EdÛcare Payment Agent Terms

THIS PAYMENT AGENT AGREEMENT (this “Agreement”) contains the terms and conditions that govern payment for Services for use by an end customer (“Customer”) and constitutes a binding agreement between EdÛcare, Inc., a Delaware Corporation, located at 600 Harrison St. Floor 3, San Francisco, CA 94107 (“EdÛcare”) and you (the “Payment Agent”).

WHEREAS:

Customer has agreed to purchase Services from EdÛcare and has requested that payment for the Services be made on its behalf by a third party.

Customer authorizes and appoints the Payment Agent to act on its behalf solely for the purpose of facilitating the payment of Fees due to EdÛcare in connection with the Customer’s use of one or more Services pursuant to the Master Services Agreement located at https://www.Educaire.com/terms/ub/, unless Customer and EdÛcare have executed a separate agreement to govern EdÛcare's provision of the Services (“UB Subscription Agreement”).

All capitalized terms used and not otherwise defined in this Agreement shall have the meanings ascribed to them in the UB Subscription Agreement.

This Agreement takes effect when you click an “I Accept” button or checkbox presented with these terms or, if earlier, when you execute an Order Form on behalf of the Customer. (the “Effective Date”).

NOW, THEREFORE, EdÛcare and Payment Agent hereby agree as follows:

1. Payment Agent Obligations:

• 1.1 The Payment Agent acknowledges and agrees to assume and fulfill all of the Customer’s payment obligations to EdÛcare pursuant to the UB Subscription Agreement.
• 1.2 The Payment Agent represents and warrants that it has been authorized by Customer to act on the Customer’s behalf solely for the purpose of remitting payment of all Fees and applicable taxes due from Customer for Services provided by EdÛcare to Customer under the terms of the UB Subscription Agreement and applicable Order Forms.
• 1.3 Upon request, the Payment Agent shall promptly provide EdÛcare with documentation verifying the existence of an enforceable agreement between the Payment Agent and the Customer that verifies the Payment Agent’s authority to sign an Order Form with EdÛcare on behalf of Customer.

2. Enforcement of UB Subscription Agreement.

• 2.1 End Customer Terms. All use of the Services by the Customer shall be subject to the UB Subscription Agreement. Payment Agent may not impose any other terms pertaining to an End Customer’s use of the Services. Payment Agent is responsible for Customer’s acceptance of the UB Subscription Agreement and the API License Agreement located at https://www.Educaire.com/terms/api/. By executing an Order Form, the Payment Agent represents and warrants that: (i) it has an agreement in place with the Customer and that the Customer has accepted the UB Subscription Agreement and the API License Agreement, and (ii) the Payment Agent shall, upon EdÛcare’s request, produce evidence of the foregoing within 5 business days.
• 2.2 Enforcement Cooperation. Payment Agent agrees to immediately notify EdÛcare of any known or suspected breach of the UB Subscription Agreement or other unauthorized use of the Services and to assist EdÛcare in the enforcement of the terms of the UB Subscription Agreement.

3. Term:

This Agreement shall be effective as of the Effective Date and shall remain in effect until the expiration or termination of the UB Subscription Agreement, including any renewal or extension thereof, unless agreed otherwise in writing between the parties or terminated earlier in accordance with this Agreement.

4. Termination:

• 4.1 Either party may terminate this Agreement, with or without cause, by providing the other party with written notice at least sixty (60) days prior to the effective date of such termination. Furthermore, any party shall have the right to terminate this Agreement for cause if any other party fails to perform any material term or condition of this Agreement and does not remedy the failure within ten (10) days after receipt of written notice of such default given by the non-defaulting party.
• 4.2 Termination of this Agreement shall not affect the continuing obligations under Section 5 (“Payment Obligations”) or any other of the provisions of this Agreement that, by their nature or express terms, are intended to survive termination or expiration. This Agreement shall continue to apply solely to the extent necessary to give effect to such surviving obligations.
• 4.3 Upon termination of this Agreement, all rights granted to the Payment Agent under this Agreement shall immediately terminate. For clarity, all Customer subscriptions and related Order Forms executed by the Payment Agent prior to the effective date of termination shall remain valid and enforceable in accordance with the terms of the UB Subscription Agreement. The Payment Agent shall remain responsible for all payment obligations arising under such subscriptions and Order Forms, notwithstanding the termination of this Agreement. This Agreement shall continue to apply solely to the extent necessary to give effect to such surviving obligations.

