time, Campfire will use commercially reasonable efforts to correct the non-conformance at no additional charge. If Campfire is unable to correct such non-conforming Services or Content as warranted within a reasonable time, Customer will be entitled to terminate the applicable Order Form, Schedule and this Agreement and receive a prorated refund of any prepaid, unused Fees covering the remainder of the then current subscription term. The foregoing remedy is Customer’s sole remedy in case of a breach of the limited warranties above.

9.4 Disclaimers

(a) EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SERVICES, CONTENT AND PROFESSIONAL SERVICES ARE PROVIDED “AS IS,” NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, CAMPFIRE DOES NOT WARRANT THAT THE SERVICES OR CONTENT ARE ERROR-FREE OR THAT THE SERVICES WILL OPERATE WITHOUT INTERRUPTION, AND CAMPFIRE GRANTS NO WARRANTY REGARDING THE USE BY CUSTOMER OF THE SERVICES OR CONTENT. THE SERVICES OR CONTENT MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. CAMPFIRE IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES OR OTHER DAMAGES RESULTING FROM SUCH PROBLEMS.

(b) CUSTOMER ACKNOWLEDGES AND AGREES THAT CAMPFIRE IS NOT LIABLE, AND CUSTOMER AGREES NOT TO SEEK TO HOLD CAMPFIRE LIABLE, FOR THE CONDUCT OF THIRD-PARTIES, INCLUDING PROVIDERS OF THE THIRDPARTY APPLICATIONS, AND THAT THE RISK OF INJURY FROM SUCH THIRDPARTY APPLICATIONS RESTS ENTIRELY WITH CUSTOMER.

(c) FROM TIME TO TIME, CAMPFIRE MAY OFFER NEW “BETA” FEATURES OR TOOLS WITH WHICH CUSTOMER MAY EXPERIMENT. SUCH FEATURES OR TOOLS ARE OFFERED SOLELY FOR EXPERIMENTAL PURPOSES AND WITHOUT ANY WARRANTY OF ANY KIND, AND MAY BE MODIFIED OR DISCONTINUED AT CAMPFIRE’S SOLE DISCRETION.

10. Mutual Indemnification

10.1. Indemnification by Campfire. Campfire will defend Customer and its Affiliates against any claim, demand, suit, or proceeding made or brought against Customer by a third-party alleging that the Purchased Services infringe or misappropriate such third-party’s intellectual property rights in the United States of America (each, a “Claim Against Customer”), and will indemnify Customer from any damages, attorney fees and costs finally awarded against Customer as a result of, or for amounts paid by Customer under a settlement approved by Campfire in writing of, a Claim Against Customer, provided Customer: (a) promptly gives Campfire written notice of the Claim Against Customer; (b) gives Campfire sole control of the defense and settlement of the Claim Against Customer; and (c) gives Campfire all reasonable assistance, at Campfire’s expense. If Campfire receives information about an infringement or misappropriation claim related to the Purchased Services, Campfire may in its discretion and at no cost to Customer: (i) modify the Purchased Services so that they are no longer claimed to infringe or misappropriate; (ii) obtain a license for Customer’s continued use of the Purchased Services in accordance with this Agreement; or (iii) terminate Customer’s subscriptions for the Purchased Services upon thirty (30) days’ written notice and refund Customer any prepaid fees covering the remainder of the subscription term of the terminated Purchased Services. The above defense and indemnification obligations do not apply if a Claim Against Customer arises from: (I) the use or combination of the Purchased Services or any part thereof with software, hardware, data, or processes not provided by Campfire, if the Purchased Services or use thereof would not infringe without such combination; (II) modifications to the Purchased Services not made by Campfire; or (III) a Third-Party Application or Customer’s breach of this Agreement, applicable Order Forms, Schedules, Addenda or the Documentation.

10.2. Indemnification by Customer. Customer will defend Campfire and its Affiliates against any claim, demand, suit or proceeding made or brought against Campfire by a third-party arising from: (a) Customer’s use of the Services or Content in an unlawful manner or in violation of this Agreement, an Order Form, Schedule, Addendum or the Documentation; or (b) any Customer Data or Client Data or Customer’s use of Customer Data or Client Data with the Services or Content (each, a “Claim Against Campfire”), and will indemnify Campfire from any damages, attorney fees and costs finally awarded against Campfire as a result of, or for any amounts paid by Campfire under a settlement approved by Customer in writing of, a Claim Against Campfire, provided Campfire: (i) promptly gives Customer written notice of the Claim Against Campfire; (ii) gives Customer sole control of the defense and settlement of the Claim Against Campfire; and (iii) gives Customer all reasonable assistance, at Customer’s expense. The above defense and indemnification obligations do not apply if a Claim Against Campfire arises from Campfire’s breach of this Agreement, applicable Order Forms, Schedules, Addenda or the Documentation.

