Last Updated: July 15, 2019

When you use the online curriculum and professional development services provided by Sphero, Inc. bearing these terms (collectively, the “Services”), you’re agreeing to the following terms and conditions, so please take a few minutes to read over the Terms of Use below.

INTRODUCTION

These Terms of Use, as may be amended from time to time, together with any documents, policies, or terms they incorporate by reference (collectively, these “Terms of Use”), are entered into by and between you and Sphero, Inc., a Delaware corporation (“Sphero”, “we”, or “us”). For purposes of these Terms of Use, “you” includes, individually and collectively, you (the user or Customer) and any individual or affiliate that is visiting, viewing, using, or accessing the Services. To the extent that you have entered into another written agreement fully executed and signed by an authorized representative of Sphero that contains terms that directly conflict with these Terms of Use, such as a Sales Order, then the conflicting terms set forth in such other agreement will control. Any subjects not explicitly dealt with herein are governed by Sphero’s General Terms of Use, available at https://Sphero.com/terms, as amended from time to time, and those terms are hereby incorporated herein, provided that these Terms shall control over the General Terms of Use in the event of a conflict or inconsistency.

You acknowledge and agree that by (i) using or accessing the Services, (ii) clicking “Agree”, “Purchase”, “Submit”, or similar links, or (iii) signing or confirming a Sales Order or other agreement incorporating these Terms of Use, that you have read, understand, and agree to be bound by these Terms of Use. IF YOU DO NOT AGREE TO THESE TERMS OF USE, THEN YOU MAY NOT ACCESS OR USE THE SERVICES. SPHERO’S ALLOWANCE OF YOUR USE AND ACCESS TO THE SERVICES IS EXPRESSLY CONDITIONED UPON YOUR ASSENT TO ALL OF THE TERMS AND CONDITIONS OF THESE TERMS OF USE, TO THE EXCLUSION OF ALL OTHER TERMS.

PRIVACY POLICY

Information you submit or create in connection with your use of the Services is subject to our privacy policies found at https://www.Sphero.com/privacy (each a “Privacy Policy”).

SERVICES ACCESS AND ACCOUNT REGISTRATION

To access the Services, you may be asked to provide certain account information and other details, including creation of a Sphero Edu account. This account information helps us to create and maintain an account for you, which is necessary for providing you the content and customer service you request; as such, it is a condition of your use of the Services that all account information you provide is correct, current, and complete.

With regard to your contact information, billing information, name, password, any other piece of information you provide to us as part of account creation (collectively, “Account Information”), you agree to treat such Account Information as confidential. You also acknowledge that your Account Information is personal to you, and you agree not to provide any other person with access to the Services using your Account Information. You agree to notify us immediately at training@sphero.com of any unauthorized access to, or use of, your Account Information or any other breach of security that you become aware of.

Except as provided herein, you may not transfer your Account Information to any other person and you may not use anyone else’s Account Information or account at any time. In cases where you have nevertheless authorized or registered another person to use your account or Plan, or where you have acted negligently in safeguarding your Account Information as set forth above, you agree you are fully responsible for (i) the acts and omissions of such person accessing the Services with your Account Information, (ii) controlling the person’s access to and use of the Services, and (iii) the consequences of any use or misuse by such person. We reserve the right to cancel your Plan for violations of the foregoing section.

SUBSCRIPTION PLANS

(a) Plan Scope. The scope, features, and price of your access to the Services are determined by the subscription plan and account type you register for, purchase, order, renew, or change into (each, a “Plan”)—to further review the scope, features, and price of Sphero’s Plans, please contact training@sphero.com. Your use of and access to the Services is expressly conditioned upon timely payment of the applicable fee associated with your Plan.

We reserve the right to increase or decrease any Plan fee at any time; however, to the extent you have paid your fee in advance, the increase or decrease will not become effective for your Plan until the end of your current subscription term or your next renewal.

