PLEASE READ THIS AGREEMENT CAREFULLY.  The SuperNoodle Terms of Service set forth an agreement (this “Agreement”) between you (“user” or “you”), and GoNoodle, Inc. (“GoNoodle,” “we” or “us”). The Agreement governs your use of the SuperNoodle software application, which provides educational curriculum content in the form of videos, pdfs and audio files (the “GoNoodle Platform”) and is owned and operated by GoNoodle. This Agreement incorporates by reference our Privacy Policy, available at [https://www.gonoodle.com/company/p/privacy-policy] (“Privacy Policy”).

Under this Agreement, GoNoodle offers users the ability to (i) access the functionality of the GoNoodle Platform on a software as a service basis; and (ii) provide feedback and/or other materials to GoNoodle. By accessing and/or using the GoNoodle Platform you represent that you have read, understood, and agreed to be bound by each of the terms, conditions, and notices in this Agreement.

We grant you a limited license to use the GoNoodle Platform subject to the restrictions in this Agreement. Your use of the GoNoodle Platform is at your own risk.

1. General Terms

1.1 Your User Information.

1. Your permission to use the GoNoodle Platform is subject to your employment with, representation of or other affiliation with an entity that is authorized to use the GoNoodle Platform through a subscription or otherwise (“Authorized Entity”).  You must create an account and provide certain information about yourself, including the name of the applicable Authorized Entity, in order to use the GoNoodle Platform.  If you already have an account on GoNoodle’s website located at www.gonoodle.com, you may use those credentials to access the GoNoodle Platform.  If you cease affiliation with such Authorized Entity, we may terminate your GoNoodle Platform account.  You also may not access the GoNoodle Platform if you are below the legal age of majority in the jurisdiction in which you reside.
2. You are responsible for maintaining the confidentiality of your account password and agree to notify us immediately of any unauthorized use of your account.
3. You represent and warrant to us that any information you provide on the GoNoodle Platform, including any contact information, is complete and accurate and that you will keep it accurate and up to date.  You may not impersonate someone else (e.g., adopt the identity of a celebrity or a friend), subscribe to emails for anyone other than yourself or provide an email address other than your own.

1.2 Communications from GoNoodle. By providing your information, you agree to receive communications we send in connection with the GoNoodle Platform. Such communications may be sent by email, live chat, text message or other means. You can unsubscribe from receiving communications from GoNoodle by clicking “unsubscribe” at bottom of any GoNoodle email, or by emailing support@gonoodle.com. Notwithstanding the foregoing, we reserve the right to communicate with you about any important administrative issues relating to the GoNoodle Platform or your account (including technical, security-related, privacy and functional issues).

2. Content

2.1 General. “Content” means text, images, photos, audio, video, location data, and all other forms of data or communication. “Your Content” means Content that you submit or transmit to, through, or in connection with the GoNoodle Platform. “GoNoodle Content” means Content that we create and make available in connection with the GoNoodle Platform. “Platform Content” means all of the Content that is made available in connection with the GoNoodle Platform, including Your Content and GoNoodle Content.

2.2 Your Content. As between you and us, you retain all of your ownership rights in Your Content.  However, by submitting Your Content to GoNoodle, you hereby grant GoNoodle a worldwide, royalty-free, perpetual, irrevocable, sublicensable and transferable license to use, reproduce, distribute, modify, translate, broadcast, download, display, copy and perform Your Content, including your Feedback (as defined below) solely in connection with GoNoodle’s (and its successors’ and affiliates’) services and business, including without limitation for redistributing part or all of the GoNoodle Platform (and derivative works thereof) in all media now known or hereafter devised and in promotion. You irrevocably waive, and cause to be waived, against GoNoodle any claims and assertions of moral rights or attribution with respect to Your Content.

2.3 GoNoodle Content. As between you and us, we own the GoNoodle Content, including but not limited to all GoNoodle instructional materials, videos, courses, presentations, lesson plans, visual interfaces, interactive features, graphics, design, computer code, products, software, and all other elements and components of the GoNoodle Platform, excluding Your Content, including, but not limited to, all copyrights, trademarks, service marks, trade names, and other intellectual and proprietary rights throughout the world associated therewith. As such, you may not modify, alter, scrape, copy, duplicate, reproduce, distribute, publish, create derivative works or adaptations of, publicly display or in any way exploit any of the GoNoodle Content in whole or in part except as expressly authorized by us hereunder.

