Futurekids will gladly exchange any defective product (e.g., torn pages, broken bindings or otherwise damaged books; damaged or corrupted files on the resource CD) for an undamaged copy of the same product within 30 days of delivery to the customer. Please contact your Futurekids representative or call 1-800-765-8000 on 4 for product return procedures (such as proof of sale) and to obtain product return authorization.

Other Returns

Non-defective products may be exchanged within 30 days of delivery to the customer for another product or returned for a credit towards a future purchase. Product returned for any reason other than a defect must be shipped to Futurekids at the customer's expense plus a 15% re-stocking fee. The replacement order will be shipped to the customer at the customer's expense. Please contact your Futurekids representative, or call 1-800-765-8000 on 4 or email productorders@futurekids.com for product return procedures and to obtain product return authorization. Among other things, returned products must be returned in new condition in their original packaging. By returning the product, the customer will be certifying that the customer has not made or retained any copies of the returned product.

Terms and Conditions

All products are sold or licensed subject to Futurekids' standard terms and conditions. Such terms and conditions may be found on Futurekids' website at www.futurekids.com/terms. By placing an order, you are agreeing to all of such terms and conditions. No additional or contradictory terms in any purchase order or other document will alter or replace Futurekids' terms and conditions unless Futurekids expressly agrees to such terms in writing.

System Requirements

Please be sure to check the software and system requirements for Futurekids curriculum before making your purchase. Futurekids cannot accept responsibility for incompatible system requirements and/or incompatible software versions. If you have any questions, please contact your Futurekids representative or call 1-800-765-8000 on 4 or email productorders@futurekids.com.

Back to Top


Licensing

Terms and Conditions

This License Agreement (this "Agreement") is made by and between Futurekids, Inc., a California corporation ("Futurekids"), with its principal offices at 1970 E. Grand Ave. Suite 130 El Segundo CA 90245 and the licensee ("Licensee") of the Products as defined herein. Licensee has executed an order form (the "Order") for the Products. This Agreement and the Order are part of one integrated Agreement.

1. LICENSE

Subject to the terms hereof, Futurekids grants Licensee a non-exclusive, non-transferable license during the Term, without sublicense right, to use Products as specified in the Order. Licensee may make copies of Products only as specified in the Order.

2. LIMITED WARRANTIES

2.1 Media. Futurekids warrants to Licensee that the CD-Rom on which Software is embodied will be free from material defects for 90 days from the Effective Date (the "Warranty Period"). Futurekids' entire liability and Licensee's exclusive remedy under this warranty will be to replace the CD-Rom. Futurekids has no obligation to replace any defective media not returned within the Warranty Period or which fails due to accident, abuse or misapplication.

2.2 Products. FUTUREKIDS WARRANTS TO LICENSEE THAT, DURING THE WARRANTY PERIOD, PRODUCTS, IF USED IN ACCORDANCE WITH THE DOCUMENTATION, SHALL OPERATE IN CONFORMITY WITH THAT DOCUMENTATION. FUTUREKIDS DOES NOT WARRANT THAT ANY PRODUCT WILL MEET ALL LICENSEE'S REQUIREMENTS OR THAT USE OF PRODUCTS WILL BE UNINTERRUPTED OR ERROR FREE. IF PRODUCTS DO NOT CONFORM TO DOCUMENTATION, FUTUREKIDS' EXCLUSIVE LIABILITY, AND LICENSEE'S EXCLUSIVE REMEDY SHALL BE, AT FUTUREKIDS' SOLE ELECTION, TO USE COMMERCIALLY REASONABLE EFFORTS, TO EITHER: (I) CORRECT MATERIAL NONCONFORMITIES DISCOVERED WITHIN THE WARRANTY PERIOD, OR (II) REPLACE THE NONCONFORMING PORTION OF PRODUCTS. THESE REMEDIES ARE AVAILABLE ONLY IF FUTUREKIDS IS NOTIFIED IN WRITING OF NONCONFORMITIES WITHIN THE WARRANTY PERIOD AND FUTUREKIDS' EXAMINATION DISCLOSES THAT SUCH NONCONFORMITIES EXIST, AND THAT THE PRODUCTS HAVE NOT BEEN ALTERED OR MODIFIED, SUBJECTED TO NEGLIGENCE, OR COMPUTER OR ELECTRICAL MALFUNCTIONS; OR USED, ADJUSTED, OR INSTALLED OTHER THAN IN ACCORDANCE WITH INSTRUCTIONS FURNISHED BY FUTUREKIDS.