(b) Payment.

(i) If a payment is not successfully settled due to expiration, insufficient funds, or otherwise, and you do not edit your payment information or cancel your account, you remain responsible for any uncollected amounts and authorize us to continue billing you. This may result in a change to your payment billing dates. We may update your Account Information with information provided by the applicable payment service provider, and you authorize us to continue to charge the applicable fee to you.

(ii) Your transaction with us may be subject to foreign exchange fees or differences in prices because of exchange rates. We do not support all payment methods, currencies, or locations for payment. If your payment method fails, or if your account is past due, we may collect fees owed using other collection mechanisms—this may include charging other payment methods on file with us or retaining collection agencies and legal counsel, the fees and cost of which you hereby agree to pay. Notwithstanding anything to the contrary, your obligation to pay fees continues through the end of your applicable subscription term and regardless of whether you cancel your Plan during such term.

4.1 INDIVIDUAL PLANS

If you choose or purchase an individual subscription plan, Sphero grants you, and you alone, a non-exclusive, non-transferable license to use the Services for the subscription term length set forth during checkout, or in a Sales Order, in strict accordance with these Terms of Use for non-commercial or personal use only. For example, if you purchase an “annual” plan, you will have access to all of Sphero’s professional curriculum for one year from the date of purchase. You may also purchase individual courses, which will be available for one year from the date of purchase.

4.2 ENTERPRISE PLANS

(a) Enterprise License(s). If you choose or purchase an Enterprise subscription plan, Sphero grants you a non-exclusive, non-transferable license to use the Services for the subscription term length, which shall be one year unless you and Sphero agree otherwise in writing.

(b) Individual Users. The Enterprise License allows a specific number of your employees or affiliate employees to register as Sphero users (each, an “Enterprise User”) and receive access to the Services by way of your Enterprise License. Each Enterprise User must be designated by the Enterprise purchasing the License, after which each User will be provisioned unique Account Information to register for a Sphero account and receive access to use the Services through an individual single-use subscription (an “Individual Enterprise Subscription”). Each Individual Enterprise Subscription is to be used solely by the named Enterprise User. Each Individual Enterprise Subscription may not be shared amongst Enterprise Users nor may it be shared amongst multiple employees, affiliate employees, contractors, agents, or other individuals. Before any renewal term, you may switch holders of Individual Enterprise Subscriptions to new Enterprise Users for such renewal term by following Sphero’s instructions.

4.3 CURRICULUM

In order to purchase curriculum courses or lessons (“Curriculum”), you must have a Teacher or Learner Account, or create one. You may not purchase Curriculum from a Learner account. If you choose or purchase Curriculum, Sphero grants you and the Curriculum licensees a non-exclusive, non-transferable license to use the Curriculum for the subscription term length set forth during checkout or in a Sales Order, in strict accordance with these Terms of Use, for non-commercial or educational use only.

You must purchase an individual Curriculum license for each person that will use the Curriculum (a “Curriculum licensee”). Upon Curriculum purchase, we will send the purchaser a prompt to create or link accounts for each Curriculum licensee. Each Curriculum license is to be used solely by the named Curriculum licensee. Each Curriculum license may not be shared amongst Curriculum licensees, nor may it be shared amongst multiple employees, affiliate employees, contractors, agents, or other individuals. Sphero reserves the right to terminate any Curriculum license for breach of this Section 4.3.

4.4 REFUNDS

All fees, whether paid on a one-time basis or annually, are non-refundable. Exceptions for extenuating circumstances may be considered by emailing training@sphero.com; however, we are in no way required to refund you any portion of any fee.

