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Terms of Service

Please read these Terms of Service (these "Terms") carefully. These Terms govern Nido Learning provision of software and services, and Customer's (as defined below) use thereof between Nido Learning Company, Inc. ("Nido Learning" or "we") and Customer.

You may use the Services only if you agree to form a binding contract with us and are not a person barred from receiving services under the laws of the applicable jurisdiction. If you are accepting these Terms and using the Services on behalf of a company, organization, government, or other legal entity, you represent and warrant that you are authorized to do so and have the authority to bind such entity to these Terms, in which case the words "you" and "your" as used in these Terms shall refer to such entity.

TOGETHER, THESE TERMS AND ANY ORDER FORM(S) CONSTITUTE THE "AGREEMENT." THE AGREEMENT IS EFFECTIVE AS OF THE ORDER FORM EFFECTIVE DATE (AS DEFINED AND SET FORTH IN THE INITIAL ORDER FORM). CAPITALIZED TERMS USED BUT NOT DEFINED HEREIN SHALL HAVE THE MEANINGS GIVEN TO THEM IN THE ORDER FORM.

BY EXECUTING AN ORDER FORM THAT INCORPORATES THESE TERMS BY REFERENCE AND/OR OTHERWISE USING THE SERVICES, THE INDIVIDUAL OR ENTITY OBTAINING THE RIGHT TO ACCESS SUCH SERVICES ("CUSTOMER" or "YOU") IS AGREEING TO BE BOUND BY AND IS A PARTY TO THIS AGREEMENT. IF THE INDIVIDUAL SIGNING THE ORDER FORM FOR CUSTOMER IS SIGNING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT HE OR SHE HAS THE AUTHORITY TO BIND THAT COMPANY OR OTHER LEGAL ENTITY. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, YOU MAY NOT ACCESS OR USE THE SERVICES.

CERTAIN ASPECTS OF THE SERVICES ARE PROVIDED WITH OR OTHERWISE COMPATIBLE WITH CERTAIN SERVICES OWNED OR CONTROLLED BY THIRD PARTIES. YOUR USE OF THOSE THIRD-PARTY SERVICES WILL BE GOVERNED BY THOSE LICENSES, AND NOT THIS AGREEMENT.

YOU MAY NOT ACCESS THE SERVICES IF YOU ARE A DIRECT COMPETITOR OF NIDO LEARNING COMPANY, EXCEPT WITH NIDO LEARNING'S PRIOR WRITTEN CONSENT. IN ADDITION, YOU MAY NOT ACCESS THE SERVICES FOR PURPOSES OF MONITORING THEIR AVAILABILITY, PERFORMANCE OR FUNCTIONALITY, OR FOR ANY OTHER BENCHMARKING OR COMPETITIVE PURPOSES.

1. DEFINITIONS

Capitalized terms will have the meanings set forth in this section, or in the section where they are first used.

  • "Access Protocols" means the passwords, access codes, technical specifications, connectivity standards or protocols, or other relevant procedures, as may be necessary to allow Customer or any Authorized Users to access the Nido Learning Solution.
  • "Applicable Data Protection Laws" means any applicable US state laws, regulations, orders, or judgments issued by a governmental authority that govern the privacy, security, confidentiality, protection, Processing or transfer of Personal Data.
  • "Authorized User" means each of Customer's employees, agents, and independent contractors who are authorized to access the Nido Learning Solution pursuant to Customer's rights under this Agreement.
  • "Customer Content" means any content and information provided or submitted by, or on behalf of, Customer or its Authorized Users for use with the Services.
  • "Documentation" means the technical materials provided by Nido Learning to Customer, if any, in hard copy or electronic form describing the use and operation of the Nido Learning Solution.
  • "Intellectual Property Rights" means any and all now known or hereafter existing (a) rights associated with works of authorship, including copyrights, mask work rights, and moral rights; (b) trademark or service mark rights; (c) trade secret rights; (d) patents, patent rights, and industrial property rights; (e) layout design rights, design rights, and other proprietary rights of every kind and nature other than trademarks, service marks, trade dress, and similar rights; and (f) all registrations, applications, renewals, extensions, or reissues of the foregoing, in each case in any jurisdiction throughout the world.
  • "Licensed Material" means results, reports, materials and documentation made available to Customer as part of the Services.
  • "Order Form" means an order form that is signed by both parties and references this Agreement.
  • "Personal Data" means any Customer Content, whether in electronic or paper-based form that constitutes "personal data," "personal information," or "personally identifiable information" or similar information governed by Applicable Data Protection Laws.
  • "Processing" means any operation or set of operations that is performed upon Personal Data, whether or not by automatic means, such as collection, collation, recording, organization, storage, adaptation or alteration, retrieval, consultation, analysis, interpretation, compilation, aggregation, use, disclosure by transmission, dissemination, viewing, copying, deleting, or otherwise making available, alignment or combination, blocking or erasure, or destruction.
  • "Professional Services" means professional services provided by Nido Learning to Customer as described in any Order Form, including services relating to the Nido Learning or RAVE-O and support, implementation, training, and on-boarding thereof.
  • "Services" means any services provided by Nido Learning to Customer under this Agreement as set forth in an Order Form, including, but not limited to, provision of the Nido Learning Solution and Professional Services.
  • "Nido Learning Solution" means the software-as-a-service application identified in any Order Form that allows Authorized Users to access certain features and functions through a web interface or mobile application.