3. PAYMENT.

3.1 Fees and Taxes. Licensee is paying Futurekids in full the License Fee specified on the Order. Licensee shall pay all taxes, duties, levies, tariffs or similar charges of any kind (including withholding or value added taxes) imposed by any governmental agency based on this Agreement or payments hereunder. Licensee shall hold Futurekids harmless from all claims and liability arising from Licensee's failure to pay any such taxes or similar charges.

3.2 Compliance. During the Term and for 3 years thereafter, Licensee shall keep accurate records to verify Licensee's compliance with this Agreement, and permit Futurekids and its representatives to inspect all such records and make copies or extracts thereof during regular business hours. Futurekids may enter on any premises, including accessing any computers, where Products are maintained or used, to verify compliance with this Agreement. Inspections shall be at Futurekids' expense, unless a material violation of this Agreement is discovered. Futurekids will endeavor to minimize disruption of Licensee's business activities to the extent reasonably practicable.

4. PROPRIETARY RIGHTS

4.1 Title. Futurekids retains all right, title and interest in and to the original and copies, of Products. Ownership of all Intellectual Property Rights pertaining thereto, in whole or in part, shall be, vest with, and remain, Futurekids' exclusive property. Licensee shall not be an owner of any copies of, or have any interest in Products or any Intellectual Property Rights pertaining thereto except as expressly and unambiguously provided by this Agreement.

4.2 Restrictions. Licensee will not directly or through any affiliate, agent or other third party: (i) sell, lease, license or sublicense any Product; (ii) decompile, disassemble, re-program, analyze or reverse engineer or otherwise attempt to derive or modify Products or related object code, source code or documentation in whole or in part; (iii) write or develop any derivative software or curricula or any other materials based on Products, including Software, Curricula, Student Work Books, Standards Correlations (when applicable) and Resource Kits; or (iv) provide, copy, transmit, disclose, divulge, or make available to, or permit use of Products by any third party or machine without Futurekids' prior written consent; provided, that Licensee may allow its employees to use Products as expressly permitted by this Agreement.

4.3 Ownership. Licensee hereby irrevocably assigns to Futurekids all worldwide right, title and interest in and to any and all modifications, enhancements, improvements, and derivative works of Products and all Intellectual Property Rights relating to any of the foregoing. Licensee agrees to sign all documents and perform all acts advisable to perfect such assignment and enforce and defend the assigned Intellectual Property Rights. If any of the foregoing is not assignable for any reason, Licensee hereby grants Futurekids a worldwide, perpetual, unrestricted, royalty-free, fully paid up, exclusive license, including the right to grant and authorize sublicenses, under all Intellectual Property Rights in or to the non-assignable subject matter to make, have made, use, sell, offer for sale, and import any and all products, services or components; practice any method or process; copy, modify, have modified, create and have created derivative works of the non-assignable subject matter; publicly display and distribute the non-assignable subject matter and any modifications or derivative works thereof; and otherwise exploit the non-assignable subject matter for any and all purposes as if the sole owner thereof.

5. CONFIDENTIALITY

5.1 Protection. Licensee shall retain Futurekids' Confidential Information in the strictest confidence, shall not use it except as permitted hereunder, and shall not disclose any of it to any person or entity without Futurekids' express written consent. Despite the foregoing, Licensee may disclose Futurekids' Confidential Information to (i) any of its directors, officers, employees or contractors or (ii) to legal counsel and auditors; provided any recipient (i) has a need to know the information, (ii) has been advised of its confidential nature and (iii) is under an obligation of confidentiality and to use the information solely to assist Licensee in performing its obligations under or realizing the benefits contemplated for Licensee under this Agreement.

