SCHOOLDIGGER.COM

API License Agreement

 (Rev1.0 02-17)

IMPORTANT – Read carefully before submitting your Order for SchoolDigger APIs or API Keys. You may not access or use the APIs to which this API License Agreement applies unless you agree to all of the terms and conditions of this API License Agreement.

This API License Agreement (this “Agreement”) is a legal agreement between the entity by whom you are employed, or whom you represent (“Developer”), and Claarware LLC, d/b/a SchoolDigger.com (“SchoolDigger”), regarding the use of the SchoolDigger APIs identified in an “Order” (defined below) to this Agreement.

• BY INDICATING YOUR ASSENT TO THIS AGREEMENT (FOR EXAMPLE, BY SUBMITTING AN ORDER THAT REFERENCES THIS AGREEMENT, OR BY INDICATING YOUR AGREEMENT BY CLICKING ON AN “ACCEPT”, “AGREE” OR SIMILAR BUTTON, OR CHECKING A BOX INDICATING YOUR AGREEMENT TO THESE TERMS, IN A WEB FORM OR AS PART OF YOUR ACCESS TO SCHOOLDIGGER APIS OR AN ACTIVATION KEY, YOU ARE REPRESENTING AND AGREEING THAT: (1) YOU HAVE THE AUTHORITY TO BIND THE ENTITY BY WHOM YOU ARE EMPLOYED, OR WHOM YOU REPRESENT, TO THIS AGREEMENT; AND (2) THE ENTITY BY WHOM YOU ARE EMPLOYED, OR WHOM YOU REPRESENT, WILL BE BOUND BY, AND BECOMES A PARTY TO THIS AGREEMENT.
• IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, (1) YOU MAY NOT SUBMIT THE ORDER, OR INDICATE YOUR ASSENT IN A WEB FORM OR AS PART OF THE ACCESS PROCESS, AND (2) YOU MAY NOT ACCESS, USE OR DISPLAY THE SCHOOLDIGGER APIS.

 

1.       Defined Terms

For purposes of this Agreement, the following capitalized words and phrases are ascribed the following meanings: 

“API Key” means a unique string identifying an SchoolDigger API user (e.g., you) that is passed to SchoolDigger in an SchoolDigger API request.

“Developer Application” means any client of a SchoolDigger API, including a web site, mobile application or desktop application.

“Developer” “you” and “your” mean the name of the individual who completed and submitted an Order for API Keys, together with any company or other entity such individual is acting on behalf of.

“Developer Site” means the web site(s) indicated in your Order under “URL of Site.”

“Documentation” means the SchoolDigger API user manuals and other SchoolDigger API documentation, including additional, updated or revised documentation, if any, supplied to Developer by SchoolDigger.

“End Users” means the individuals who view and/or use your Developer Application.

“Intellectual Property Rights” means all trade secrets, patents and patent applications, trade marks (whether registered or unregistered and including any goodwill acquired in such trade marks), service marks, trade names, copyrights, moral rights, database rights, design rights, rights in know-how, rights in confidential information, rights in inventions (whether patentable or not), rights in data, and all other intellectual property and proprietary rights (whether registered or unregistered, any application for the foregoing, and all rights to enforce the foregoing), and all other equivalent or similar rights which may subsist anywhere in the world.

“License” means a license to access and use a SchoolDigger API to the extent and within the scope of the applicable Order, the Scope Limitations and this Agreement.

“License Term” means the term of each License, as specified in Section 11 of this Agreement and the applicable Order.

“Order” means a completed version of SchoolDigger’s order form for a SchoolDigger API that has been processed and accepted by SchoolDigger. Each Order will specify: (i) a description of the SchoolDigger API to be licensed, (ii) a description of the SchoolDigger API to be accessed, (iii) the Scope Limitations applicable to the License of the SchoolDigger API, and (iv) the License Term and, (v) the fees to be paid to SchoolDigger for each SchoolDigger API. Each Order is incorporated into this Agreement upon its acceptance by SchoolDigger.