4.5 RENEWAL; SUSPENSION; TAXES

(a) Unless otherwise set forth in writing and signed by you and Sphero, YOU UNDERSTAND AND AGREE THAT AT THE END OF EACH APPLICABLE TERM FOR INDIVIDUAL AND ENTERPRISE PLANS, WE WILL AUTOMATICALLY RENEW YOUR PLAN (INCLUDING ALL INDIVIDUAL AND/OR ENTERPRISE SUBSCRIPTIONS ON YOUR PLAN) FOR THE SAME LENGTH OF TERM AND PROCESS YOUR PAYMENT OR INVOICE FOR PAYMENT OF THE APPLICABLE LICENSE FEE FOR THE RENEWAL TERM AT THE THEN-APPLICABLE PRICE FOR YOUR PLAN.

By way of example, if you purchase 10 Individual Enterprise Subscriptions under a 1-year Plan beginning January 1, 2019, we will process your fee or invoice you for the 1-year cost of those subscriptions on the date of your checkout. Unless you notify us at least 30 days prior to December 31, 2019, we will renew your Plan on or around January 1, 2020 for one year and on or around January 1st each year thereafter for 10 Individual Enterprise Subscriptions at the then-applicable price for such subscriptions.

(b) Curriculum Plans will not auto-renew; however, you may renew Curriculum for subsequent terms by following the instructions in a renewal notice.

(c) Suspension Because of Nonpayment. If payment is not received within the required time period, or if we are unable to renew your Plan based on inaccurate or outdated payment information, we may suspend your access to the Services until payment is received. In the event we suspend your Plan because of nonpayment, no additional time will be added to the then-applicable Term.

(d) Taxes. When processing your payment or invoicing, we may include a separate charge for any applicable sales, use, value-added, or excise taxes, and any other similar taxes, duties or charges of any kind, other than taxes on Sphero’s income, imposed by any federal, state, or local governmental entity on any amounts payable by you under these Terms of Use or any Sales Order. We will remit taxes collected, if any, to the appropriate taxing authority.

PROPRIETARY MATERIALS

(a) Use of Sphero’s Proprietary Materials. The Services contain copyrighted materials, trademarks, proprietary and confidential information, and intellectual property of Sphero (collectively, “Proprietary Materials”), including without limitation source code, video, text, software, photos, graphics, images, music, and sound. You agree not to modify, publish, transmit, participate in the transfer or sale of, create derivative works of, or in any way exploit, in whole or in part, any Proprietary Materials. Proprietary Materials may only be accessed through the Services, and not by or from any other services or means. The applicable License granted you by these Terms of Use is a right of access through Sphero Edu only, and does not grant to you any right to download or store any Proprietary Materials in any medium, other than (i) that downloadable content that may be provided for certain training courses, including exercise files, course slides, and sample code, (ii) files that are automatically cached by your web browser for display purposes, and (iii) if we provide desktop, mobile, or other applications for download, a single copy of such application for your computer or mobile device solely for your own, personal use, provided you agree to be bound by an applicable end user license agreement for such application (collectively, the “Authorized Downloadable Materials”). Authorized Downloadable Materials are held by you pursuant to a limited revocable right only, and are subject to all restrictions described herein, including the prohibition on further transfer, sale, creation of derivative works, or exploitation in any manner.

(b) Reservation of Rights. Sphero reserves all intellectual property rights to the Proprietary Materials, other than as specifically granted under the applicable License granted you under these Terms of Use. No posting, copying, transmission, retransmission, distribution, redistribution, publication, republication, decompilation, disassembling, reverse engineering, or otherwise reproducing, storing, transmitting, modifying, or commercially exploiting any Proprietary Materials in any form or by any means, for any purpose, is permitted without our express written permission.

(c) Equitable Relief. You acknowledge that a breach of any proprietary rights described in these Terms of Use may cause us irreparable damage, for which the award of damages would not be adequate compensation. Consequently, you agree that we may institute an action to enjoin you from any and all acts in violation of those provisions, which remedy will be cumulative and not exclusive, and we may seek the entry of an injunction enjoining any breach or threatened breach of those provisions, in addition to any other relief to which we may be entitled at law or in equity.