5.2 Restricted Use. Licensee agrees: (i) to use Confidential Information only for purposes expressly permitted by this Agreement; (ii) not to make copies of or store any Confidential Information except as expressly permitted by this Agreement; (iii) to reproduce and maintain on any copies of any Confidential Information such proprietary legends or notices as are contained in or on the original or as Futurekids otherwise requests; (iv) not to modify or prepare derivative works from, or decompile, disassemble or reverse engineer, or sell, publish, make available, compile, display or transfer any Confidential Information; and (v) to treat this Agreement as Confidential Information.

5.3 Required Disclosure. This Section does not prohibit Licensee from disclosing Confidential Information if legally required by judicial or governmental order or legal process in a judicial or governmental proceeding, provided Licensee gives Futurekids prompt notice of such requirement prior to disclosure and cooperates with Futurekids' at its sole expense if Futurekids elects to contest such disclosure or to seek a protective order at Futurekids' sole expense with respect thereto.

5.4 Remedies. Futurekids shall be entitled to equitable relief to protect its interests without necessity of any surety, including preliminary and permanent injunctive relief, and money damages and all any other remedies available at law or in equity.

6. TERM AND TERMINATION

6.1 Term. This Agreement and the license term become effective on the Effective Date and continue for the period specified on the Order unless earlier terminated as provided herein (the "Term"). If no term is specified on the Order, the Term will last one year from the Effective Date unless earlier terminated as provided herein.

6.2 Termination for Cause. Futurekids may, by written notice to Licensee, terminate this Agreement and licenses if any of the following events occur (without refund of any portion of the Fees): (i) Licensee fails to pay any amount within 15 days of its due date; or (ii) Licensee is in material breach of any non-monetary term of this Agreement, (a) which breach, if capable of being cured, is not cured within thirty (30) days after Futurekids gives written notice of such breach or (b) that is non-curable; or (iii) Licensee (a) terminates or suspends its business activities, (b) becomes insolvent, admits in writing its inability to pay debts as they mature, makes an assignment for the benefit of creditors, or becomes subject to control of a trustee, receiver or similar authority, or (c) becomes subject to any bankruptcy or insolvency proceeding under any law which proceedings not rescinded within 60 days.

6.3 Return. On termination of this Agreement for any reason, Licensee shall immediately discontinue use of Confidential Information and Products and within 10 days after Futurekids' request shall certify that all copies, extracts or derivatives of any Products or Confidential Information, in any form or portion, have been returned to Futurekids or destroyed in accordance with Futurekids' specific instructions.

6.4 Effect of Termination. Sections 3.2, and 4 through 10 shall survive termination of this Agreement indefinitely. All other rights and licenses granted hereunder will cease upon termination for any reason.

7. DISCLAIMER; LIMITATION OF LIABILITY

7.1 Warranty Disclaimer. TO THE MAXIMUM EXTENT ALLOWED BY LAW, EXCEPT AS UNAMBIGUOUSLY AND EXPRESSLY SET FORTH IN SECTION 2, FUTUREKIDS SPECIFICALLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, REGARDING OR RELATING TO OR ARISING FROM PRODUCTS, DOCUMENTATION, INFORMATION AND/OR SERVICES FURNISHED TO LICENSEE, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, USAGE OF TRADE AND COURSE OF DEALING OR PERFORMANCE, AND WITH RESPECT TO THE USE OF ANY OF THE FOREGOING.