“Scope Limitations” means the license metrics and other scope limitations applicable to Developer’s license rights to access and use the SchoolDigger APIs, as specified in the applicable Order.

“SchoolDigger API” means a set of JSON/HTTP(s)-based services providing programmatic access to certain databases created, operated, maintained and updated by SchoolDigger and provided or made available to Developer.

“SchoolDigger Databases” means the databases, data and other content and materials made available by SchoolDigger through the SchoolDigger API.

“SchoolDigger Marks” means SchoolDigger’ trademarks, trade names, service marks and logos.

“SchoolDigger Materials” mean the SchoolDigger API, SchoolDigger Marks, SchoolDigger Databases and the Documentation.

“SchoolDigger Web Site” means the web site located at http://www.SchoolDigger.com.

The following words will be interpreted as designated: (i) “or” connotes any combination of all or any of the items listed; (ii) where “including” is used to refer to an example or begins a list of items, such example or items will not be exclusive; (iii) “specified” requires that an express statement is contained in the relevant document; and (iv) “will” is an expression of command, not merely an expression of future intent or expectation.

2.       Access to SchoolDigger APIs.

2.1.    Access. To access the SchoolDigger APIs, you must complete the Order for API Keys.

2.2.    Changes. SchoolDigger reserves the right to change the contents of the SchoolDigger APIs and SchoolDigger Databases, including categories of data, from time to time in its sole discretion without notice to you. SchoolDigger also reserves the right to modify the functionality of any SchoolDigger API at any time.

3.       License and Ownership Rights.

3.1.    License. Subject to the terms and conditions of this Agreement, including the Scope Limitations, and conditioned on SchoolDigger’ acceptance of your Order, SchoolDigger hereby grants you a limited, non-exclusive, non-transferable license during the License Term, without right to sublicense, to access and use the SchoolDigger Materials, solely via the SchoolDigger APIs, solely in conjunction with the Developer Application, and solely in connection with the exercise of your rights under this Agreement (the “License”).  The provisions of this Agreement will be applicable to all updates, revisions or substitutions of the SchoolDigger API, and any copies of the SchoolDigger API made by or for you. All rights not expressly granted to you are reserved by SchoolDigger. Without limiting the foregoing, SchoolDigger grants no rights to display any SchoolDigger Database, but only to access and use the SchoolDigger APIs, in conjunction with the Developer Application, to return results from the SchoolDigger Databases.

3.2.    SchoolDigger Proprietary Rights. As between SchoolDigger and Developer, SchoolDigger will be the sole owner of all Intellectual Property Rights in or to the SchoolDigger Materials, and any derivative works of or improvements or enhancements to any of the foregoing created or conceived by or on behalf of SchoolDigger, or other than in accordance with this Agreement. Developer acknowledges and agrees that (i) SchoolDigger has selected, coordinated and arranged each SchoolDigger API such that it constitutes an original work protected under U.S. and other copyright laws, (ii) the SchoolDigger APIs and the Documentation are protected by copyright, (iii) the SchoolDigger Materials and all technical data and information associated therewith constitute trade secrets and are the valuable property of SchoolDigger and its licensors, and (iv) the SchoolDigger Materials are protected by trademark laws. Developer will not remove, obscure or alter any notice of copyright, patent, trade secret, trademark or other proprietary right or disclaimer appearing in or on any SchoolDigger Materials.

3.3.    Restrictions on Reverse Engineering, Etc. Developer represents and covenants that it will not: (i) except to the extent (if any) permitted by applicable law, reverse engineer any SchoolDigger Materials; (ii) use any SchoolDigger Materials to associate, or attempt to associate any data with any individual person; (iii) use any SchoolDigger Materials to develop, promote, operate or maintain any business activity that competes with SchoolDigger’s database services, or data-based publications (including the SchoolDigger.com websites); nor (iv) resell, assign, transfer, disclose, distribute, or otherwise publish or  dispose of any SchoolDigger API (including any data forming part of the database) to any third party, other than to the extent expressly permitted in this Agreement and the applicable Order.

