TERMS OF SERVICE FOR WHIZEKID (SERVICE PROVIDED BY POWER PLUS COMPUTER) ONLINE SCHOOL APPLICATIONS

1. WhizeKid, provides its service to you subject to the following Terms of Service ("TOS") and WhizeKid's Privacy Policy for its WhizeKid (Service provided by Power Plus Computer) Services. In addition, when using specific WhizeKid (Service provided by Power Plus Computer) Services, you and WhizeKid will be subject to any guidelines or rules applicable to these Services, which WhizeKid may communicate to you or post from time to time. These guidelines or rules and WhizeKid's Privacy Policy shall be deemed part of the TOS.
   

2. DESCRIPTION OF THE SERVICES

WhizeKid currently provides users with online business applications branded as WhizeKid (Service provided by Power Plus Computer) (the " Services"). Unless explicitly stated otherwise, any new features that augment or enhance the current Services, including any new WhizeKid (Service provided by Power Plus Computer) Services, will be subject to the TOS.

3. WHAT YOU MUST DO TO USE THE SERVICES

In order to use the Services you must obtain access to the World Wide Web, either directly or through devices that access Web-based content, and pay any service fees associated with such access. You must provide all equipment necessary to make such connection to the World Wide Web, including a computer and modem or other access device.

4. YOUR REGISTRATION INFORMATION MUST BE ACCURATE, CURRENT AND COMPLETE

In consideration of your use of the Services you agree to: (a) provide true, accurate, current and complete information about yourself as prompted by the registration form of the Services (such information being the "Registration Data") and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or WhizeKid has reasonable grounds to believe that such information is untrue, inaccurate, not current or incomplete, WhizeKid has the right to suspend or terminate your account and to refuse any and all current or future use of the Services (or any portion thereof).

5. YOUR OBLIGATION TO PAY FEES

You agree to pay all subscription, service and use fees, if any, WhizeKid charges you for the Services. You agree to pay all costs (including attorney's fees), if any, incurred by WhizeKid in collecting overdue fees from you, and to pay a late charge on any overdue fees at a rate equal to the lesser of 1.5% per month or the maximum rate allowed under applicable law. You also agree to pay all foreign, federal, state and local taxes applicable to your access, use or receipt of the Services.

6. ACCESS, PASSWORDS AND SECURITY

You may designate up to the number of users under your account, which corresponds to the level of Services you are receiving from WhizeKid, and you may provide and assign access and passwords to such users. You will be responsible for the confidentiality and use of your access number(s), password(s), and account number(s). You will be responsible for all electronic communications, including account registration and other account holder information, e-mail and financial, and other data ("Electronic Communications") entered through or under your access number(s), password(s) or account number(s). WhizeKid will act as though any Electronic Communications it receives under your access number(s), password(s) or account number(s) will have been sent by you. You agree immediately to notify WhizeKid if you become aware of any loss or theft or unauthorized use of any of your access number(s), password(s) and/or account number(s).

7. THE WAY WE HANDLE ELECTRONIC COMMUNICATION BETWEEN YOU AND WHIZEKID

The Services allow you to send Electronic Communications directly to WhizeKid and interact within applicable areas of the Services. Electronic Communications include your business's financial and business data that you send through the Services (the "Data"). You acknowledge and agree to the following with respect to use of Electronic Communications through the Services:

1. WhizeKid shall be entitled, but is not obligated, to review or retain your Electronic Communications for your compliance with the TOS and the security of the Services. WhizeKid may also review or retain Electronic Communications (other than Data) for other reasons that WhizeKid believes in good faith will improve the quality of the Services;

2. WhizeKid may disclose Electronic Communications if required to by law or in the good-faith belief that such disclosure is reasonably necessary to: (i) comply with legal process; (ii) enforce the TOS; (iii) respond to claims that any Electronic Communications violate the rights of third parties; or (iv) protect the rights, property, or personal safety of WhizeKid, its users or others;

3. You will not use any Electronic Communication for any purpose that is unlawful, abusive, harassing, libelous, defamatory, obscene or threatening. Neither you, nor someone on your behalf, will use the Services to solicit WhizeKid customers or others for any purpose;

4. You will not upload, post, reproduce or distribute any information, software or other material protected by copyright or any other intellectual property right (as well as rights of publicity and privacy) without first obtaining the permission of the owner of such rights;

5. You will not in any way express or imply that any opinions contained in your Electronic Communications are endorsed by WhizeKid;

6. You agree to provide WhizeKid with your e-mail address, promptly provide WhizeKid with any changes to your e-mail address and accept Electronic Communications from WhizeKid at the e-mail address you specify;

7. You agree that WhizeKid may provide notices, statements and other communications to you solely through e-mail, posting on the Services or other electronic transmission; and

8. You understand that the technical processing and transmission of the Services, including your Electronic Communications, may involve (i) transmissions over various networks; and (ii) changes to conform and adapt to technical requirements of connecting networks or devices.

