PLEASE READ THESE TERMS OF USE FOR THE KANGA SUBSCRIPTION SERVICES (THE “KANGA TERMS”) CAREFULLY BEFORE ACCESSING OR USING THE SERVICES, PRODUCTS, AND PLATFORM (COLLECTIVELY, “KANGA SERVICES”) OFFERED BY PRESENCELEARNING, INC. (“PRESENCE”). YOUR USE AND ACCESS TO KANGA SERVICES ARE CONDITIONED UPON YOUR COMPLIANCE AND ACCEPTANCE OF THESE TERMS. 

YOU MAY SUBSCRIBE TO THE KANGA SERVICES THROUGH AN ONLINE REGISTRATION PAGE (EACH AN “ONLINE FORM”) WHICH MAY CONTAIN ADDITIONAL TERMS APPLICABLE TO THE KANGA SERVICES FOR WHICH YOU ARE SUBSCRIBING. UNLESS OTHERWISE EXPRESSLY SET FORTH IN ANY SUCH ADDITIONAL TERMS AND CONDITIONS, THOSE ADDITIONAL TERMS ARE HEREBY INCORPORATED INTO THIS AGREEMENT IN RELATION TO YOUR USE OF THAT KANGA SERVICE. 

BY CLICKING THE “TRY FOR FREE” OR “BUY NOW” BUTTON AND/OR ACCESSING AND USING THE KANGA SERVICES IN ANY MANNER, YOU OR YOUR ENTITY (“YOU”, “YOUR” OR “KANGA SUBSCRIBER”) AGREE THAT YOU HAVE READ AND AGREE TO BE BOUND BY, AND ARE A PARTY TO, THESE KANGA TERMS AND ANY INCORPORATED DOCUMENTS. YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO AGREE TO BE BOUND BY THESE KANGA TERMS. IF YOU DO NOT AGREE TO THESE KAGNA TERMS, YOU MAY NOT USE SERVICES. YOU MUST BE 18 YEARS OF AGE OR OLDER TO SUBSCRIBE FOR THE SERVICES. KANGA SERVICE, FREEMIUM, AND KANGA PLATFORM MAY ONLY BE USED IN THE UNITED STATES OF AMERICA

1. INTRODUCTION. The following Kanga Terms apply to independent clinicians or clinical agencies (collectively, “Kanga Subscribers”) who subscribe to the Kanga platform (“Kanga Platform”) for the purpose of providing teletherapy or similar virtual services to their own patients or clients. Kanga Subscribers are not affiliated with Presence; they are independent practitioners who use the Kanga Platform under a subscription agreement with Presence.

If you are a school district or educational institution, these Kanga Terms do not apply to you, please go to School District Terms of Use. 

2. DEFINITIONS.  The below terms are used herein with the following definitions:

“Active Therapy Room Sessions” means when a therapy session takes place in the Therapy Room, with You and at least one End User logged into the Therapy Room. 

“Authorized User” or “Authorized Users” means any person or persons for whom You have purchased a subscription and/or granted access to the Services.

“Administrator Dashboard” means the data visualization tool that displays, among other things, Authorized Users, Authorized User caseloads, Kanga Platform usage, and End User information.

“BAA” means Business Associate Agreement.

“Chat Box” means a Kanga Platform communication tool that enables an Authorized User to engage in real time communications with Platform technical support. 

“Clinical Workshops” means workshops applicable to an Authorized Users specific discipline.

“Components” means the components of the Kanga Platform including software or other information and technology that is embodied in the Kanga Platform.

“Confidential Information” means: (a) any information disclosed by or on Your behalf to  Presence, or by Presence to You, during the Term that at the time of disclosure: (i) was marked or described as “confidential” or (ii)  given the nature of the information and the manner of disclosure should have been reasonably  understood by the You or Presence to be confidential; and (b) End User Data.

“Documentation” means written, printed, or otherwise recorded or stored material that relates to the Platform, including technical specifications, source code annotations, training and support materials, descriptions of the principles of operation of source code, and other instructions. 

“End User” and “End Users” means the patients to whom You provide clinical services.

“ePHI” means any personal health information that is stored, accessed, transmitted, or received electronically

“Help Center” means proprietary videos, manuals, user guides, and articles available in the Platform as a help resource for You or Authorized Users.

“HIPAA” means Health Insurance Portability and Accountability Act of 1996, as amended from time to time.

“Intellectual Property Rights” means copyright, moral rights, trademark, trade dress, patent, trade secret, unfair competition, right of privacy, right of publicity, and any other proprietary  rights.

