Purposely, Inc.

TERMS OF USE AGREEMENT

This Terms of Use Agreement (this “Agreement”) is entered into as of the date this Agreement was accepted (the “Effective Date”), by and between the institution you designated (“You” and “Your”), and Purposely, Inc. a Delaware corporation with a place of business at 1475 N Scottsdale Rd, Suite 200, Scottsdale, Arizona 85257 (“Purposely”). This Agreement permits You and Your Users to access and use Purposely proprietary software application, “The Career Platform” on the terms and subject to the conditions set forth herein.

  1. Purposely developed, owns and maintains The Career Platform, a software application, for career centers of educational institutions to provide to students and alumni to help them find jobs. You can use its various reports to monitor Your Users’ success and more easily comply with Department of Education reporting requirements. The software is provided to You on an application service provider basis and hosted by Purposely in conjunction with our cloud-hosting partners. The Career Platform will be hosted and operated on Purposely’s (or its third party cloud partner’s) computer servers. Although Purposely takes commercially reasonable steps to ensure maximum uptime, the parties acknowledge that a number of internal and external factors may affect User access at any given time. You will have no recourse and waive any and all rights with respect to the up-time of Purposely’s service.
    • Named Users. Access to The Career Platform is restricted to individuals with registered accounts having a user identification name and password (each, a “User”). You may allow anyone You designate to use The Career Platform, subject to each such User agreeing to an end user agreement in the form designated by us. You may have only as many Users activated at any one time for The Career Platform as specified in the applicable Application Order. No registered account may be shared by more than one User.
    • Maintenance and Support. Purposely will provide You and the Users with on-line support through various means at Purposely’s sole discretion. Some of the means may include FAQ sections, email support, and real time chat.
  2. Reservation of Rights. Purposely, and its third party suppliers and partners, hereby reserve all rights in and to The Career Platform and any underlying or related software (the “Software”), excluding any pre-identified intellectual property or student data owned and provided by You. Any student data that the User expressly permits us to utilize will be owned by Purposely. You are entitled to use The Career Platform solely in accordance with the terms of this Agreement. You hereby acknowledge and agree that you will not decompile, disassemble, reverse engineer, reverse assemble, analyze or otherwise examine, prepare derivative works of, modify, or attempt to derive source code from the Software except to the extent permitted by applicable law. You will not frame or utilize framing techniques to enclose any marks of Purposely or its third party suppliers or partners, or other proprietary information (including images, text, page, layout or form), without Purposely’s prior written consent. Except as otherwise explicitly stated in this Agreement, You have no right, title or interest in or to The Career Platform.
  3. Your Obligations
    • No Resale. The Career Platform is for use by You and Your designated Users only, and only for Your internal business purposes, not for resale to any third party. Notwithstanding this provision, You may charge Your Users an access fee at Your discretion for use of The Career Platform.
    • Maintenance and Support Obligations. Purposely’s obligation to provide Support Services is subject to the following: (a) You will provide Purposely with access to Your Users of The Career Platform in order to duplicate and resolve errors, (b) You will document and promptly report all known errors or malfunctions related to The Career Platform to Purposely, and (c) You will take all reasonable steps necessary to carry out procedures to remedy errors or malfunctions within a reasonable time after such procedures have been communicated to You.
  4. Payment. There is no fee to You to utilize The Career Platform during the Term of this Agreement.
  5. Data Ownership. Subject to Purposely’s rights in The Career Platform and all materials provided by Purposely, You will retain all rights in any data, reports, databases, videos or other materials uploaded or created by You on or through The Career Platform (“Your Data”).
  6. Data Rights
    • Non-Personally Identifiable Data. Purposely may use Your Data in a form that does not include personally identifiable information. For example, Your Data may be used to generate reports to better understand the usage models, demographic analysis, utilization analysis and other data driven activities to improve the technology and the User experience. Purposely may only transmit personally identifiable User information to any third-party if that User expressly gives Purposely permission to utilize that information.
    • Direct Contact. Purposely may contact a User directly via email to send information or surveys, request information, and offer products and services that may be useful to a User. Users will have the ability to opt-out of receiving such direct contact.