10.3. Sole and Exclusive Remedy. This “Mutual Indemnification” Section sets forth the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for the third-party claims described herein.

11. Limitation of Liability

11.1. Exclusion of Certain Types of Damages. EXCEPT TO THE EXTENT PROHIBITED BY LAW, NEITHER PARTY OR ITS AFFILIATES WILL HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL, PUNITIVE, COVER, BUSINESS INTERRUPTION, LOST PROFIT, OR CONSEQUENTIAL DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE.

11.2. Liability Cap. EXCEPT FOR AMOUNTS PAYABLE UNDER A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER THE “MUTUAL INDEMNIFICATION” SECTION ABOVE OR CUSTOMER’S BREACH OF THE-SECTION ”USE RESTRICTIONS” ABOVE, IN NO EVENT SHALL THE AGGREGATE TOTAL LIABILITY OF EITHER PARTY TOGETHER WITH ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNTS PAID BY OR DUE FROM BUT NOT YET PAID BY CUSTOMER UNDER THE ORDER FORM(S, SCHEDULE(S), ADDENDUM OR THIS AGREEMENT GIVING RISE TO SUCH LIABILITY IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE LIABILITY. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY BUT WILL NOT LIMIT CUSTOMER’S AND ITS AFFILIATES’ PAYMENT OBLIGATIONS UNDER THE “FEES AND PAYMENTS” SECTION ABOVE.

12. Miscellaneous

12.1. Relationship Between the Parties. Campfire is an independent contractor; nothing in this Agreement will be construed to create a partnership, franchise, joint venture, employment, or agency relationship between the parties.

12.2. Export Compliance. The Services and Content may be subject to the export laws of the United States and other jurisdictions. Each party represents that it is not on any U.S. government denied-party list. Customer will not permit any Customer User or Client User to access or use the Services or Content in Russia or a U.S.-embargoed country or region (currently Cuba, Iran, North Korea, Syria, or Crimea) or in violation of any U.S. export law or regulation.

12.3. Anti-Bribery. Neither party has received or been offered any illegal or improper bribe, rebate, payoff, influence payment, kickback, or other thing of value from an employee or agent of the other party in connection with this Agreement.

12.4. Assignment. Neither party may assign or transfer its rights or obligations under this Agreement without the prior written consent of the other party, and any assignment or transfer in derogation of the foregoing shall be null and void, provided, however that either party shall have the right to assign the Agreement (including all Order Forms, Schedules and Addenda without the prior written consent of the other party, to the successor entity in the event of merger, corporate reorganization or a sale of all or substantially all of such party’s assets. This Agreement shall be binding upon the parties and their respective successors and permitted assigns.

12.5. Notices. All notices required or permitted under this Agreement must be delivered in writing, if to Campfire, by emailing legal@examspark.com and if to Customer by emailing the Customer point of contact email address listed on an Order Form or Customer’s signatory to this Agreement, provided, however, that with respect to any notices relating to breaches of this Agreement or termination, a copy of such notice will also be sent in writing by courier, by certified or registered mail (postage prepaid and return receipt requested), or by a nationally-recognized express mail service, if to Campfire, to the address as listed in this Agreement and if to Customer to the address listed on an Order Form or Customer’s address listed in this Agreement. Each party may change its email address and/or address for receipt of notice by giving notice of such change to the other party.

12.6. Governing Law and Jurisdiction. The Agreement is governed by the laws of the Commonwealth of Virginia, without regard to its conflicts of laws or provisions. In the event of actual or threatened breach of confidentiality obligations or the “Use Restrictions” in this Agreement, the non-breaching party may seek specific performance, immediate injunctive and other equitable relief in any competent court without prejudice to any other rights or remedies.

12.7. Waivers; Severability. Any waivers shall be effective only if made by a writing signed by representatives authorized to bind the parties. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. If any provision of this Agreement is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.

12.8. Construction. The headings of Sections of this Agreement are for convenience and are not to be used in interpreting this Agreement. As used in this Agreement, the word “including” means “including but not limited to”.

12.9. Force Majeure. Any delay in the performance of any duties or obligations of either party (except for the obligation to pay Fees owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, war, fire, earthquake, typhoon, flood, natural disasters, governmental action, pandemic/epidemic, cloud-service provider outages any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the circumstances causing the delay and to resume performance as soon as possible.

12.10. Entire Agreement; Amendment. This Agreement and any applicable Order Form, Schedule or Addendum constitutes the complete agreement between the parties and supersedes all previous and contemporaneous agreements, proposals, or representations, written or oral, concerning the subject matter of this Agreement. To the extent that a conflict arises between the terms and conditions of an Order Form, Schedule or Addendum and the terms of this Agreement, the terms and conditions of the Order Form Schedule or Addendum will govern. It is expressly agreed that the terms and conditions of this Agreement and any Order Form,  Schedule and Addendum supersede the terms any of Customer’s purchase order.