“Kanga Platform” means Presence’s proprietary application software known as Kanga, including all Components, modules, functions, features, services, and all technology resources and infrastructure (e.g. hardware, third party software, etc.) related thereto. 

“Library” means third-party licensed and Presence-created content available to Authorized Users in the Kanga Platform.

“Personally Identifiable Information” and/or “PII” means information that can identify a specific individual.

“Presence Property” means and includes the Kanga Platform and its contents, including, but not limited to, the Library, Clinical Workshops, Help Center, Dashboard, Therapy Room, and Telehealth Institute. 

“Presence Documentation” means any materials, including in electronic form, relating to the  operation and use of the Kanga Platform and Kanga Services including, but not limited to, user manuals, user guides, technical manuals, release notes and emails, and online help materials, regarding use of  the Kanga Platform and Kanga Services provided, and any other materials prepared in connection with any  Kanga Platform modification, correction, or enhancement, and any updated versions of the Kanga Platform as  may be provided by Presence from time to time: (a) in the course of providing the Kanga Service; (b) as  part of an online tutorials, training, or help files provided with Help Center and Telehealth Institute;  or (c) in the course of providing web seminars, clinical support.

“Subscription” means a limited license to utilize the Kanga Platform in a Subscription Plan during the Subscription Term.

“Subscription Plan” means the Subscription type which You purchased and under which You are granted access to the Platform. 

“Subscription Fees” means the fees due on the Online Form for Your Subscription Plan.

“Subscription Term” means the length of time Your Subscription is active. 

“Telehealth Institute” means proprietary self-guided training modules.

“Therapy Room” means an individually assigned online room on the Platform only accessible by specific link controlled by You or Your Authorized User.

“Virtual Waiting Room” means a virtual waiting room of the Therapy Room where an End User first enters using the Therapy Room link and permitting you to admit only intended participants.

“Your Data” means all data, works and materials, uploaded to, stored, or transmitted in or to the Kanga Platform by You or an Authorized User.

“Your Property” means all text, content, images, video, music, drawings, documentation, and other materials of any kind posted, uploaded, or otherwise made available by You or an Authorized User.

3. LICENSE AND USE OF KANGA PLATFORM. By subscribing to the Kanga Platform, you receive a limited, non-exclusive, non-transferable license to access and use the Kanga Platform for conducting virtual sessions with your patients or clients. Kanga Subscribers are responsible for ensuring that all necessary professional licenses and consents for patient services are in place. Patients do not create their own accounts; they simply access a secure link that You provide.

4. SUBSCRIPTION PLANS AND CHARGES. 

4.1 Subscription Plans. When you purchase a Subscription by utilizing the Online Form you may select from a monthly or an annual Subscription Plan. Except for the Freemium Subscription Plan, you will be asked to provide credit card information through a third-party payment processor. You agree that Presence, through a third-party payment processor, may charge to Your credit card all amounts due and owing for the Subscription Plan You select. Presence may change prices at any time, including changing from a free service, such as the Freemium Subscription Plan, to a paid service. In such an event Presence will provide You with prior notice and an opportunity to cancel Your Subscription Plan. All fees are (i) payable in United States dollars only, (ii) based on purchase, regardless of usage, and (iii), as except as specifically described above, non-cancelable and non-refundable.

4.2 Monthly Plan. If You purchase a monthly Subscription Plan (a “Monthly Subscription Plan”), Your Subscription begins immediately upon Your payment of the applicable fee, regardless of when You activate Your account. Your Monthly Subscription Plan will automatically renew each month without notice and Presence will automatically charge You the then-current rate every month until You cancel the Monthly Subscription Plan. Presence will notify You of any changes to the monthly Subscription fee not less than thirty (30) days before such changes are to take effect and You will have the option to cancel the Monthly Subscription Plan. Your Subscription Plan fee will include any applicable taxes.

4.3 Annual Plan. Annual Plans are paid upfront for a full calendar year. If You purchase an annual Subscription Plan (an “Annual Subscription Plan”), Your Annual Subscription Plan begins immediately upon Your payment of the Subscription Fee. Your Annual Subscription Plan will automatically renew on the anniversary of the day on which You purchased the Subscription Plan and Presence will automatically charge You the then-current rate. Presence will notify You sixty (60) days prior to any renewal of any changes to Your Annual Subscription Plan fee, and you will have the option to cancel Your Annual Subscription Plan for the upcoming year. Your Subscription Plan fee will include any applicable taxes.