2. PROVISION OF SERVICES

2.1 Access. Subject to Customer's payment of the fees set forth in the Order Form ("Fees"), Nido Learning will provide Customer with access to the Nido Learning Solution via a web browser. On or as soon as reasonably practicable after the Commencement Date, Nido Learning will provide to Customer the necessary passwords, security protocols and policies and network links or connections and Access Protocols to allow Customer and its Authorized Users to access the Nido Learning Solution in accordance with the Access Protocols; provided that nothing herein will be construed to require Nido Learning to provide, or bear any responsibility with respect to, any telecommunications or computer network hardware required by Customer or any Authorized User to access the Nido Learning Solution from the Internet.

2.2 Support Services. Subject to the terms and conditions of this Agreement, Nido Learning will exercise commercially reasonable efforts to (a) provide support for the use of the Nido Learning Solution to Customer, and (b) keep the Nido Learning Solution operational and available to Customer, in each case in accordance with its then-current standard policies and procedures.

3. INTELLECTUAL PROPERTY

3.1 License Grant. Subject to the terms and conditions of this Agreement, Nido Learning grants to Customer a non-exclusive, non-transferable license during the Term, solely for Customer's internal business purposes and in accordance with the limitations (if any) set forth in the Order Form, (a) to access and use the Nido Learning Solution and in accordance with the Documentation; and (b) to use and reproduce a reasonable number of copies of the Documentation solely to support Customer's use of the Nido Learning Solution.

3.2 Restrictions. Customer will not, and will not permit any Authorized User or other party to: (a) allow any third party to access the Nido Learning Solution, Licensed Material or Documentation, except as expressly allowed herein; (b) modify, adapt, alter or translate the Nido Learning Solution, Licensed Material or Documentation; (c) sublicense, lease, sell, resell, rent, loan, distribute, transfer or otherwise allow the use of the Nido Learning Solution or Documentation for the benefit of any unauthorized third party; (d) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code of the Nido Learning Solution, except as permitted by law; (e) interfere in any manner with the operation of the Nido Learning Solution or the hardware and network used to operate the Nido Learning Solution; (f) modify, copy or make derivative works based on any part of the Nido Learning Solution or Documentation; (g) access or use the Nido Learning Solution to build a similar or competitive product or service; (h) attempt to access the Nido Learning Solution through any unapproved interface; or (i) otherwise use the Nido Learning Solution, Licensed Material, or Documentation in any manner that exceeds the scope of use permitted under Section 3 or in a manner inconsistent with applicable law, the Documentation, or this Agreement.

3.3 Ownership. The Nido Learning Solution, Licensed Materials and Documentation, and all enhancements and improvements thereto, and worldwide Intellectual Property Rights in each of the foregoing, are the exclusive property of Nido Learning and its suppliers. All rights in and to the Nido Learning Solution and Documentation not expressly granted to Customer in this Agreement are reserved by Nido Learning and its suppliers.

3.4 License to Licensed Material. Subject to the terms and conditions of this Agreement, Nido Learning grants Customer a perpetual, royalty-free, fully-paid, nonexclusive, non-transferable, non-sublicensable license to use the Licensed Material solely for Customer's internal business purposes.