2.4 Trademarks. “GoNoodle,” “SuperNoodle,” and all other names, phrases, logos, and icons identifying GoNoodle and its programs, products, and services, whether or not appearing in large print or with an accompanying symbol, are proprietary trademarks of GoNoodle and are protected from reproduction, imitation, dilution, or confusing or misleading uses under national and international trademark and copyright laws. Other product and company names mentioned on the GoNoodle Platform may be the trademarks and/or service marks of their respective owners. Any use of such marks without the express written permission of GoNoodle is strictly prohibited, and nothing stated or implied on the GoNoodle Platform confers on you any license or right under any trademark of GoNoodle or any third party.

3. Usage

3.1 Prohibited Activities. You agree not to, and will not assist, encourage, or enable others to:

1. Breach this Agreement or violate any applicable law;
2. Reverse engineer any portion of the GoNoodle Platform;
3. Attempt to gain unauthorized access to the GoNoodle Platform, user accounts, computer systems or networks connected to the GoNoodle Platform through hacking, password mining or any other means;
4. Use any device, software or routine that interferes with the proper working of the GoNoodle Platform, or otherwise attempt to interfere with the proper working of the GoNoodle Platform;
5. Use the GoNoodle Platform to violate the security of any computer network, crack passwords or security encryption codes; disrupt or interfere with the security of, or otherwise cause harm to, the the GoNoodle Platform or Platform Content; or
6. Remove, circumvent, disable, damage or otherwise interfere with any security-related features of the GoNoodle Platform, features that prevent or restrict the use or copying of Platform Content, or features that enforce limitations on the use of the GoNoodle Platform.

3.2 Additional User Representations and Warranties. You represent and warrant that you are over the age of the majority in your jurisdiction (and in any event, no younger than eighteen (18) years of age), and that you will not permit or authorize anyone under the age of majority to use the GoNoodle Platform. You further represent and warrant that you will not, nor will you permit or authorize anyone else to upload, post, store, view, transmit, distribute or otherwise publish any Content through the GoNoodle Platform that (a) is capable of identifying, directly or indirectly, any of your students or the students of the applicable Authorized Entity; (b) is unlawful, fraudulent, invasive of another’s privacy, or otherwise tortious; or (c) violates or infringes the rights of third parties, including, but not limited to, any copyright, trademark, patent, or other intellectual property rights, rights of privacy or publicity or any other proprietary rights.

4. Feedback

By sending us any ideas, suggestions, documents or proposals (“Feedback”), you agree that (i) your Feedback does not contain the confidential or proprietary information of third parties, (ii) we are under no obligation of confidentiality, express or implied, with respect to the Feedback, (iii) we may have something similar to the Feedback already under consideration or in development or may adopt a solution or action sometime in the future that is similar to your Feedback, and (iv) you grant us a royalty free, perpetual license to use the Feedback to alter or improve the GoNoodle Platform without compensation to the user. For clarity, to the extent Feedback is protectable under U.S. law, Feedback is Your Content.

5. Third Parties

5.1 Linked Sites. The GoNoodle Platform may include links or access to other websites or services (“Linked Sites”) solely as a convenience to users. GoNoodle does not endorse any such Linked Sites or the information, material, products, or services contained on other Linked Sites or accessible through other Linked Sites. Furthermore, GoNoodle makes no express or implied warranties with regard to the information, material, products, or services that are contained on or accessible through Linked Sites. ACCESS AND USE OF LINKED SITES, INCLUDING THE INFORMATION, MATERIAL, PRODUCTS, AND SERVICES ON LINKED SITES OR AVAILABLE THROUGH LINKED SITES, IS SOLELY AT YOUR OWN RISK.

6. Warranty Disclaimer

6.1 No Warranty. THE GONOODLE PLATFORM, INCLUDING, BUT NOT LIMITED TO, THE PLATFORM CONTENT, IS MADE AVAILABLE TO YOU ON AN “AS IS”, “WITH ALL FAULTS” AND “AS AVAILABLE” BASIS. AS SUCH, YOUR USE OF THE GONOODLE PLATFORM IS AT YOUR OWN DISCRETION AND RISK. GONOODLE MAKES NO CLAIMS OR PROMISES ABOUT THE QUALITY, ACCURACY, OR RELIABILITY OF THE HOSTED SERVIES OR THE GONOODLE PLATFORM, ITS SAFETY OR SECURITY, OR THE PLATFORM CONTENT. ACCORDINGLY, GONOODLE IS NOT LIABLE TO YOU FOR ANY LOSS OR DAMAGE THAT MIGHT ARISE, FOR EXAMPLE, FROM THE GONOODLE PLATFORM’S INOPERABILITY, UNAVAILABILITY OR SECURITY VULNERABILITIES.