MOBILE AND OTHER DEVICES

If you use a mobile device or Sphero-provided mobile application to access the Services, the following additional terms and conditions (“Mobile Terms”) also apply:

(a) You agree that you are solely responsible for all message and data charges that apply to use of your mobile device to access the Services. All such charges are billed by and payable to your mobile service provider. Please contact your participating mobile service provider for pricing plans, participation status, and details.

(b) You understand that wireless service may not be available in all areas at all times and may be affected by product, software, coverage, or service changes made by your service provider or otherwise. Additional terms and conditions may apply to your use of our mobile applications based on the type of mobile device that you use.

FEEDBACK

We welcome and encourage you to provide feedback, comments, and suggestions for improvements to the Services (“Feedback”). You acknowledge and agree that any and all Feedback provided by way of the Services or otherwise will be the sole and exclusive property of Sphero, and you hereby irrevocably assign to Sphero and agree to irrevocably assign to Sphero all of your right, title, and interest in and to all Feedback, including without limitation all worldwide patent rights, copyright rights, trade secret rights, and other proprietary or intellectual property rights therein. At our request and expense, you will execute documents and take such further acts as we may reasonably request to assist Sphero to acquire, perfect, and maintain its intellectual property rights and other legal protections for the Feedback.

DO’S AND DON’TS

(a) When using the Services, you warrant and agree that you will:

comply with all applicable federal, state, local, or international law or regulations (including without limitation any laws regarding copyright, intellectual property, privacy and personal identity, or the export of data or software to and from the U.S. or other countries);

provide true and accurate information to us and keep it updated;

use any interactive features in a respectful manner.

(b) When using the Services, you will not:

reproduce, redistribute, transmit, assign, sell, broadcast, rent, share, lend, modify, adapt, edit, create derivative works of, license, capture, download, save, upload, print, or otherwise transfer or retain information or content available on the Services other than with regard to Authorized Downloadable Materials, subject to the limited permissions set forth herein;

manually or systematically harvest, scrape, collect, or otherwise extract information or data contained on the Services, other than permitted use of Authorized Downloadable Materials or temporary storage of video materials for offline viewing (if permitted by your Plan);

permit or provide others access to the Services using your Account Information or otherwise, or the Account Information of another authorized user;

impersonate or attempt to impersonate Sphero, a Sphero employee, another user, or any other person or entity (including without limitation by using e-mail addresses or Account Information associated with any of the foregoing) or provide incorrect or knowingly false information;

remove or modify any copyright, trademark, legal notices, or other proprietary notations from the Proprietary Materials or any other content available on the Services;

co-brand or frame the Services or establish a link in such a way as to suggest any form or association, approval, or endorsement on our part, without the prior express written permission of an authorized representative of Sphero.

(c) Restricted Use of Services. We reserve the right to monitor your use of the Services, including any content you upload via your Account, and to suspend, revoke, deny, disable, or terminate your access or the access of any of your Enterprise Users if you or they have violated any provisions of these Terms of Use or if your or their usage behavior exceeds normal limits, as determined in our sole discretion. The meaning of the term “normal limits” will be determined solely by Sphero.

REPRESENTATION, WARRANTIES, AND COVENANTS

(a) Your Representations and Warranties. You represent and warrant that:

(i) You are (i) 18 years of age or older or an emancipated minor, and (ii) are fully able and competent to form a binding contract with Sphero by entering into these Terms of Use.

(ii) You are solely responsible for all service, telephony, data charges, and other fees and costs associated with your access to and use of the Services, including without limitation maintaining all internet, browser software and extensions, computer hardware, telephone, and other equipment required for such access.

(b) Authority. You and Sphero each separately represent, warrant, and covenant that you and Sphero have the full power and authority to: (i) enter into an agreement subject to these Terms of Use; (ii) perform the obligations hereunder, and that performance hereunder does not conflict with, limit, or run contrary to any other agreement; (iii) and that by so doing, neither you nor Sphero violates any applicable laws or any contractual relationship.