Last Updated: August 21, 2024

This Item Bank Addendum (the “Addendum”) forms part of the Subscription and Distribution Agreement (the “Agreement”) between Campfire and Customer for Customer’s use of the Campfire’s Item Bank (the “Item Bank”).  Customer agrees to comply with the following provisions with respect to the Item Bank acting reasonably and in good faith. Capitalized terms used but not defined in this Addendum shall have their respective meanings set forth in the Agreement.

ITEM BANK LICENSE GRANT: During the subscription term if and as set forth on an Order Form or Schedule to the Agreement, Customer is hereby granted a limited, non-exclusive, non-transferable right and license to access and use the Item Bank within the State in which the Customer is organized, authorized and resides (the “Customer Territory”) to provide noncommercial access to and use of any or all of (a) the items from the Item Bank, (b) materials associated with the items such as reading passages and graphics, and (c) scoring materials from the Item Bank (hereinafter referred to as “Items”) to students registered within the Customer’s schools/districts for the purpose of performing assessments of those students (the “Item Bank License”). All rights, licenses and privileges not expressly granted to the Customer under the Item Bank License will remain exclusive to Campfire’s third-party licensor. (“Licensor”). Without limiting the generality of the foregoing, Customer acknowledges that Licensor or Campfire retains all rights under copyright and all other intellectual property rights in and to the Item Bank, all Items included therein, all revisions, modifications, translations, or other adaptations or transformations of the Item Bank or the Items, including assessments, and other derivative works created there from (collectively the “Derivative Works”). Customer’s rights to access and use the Item Bank, the Items and all Derivative Works thereof shall terminate upon the earlier of (i) termination of the agreement between the Customer and Campfire, or (ii) termination of Campfire’s right to sub-license and distribute the Item Bank. Customer acknowledges that use of the Item Bank, the Items and all Derivative Works, thereof after termination of the Item Bank License is strictly prohibited and would constitute infringement of Licensor’s proprietary rights.

Throughout the term of the Item Bank License, Licensor will have the right, at its sole discretion, to modify the Item Bank, including the addition, modification and deletion of specific Items and/or passages from the Item Bank.

REPRESENTATIONS, WARRANTIES AND LIMITATIONS OF LIABILITY. LICENSOR AND CAMPFIRE REPRESENT THAT IT HAS THE RIGHT TO GRANT THIS ITEM BANK LICENSE. LICENSOR AND CAMPFIRE MAKE NO WARRANTY WHATSOEVER, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, NON-INFRINGEMENT, TITLE. LICENSOR AND CAMPFIRE ARE NOT RESPONSIBLE FOR THE VALIDITY, FAIRNESS OR QUALITY OF ASSESSMENTS THAT ARE ULTIMATELY PREPARED BY THE CUSTOMER USING THE ITEM BANK. LICENSOR AND CAMPFIRE WILL HAVE NO RESPONSIBILITY WITH RESPECT TO ANY USE OF THE ITEM BANK OR ANY ITEMS (A) TO THE EXTENT THAT ANY ITEMS HAVE BEEN MODIFIED WITHOUT PRIOR WRITTEN APPROVAL BY LICENSOR OR CAMPFIRE OR (B) FOR ANY PURPOSE OTHER THAN FOR STUDENT ASSESSMENTS OR (C) FOR FAILURE TO USE THE ITEMS OR THE ITEM BANK IN ACCORDANCE WITH THE ITEM BANK LICENSE OR THE CUSTOMER’S AGREEMENT WITH CAMPFIRE.  LICENSOR AND CAMPFIRE ARE NOT RESPONSIBLE FOR THE CONTENT, ACCURACY, COMPLETENESS OR ADEQUACY OF ANY STATE STANDARDS ACCESSIBLE THROUGH THE SERVICES.

LICENSOR WILL HAVE NO LIABILITY UNDER THE CUSTOMER’S AGREEMENT WITH CAMPFIRE. IN NO EVENT SHALL LICENSOR OR CAMPFIRE BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR OTHER INDIRECT DAMAGES. FURTHERMORE, NOTWITHSTANDING ANYTHING CONTAINED IN THE AGREEMENT TO THE CONTRARY, UNDER NO CIRCUMSTANCES SHALL LICENSOR OR CAMPFIRE BE LIABLE TO CUSTOMER OR ANY THIRD-PARTY FOR ANY DAMAGES IN EXCESS OF THE FEES PAID TO CAMPFIRE BY OR ON BEHALF OF THE CUSTOMER PURSUANT TO THE ITEM BANK LICENSE OR THE CUSTOMER’S AGREEMENT WITH CAMPFIRE DURING THE TWELVE-MONTH PERIOD IMMEDIATELY PRECEDING SUCH CLAIM.