5. Payment Obligations:

• 5.1 EdÛcare agrees to accept payment of Fees due and payable under the UB Subscription Agreement and applicable Order Forms, through payment by the Payment Agent, in lieu of payment directly from the Customer. In the event that the Payment Agent fails to remit full and timely payment of Fees (including applicable taxes, duties, levies, or governmental charges, whether invoiced initially or subsequently assessed), the Customer shall remain fully liable and shall promptly remit such unpaid amounts. Late payments shall be subject to 1.5% interest per month (or the maximum permitted by law), plus any third-party collection costs.
• 5.2 EdÛcare reserves the right to suspend or terminate Customer’s access to the Services if full payment of Fees is not received regardless of whether such non-payment is due to the Customer or the Payment Agent. Any dispute regarding non-payment of Fees between Customer and Payment Agent, howsoever arising, shall be resolved by Customer and Payment Agent alone and shall not affect EdÛcare’s rights under the UB Subscription Agreement. The termination or expiration of this Agreement shall not relieve either the Customer or the Payment Agent of their payment obligations accrued prior to such termination or expiration. EdÛcare may, at its discretion, pursue payment directly from the Customer without first seeking payment from, or providing notice to, the Payment Agent.
• 5.3 Notwithstanding the Payment Agent’s obligation to make payment to EdÛcare on behalf of the Customer, the parties acknowledge and agree that EdÛcare has the same rights to seek and enforce payment from the Payment Agent as it does from Customer under the UB Subscription Agreement.
• 5.4 Payment Agent bears all risk of non-payment by the Customer for any amounts payable by the Customer to the Payment Agent, and the Payment Agent is solely responsible for all the Payment Agent’s costs and expenses incurred in the collection of payment from the Customer. The Payment Agent may not terminate an Order Form or receive any refunds due to non-payment by the Customer.

6. Reserved Rights:

• 6.1 EdÛcare retains full ownership rights to its Services. Payment Agent acknowledges it is obtaining a limited right to make proper payment on behalf of Customer in respect of Services provided directly by EdÛcare to Customer, and no Services, usage or ownership rights are being provided to the Payment Agent. Subject to EdÛcare's prior written approval, EdÛcare grants a non-exclusive right to Payment Agent to use the trademarks, brands, trade names, service marks and logos of EdÛcare solely as necessary for Agent’s compliance with its obligations under this Agreement.
• 6.2 Payment Agent agrees to conduct Payment Agent’s business in a manner that reflects favorably at all times on EdÛcare and its good name, goodwill and reputation and at no time shall Payment Agent do, cause or permit any act, publication, or statement that is or may be detrimental to the best interests or business reputation of EdÛcare. Without limiting the generality of the foregoing, Payment Agent agrees that at no time shall Payment Agent: (i) engage in any deceptive, misleading or unethical practice; (ii) make any false or misleading representations with respect to EdÛcare, the Services, or any other products or services offered by EdÛcare, including but not limited to any claims about warranties offered by EdÛcare; (iii) publish or employ or cooperate in the publication or employment of any misleading or deceptive advertising material; (iv) make any representations that would give the false impression that Payment Agent has the authority to bind EdÛcare, or (v) make any other representation to an end customer or anyone else that would give rise, or could reasonably be expected to give rise, to any claim or cause of action against EdÛcare.

7. Independent Contractors:

Each party shall be deemed to be independent contractors with respect to the subject matter of this Agreement, and nothing in this Agreement shall be construed to create a partnership, joint venture, or agency relationship between the parties. Neither party is authorized to act as an agent or legal representative of the other party, nor shall either party have any authority to bind the other in any way. Each party assumes full responsibility for its own actions and obligations under this Agreement.