4.4 Account Activation. Once You have made a payment, You will receive an email with instructions to activate Your account. If Your Subscription Plan includes assessments, You will need to certify that You have all of the appropriate and required clinical qualifications to access and administer the assessments prior to gaining access to the Kanga Platform and /or assessment. If You are not able to provide the appropriate and required clinical qualifications to access and administer assessments that may be included in the Subscription Plan You purchased, Presence will notify You and You may cancel Your subscription.

4.5 Freemium Subscription Plan. If you select the Freemium Subscription Plan, you will not be asked for any credit card or payment information; however, you must provide an email address and contact information. Once you sign up for a Freemium Subscription Plan you will receive an email to activate your account. The Freemium Subscription Plan is subject to limitations and does not include certain features and capabilities otherwise available in the Kanga Platform. All Freemium accounts will be provided with 240 minutes per month of Active Therapy Room Sessions (the “Minutes Bank”). After You exhaust the Minute Bank, You will no longer be able to access the Kanga Platform. On the first day of each calendar month, regardless of how many minutes you may have left in your Minutes Bank, your Minute Bank will reset to 240 minutes for the then-current month. Each account will have a counter on the bottom left of the screen specifying how many minutes you have available. There will be no minutes carried over month_ to-month. You will not be owed any type of refund upon cancellation.

4.6 Your Credit Card Information. Presence will use the third-party payment processor, such as Stripe, to collect payments from You. You may be asked to agree to the third-party payment processor’s terms of use. All the payment data and information You provide to the third-party payment provider is directly to the third-party payment processor and Presence will not collect or store any of Your payment information. In no event is Presence responsible for the actions or inactions of any third-party payment processor, including, but not limited to, system downtime or payment service outages.

“Stripe” is a registered trademark of Stripe, Inc.

4.7 Failed Charges. You are responsible for providing correct and up-to date information to the third-party payment processor regarding Your account. If Your credit card on file is closed, the account information is changed, or if, for any reason, a charge is rejected, Presence will notify You and You will have 24 hours to update Your account information or supply a new payment method, as appropriate.  If You do not do so, Presence will, without liability or further notice, disable Your access to all or part of the Service. Accounts that have been activated may be reactivated if valid payment information is entered within 7 days and the credit card can be successfully processed for all outstanding charges. 

4.8 End Users Payments. Presence will not collect any payments or payment information from Your End Users. You are solely responsible for collecting payments from Your End Users by Your own means and Presence is not responsible for any financial transactions between You and Your End Users.

5. TERMINATION AND CANCELATION. 

5.1 Cancellation of Subscription. You may cancel Your Subscription Plan at any time by emailing asksupport@presence.com. However, except as otherwise described herein no refunds (prorated or otherwise) are provided upon cancellation. For Annual Subscription Plans ONLY, if You cancel within the first thirty (30) days of the start of the Subscription Term, You will be refunded the amount of the Subscription Fee You paid LESS an amount equal to the then-current Monthly Subscription Plan rate (i.e., 11/12ths of the amount You paid for the Annual Subscription Plan).

5.2 Suspension of Use. Failure to make a recurring payment of any Monthly Subscription Plan, for any reason, will result in suspension of Your Monthly Subscription Plan. Presence may also, at its sole discretion, suspend Services if You violate any of these KangaTerms.

5.3 Termination by Presence. If you violate any provisions on these Kanga Terms, Presence, at its sole discretion, may terminate Your Subscription Plan immediately and retain any fees previously paid by You. Upon any termination of Your Subscription Plan, You must cease any further use of the Services and will no longer be able to access the Platform.

5.4 Effects of Termination or Cancelation. If You cancel Your Subscription Plan before an upcoming renewal date, You will have access to Your account through the end of the then current Subscription Term, after which You will lose access to the Platform and any data You have stored on the Platform will be permanently deleted with (7) days. If Presence terminates

6. CHANGE OF SUBSCRIPTION PLAN. At any time during Your Subscription Term, You may change Your Subscription Plan by emailing asksupport@presence.com or through the Chat Box when You log into Your account.

7. YOUR RESPONSIBILITIES. 

7.1 Access to Others. You agree not to allow access or to give use of the Platform or Your Therapy Room to anyone other than Your End Users. 