(c) Sphero Intellectual Property. Sphero represents, warrants, and covenants that: (i) we have and will have all rights, titles, licenses, intellectual property, permissions, and approvals necessary in connection with our performance under these Terms of Use to grant you the License and rights granted hereunder; and (ii) neither the Services (including the Proprietary Materials), nor the provision or utilization thereof as contemplated under these Terms of Use, will infringe, violate, trespass or in any manner contravene or breach or constitute the unauthorized use or misappropriation of any intellectual property of any third party.

(d) Reliance and Functionality. Sphero does not warrant that the content or functions of the Services will meet your requirements or that the operation of the Services will be uninterrupted or error free. The content and materials presented on or through the Services are made available solely for general information purposes. We do not warrant the accuracy, completeness, or usefulness of this information. Any reliance you place on such information is strictly at your own risk. We disclaim all liability and responsibility arising from or related to any reliance placed on such materials by you or by anyone who may be informed of any of its contents. The Services may include content provided by third parties, including materials provided by other users, bloggers, or third-party licensors, syndicators, aggregators, and reporting services. All statements and opinions expressed in these materials, and all articles and responses to questions and other content, other than the content provided by Sphero, are solely the opinions and the responsibility of the person or entity providing those materials. These materials do not necessarily reflect the opinion of Sphero. We are not responsible or liable to you or any third party, for the content or accuracy of any materials provided by any third parties.

(e) Availability of Services. You recognize that the traffic of data through the Internet may cause delays during your use of or access to the Services, and accordingly, you agree not to hold us liable for delays that are ordinary in the course of Internet use. You further acknowledge and accept that the Services may not be available on a continual 24-hour basis due to such delays, delays caused by our upgrading, modification, or standard maintenance of the Services, or any other delays outside of our control.

(f) Third-party services, links, SSO, OAuth, etc. If any portion of the Services contains services (e.g., discussion forums), links, resources, or materials provided by third parties, including without limitation URL links, discussion forum engines, single-sign on services (SSO), OAuth resources (e.g., Facebook, GitHub, LinkedIn, etc.), or capabilities to share to social media websites, these are provided for your convenience only. This may include links contained on courses or in advertisements, including banner advertisements and sponsored links on the Services. We have no control over the contents, software, or privacy practices of these third-party services, links, resources, or materials, and accept no responsibility for them or for any loss or damage that may arise from your use of them—if you access or use them, you do so entirely at your own risk.

TERMINATION; CANCELLATION POLICY

(a) Sphero’s Rights of Termination. You agree that we may deactivate your account or terminate your Plan if we believe that you have (a) breached these Terms of Use; (b) infringed the intellectual property rights of a third party; (c) violated or acted inconsistently with these Terms of Use, our Privacy Policy, or any other applicable code of conduct. You agree that any such deactivation or termination for the foregoing reasons may be effected without prior notice to you and that Sphero will not be liable to you or any third party for any deactivation of your account or termination of your Plan.

(b) Plan Cancellation. Your may cancel your Plan at any time by emailing training@sphero.com. WHILE YOU MAY DEACTIVATE YOUR ACCOUNT AT ANY TIME BY VISITING YOUR ACCOUNT SETTINGS, DEACTIVATING YOUR ACCOUNT WILL NOT CANCEL YOU PLAN OR ENTITLE YOU TO A REFUND. If you cancel your Plan, your Plan will remain active to the end of your then-current term to the extent your fee is paid. These Terms of Use will continue in effect and will govern such term until its expiration or earlier termination for cause. If you are dissatisfied for any reason with your Plan subscription, your sole right and exclusive remedy is to terminate your Plan. Other than as set forth herein, we will not offer refunds on any fees or charges related to your Plan—this includes any partially used or unused periods for which you have already paid. Your obligation to pay fees continues through the end of the subscription term during which you cancel your Plan. Enterprise Users that cancel their plans may not be replaced until a renewal term.