  7. Message Transmissions. You acknowledge that message transmissions from or through The Career Platform may result in Purposely’s servers becoming “black listed” by Internet service providers, email providers, or otherwise, thereby preventing further transmission of messages from servers used by The Career Platform. Purposely may, in its sole discretion, discontinue message transmission services from or through The Career Platform. Purposely does not guarantee the successful delivery of messages to message recipients through The Career Platform. The failure of messages to be delivered to recipients does not constitute a breach under this Agreement or any Application Order.
  8. EXCEPT AS OTHERWISE EXPLICITLY STATED IN THIS AGREEMENT:
    • “AS IS.” THE SERVICES AND THE SOFTWARE ARE PROVIDED “AS IS”. PURPOSELY (INCLUDING ITS THIRD PARTY SUPPLIERS AND PARTNERS AND EACH OF THEIR AFFILIATES, SUPPLIERS AND RESELLERS) DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, PERFORMANCE, USAGE, OR TRADE PRACTICE.
    • PURPOSELY DOES NOT WARRANT THAT THE CAREER PLATFORM WILL BE UNINTERRUPTED, ERROR-FREE OR FREE OF VIRUSES, WORMS OR OTHER HARMFUL COMPONENTS OR LIMITATIONS. YOU ASSUME THE ENTIRE COST OF NECESSARY SERVICING, REPAIR OR CORRECTION OF PROBLEMS CAUSED BY VIRUSES, WORMS, OR OTHER HARMFUL COMPONENTS, UNLESS SUCH ARE THE DIRECT RESULT OF PURPOSELY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
    • ACCURACY OF REPORTS. PURPOSELY EXPRESSLY DISCLAIMS AND MAKES NO WARRANTIES OR REPRESENTATIONS AS TO THE ACCURACY, QUALITY, RELIABILITY, COMPLETENESS OR USEFULNESS OF THE REPORTS, DATA, SCORES OR OTHER INFORMATION OBTAINED, GENERATED OR OTHERWISE RECEIVED THROUGH THE CAREER PLATFORM.
  9. Term and Termination
    • Term. This Agreement will commence upon the Effective Date and remain in full force and effect for a period of ninety (90) days. The Agreement will automatically renew for subsequent periods of ninety (90) days until such time as either party gives notice of its intent to terminate.
    • Effect of Termination. Upon the expiration or termination of this Agreement, You will no longer have access and agree to cease using The Career Platform. Purposely will be relieved from any further obligation to provide the Services under such Application Order.
  10. Indemnification
    • By Purposely. Purposely agrees to indemnify and hold harmless You, and Your officers, directors, employees, agents, affiliates, subsidiaries and parent companies, from any claim, including without limitation reasonable attorneys’ fees and expenses, made by any third party to the extent such claim alleges that the Services or the Software infringe on any copyright, trade secret, patent, trademark or other intellectual property right of any third party. You agree to provide Purposely with (i) prompt written notice of such claim; (ii) control over the defense and settlement of such claim, provided that Purposely will not settle any claims which requires any non-monetary settlement terms without Your prior written consent, which consent will not be unreasonably withheld; and (iii) proper and full information and assistance to settle and/or defend any such claim at Purposely’s expense. The foregoing provisions of this Section state Purposely’s entire liability, and Your sole and exclusive remedy, with respect to any actual or alleged claim of infringement or misappropriation of intellectual property rights.
    • By You. You will indemnify, defend, and hold harmless Purposely from and against all third party claims, suits, liabilities, losses, costs, damages, and expenses, including without limitation reasonable attorneys’ fees and expenses, to the extent Your or Your personnel’s negligent or intentional actions, misrepresentations, or breach of this Agreement.
  11. Limitation Of Liability
    • EXCEPT WITH REGARD TO THE PARTIES OBLIGATION TO INDEMNIFY EACH OTHER, PURPOSELY WILL NOT BE LIABLE TO YOU FOR ANY INCIDENTAL, PUNITIVE, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES, OR ANY LOST REVENUE, LOST PROFITS, REPLACEMENT GOODS, LOSS OF TECHNOLOGY, RIGHTS OR SERVICES, LOSS OF DATA, OR INTERRUPTION OF BUSINESS, EVEN IF THE OTHER PARTY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER UNDER ANY THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE.