3.4.    Suggestions. If Developer provides SchoolDigger with any suggested improvements or enhancements to any SchoolDigger Materials (“Suggestions”), then Developer also hereby grants SchoolDigger a non-exclusive, perpetual, irrevocable, paid-up, royalty-free, worldwide, transferable license, with right to sublicense, to make, have made, sell, offer for sale, use, import, reproduce, distribute, display, perform, and make derivative works of the Suggestions.

4.       Fees.

4.1.    Payment of Fees. Developer will pay SchoolDigger the fees for the License to the SchoolDigger Materials (collectively, “Fees”), when and as specified in the applicable Order, by credit card.

4.2.    Sales Taxes, Etc. Developer will pay SchoolDigger for any applicable sales, use, or any value added or similar taxes (“Sales Taxes”) payable with respect to the licensing of the SchoolDigger Materials to Developer, or otherwise arising out of or in connection with this Agreement, other than taxes based upon SchoolDigger’s personal property ownership or net income. SchoolDigger will remit Sales Taxes paid by Developer to the applicable taxing authority. Unless expressly specified otherwise in any Order, all Fees, rates and estimates exclude Sales Taxes. If Developer has tax-exempt status, Developer will provide written evidence of such status with each Order and otherwise upon request by SchoolDigger.

5.       SchoolDigger’s Warranties.

SchoolDigger warrants to Developer that:

5.1.    Performance. The SchoolDigger API, in the form delivered by SchoolDigger to Developer, will perform in all material respects in accordance with its applicable specifications set forth in the Documentation during the License Term.

5.2.    Viruses and Lock-Outs. SchoolDigger will use all commercially reasonable efforts, using then current versions of industry standard anti-virus software, to ensure that the SchoolDigger API as delivered by SchoolDigger to Developer under this Agreement contains no computer virus, Trojan horse, worm or other similar malicious code.

5.3.    Infringement. The SchoolDigger API, in the form delivered by SchoolDigger to Developer, does not to SchoolDigger’s knowledge infringe or result from any misappropriation by SchoolDigger of any Intellectual Property Rights of any third party existing under the laws of the United States (the “SchoolDigger Infringement Warranty”).

5.4.    Bugs and Abatement; Scope. Without limiting the foregoing, SchoolDigger does not warrant that the SchoolDigger API is free from all bugs, errors, or omissions. The warranties in this Section 5 will automatically abate to the extent that the SchoolDigger API has been (i) damaged or modified by persons other than SchoolDigger’s authorized employees or representatives, or other than at SchoolDigger’s express direction, or (ii) combined with other software or hardware by any such persons, to the extent that SchoolDigger has not provided in the Documentation that such software or hardware is compatible with the SchoolDigger API, or otherwise so agreed in writing. The warranties in this Agreement are for the sole benefit of Developer, and may not be extended to any other person or entity.

5.5.    Performance Remedy. If any SchoolDigger API fails to conform to the warranty set forth in Section 5.1 and Developer provides written notice of the non-conformance to SchoolDigger within the warranty period then, as Developer’s exclusive remedy and SchoolDigger’s sole obligation: SchoolDigger will either repair or, at its option, replace the non-conforming SchoolDigger API with a functionally equivalent SchoolDigger API or, if SchoolDigger is unable to correct the non-conformance within thirty (30) days of receipt of such written notice from Developer, then Developer may terminate the applicable Order insofar as it applies to the non-conforming SchoolDigger API, and SchoolDigger will refund to Developer a pro-rata amount of any prepaid Fees applicable to the unutilized portion of the License Term for the terminated portion of the Order.