7.2 Safeguarding. You shall establish, maintain, and enforce policies and procedures to safeguard and protect the Services and Presence Property which are no less rigorous than reasonable standards relating to Your Confidential Information and property. You will be responsible for all of Your acts and omissions of You, and for the acts and omissions of Your employees, partners, independent contractors, or staff who may be Authorized Users and have access to the Platform, and Your End Users in regard to their access and use of the Platform and Presence Property.

7.3 End Users’ Use. You may only use the Kanga Services pursuant to these Kanga Terms. You are solely responsible for You and Your End Users use of Kanga Services and compliance with all applicable laws and regulations.

7.4 Login and Password Information. In order to access the Services, You are assigned a valid username based on the email address You provided Presence and You will be asked to choose a password (the “Log-In Information”). You are entirely responsible for maintaining the security of Your Log-In Information and agree not to disclose to any third party. Sharing of accounts is not allowed. Presence may suspend Kanga Subscriber access if we discover that someone other than the authorized account owner is using a Kanga Subscriber’s Log-In Information.

7.5 Copyright. You may not post, modify, distribute, or reproduce in any way copyrighted material, trademarks, rights of publicity or other proprietary rights without obtaining the prior written consent of the owner of such proprietary rights. If Presence becomes aware that you are infringing on another party’s copyright, Presence may deny you access to the Kanga Services and at its discretion terminate Your Subscription Plan.

7.6 Privacy. You will be solely responsible for compliance with all privacy laws and data protection laws that are applicable to You and Your End User(s), including HIPAA. Presence will make no use of ePHI or PII that is not permitted by the Kanga Terms, the BAA (as made available to You), or that is prohibited by applicable law, including but not limited to HIPAA. It is Your responsibility to obtain all necessary consents (including with respect to Your End User(s)’ access) and that the End User has agreed to the collection and access of their PII and ePHI by You, and, where applicable, by us and other third parties. Presence does not provide legal or compliance advice and You are responsible for retaining competent counsel and advisors for these purposes.

8. DATA OWNERSHIP; DATA RETENTION AND DELETION

8.1 Data Ownership. The data You enter into the Kanga Platform, including patient information and session notes, belongs to you (collectively, “Subscriber Data”). Presence merely hosts and processes this data on your behalf. Subscriber Data is stored in a secure, encrypted environment on U.S.-based servers, consistent with state and federal regulations. If you choose to or are required to comply with HIPAA, you are responsible for ensuring any necessary business associate agreements or other compliance measures are in place. 

8.2 Data Collection and Storage. Subject to Your compliance with Your obligations set forth in this Section 8, You are able to upload and store Subscriber Data, which may include PII and ePHI, using the caseload management and documentation tools within Kanga Platform. 

8.3 Data Retention and Deletion. Upon expiration or termination of Your Kanga Subscription, all Subscriber Data is typically deleted within forty-eight (48) hours. You may request an earlier export or deletion of Subscriber Data at any time, provided that such actions are not contrary to any applicable laws or professional record-keeping requirements.

9. THERAPY ROOM ACCESS; VIDEO RECORDING. 

9.1 Therapy Room Access. You will be assigned a link which will serve as Your link to Your Therapy Room. Your End User(s) will only be able to access Your Therapy Room through Your unique link. When Your End User(s) attempts to access Your Therapy Room, You will be alerted that there is someone in Your online Waiting Room. The alert will show their name (which Your End User(s) must enter at the time requesting access) and You will have the opportunity to view the names of anyone who is in Your Waiting Room before allowing entrance. Only You will have the ability to allow Your End User(s) to enter Your Therapy Room.

9.2 Video Recording. You will be unable to record any sessions or activities through the Kanga Platform.

10. PROPRIETARY RIGHTS.

10.1 Presence Property. Presence owns all rights, title, and interest in all Presence Property, including, but not limited to, proprietary content in Library, including therapy playlists and documents, and to all Telehealth Institute content and health articles. Presence retains all right, title and interest to any work product or other intellectual property developed and/or created for You in connection with Kanga Services, including any content provided by Presence on Your behalf in  or through the Kanga Platform. Intellectual property that is licensed to Presence from a third party will be deemed Presence Property only to the extent that Presence has the right to sublicense such intellectual property to You within the scope of the license.

10.2 Your Content. If Your Subscription Plan allows you to upload, transmit, and/or display content while utilizing the Kanga Services, You are solely responsible for all content transmitted, displayed, or uploaded by You (“Your Content”). You agree to comply with all laws pertaining to Your Content, including intellectual property laws. You represent and warrant that You have the right to use Your Content and that such use does not violate or infringe on any rights of any third party. Under no circumstances is Presence responsible for Your Content, the transmission and displaying of Your Content, or any loss or damages that results from Your Content. Your Content will not be accessible by any other users of the Kanga Platform. 