6.2 Disclaimers. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, GONOODLE HEREBY DISCLAIMS ANY AND ALL PROMISES, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, NON-INTERFERENCE, SYSTEM INTEGRATION AND/OR DATA ACCURACY. GONOODLE DOES NOT WARRANT THAT THE GONOODLE PLATFORM OR ANY OTHER PRODUCTS OR GONOODLE PLATFORM PROVIDED BY GONOODLE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED. NO WARRANTY IS MADE ON THE BASIS OF COURSE OF PERFORMANCE, COURSE OF DEALING, OR TRADE USAGE.

6.3 Remedy. YOUR SOLE AND EXCLUSIVE RIGHT AND REMEDY IN CASE OF DISSATISFACTION WITH THE GONOODLE PLATFORM, RELATED SERVICES, OR ANY OTHER GRIEVANCE SHALL BE YOUR TERMINATION AND DISCONTINUATION OF ACCESS TO, OR USE OF THE GONOODLE PLATFORM.

6.4 Disclaimer. GONOODLE DISCLAIMS LIABILITY FOR ANY (I) INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, RELIANCE, OR CONSEQUENTIAL DAMAGES, (II) LOSS OF PROFITS, (III) BUSINESS INTERRUPTION, (IV) REPUTATIONAL HARM, OR (V) LOSS OF INFORMATION OR DATA.

7. Limitation of Liability

7.1 No Liability. NEITHER GONOODLE NOR ANY OF ITS OFFICERS, DIRECTORS, EMPLOYEES, PARTNERS, AGENTS, AFFILIATES OR LICENSORS SHALL BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY DAMAGES WHATSOEVER, INCLUDING ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO YOUR USE OF THE, GONOODLE PLATFORM OR THE PLATFORM CONTENT. IF APPLICABLE LAW DOES NOT PERMIT EXCLUSION OF ALL SUCH DAMAGES, THEN YOUR DIRECT DAMAGES ARISING OUT OF OR RELATING TO YOUR USE OF THE GONOODLE PLATFORM, GONOODLE PLATFORM OR THE PLATFORM CONTENT SHALL BE LIMITED TO $100.

7.2 Enforceability. IF ANY OF THE FOREGOING LIMITS ARE NOT ENFORCEABLE UNDER APPLICABLE LAW, THEN THEY SHALL BE CONSTRUED TO PROVIDE SUCH LIMITS TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.

8. Indemnification

You agree to indemnify and hold harmless us and our officers, directors, employees, partners, agents, affiliates and licensors from all liabilities, claims, and expenses, including attorneys’ fees (“Claims”), that arise from your breach of this Agreement or your use or misuse of the GoNoodle Platform or the Platform Content. We reserve the right, at your expense, to assume the exclusive defense and control of any matter otherwise subject to your indemnification, in which event you will cooperate with us in asserting any available defenses.

9. Disputes

9.1 Governing Law and Jurisdiction. You agree that this Agreement or any claim, dispute or controversy (whether in contract, tort or otherwise, whether preexisting, present or future, and including statutory, common law and equitable claims) between you and GoNoodle arising from or relating to this Agreement, its interpretation or breach, termination or validity, the relationships which result from this Agreement, the GoNoodle Platform, GoNoodle’s promotional activities, or any related transaction shall, to the maximum extent permitted by applicable law, be governed by the laws of the State of Tennessee, without regard to its conflicts of laws rules. Subject to the arbitration requirement below, the state and federal courts in Tennessee shall have exclusive jurisdiction over any Claim (as defined below). Any Claim must be brought within one (1) year after such claim or cause of action arose, regardless of any statute or law to the contrary. In the event any such claim or cause of action is not filed within such one (1) year period, such Claim shall be forever barred