5.6.    Infringement Remedy. Developer’s exclusive remedy and SchoolDigger’s sole obligation for any non-conformance with the warranty in Section 5.3 above will be SchoolDigger’s defense and indemnification obligations under Section 8 below.

6.       Developer Representations and Warranties.

Developer represents and warrants that it has full power and authority to enter into this Agreement and that, as of the time it submits its Order, and for the duration of its use of the SchoolDigger APIs:

6.1.    It is in compliance with all applicable laws, rules and regulations, if any, related to the performance of its obligations under this Agreement and the operation of the Developer Application;

6.2.    It owns or has all necessary rights to develop, exploit and process the Developer Application, and any content or data, processed thereby (excluding for these purposes the SchoolDigger Materials);

6.3.    None of the content or data processed by the Developer Application is defamatory, constitutes obscenity, or violates any law or regulation, any right of any person, including any intellectual property rights, data protection rights, rights of privacy or publicity;

6.4.    None of the content or data on the Developer Application constitutes or results in any consumer fraud, product liability, breach of contract to which Developer is a party, or will cause personal injury to any third party;

6.5.    The Developer Application does not contain or directly link to any objectionable material, as determined by SchoolDigger in its sole discretion, but which includes pornography, obscene language or other obscene content, or support for violent or hate groups, or content that is abusive, illegal, hateful, harmful, harassing, or racially or ethnically discriminatory; and

6.6.    The Developer Application is not an incentive-based web site, such as a lottery or sweepstakes site which rewards End Users for clicking on links.

7.       Developer Covenants.

Developer acknowledges, covenants and agrees that:

7.1.    Access to the SchoolDigger API and other SchoolDigger Materials will be solely through the Developer Application and displayed only to End Users. The SchoolDigger API results will not be permitted or facilitated through any other web site or means, whether under Developer’s ownership and control or otherwise. No sub-licensing, re-packaging, or other use (including “service bureau” use) is permitted.

7.2.    Each Developer Application must (i) represent a significant value enhancement to the SchoolDigger Materials, (ii) in comparison with the SchoolDigger Materials, constitute the predominance of the functionality offered to End Users, (iii) not expose or, directly or indirectly, pass through any APIs to the SchoolDigger Materials, and (iv) only permit End Users to access the functionality of the SchoolDigger Materials through such application. Developer is solely responsible for maintaining compatibility between updated versions of the SchoolDigger Materials and the Developer Application.

7.3.    Developer will comply with all representations, warranties and covenants that were or will be made by it to SchoolDigger to induce SchoolDigger to provide Developer with access to the SchoolDigger Materials, including the descriptions of how the Developer Application will use the SchoolDigger APIs.

7.4.    Queries to the SchoolDigger API must contain all required parameters.

7.5.    SchoolDigger may limit the number API queries that may be submitted by each Developer Application per day.

7.6.    Developer may cache and thus store data from the SchoolDigger APIs on its system for up to 24 hours, after which such cached SchoolDigger data must be purged. Subject to that exception, Developer has no rights to, and Developer will not copy, store or archive, or display or distribute to any third party (other than to End Users as specified in this Agreement) any SchoolDigger Databases or portions thereof. Developer agrees that any cached portions of the SchoolDigger Databases will be used by Developer only for the purpose of populating the Developer Application.

7.7.    Developer will not alter or modify any SchoolDigger Databases.

7.8.    Developer will not sell, lease, share, transfer, or sublicense the SchoolDigger API Keys, whether for direct commercial or monetary gain or otherwise, without SchoolDigger’ prior, express, written permission.

7.9.    Developer will ensure that each End User complies with the restrictions to which Developer is subject under this Agreement affecting SchoolDigger Materials. Developer will be responsible for any act or omission of any End User relating to or in connection with this Agreement as though it were Developer’s own.