3.5 Open Source Software. Certain items of software may be provided to Customer with the Nido Learning Solution and are subject to "open source" or "free software" licenses ("Open Source Software"). The Open Source Software is not subject to the terms and conditions of Sections 3.3 or 11. Instead, each item of Open Source Software is licensed under the terms of the end-user license that accompanies such Open Source Software.

3.6 Feedback. Customer hereby grants to Nido Learning a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by Customer relating to the Services.

4. FEES AND EXPENSES; PAYMENTS

4.1 Fees. In consideration for the access rights granted to Customer and the Services performed by Nido Learning under this Agreement, Customer will pay to Nido Learning the Fees. Except as otherwise provided in the Order Form, all Fees are billed monthly and due and payable within thirty (30) days of the date of the invoice.

4.2 Payment Processing. From time to time Nido Learning may use certain third parties to provide payment services. By selecting certain billing and/or payments features, Customer agrees to comply with the terms and conditions and policies of the Payment Processors used by Nido Learning.

4.3 Taxes. The Fees are exclusive of all applicable sales, use, value-added and other taxes, and all applicable duties, tariffs, assessments, export and import fees, or other similar charges, and Customer will be responsible for payment of all such taxes.

4.4 Interest. Any amounts not paid when due will bear interest at the rate of one and one half percent (1.5%) per month, or the maximum legal rate if less, from the due date until paid.

5. CUSTOMER CONTENT AND RESPONSIBILITIES

5.1 License; Ownership. Customer is solely responsible for any and all obligations with respect to the accuracy, quality and legality of Customer Content. Customer will obtain all third party licenses, consents and permissions needed for Nido Learning to collect, access, use, and otherwise Process the Customer Content to provide the Services.

5.2 Customer Warranty. Customer represents and warrants that any Customer Content will not (a) infringe any copyright, trademark, or patent; (b) misappropriate any trade secret; (c) be deceptive, defamatory, obscene, pornographic or unlawful; (d) contain any viruses, worms or other malicious computer programming codes; and (e) otherwise violate the rights of a third party.

5.3 Customer Responsibility for Data and Security. Customer and its Authorized Users will have access to the Customer Content and will be responsible for all changes to and/or deletions of Customer Content and the security of all passwords and other Access Protocols.

5.4 Customer Responsibility for Operating its Own Business. Customer acknowledges that it, and not Nido Learning, is responsible for operating Customer's own business, including with respect to obtaining all licenses, permits and other governmental registrations to enable its use of the Services.

6. PROFESSIONAL SERVICES

Where the parties have agreed to Nido Learning's provision of Professional Services, the details of such Professional Services will be set out in an Order Form or a mutually executed statement of work ("SOW"). 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.

7. DATA SECURITY; PRIVACY

7.1 Data Security. During the Term, Nido Learning will maintain commercially reasonable safeguards and procedures designed to prevent the unauthorized use or disclosure of Personal Data. During the Term, Nido Learning will maintain commercially reasonable physical, administrative and technical security measures designed to maintain the availability, integrity and confidentiality of Personal Data.

7.2 Privacy. Each party shall comply with all Applicable Data Protection Laws in the performance of their respective obligations under this Agreement with respect to the Processing of Personal Data. The sale, retention, use or disclosure of Personal Data shall be governed by this Agreement and, as applicable, Nido Learning's Privacy Policy.

7.3 Additional Agreements. To the extent that Nido Learning or Customer reasonably determine that Applicable Data Protection Laws require the parties to execute any additional agreements governing Personal Data, the parties agree to negotiate in good faith with respect to such additional agreements.

8. DISCLAIMER

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES, LICENSED MATERIAL AND DOCUMENTATION ARE PROVIDED "AS IS," WITHOUT ANY CONDITION OR WARRANTY WHATSOEVER. THE ENTIRE RISK ASSOCIATED WITH THE USE OF THE SERVICES RESIDES WITH CUSTOMER. NIDO LEARNING EXPRESSLY DISCLAIMS ALL OTHER REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, NON-INTERFERENCE AND/OR QUIET ENJOYMENT, SYSTEM INTEGRATION, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND DATA ACCURACY. NIDO LEARNING DOES NOT WARRANT THAT OPERATION OF THE NIDO LEARNING SOLUTION WILL BE UNINTERRUPTED OR ERROR-FREE.