10.3 Use of Your Content. Whenever You upload Your Content to the Platform, You grant to Presence a non-exclusive, limited, royalty-free license to modify, display, store, transmit and to use, as may be necessary for provisions of Kanga Services. This right can be revoked by You upon termination or expiration of Your Subscription Term. Presence acquires no right, title or interest from You in or to any of Your Content.

10.4 Removal of Your Content.  If Presence determines in good faith, at its sole discretion,  that any of Your Content (i) infringes on a third parties’ intellectual property right or violates any laws; (ii) pose a material security risk; (iii) could be deceptive or perceived as  libelous, defamatory, obscene, racist, hateful, or otherwise objectionable; and/or (iv) give rise to a  liability, or in violation of law or any misuse listed in Section XX below, then Presence may remove or delete Your Content without notice to You, suspend Your use of the Kanga Platform, and/or pursue other remedies and corrective actions. and, depending on the violation, may terminate Your Subscription.

11. DMCA. Presence understands the importance of intellectual property rights of others. Please refer to our Copyright Policy. 

12. TECH SUPPORT. 

12.1 Therapy Room Support Access. At times a Presence tech support technician may need to enter or access Your Therapy Room to perform maintenance or offer technical support. You will be notified prior to someone entering Your Therapy Room and will be able to deny access to Your Therapy Room during a session. If you permit the tech support technician to enter your Therapy Room, You are responsible for clearing any PII and ePHI in Your Therapy Room screen and alerting Your End User, prior to tech support entering Your Therapy Room.

12.2 Chat Box Feature. The Kanga Platform offers live chat support. During the chat support session, a tech support technician will not be able to see Your Therapy Room.

13. RESTRICTIONS. 

13.1 No Reverse Engineering. You shall not (and shall ensure that Your employees, partners, independent contractor, or staff do not) (i) modify, port, adapt, translate any portion of the Platform or its software or (ii) reverse engineer, decompile or disassemble or otherwise attempt to discover, within the Platform or software involved, the source code, data representations or algorithms, process, methods, or any other portion of the Platform.

13.2 Sublicensing. You do not have the right to grant a sublicense or access to the Kanga Services, including, but not limited to, the Platform to any third parties.

13.3 Misuse. If You misuse the Kanga Services in any manner, including, but not limited to, the misuses listed below, You will permanently lose access to the Kanga Services. You must not: 

• Enable or allow others to use the Kanga Services using Your Log-In Information;
• Circumvent any access or use restrictions put into place to prevent certain uses of the Kanga Services;
• Engage in behavior that violates anyone’s intellectual property rights;
• Upload to the Kanga Platform and/or share any of content that is unlawful, harmful, threatening, obscene, violent, abusive, tortious, defamatory, libelous, vulgar,  lewd, profane, invasive of another’s privacy, hateful, or otherwise objectionable;
• Use the Kanga Platform and/or share any content that sexualizes minors or that is intended to facilitate inappropriate interactions with minors, Your End User(s), or  others;
• Impersonate any person or entity, or falsely state or otherwise misrepresent Your affiliation with a person or entity;
• Attempt to disable, impair, or destroy the Kanga Platform;
• Upload, transmit, store, or make available any content that contains any viruses, malicious code, malware, or any components designed to harm or limit the  functionality of the Kanga Platform;
• Disrupt, interfere with, or inhibit any other user from using the Kanga Platform (such as stalking, intimidation, harassment, or incitement or promotion of violence or self-harm);
• Engage in chain letters, junk mails, pyramid schemes, phishing, spamming, fraudulent activities, or other unsolicited messages;
• Place an advertisement of any products or services; or
• Violate any laws.

14. REPRESENTATIONS AND WARRANTIES. You represent and warrant that: (i) You will use the Kanga Services in accordance with these Kanga Terms; (ii) You have the clinical expertise to provide the services You intend to provide via the Platform; and (iii), if Your subscription include assessments, that You possess the clinical expertise to administer the assessment included within the Subscription Plan.