 

8.    SECURITY OF DATA TRANSMISSION

You agree to use software produced by third parties, including, but not limited to, "browser" software that supports a data security protocol compatible with the protocol used by WhizeKid. Until notified otherwise by WhizeKid, you agree to use software that supports the Secure Socket Layer (SSL) protocol or other protocols accepted by WhizeKid and to follow WhizeKid’s logon procedures for Services that support such protocols. You acknowledge that WhizeKid is not responsible for notifying you of any upgrades, fixes or enhancements to any such software or for any compromise of data transmitted across computer networks or telecommunications facilities, including, but not limited to, the Internet. You acknowledge that it is possible that Electronic Communications may be accessed by unauthorized third parties when communicated between you and WhizeKid using the Internet, other network communications facilities, telephone or any other electronic means.

GENERAL PRACTICES REGARDING USE OF THE SERVICES

You acknowledge that WhizeKid may establish general practices and limits concerning use of the Services. You acknowledge that WhizeKid reserves the right to disable accounts that are inactive for an extended period of time. You further acknowledge that WhizeKid reserves the right to change these general practices and limits at any time, upon notice as provided in Section 24 below.

9. SECURITY AND STORAGE OF DATA

The security of your Data may be maintained through the use of data encryption, data security protocols, passwords and other methods which WhizeKid may employ, or which WhizeKid may suggest or require that you employ. You agree that WhizeKid has no

responsibility or liability either for the deletion or failure to store any Data transmitted by you or anyone else to the Services or the operation, or failure, or weakness, of any data encryption, data security protocols, passwords or other security methods employed by WhizeKid.


10. WHIZEKID'S PROPRIETARY RIGHTS

You acknowledge and agree that the Services and any necessary software used in connection with the Services ("Software") contain proprietary and confidential information that is protected by applicable intellectual property and other laws. You further acknowledge and agree that content contained in sponsor advertisements or information presented to you through the Services or by advertisers is protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws. You agree not to modify, rent, lease, loan, sell, distribute or create derivative works based on the Services or the Software, in whole or in part. You agree not to reproduce, duplicate, copy, sell, resell or exploit for any commercial purposes, any portion of the Services, use of the Services, or access to the Services.

WhizeKid grants you a non-transferable, non-exclusive and terminable right and license to use the object code of its Software; provided that you do not (and do not allow any third party to) copy, modify, create a derivative work of, reverse engineer, reverse assemble, disassemble, or decompile the Software or any part thereof or otherwise attempt to discover any source code, or sell, assign, sublicense, grant a security interest in or otherwise transfer any right in or to the Software. You agree not to modify the Software in any manner or form, or to use modified versions of the Software, including (without limitation) for the purpose of obtaining unauthorized access to the Services. You agree not to access the Services by any means other than through the interfaces that are provided by WhizeKid for use in accessing the Services.

11. DISCLAIMER OF WARRANTIES

YOU EXPRESSLY UNDERSTAND AND AGREE THAT:

1. YOUR USE OF THE SERVICES AT YOUR SOLE RISK. THE SERVICES AND THE WHIZEKID AND POWER PLUS COMPUTER. EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

2. WHIZEKID AND POWER PLUS COMPUTER MAKE NO WARRANTY THAT (i) THE SERVICES WILL MEET YOUR REQUIREMENTS, (ii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE, OR (iv) ANY ERRORS IN THE SOFTWARE OR SERVICES WILL BE CORRECTED.

3. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM WHIZEKID OR POWER PLUS COMPUTER, OR THROUGH OR FROM THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TOS.

4. THE SCHOOL AGREES NOT TO RESELL OR ASSIGN OR OTHERWISE TRANSFER ITS RIGHTS OR OBLIGATIONS UNDER THESE TOS WITHOUT THE EXPRESS PRIOR WRITTEN AUTHORIZATION OF WHIZEKID.

5. NITHER WHIZEKID NOR POWER PLUS COMPUTER WILL NOT BE LIABLE TO THE OTHER FOR ANY DELAY OR FAILURE IN PERFORMANCE UNDER THESE TOS RESULTING DIRECTLY OR INDIRECTLY FROM FORCE MAJEURE EVENTS.
   