9. LIMITATION OF LIABILITY

9.1 Types of Damages. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

9.2 Amount of Damages. THE MAXIMUM LIABILITY OF EITHER PARTY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT WILL NOT EXCEED THE FEES PAID BY CUSTOMER TO NIDO LEARNING DURING THE TWELVE (12) MONTHS PRECEDING THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY.

9.3 Basis of the Bargain. The parties agree that the limitations of liability set forth in this Section 9 will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy.

10. CONFIDENTIALITY

10.1 Confidential Information. "Confidential Information" means any nonpublic information of a party (the "Disclosing Party"), whether disclosed orally or in written or digital media, that is identified as "confidential" or with a similar legend at the time of such disclosure or that the receiving party knows or should have known is the confidential or proprietary information of the Disclosing Party.

10.2 Protection of Confidential Information. The Receiving Party agrees that it will not use or disclose to any third party any Confidential Information of the Disclosing Party, except as expressly permitted under this Agreement.

10.3 Exceptions. The confidentiality obligations set forth in Section 10.2 will not apply to any information that (a) is at the time of disclosure or becomes generally available to the public through no fault of the Receiving Party; (b) is lawfully provided to the Receiving Party by a third party free of any confidentiality duties or obligations; (c) was already known to the Receiving Party at the time of disclosure; or (d) was independently developed by employees and contractors of the Receiving Party who had no access to the Confidential Information.

11. INDEMNIFICATION

11.1 By Nido Learning. Nido Learning will defend at its expense any suit brought against Customer, and will pay any settlement Nido Learning makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim by any third party alleging that the Nido Learning Solution infringes such third party's patents, copyrights or trade secret rights under applicable laws of any jurisdiction within the United States of America.

11.2 By Customer. Customer will defend at its expense any suit brought against Nido Learning, and will pay any settlement Customer makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim arising out of or relating to Customer's breach of this Agreement.

11.3 Procedure. The indemnifying party's obligations as set forth above are expressly conditioned upon: (a) the indemnified party will promptly notify the indemnifying party in writing of any threatened or actual claim or suit; (b) the indemnifying party will have sole control of the defense or settlement of any claim or suit; and (c) the indemnified party will cooperate with the indemnifying party to facilitate the settlement or defense of any claim or suit.

12. TERM AND TERMINATION

12.1 Term. This Agreement will begin on the Order Form Effective Date and continue in full force and effect as long as any Order Form remains in effect, unless earlier terminated in accordance with this Agreement.

12.2 Termination for Breach. Either party may terminate this Agreement immediately upon notice to the other party if 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.

12.3 Effect of Termination. Upon termination or expiration of this Agreement for any reason: (a) all licenses granted hereunder will immediately terminate; (b) promptly after the effective date of termination or expiration, each party will comply with the obligations to return all Confidential Information of the other party; and (c) any amounts owed to Nido Learning under this Agreement will become immediately due and payable.

12.4 Data Extraction. For twenty (20) days after the end of the Term, Nido Learning will make Customer Content available to Customer through the Nido Learning Solution on a limited basis solely for purposes of Customer retrieving Customer Content.

13. MISCELLANEOUS

13.1 Governing Law and Venue. This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of Delaware, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction.

13.2 Export. Customer agrees not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from Nido Learning, or any products utilizing such data, in violation of the United States export laws or regulations.

13.3 Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable.

13.4 Waiver. 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.

13.5 No Assignment. Neither party will assign, subcontract, delegate, or otherwise transfer this Agreement without obtaining the prior written consent of the other party.

13.6 Compliance with Law. Customer will, and will ensure that all Authorized Users, always comply with all foreign and domestic laws, ordinances, regulations, and statutes that are applicable to its purchase and use of the Services.

13.7 Force Majeure. Any delay in the performance of any duties or obligations of either party (except the payment of Fees owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, or any other event beyond the control of such party.

13.8 Independent Contractors. Customer's relationship to Nido Learning is that of an independent contractor, and neither party is an agent or partner of the other.

13.9 Notices. All notices required or permitted under this agreement must be delivered in writing to david@Nidolearning.com.

13.10 Entire Agreement. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matters hereof and supersedes and merges all prior discussions between the parties with respect to such subject matters.