7.10.      Developer will not use the SchoolDigger APIs in connection with the distribution or display of any malware.

7.11.      Developer will ensure that the use or display of the SchoolDigger Materials does not suggest that SchoolDigger promotes or endorses Developer or any third party or the causes, ideas, web sites, products or services of Developer or any third party.

8.       Indemnification.

8.1.    By SchoolDigger. If any third party makes any claim against Developer that, if true, would constitute a non-conformance by SchoolDigger with SchoolDigger Infringement Warranty (a “SchoolDigger Infringement”) then, upon notification of such claim, SchoolDigger will, at its sole cost and expense, defend Developer against such claim and any related proceeding brought by such third party against Developer. Upon the occurrence of a “Determination Against SchoolDigger” (defined below), SchoolDigger will indemnify Developer from and against any and all losses, damages, costs and expenses (including taxes, fees, fines, penalties, and interest) reasonably and actually incurred by Developer and resulting from the SchoolDigger Infringement. SchoolDigger’s obligations under this Section 8.1 are subject to Developer’s compliance with the “Indemnification Conditions” (defined below).

      “Determination Against SchoolDigger” means a determination by the tribunal conducting the proceeding that a SchoolDigger Infringement occurred, the issuance of an interim order by any such tribunal restricting or prohibiting Developer’s use of the SchoolDigger Materials as a result of an alleged SchoolDigger Infringement, or consummation of a settlement between SchoolDigger and the third party in which SchoolDigger agrees to pay compensation to the third party for a SchoolDigger Infringement.

    “Indemnification Conditions” means the following obligations of a party entitled to defense and/or indemnification under this Agreement: (i) the indemnified party notifies the indemnifying party in writing of any claim that might be the subject of indemnification promptly after any executive officer of the indemnified party or member of the indemnified party’s legal department first knows of the claim, provided, however, that no failure to so notify an indemnifying party will relieve the indemnifying party of its obligations under this Agreement except to the extent that such failure materially prejudices defense of the claim, and except to the extent of damages incurred by the indemnifying party as a result of the delay; (ii) the indemnifying party is given primary control over the defense and settlement of the claim (subject to the foregoing, the indemnified party may nonetheless participate in the defense at its sole cost and expense); (iii) the indemnified party makes no admission of liability (except as required by applicable law) nor enters into any settlement without the indemnifying party’s prior written agreement; (iv) the indemnified party provides such assistance in defense of the proceeding as the indemnifying party may reasonably request, at the indemnifying party’s reasonable expense; and (v) the indemnified party complies with any court order or reasonable settlement made in connection with the proceeding.

8.2.    SchoolDigger’s Mitigation Rights. If use of any SchoolDigger Materials is, or in SchoolDigger’s reasonable opinion is likely to become, the subject of a claim of infringement of any Intellectual Property Right of any third party, then SchoolDigger may: (i) procure the continuing right for Developer to use the SchoolDigger Materials; (ii) replace or modify the SchoolDigger Materials in a functionally equivalent manner so that it no longer infringes; or (iii) if the rights under (i) and (ii) above are not available on terms that are commercially reasonable for SchoolDigger, terminate the applicable Order insofar as it applies to the infringing SchoolDigger Materials and refund to Developer a pro-rata amount of any prepaid Fees applicable to the unutilized portion of the License Term for the terminated portion of the Order.

8.3.    Exclusions. Notwithstanding the foregoing, SchoolDigger will have no obligation under this Section 8 or otherwise with respect to any infringement or misappropriation claim to the extent based upon (a) any use of the SchoolDigger Materials not in accordance with this Agreement or the Documentation, (b) any use of the SchoolDigger Materials in combination with other products, software, services or data not supplied by SchoolDigger to the extent the infringement would not have occurred but for such combination, (c) any use of any release of the SchoolDigger Materials other than the most current release made available to Developer after notice from SchoolDigger that Developer must upgrade to such release to avoid an infringement or misappropriation claim and Developer has had a reasonable time (not to exceed 15 days) in which to implement the upgrade, (d) any open source software forming part of the SchoolDigger Materials, (e) any modification of the SchoolDigger Materials not made by SchoolDigger or at its express direction, or (f) any data not provided by SchoolDigger.