7.2 Limit. TO THE MAXIMUM EXTENT ALLOWED BY LAW, IN NO EVENT WILL FUTUREKIDS BE LIABLE FOR LOSS OF PROFITS OR USE, BUSINESS INTERRUPTION, LOSS OF DATA, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGIES OR SERVICES, OR EXMPLARY, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND IN CONNECTION WITH OR ARISING OUT OF THE FURNISHING, PERFORMANCE OR USE OF PRODUCTS, DOCUMENTATION, INFORMATION AND/OR SERVICES, WHETHER ALLEGED AS BREACH OF CONTRACT, TORTIOUS CONDUCT OR VIOLATION OF LAW, INCLUDING NEGLIGENCE, EVEN IF FUTUREKIDS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FUTUREKIDS WILL NOT BE LIABLE FOR ANY DAMAGES CAUSED BY DELAY IN DELIVERY OF ANY OF THE FOREGOING. EXCEPT FOR INDEMNICATION UNDER SECTION 8, FUTUREKIDS' LIABILITY HEREUNDER OR FOR TERMINATION OF THIS AGREEMENT, WHETHER FOR DIRECT, INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL AND/OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING RESTITUTION, WILL NOT, IN ANY EVENT, EXCEED THE FEES PAID BY LICENSEE TO FUTUREKIDS UNDER THIS AGREEMENT.

8. INFRINGEMENT INDEMNIFICATION

8.1 Indemnity. Futurekids will defend or, at its option, settle, any claim against Licensee relating to infringement of any U.S. patent, copyright, trade secret or trademark by Products as delivered, and will indemnify Licensee against all damages and costs assessed against Licensee under any such claim or action. Futurekids shall be released from such obligation unless Licensee (i) takes all reasonable steps to mitigate potential expenses, and (ii) provides Futurekids with prompt written notice of any such claim or action, or possibility thereof, sole control and authority over the defense and settlement of such claim or action and proper and full information and assistance to settle and/or defend any such claim or action. Licensee may employ separate counsel and participate in the defense at its own expense subject to Futurekids' control. Futurekids may, at its sole option and expense, either: (a) procure for Licensee the right to use infringing Products as provided herein; (b) replace infringing Products with non-infringing, substantially equivalent products; (c) modify infringing Products so they are not infringing; or (d) demand return of infringing Products, refund the remaining value of the Fee to Licensee (as amortized over the shorter of the remaining Term and a 48 month life from the Effective Date) and terminate this Agreement. Futurekids shall make reasonable efforts to exercise option (a), (b) or (c) prior to exercising option (d). On exercise of option (d), Futurekids shall have no further obligations or liability to Licensee. Futurekids will not be liable for any costs or expenses incurred without its prior written authorization. 8.2 Exceptions. The obligations under Section

8.1 shall not apply to the extent infringement arises as a result of (i) modifications to Products made by any party other than Futurekids or its authorized representative, (ii) the combination, operation or use of Products with materials not furnished by Futurekids, or (iii) use of Products outside the scope of this Agreement and the licenses provided herein.

9. Exclusive Remedies

SECTIONS 7 AND 8 STATE THE ENTIRE LIABILITY AND OBLIGATIONS OF FUTUREKIDS AND THE EXCLUSIVE REMEDY OF LICENSEE, WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY PATENT, COPYRIGHT, TRADE SECRET, TRADEMARK OR OTHER INTELLECTUAL PROPERTY RIGHT.

10. GENERAL

10.1 Notices. Any notice required or permitted under this Agreement or by law must be in writing and sent to the address (i) in person; (ii) by first class registered mail; or (iii) by overnight courier. Delivery costs shall be prepaid and notices shall be properly posted to the appropriate address set forth on the Order. Either Party may change notice address by notice to the other in accordance with this Section. Notices shall be deemed given upon actual delivery in person, three (3) business days after deposit in the mail as set forth above, or one (1) day after delivery to an overnight air courier service.