(c) You acknowledge and agree that Sphero may retain and store your information on Sphero’s systems for archival purposes notwithstanding any termination or cancellation of your account or Plan.

INDEMNIFICATION

(a) Indemnification. You agree to defend, indemnify and hold harmless Sphero, its directors, employees, licensors, independent contractors, providers, subsidiaries, and affiliates, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including reasonable attorneys’ fees) (hereinafter, “Claims”) arising out of or relating to: (i) your violation of these Terms of Use; (ii) your Feedback posted to the Services; (iii) any use by you of the Service’s material, content, services, or products other than as expressly authorized in these Terms of Use; or (iv) your use of any information obtained from the Services.

(b) Indemnification Procedure. You agree to cooperate as fully as reasonably required in the defense of any Claims, including asserting any available defenses. We reserve the right, at our own expense, to assume the exclusive defense and control of any Claims or matter otherwise subject to indemnification by you and you may not in any event settle any Claims without our prior written consent.

NO WARRANTY; LIMITATIONS ON LIABILITY

(a) No Warranty. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESSED OR IMPLIED. NEITHER SPHERO NOR ANY PERSON OR ENTITY ASSOCIATED WITH SPHERO MAKES ANY PROMISE, WARRANTY, OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY OR AVAILABILITY OF THE SERVICES. WITHOUT LIMITING THE FOREGOING, NEITHER SPHERO NOR ANY PERSON OR ENTITY ASSOCIATED WITH SPHERO PROMISES, REPRESENTS OR WARRANTS THAT THE SERVICES OR CONTENT OBTAINED THROUGH THE SERVICES OR ANY PORTION THEREOF WILL BE ACCURATE, RELIABLE, ERROR-FREE OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT THE SERVICES OR THE SERVER THAT MAKES THEM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE SERVICES OR ITS CONTENT OR MATERIALS WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS. SPHERO HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR PARTICULAR PURPOSE.

(b) Limitation of Liability. IN NO EVENT WILL SPHERO, ITS AFFILIATES, OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, OR DIRECTORS BE LIABLE TO YOU OR ANY THIRD PARTY WITH RESPECT TO THE SERVICES OR THE SUBJECT MATTER OF THESE TERMS OF USE UNDER ANY CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY, OR OTHER LEGAL OR EQUITABLE THEORY, EVEN IF FORESEEABLE, FOR: (i) ANY AMOUNT IN THE AGGREGATE IN EXCESS OF THE AMOUNT YOU HAVE PAID TO SPHERO FOR THE SERVICES IN THE THREE (3) MONTHS IMMEDIATELY PRIOR TO LIABILITY ARISING; (ii) FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, INCLUDING WITHOUT LIMITATION LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF ANTICIPATED SAVINGS, LOSS OF USE, OR LOSS OF GOODWILL; (iii) DATA LOSS OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; (iv) FOR ANY MATTER BEYOND OUR REASONABLE CONTROL; OR (v) FOR ANY ACTIONS OF, OR SERVICES PROVIDED BY, THIRD-PARTY SERVICE PROVIDERS OR INDEPENDENT CONTRACTORS (INCLUDING MENTORS) PROVIDING SERVICES ON BEHALF OF SPHERO OR VIA THE SERVICES.

THE FOREGOING DOES NOT AFFECT ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

CHANGES TO TERMS OR THE SERVICES

(a) Changes to these Terms. We reserve the right to change or modify these Terms of Use or any documents, policies, or terms they incorporate by reference in our sole discretion and at any time. Any such change or modification will be effective immediately upon posting. We will take reasonable steps to notify you of any changes or modifications. Notwithstanding anything to the contrary, your continued use of the Services and any other Sphero-provided services will be deemed your conclusive acceptance of all such changed or modified terms and conditions.