8.4.    By Developer. Developer will defend, indemnify and hold SchoolDigger and its members, managers, officers, employees, agents, representatives, successors and assigns, harmless from and against any and all losses, costs, claims, liabilities, damages, fines, penalties, suits, actions or expenses (including  reasonable attorneys’ fees) arising from or in connection with (i) any breach of Developer’s representations, warranties or covenants, or its performance or failure to perform any of its obligations under this Agreement, (ii) the use by Developer of the SchoolDigger Materials (other than any such claim that any of the SchoolDigger Materials violate the intellectual property rights of a third party), or (iii) the Developer Application. SchoolDigger will comply with the Indemnification Conditions.

9.       Disclaimer of Implied Warranties.

EXCEPT AS EXPRESSLY WARRANTED IN THIS AGREEMENT, EACH PARTY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. For clarity, SchoolDigger makes no representation or warranty that the operation of the SchoolDigger API, the SchoolDigger Website, or the SchoolDigger Databases will be uninterrupted or error-free, or that the SchoolDigger Databases are or will be complete, accurate or error-free. SchoolDigger will not be liable for the consequences of any interruptions or errors.

10.   Exclusion of Consequential Damages; Limitation of Liability.

10.1.      IN NO EVENT WILL SCHOOLDIGGER BE LIABLE TO DEVELOPER, ITS END USERS, OR TO ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR EXEMPLARY DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE (INCLUDING DAMAGES FOR LOSS OF DATA, GOODWILL, PROFITS, INVESTMENTS, USE OF MONEY OR USE OF FACILITIES; INTERRUPTION IN USE OR AVAILABILITY OF DATA; STOPPAGE OF OTHER WORK OR IMPAIRMENT OF OTHER ASSETS), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF (i) THE PERFORMANCE OR NON-PERFORMANCE OF THIS AGREEMENT OR DATA, PRODUCTS OR SERVICES PROVIDED HEREUNDER, OR (ii) ANY CLAIM, CAUSE OF ACTION, BREACH OF CONTRACT OR ANY EXPRESS OR IMPLIED WARRANTY, UNDER THIS AGREEMENT OR OTHERWISE, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORT.

10.2.      SchoolDigger’s entire liability arising out of this Agreement will in no event exceed the fees paid by Developer to SchoolDigger under the Order giving rise to the claim during the one month period immediately preceding Developer’s first assertion of any claim against SchoolDigger, regardless of whether any action or claim is based in contract, misrepresentation, warranty, indemnity, negligence, strict liability or other tort or otherwise.

10.3.      Developer agrees that the exclusions and limitations specified in this Agreement apply even if the remedies are insufficient to cover all of Developer’s losses or damages, or fail of their essential purpose and that without these limitations the fees for access to and use of the SchoolDigger APIs and SchoolDigger Materials would be significantly higher.

11.   Term and Termination.

11.1.      Term – Orders. The License Term for each Order will commence on the date the Order is processed and accepted by SchoolDigger and will continue until expiration of the License Term specified in the Order, unless sooner terminated in accordance with this Agreement.

11.2.      Developer’s Termination For Convenience. Developer may terminate any Order for convenience following expiration of all minimum terms specified in the Order. If Developer terminates any Order under this Section 11.2, Developer will not be entitled to any refund of or relief from fees paid or payable under such Order.