9.2 ARBITRATION REQUIREMENT; CLASS ACTION WAIVER.

1. Arbitration.  Any claim, dispute or controversy (whether in contract, tort or otherwise, whether preexisting, present or future, and including statutory, common law, intentional tort and equitable claims) between you and GoNoodle arising from or relating to this Agreement, its interpretation or breach, termination or validity, the relationships which result from this Agreement, the GoNoodle Platform, GoNoodle advertising or any related transaction (a “Claim”) shall be resolved exclusively and finally by binding arbitration administered by the American Arbitration Association, in accordance with the consumer arbitration rules then in effect, or any other established alternative dispute resolution provider mutually agreed upon by you and GoNoodle. The Federal Arbitration Act will govern the interpretation and enforcement of this section.
2. CLASS ACTION WAIVER.  The arbitration will be limited solely to the dispute between you and GoNoodle. Neither you nor GoNoodle shall be entitled to join or consolidate Claims by other users or arbitrate or litigate any Claim as a representative IN A CLASS ACTION OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. 
3. Arbitration Process.  Notwithstanding any other provision of these Terms of Service or any applicable arbitration rules, disputes regarding the interpretation, applicability, or enforceability of this arbitration provision and class action waiver may be resolved only by a court and not by an arbitrator. If this waiver of class or consolidated actions is deemed invalid or unenforceable, neither you nor we are entitled to arbitration. The arbitrator will be empowered to grant whatever relief would be available in court under law or in equity. Any award of the arbitrator shall be final and binding on you and GoNoodle and may be entered as a judgment in any court of competent jurisdiction. You and GoNoodle shall pay your and its own costs and attorneys’ fees. However, if you or GoNoodle prevails on a statutory Claim that affords the prevailing party attorneys' fees, or if there is a written agreement providing for fees, the arbitrator may award reasonable fees to the prevailing party, under the standards for fee shifting provided by law. Arbitration shall take place in the State of Tennessee..
4. Opt Out.  You may opt out of this arbitration agreement. If you do so, neither you nor GoNoodle can force the other to arbitrate. To opt out, you must notify GoNoodle within thirty (30) days of first becoming subject to this arbitration agreement by emailing GoNoodle at optout@gonoodle.com. Your notice must include your name and address and a clear statement that you want to opt out of this arbitration agreement. BY AGREEING TO THIS ARBITRATION AGREEMENT, YOU HEREBY WAIVE YOUR RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR CLAIM OF ANY NATURE RELATING TO THIS AGREEMENT, ANY DOCUMENTS EXECUTED IN CONNECTION WITH THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED IN ANY OF SUCH DOCUMENTS.

10. Miscellaneous

10.1 Modification of Agreement. This Agreement may be modified by GoNoodle from time to time in its sole discretion.  Your continued use of the GoNoodle Platform after any such modification constitutes your acceptance of the modified terms.

10.2 Continuity of the GoNoodle Platform. We reserve the right to modify, update, or discontinue the GoNoodle Platform and/or the GoNoodle Platform at our sole discretion, at any time, for any or no reason, and without notice or liability.

10.3. Entire Agreement. This Agreement contains the entire agreement between you and us regarding the use of the GoNoodle Platform and/or the GoNoodle Platform, and it supersedes any prior agreement between you and us on such subject matter. The parties acknowledge that no reliance is placed on any representation made but not expressly contained in this Agreement.

10.4 Waiver. Any failure on GoNoodle’s part to exercise or enforce any right or provision of this Agreement does not constitute a waiver of such right or provision. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder.

10.5 Severability of Terms. If any provision of this Agreement is found to be unenforceable or invalid, then only that provision shall be modified to reflect the parties’ intention or eliminated to the minimum extent necessary so that the Agreement shall otherwise remain in full force and effect and enforceable.

10.6 Assignment. This Agreement, and any rights or obligations hereunder, are not assignable, transferable or sublicensable by you except with GoNoodle’s prior written consent, but it may be assigned or transferred by us without restriction. Any attempted assignment by you shall violate this Agreement and be void.

10.7 Headings. The section titles in this Agreement are for convenience only and have no legal or contractual effect.

10.8 Notice for California Residents. Under California Civil Code Section 1789.3, California users are entitled to the following consumer rights notice: If you have a question or complaint regarding the GoNoodle Platform, please contact us using the information we’ve provided below. California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by mail at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445–1254 or (800) 952–5210.

10.9 Notices. Except as explicitly stated otherwise, legal notices will be served, with respect to GoNoodle, and, with respect to you, to the email address you provide to GoNoodle during the signup process. Notice will be deemed given twenty-four (24) hours after email is sent, unless the sending party is notified that the email address is invalid. Alternatively, we may give you legal notice by mail to the address provided during the registration process. In such case, notice will be deemed given three (3) days after the date of mailing.  Notices to GoNoodle concerning this Agreement should be sent to:

GoNoodle, Inc.

209 10th Avenue South, Suite 560

Nashville, TN 37203