(b) Changes to the Services. Sphero may at any time, without notice or liability, change or eliminate any content or feature of the Services or any portion thereof, or restrict the use of any portion of the Services. Your only right with respect to any dissatisfaction with any service-related change or elimination is to cease use of the Services. We will not be liable if for any reason all or any part of the Services is unavailable at any time or for any reason.

GENERAL

(a) Non-Waiver. Failure by Sphero to enforce any provision(s) of these Terms of Use will not be construed as a waiver of any provision or right.

(b) Severability. If any provision of these Terms of Use is found to be illegal, void, or unenforceable, then that provision will be deemed severable from these Terms of Use and will not affect the validity and enforceability of any remaining provisions of these Terms of Use.

(c) Governing Law and Jurisdiction. These Terms of Use are governed by and will be construed in accordance with the laws of the State of Colorado without regard to conflict of laws principles.

(d) Dispute Resolution. Should any dispute arise with regard to these Terms of Use, the parties agree to first work in good faith to resolve such dispute, and neither party may commence any action with regard to such dispute until thirty (30) days have passed from the time such party has provided written notice to the other party of the nature of such dispute, provided that nothing herein will prevent us from seeking injunctive relief in the event of your actual or threatened breach of these Terms of Use.

(e) Notice. Any notice which may be required to be given under these Terms of Use, will be given:

(i) by Sphero to you via e-mail to the e-mail address you maintain in your account settings or by notifying you electronically by displaying the notice in the Services;

(ii) by you to us in any commercially reasonable manner, including certified mail, return receipt requested, e-mail, or any other customary means of communication at the applicable mailing address set forth below, as may be updated from time to time. Any notice given otherwise than in accordance with this Section will be deemed ineffective.

Sphero, Inc.

4772 Walnut St., Suite 206

Boulder, CO 80301

Attn: Legal Counsel

Email: legal@sphero.com

All other feedback, comments, requests for technical support, or other communications relating to the Services should be directed to the Sphero support team by emailing training@sphero.com.

(f) No Agency. Nothing in these Terms of Use will be construed as making either party the partner, joint venture, agent, legal representative, employer, contractor, or employee of the other. Neither Sphero nor any other party to these Terms of Use has, or may hold itself out to any third party as having, any authority to make any statements, representations or commitments of any kind, or to take any action that is binding on the other, except as provided for herein or authorized in writing by the party to be bound.

(g) Assignment. We may freely transfer or assign any portion of our rights or delegate our obligations under these Terms of Use. You may not assign or otherwise transfer your rights, obligations, or duties under these Terms of Use, in whole or in part, without our prior written consent, in our sole discretion. Any attempted transfer or assignment of these Terms of Use without the prior written consent of Sphero will be null and void ab initio. These Terms of Use will be binding upon and will inure to the benefit of the permitted successors and assigns of each party to these Terms of Use.

(h) Miscellaneous. These Terms of Use, our Privacy Policy, and the Mobile Terms, together with each Sales Order, as applicable, constitute the sole and entire agreement between you and Sphero with respect to the Services and supersede all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to the Services. The section titles used herein are displayed for convenience only and have no legal effect. Nothing in these Terms of Use confers any third-party beneficiary rights or remedies. The inclusion of your purchase order number on any Sales Order, invoice, or other Sphero-provided document is for reference purposes only and is not an acceptance by Sphero of your terms or conditions contained therein or elsewhere. The terms on any such purchase order or similar document submitted by you to Sphero will have no effect and are hereby rejected. If any dispute should arise between the parties hereto regarding the terms or subject matter of these Terms of Use or the enforcement or breach of such terms, then the party prevailing in such dispute, whether by out-of-court settlement or final judicial determination, will be entitled to recover from the non-prevailing party all costs and expenses of such dispute incurred by such prevailing party, including without limitation reasonable attorneys’ fees.