12. LIMITATION OF LIABILITY

IN NO EVENT WILL WHIZEKID OR POWER PLUS COMPUTER BE LIABLE TO YOU OR ANYONE ELSE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL OR INDIRECT DAMAGES (INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE ITEMS) EVEN IF WHIZEKID HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES. YOU AGREE THAT THE LIABILITY OF WHIZEKID ARISING OUT OF ANY KIND OF LEGAL CLAIM (WHETHER IN CONTRACT, TORT OR OTHERWISE) IN ANY WAY CONNECTED WITH THE SERVICES WILL NOT EXCEED THE AMOUNT YOU PAID FOR THE SERVICES. Neither WhizeKid nor POWER PLUS COMPUTER shall be liable for any loss resulting from a cause over which WhizeKid does not have direct control, including but not limited to failure of electronic or mechanical equipment or communication lines; telephone or other interconnect problems; bugs, errors, configuration problems or incompatibility of computer hardware or software; failure or unavailability of Internet access; problems with Internet service providers or other equipment or services relating to your computer; problems with intermediate computer or communications networks or facilities; problems with data transmission facilities or your telephone or telephone service; or unauthorized access, theft, operator errors, severe weather, earthquakes or labor disputes. WhizeKid is not responsible for any damage to your computer, software, modem, telephone or other property resulting from your use of the Services. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.


13. INDEMNITY

You agree to defend, indemnify and hold WhizeKid and POWER PLUS COMPUTER harmless from and against any and all claims, losses, liability costs and expenses (including but not limited to attorneys' fees) arising from your violation of the TOS, state or federal laws or regulations, or any third party's rights, including but not limited to infringement of any copyright, violation of any proprietary right and invasion of any privacy rights. This obligation will survive the termination of the Services.

14. MODIFICATIONS TO OR DISCONTINUATION OF THE SERVICES.

WhizeKid reserves the right at any time and from time to time to modify, temporarily or permanently, the Services (or any part thereof) upon notice to you. WhizeKid also reserves the right at any time to discontinue, temporarily or permanently, the Services (or any part thereof) to any accounts not in good standing upon notice to you. You agree that WhizeKid shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Services.

15. TERMINATION OF THE SERVICES.

You agree that WhizeKid, in its sole discretion, may terminate your password, account (or any part thereof) or use of the Services, and remove and discard any Electronic Communications within the Services, for lack of use or if WhizeKid believes that you have violated or acted inconsistently with the letter or spirit of these TOS. WhizeKid may also in its sole discretion and at any time discontinue providing the Services, or any part thereof. You agree that any termination of your access to the Services under any provision of these TOS may be effected upon notice to you, and acknowledge and agree that thereafter WhizeKid may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files, the Services; however, in the event that your Services with WhizeKid terminates, WhizeKid will use commercially reasonable efforts to return your Data to you electronically, in an appropriate format selected by WhizeKid, as promptly as is reasonably possible after such termination, provided you have complied with the TOS and have paid in full all amounts owed to WhizeKid. Further, you agree that WhizeKid shall not be liable to you or any third party for any termination of your access to the Services; provided, however, that if the termination is unrelated to your acts or omissions WhizeKid will refund the pro rata portion of any fee that may have been paid by you for the portion of the Services not furnished to you as of the date of such termination.

16. LINKS

The Services may provide, or third parties may provide, links to other World Wide Web sites or resources. Because WhizeKid has no control over such sites and resources, you acknowledge and agree that WhizeKid is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any content, advertising, products, or other materials on or available from such sites or resources. You further acknowledge and agree that WhizeKid shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such site or resource.

17. NOTICES

Notices to you from WhizeKid may be made by either e-mail or regular mail. WhizeKid may provide notices of changes to the TOS, modification or termination of the Services or other matters by e-mail to you or by displaying notices or links to notices to you on the Services .

18. MODIFICATIONS

WhizeKid may modify the TOS upon notice to you. If WhizeKid sends you notice, via e-mail, posting on the Services or otherwise, of a modification, you confirm your acceptance of the modification by not closing and/or by continuing to use the Services .

19. GENERAL PROVISIONS
    
    The TOS constitute the entire agreement between you and WhizeKid and govern your use of the Services , superseding any prior agreements between you and WhizeKid with respect to the subject matter contained in the TOS. The TOS may only be modified or amended as set forth above in Section 24 or otherwise in a writing signed by WhizeKid and you. The TOS and the relationship between you and WhizeKid shall be governed by the laws of the State of California without regard to its conflict of law provisions. You and WhizeKid agree to submit to the personal and exclusive jurisdiction of the courts located within the county of Santa Clara, California. The failure of WhizeKid to exercise or enforce any right or provision of the TOS shall not constitute a waiver of such right or provision. If any provision of the TOS is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of the TOS shall remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Services or the TOS must be filed within one (1) year after such claim or cause of action arose or be forever barred. The Section titles in the TOS are for convenience only and have no legal or contractual effect.

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