10.2 Assignment. Neither this Agreement nor any rights or obligations, including licenses, hereunder may be assigned, sublicensed or otherwise transferred by Licensee, in whole or part, voluntarily or by operation of law, including by sale of assets, merger or consolidation, without the prior written consent of Futurekids. Subject to the foregoing, this Agreement will be binding on and inure to the benefit of the Parties and their respective successors and assigns. Despite any assignment of rights and obligations, Licensee shall continue to be bound by the confidentiality and non-disclosure provisions of this Agreement, which provisions survive assignment. Licensee may not retain any copies of materials assigned or otherwise transferred to any transferee.

10.3 Law, Jurisdiction, Arbitration, Attorney's Fees. This Agreement shall be governed, construed and enforced in accordance with California laws, without reference to conflict of laws principles. Any dispute arising out of or relating to this Agreement or the transactions contemplated, except those concerning breach of the Confidential Information provisions of this Agreement and breach of the Intellectual Property Rights of a Party shall be subject to expedited binding arbitration in Los Angeles County, California. Such disputes shall be determined by a single arbitrator under the commercial arbitration rules of the American Arbitration Association ("AAA"). The arbitrator may grant either party without a bond interim and/or permanent injunctive relief to stay any wrongful acts by the other party and to avoid irreparable harm. Within 15 days of the other party's receipt of notice of a demand for arbitration, the Parties shall agree on an arbitrator. If the parties fail to select an arbitrator, the AAA shall promptly select the arbitrator. There shall be discovery as reasonably determined by the arbitrator. The decisions of the arbitrator shall be enforceable in any court of competent jurisdiction. The arbitrator shall expeditiously resolve the dispute and attempt to issue his or her decision on the merits within 6 months of his or her impaneling, unless the arbitrator decides additional time is needed for full and fair adjudication. The arbitrator is empowered to grant injunctive relief on a more expeditious basis if standards of applicable law are satisfied. In any arbitration, action or proceeding (including appeals), the prevailing Party will be entitled to recover costs and reasonable attorney's fees from the other Party. Any action not subject to arbitration hereunder shall be brought exclusively in the federal or state courts of competent jurisdiction located in the County of Los Angeles in California.

10.4 Severability. If any provision of this Agreement conflicts with governing law or is held to null, void or otherwise ineffective or invalid by a court of competent jurisdiction, (i) such provision shall be deemed restated to reflect as nearly as possible the original intentions of the Parties in accordance with applicable law, and (ii) the remaining terms of this Agreement shall remain in full force and effect. This Agreement will be interpreted fairly in accordance with its terms and without any strict construction in favor of or against either Party.

10.5 No Waiver. The failure of either Party to enforce at any time any provision of this Agreement shall not be deemed a waiver of the right of either Party thereafter to enforce any such provisions. No waiver, amendment or variation to this Agreement shall be valid unless in writing and signed by both Parties.

10.6 Force Majeure. Nonperformance of either Party shall be excused to the extent performance is rendered impossible by strike, fire, flood, governmental acts or orders or restrictions, failure of suppliers, or act of God, or any other reason where failure to perform is beyond the control and not caused by the negligence of the nonperforming Party.

10.7 U.S. Government; Exports. Any use of Software by the U.S. Government is conditioned on the Government agreeing the Software is subject to Restricted Rights as provided under subdivision (c) (1) (ii) of Clause 252.227-7013 of the Defense Federal Acquisition Regulations Supplement, or the similar acquisition regulations of other applicable U.S. Government organizations. Products and Confidential Information are each subject to the laws and regulations of the United States, including laws regulating exports and transactions with non-U.S. persons and are subject to the laws of foreign countries, including laws regulating the import of products. Licensee will not transfer, deal with, export or re-export Products without the express written consent of Futurekids, which may be withheld in its discretion.

10.8 Basis Bargain. Each Party agrees that the warranty disclaimers and liability and remedy limitations in this Agreement are material bargained for bases of this Agreement and have been taken into account and reflected in determining the consideration to be given by each Party to enter into this Agreement.