8. Confidentiality:

Each party agrees that all code, inventions, know-how, or business, technical, and financial information disclosed to a party (the “Receiving Party”) by the disclosing party (the “Disclosing Party”), constitute the confidential information of the Disclosing Party (“Confidential Information”), provided that it is either identified as confidential at the time of disclosure, or should be reasonably known by the Receiving Party to be confidential due to the nature of the information disclosed. Confidential Information will not, however, include any information that: (i) was publicly known and made generally available in the public domain prior to the time of disclosure by the Disclosing Party, (ii) becomes publicly known and made generally available after disclosure by the Disclosing Party to the Receiving Party through no action or inaction of the Receiving Party, (iii) is already in the possession of the Receiving Party at the time of disclosure by the Discloser, (iv) is obtained by the Receiving Party from a third party without a known breach of the third party’s obligations of confidentiality, or (v) is independently developed by the Receiving Party without use of or reference to the Confidential Information. The Receiving Party may disclose the Disclosing Party’s Confidential Information if required by law provided that the Receiving Party will use reasonable efforts to seek confidential treatment for such Confidential Information, and, if and as permitted by law, will provide prior notice to the Discloser to allow the Discloser to seek protective or other court orders. Except as expressly authorized herein or as necessary to perform its obligations hereunder, the Receiving Party agrees: (i) not to disclose any Confidential Information to third parties, and (ii) not to use Confidential Information for any purpose other than as necessary to exercise its rights or perform its obligations hereunder.

9. Third Party Transactions:

The Payment Agent is not considered a Reseller or third-party partner of EdÛcare for the purposes of Section 20 (Third Party Transactions) of the UB Subscription Agreement.

10. Compliance with Laws:

In performing this Agreement, each party will comply, in all material respects, with all applicable laws, regulations, orders and other requirements, including but not limited to data protection, privacy, anti-bribery and anti-corruption laws, now or hereafter in effect. Any personal information relating to Payment Agent’s employees or agents, that is provided to EdÛcare for the purpose of this Agreement shall be handled in accordance with the terms of EdÛcare’s then current Privacy Policy as set forth at https://www.Educaire.com/terms/privacy/.

11. Indemnification obligations:

Payment Agent agrees to indemnify and hold harmless EdÛcare and its officers, directors, employees, agents and independent contractors from and against all claims and causes of action, as well as related losses, liabilities, judgments, awards, settlements, damages, expenses and costs (including reasonable attorneys’ fees and related court costs and expenses) relating to or arising out of: (1) breach by the Payment Agent of any of its representations and warranties in this Agreement, (2) breach by the Payment Agent of its obligations under Section 2 of this Agreement, (3) claims by the Customer against EdÛcare arising from Payment Agents breach of this Agreement or its agreements with the Customer, or (4) any failure by the Payment Agent to pay any sales, value added, use or other taxes (not including taxes on EdÛcare’s net income).

12. Limitation of Liability

Except for (a) liability arising from a party’s gross negligence, wilful misconduct, or fraud; (b) Payment Agent’s indemnification obligations under Section 11; and (c) either party’s breach of Section 8 (Confidentiality), in no event shall either party be liable to the other for any indirect, incidental, special, consequential, or punitive damages (including, without limitation, loss of profits, revenue, or data), whether in an action in contract, tort (including but not limited to negligence), or otherwise, even if such party has been advised of the possibility of such damages.

Except for the exclusions above, each party’s total cumulative liability arising out of or related to this Agreement shall not exceed the total amounts paid or payable by Payment Agent to EdÛcare under this Agreement in the twelve (12) months preceding the event giving rise to the claim.

13. Severability:

If any part of this Agreement is found to be invalid or unenforceable, then that provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision, and the remainder of this Agreement shall remain in effect.

14. Modifications:

From time to time, EdÛcare reserves the right to update, delete and amend the terms of this Agreement at its sole discretion. Unless stated otherwise, modifications will become effective on the day they are posted. As permitted by applicable law, if the Payment Agent continues to receive and pay Fees for Services provided by EdÛcare to Customer after the effective date of any change, then such action by the Payment Agent will be deemed an acceptance of (and agreement to follow and be bound by) the revised Agreement. The revised Agreement will supersede all previously accepted versions of this Agreement.

15. Assignment:

Payment Agent may not assign or delegate any rights or obligations under this Agreement, including in connection with a change of control. Any purported assignment and delegation shall be ineffective. EdÛcare may freely assign or delegate all rights and obligations under this Agreement, fully or partially without notice to the Payment Agent.

16. Governing law and Jurisdiction:

This Agreement and any disputes arising under it will be governed by the laws of the State of California without regard to its conflict of laws provisions, and each party consents to the personal jurisdiction and venue of the state or federal courts located in San Francisco, California. In the event of any dispute between the parties regarding the terms of this Agreement, the party prevailing in such dispute shall be entitled to collect from the other party all costs incurred in such dispute, including reasonable attorneys’ fees.

17. Precedence:

In the event of a conflict or inconsistency between the terms and conditions contained in this Agreement and the UB Subscription Agreement, the terms of this Agreement will control.