11.3.      Termination for Cause. If either party materially breaches any of its obligations under this Agreement and fails to cure such breach within thirty (30) days from the date it receives from the non-breaching party a notice of the breach and a demand for cure, then the non-breaching party may thereafter terminate all or any affected Orders or Licenses immediately on notice. Without limiting the foregoing, Developer’s failure to pay fees and expenses owed by Developer to SchoolDigger within five (5) days of their due date, and Developer’s non-conformance with any of its representations, warranties and covenants under this Agreement, will each constitute a material breach of the applicable Order or License. If Developer has not cured a material breach within the applicable cure period then, until Developer has cured the breach in full, SchoolDigger may, in its sole discretion, and without prejudice to its other rights following material breach and failure to cure, do any or all of the following: (i) suspend performance of some or all of SchoolDigger’s obligations under the applicable Order; (ii) suspend the Licenses granted pursuant to the applicable Order; and (iii) deactivate any API Keys issued to Developer. Notice of termination for any Order will not be interpreted to be notice of termination for any other Order.

11.4.      Obligations on Termination. Upon any termination or expiration of a License, Developer will destroy all copies of the affected SchoolDigger Materials within its custody or control within twenty (20) days of such termination. Developer will certify such destruction to SchoolDigger upon request.

11.5.      Effect of Termination. No expiration or termination of this Agreement or of any Order will relieve Developer of its obligation to pay any amounts accruing under such Order prior to such expiration or termination.

11.6.      Survival. The provisions of Sections 1, 3.2-3.4, 6-10, 11.4-11.6 and 12-13 of this Agreement, will survive any termination or expiration of this Agreement.

12.   Dispute Resolution.

12.1.      Governing Law. This Agreement will be governed by and interpreted in accordance with the internal laws of the State of Washington, and, where such laws are preempted by the laws of the United States, by the internal laws of the United States, in each case without regard to (a) conflicts of laws principles, and (b) the applicability, if any, of the United Nations Convention on Contracts for the International Sale of Goods.

12.2.      Venue and Jurisdiction. In the event of any controversy or claim arising out of or relating to this Agreement, or the breach or interpretation thereof, the parties will submit to the exclusive jurisdiction of and venue in the State courts of Washington located in Seattle, Washington, or the Federal District Court for the Western District of Washington, and appeal courts therefrom. Each party hereby waives all defenses of lack of personal jurisdiction and forum non conveniens. Process may be served on either party in the manner authorized by applicable law or court rule.

12.3.      Legal Expenses. If any proceeding is brought by either party to enforce or interpret any term or provision of this Agreement, the substantially prevailing party in such proceeding will be entitled to recover, in addition to all other relief arising out of this Agreement, such party's reasonable attorneys' and other experts' (including without limitation accountants) fees and expenses.

13.   Miscellaneous Provisions.

13.1.      Publicity; References. Provided that SchoolDigger complies with any trademark usage requirements notified to it by Developer, SchoolDigger may refer to Developer as one of SchoolDigger's Developers and use Developer's logo as part of such reference.

13.2.      Equitable Relief. Each of Developer and SchoolDigger acknowledges that damages will be an inadequate remedy if the other violates the terms of this Agreement pertaining to protection of Intellectual Property Rights. Accordingly, each of them will have the right, in addition to any other rights each of them may have, to obtain in any court of competent jurisdiction, temporary, preliminary and permanent injunctive relief to restrain any breach, threatened breach, or otherwise to specifically enforce any of the related rights and obligations in this Agreement.

13.3.      Force Majeure. If the performance of this Agreement is adversely restricted or if either party is unable to conform to any warranty by reason of any circumstances beyond the reasonable control and without the fault or negligence of the party affected, then, except with respect to obligations to pay Fees, the party affected, upon giving prompt written notice to the other party, will be excused from such performance on a day-to-day basis to the extent of such restriction (and the other party will likewise be excused from performance of its obligations on a day-to-day basis to the extent such party's obligations relate to the performance so restricted); provided, however, that the party so affected will use all commercially reasonable efforts to avoid or remove such causes of non-performance and both parties will proceed whenever such causes are removed or cease.

13.4.      Captions and Headings. The captions and headings are inserted in this Agreement for convenience only, and will not be deemed to limit or describe the scope or intent of any provision of this Agreement.