10.9 Headings. Section and Schedule headings are for ease of reference only and do not form part of this Agreement.

10.10 Entire Agreement. This is an integrated Agreement and with the Order and all attachments constitutes the entire, final, complete and exclusive agreement between the parties and supersedes all previous agreements, intentions, or representations, oral or written, relating to the subject matter of this Agreement. This Agreement may not be modified or amended except in a writing signed by a duly authorized representative of each Party. Both parties acknowledge having read the terms set forth in this Agreement and the Order and all attachments hereto, understand all terms, and agree to be bound thereby.

10.11 Writing. No employee, agent, representative, or affiliate of Futurekids has authority to bind Futurekids to any oral representations or warranty concerning Products or anything else. Any representation or warranty not expressly in this Agreement will not be enforceable.

10.12 Further Assurances. Each Party covenants and agrees on behalf of itself, its successors, and its assigns, without further consideration, to prepare, execute, acknowledge, file, record, publish, and deliver such other instruments, documents and statements, and to take such other action as may be required by law or reasonably necessary to effectively carry out the purposes of this Agreement.

11. DEFINITIONS

11.1 "Confidential Information" means Products, all documentation and Information related thereto and all other Intellectual Property Rights related to, connected with or arising out of Products and any other Information, technical data, or know-how, including that which relates to research, product plans, products, services, customers, markets, software, software code or documentation, developments, inventions, lists, trade secrets, data compilations, processes, designs, drawings, engineering, hardware configurations, marketing or finances, which should reasonably be understood to be intended to be confidential or proprietary. Confidential Information does not include information that (i) is shown by written record to be in the public domain at time of the disclosure or to be available to the public thereafter without restriction, and not as a result of the act or omission of the recipient (ii) is rightfully obtained by the recipient from a third party without restriction as to disclosure; (iii) is shown by written record to be lawfully in the possession of the recipient at time of the disclosure, (iv) is approved for release by written authorization ; or (v) is shown by written record to be developed independently and separately by the recipient without use of the disclosing party's Confidential Information.

11.2 "Curricula" means all lesson plans, templates and other educational elements of the Licensed Products.

11.3 "Documentation" means any documentation that sets forth express specifications for a Product, not including advertising materials or brochures and not including anything promising or representing results obtainable by use of any Product.

11.4 "Information" means technical, or business information in written, graphical, oral, or other tangible or intangible forms, including specifications, drawings, tools, samples, reports, compilations, records, data, computer programs, drawings, models, and secrets.

11.5 "Intellectual Property Rights" means any patent rights, copyrights (including moral rights), trade secrets, trade names, service marks, moral rights, know-how, inventions and any know-how, ideas, programs, apparatus, programs, or other intangible rights or assets now or hereafter recognized under any laws or international conventions, and in any country or jurisdiction in the world, as intellectual creations to which rights of ownership accrue, and all registrations, applications, disclosures, renewals, extensions, continuations or reissues of the foregoing now or hereafter in force.

11.6 "Products" means all products specified in the Order, including any Software, CD-ROMs or other media on which the Software is contained, all Student Work Books, Standards Correlations Guides (when applicable), and Resource Kits contained therein, all Curricula, and all Intellectual Property Rights pertaining thereto.

11.7 "Party" or "Parties" means, either individually or collectively, as the case may be, Futurekids and Licensee and any and all permitted successors and assigns.

11.8 "Software" means the proprietary Futurekids computer software programs as contained on CD-ROMs specified in the Order in machine executable object code form. BY USING PRODUCTS OR BY OPENING THE SEALED PACKAGE OF ANY PORTION THEREOF, LICENSEE ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT, AND UNDERSTANDS IT AND AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS. THIS AGREEMENT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN THE PARTIES AND CANNOT BE MODIFIED WITHOUT INCORPORATING BY REFERENCE THESE TERMS AND CONDITIONS. EACH PARTY REPRESENTS AND WARRANTS THAT THEY ARE FULLY AUTHORIZED AND EMPOWERED TO ENTER INTO THIS AGREEMENT.