    • Purposely’s Maximum Liability. PURPOSELY’S TOTAL LIABILITY IN THE AGGREGATE TO YOU OR ANY THIRD PARTY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT WILL BE LIMITED TO THE PAYMENTS RECEIVED FROM YOU UNDER THIS AGREEMENT.
    • Basis of the Bargain; Failure of Essential Purpose. The parties to this Agreement have each agreed to the fees and entered into this Agreement in reliance upon the limitations of liability and disclaimers of warranties and damages set forth in this Agreement, and that the same form an essential basis of the bargain between the parties. The parties agree that the limitations of liability and disclaimers of warranties and damages set forth in this Agreement will survive and apply even if found to have failed their essential purpose.
  12. Miscellaneous
    • Right of Publicity. Either party may publicly indicate that You are using The Career Platform. The parties grant each other a limited license to utilize each other’s logo in connection with such publicity.
    • Assignment. You may not assign all or any part of this Agreement without the prior written consent of Purposely, which consent will not be unreasonably withheld. However, this Agreement may be assigned by either party without the consent of the other to an affiliate or to any third party who succeeds to substantially all of its business or assets. In the event of a valid assignment, this Agreement will inure to the benefit of and be binding upon each party and its respective successors and permitted assigns.
    • Nothing in this Agreement will be deemed to create an agency, employment, partnership, fiduciary, or joint venture between the parties. No party hereto (nor any agent or employee of such party) will make any representations or warranties or incur any liability on behalf of the other.
    • Severability. If any provision of this Agreement is held to be illegal, invalid or unenforceable, each party agrees that such provision will be enforced to the maximum extent permissible so as to effect the intent of the parties, and the validity, legality and enforceability of the remaining provisions of this Agreement will not in any way be affected or impaired thereby. If necessary to effect the intent of the parties, the parties will negotiate in good faith to amend this Agreement to replace the unenforceable language with enforceable language that reflects such intent as closely as possible.
    • Waiver. No delay or omission by a party hereto to exercise any right occurring upon any noncompliance or default by another party with respect to any of the terms of this Agreement will impair any such right or power or be construed to be a waiver thereof. A waiver by one of the parties hereto of any of the covenants, conditions, or agreements to be performed by one of the other parties will not be construed to be a waiver of any subsequent breach thereof or of any covenant, condition, or agreement contained herein.
    • Notices. All notices which are required to be or may be given under the terms hereof must be in writing and will be deemed given when emailed to You at the email address of the digital signer of this Agreement and to Purposely by emailing both to notices@purposely.com and to its General Counsel at jfrutkin@frutkinlaw.com.
    • Construction. The division of this Agreement into sections and the insertion of captions and headings are for convenience of reference only and will not affect the construction or interpretation of this Agreement. The parties hereto agree that any rule of construction to the effect that ambiguities are to be resolved against the drafting party will not be applied in the construction or interpretation of this Agreement.
    • Governing Law; Dispute Resolution. This Agreement, and all the rights and duties of the parties arising from or relating in any way to the subject matter of this Agreement, will be governed by, and construed and enforced in accordance with, the laws of the United States and the State of Arizona without regard to conflicts of law principles. In the event a dispute arises between the parties hereto arising out of or in connection with or with respect to this Agreement or any breach thereof, such dispute will be determined in a court of competent jurisdiction in Phoenix, Arizona.
    • Entire Agreement; Electronic Signature. This Agreement sets forth the complete, exclusive and final statement of the agreement between the parties as to the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings, negotiations and discussions, whether oral or written, between the parties regarding such subject matter. This Agreement may only be modified, amended, or any rights under it waived, by a written document executed by the parties. This Agreement may be executed electronically, which expressly binds the parties to the terms herein.
    • Subsequent Agreements. Any document subsequently exchanged between the parties after entering into this Agreement including but not limited to emails and the like, will not alter or amend the terms of this Agreement unless expressly agreed to in a written document signed by both parties.

In Witness Whereof, the parties have executed this Agreement as of the Effective Date.