13.5.      Severability; Invalidity. If any provision of this Agreement is held to be invalid, such invalidity will not render invalid the remainder of this Agreement or the remainder of which such invalid provision is a part. If any provision of this Agreement is so broad as to be held unenforceable, such provision will be interpreted to be only so broad as is enforceable.

13.6.      Waiver. No waiver of or with respect to any provision of this Agreement, nor consent by a party to the breach of or departure from any provision of this Agreement, will in any event be binding on or effective against such party unless it be in writing and signed by such party, and then such waiver will be effective only in the specific instance and for the purpose for which given.

13.7.      Third Party Beneficiaries. Except as expressly set forth in this Agreement, no provisions of this Agreement are intended nor will be interpreted to provide or create any third party beneficiary rights or any other rights of any kind in any other party; provided, however, that SchoolDigger's suppliers of products and services delivered hereunder will enjoy the same disclaimers of warranty, limitations on liability and similar exculpatory provisions with respect to such products and services as does SchoolDigger.

13.8.      Assignment. Neither party may assign any of its rights under this Agreement without the prior written consent of the other, which will not be unreasonably withheld; provided, however, that either party may, without the other party’s consent, and upon notice to the other party, assign its rights under this Agreement to any entity into or with which it is merged, or that acquires all or substantially all of its assets. Subject to the foregoing restriction on assignment, this Agreement will be binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns. SchoolDigger may assign all or any of its rights to enforce this Agreement to any licensor of SchoolDigger.

13.9.      U.S. Government Rights In The SchoolDigger API. The SchoolDigger API is “Commercial Computer Software” for purposes of acquisition by or on behalf of the U.S. Government. If Developer is acquiring this Commercial Software on behalf of the U.S. Government, the following provisions apply: (i) if this Commercial Computer Software is supplied to the Department of Defense ("DOD") or any DOD agency or service,  DOD's rights regarding use, reproduction and disclosure are set forth in DOD FAR Supplement (DFARS 227.7202); and (ii) if this Commercial Computer SchoolDigger API is supplied to any other unit or agency of the U.S. Government, these Government rights are set forth in Federal Acquisition Regulation ("FAR") 52.227-19. Use, duplication or disclosure by the Government is subject to the restrictions set forth in such sections. Manufacturer is Claarware LLC, d/b/a SchoolDigger.com at 18492 43^rd Ave NE Lake Forest Park WA, 98155.

13.10.   Notices. Any notice or other communication under this Agreement given by either party to the other party will be deemed to be properly given if given in writing and delivered by (i) US Mail, certified or registered, return receipt requested, or (ii) nationally recognized air express courier (e.g., Federal Express), properly addressed and prepaid, to the recipient at the address identified in the Order. If SchoolDigger’s address is not identified in the Order, then notices to SchoolDigger must be delivered to its main office address, 18492 43^rd Ave NE Lake Forest Park WA 98155, Attention: Legal Department. Notice periods will begin on the day following delivery. Either party may from time to time change its address by giving the other party notice of the change in accordance with this Section.

13.11.   Entire Agreement; Amendments; Conflicts. This Agreement constitutes and embodies the entire agreement and understanding between the parties with respect to the subject matter hereof and supersedes all prior or contemporaneous written, electronic or oral communications, representations, agreements or understandings between the parties with respect thereto. This Agreement may not be modified or amended except by a written instrument executed by both parties. With the exception of order quantities and Fees, any terms or conditions appearing on the face or reverse side of any purchase order, acknowledgment, or confirmation that are different from or in addition to those specified in this Agreement will not be binding on the Parties, even if signed and returned, unless both Parties agree in a separate writing to be bound by such different or additional terms and conditions. In the event of any conflict between the terms of this Agreement or any Order, the following order of precedence will apply: (a) the Agreement and (b) the applicable Order.