15. INDEMNIFICATION. You will defend, indemnify and hold harmless Presence, its  officers, agents, employees, and affiliates from and against any claim, demand, loss, or  damage, including reasonable attorneys’ fees, arising out of or related to (i) Your Content; (ii)  Your and Your employees’, partners’, and independent contractors’ use of the Service; (iii) Your  illegal behavior or conduct with respect to the Services or the Platform; (iv) Your or Your  partners’, independent contractors’, and End User(s)’ use of the Platform or Presence Property  in an inappropriate manner or in any manner inconsistent with or in breach of these Kanga Terms;  and/or (iv) any claim alleging facts that would constitute a breach of Your representations and  warranties made in these Kanga Terms. You agree to fully cooperate with Presence in the defense of any claim.

16. DISCLAIMER OF WARRANTIES. The Kanga Services and Kanga Platform are provided ‘AS-IS’ and to the maximum extent permitted by law, Presence disclaims all warranties, express or implied, including the implied warranties of non-infringement, merchantability, and fitness for a particular purpose. Further, Presence disclaims any warranty that the Services will meet Your requirements or will be constantly available, uninterrupted, timely, secure, or error-free. In addition, Presence disclaims all liability for any actions resulting from Your use of the Services.  You understand that Your use and access to the Platform is at Your own discretion and risk, and You are solely responsible for any damage to Your computer systems or loss of data that results from such use. If You post or upload Your Content to the Platform, Presence is not responsible for any loss, corruption, damage, deletion of Your Content.

17. LIMITATION ON LIABILITY. DAMAGE DISCLAIMER. NO EVENT SHALL PRESENCE BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR SPECIAL  DAMAGES WHATSOEVER, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF  BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, AND THE LIKE, ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF SERVICES  OR THE PLATFORM.  GENERAL DAMAGE CAP. PRESENCE’S TOTAL LIABILITY IN ANY MATTER ARISING OUT OF OR RELATED TO THESE KANGA TERMS IS LIMITED TO THE GREATER OF (I) US $100 OR (II) THE AGGREGATE AMOUNT YOU PAID FOR THE SERVICES DURING A THREE-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE LIABILITY. THESE LIMITATIONS APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW EVEN IF (A) A REMEDY DOES NOT FULLY COMPENSATE YOU FOR ANY LOSSES; OR (B) PRESENCE KNEW OR SHOULD HAVE KNOWN ABOUT THE POSSIBILITY OF DAMAGES.

18. MISCELLANEOUS. 

18.1 Updates to Kanga Terms. Presence may modify these Kanga Terms from time to time, and when that happens the effective date on the top of this page will be updated as notice. You should look at these Kanga Terms regularly. Unless stated otherwise, the updated Kanga Terms will be effective immediately upon the effective date shown, and Your continued use of the Kanga Services will confirm Your acceptance of the changes. If at any point in time You do not agree with these Kanga Terms You should stop use of the Kanga Services.

18.2 Specifications and Tech Support. The Kanga Platform is a cloud-based application, and in order to properly access the Services a user must have a computer with a dual core processor and 2 GB RAM that has the ability to support a headset and microphone and a broadband internet connection with a minimum of 500 kbps (or higher) with upload and download speeds of 1mbps (or higher). Presence will provide technical support on weekdays between the hours of 8:00AM and 8:00PM (Eastern time) available through the Chat Box.

18.3 Survival. Upon the expiration or termination of the Subscription Term or these Kanga Terms, all access to Services may cease without prior notice. The sections entitled Content Ownership, Proprietary Rights, Indemnification, and Limitation on Liability will survive expiration or termination of any Subscription Term or these Terms.

18.4 Assignment. You may not assign or otherwise transfer Your rights and obligation under these Kanga Terms, in whole or in part, without Presence’s prior written consent, and any attempt to do so will be null and void. Presence may transfer Presence’s rights under these Kanga Terms to a third party.

18.5 Headings. Headings used in these Kanga Terms are provided for convenience only and will not be used to construe meaning or intent. 

18.6 Force Majeure. Presence is not liable for failing or delaying performance of its obligations resulting from any condition beyond its reasonable control, including but not limited to, governmental action, acts of terrorism, earthquake, fire, flood or other acts of God, epidemic, pandemic, labor conditions, power failure, and Internet disturbances.

18.7 No Waiver. Presence’s failure to enforce or exercise any provision of these Kanga Terms is not a waiver of that provision.

18.8 Disclosure of Improvements and Developments. Unless otherwise provided in these Kanga Terms, Presence will have no obligation to disclose to You any Platform Improvements. Presence may perform maintenance or provide upgrades to the Platform from time to time to provide enhanced features and improvements, bug fixes and error corrections. Presence will use commercially reasonable efforts to provide a 48 hours’ advance notice prior to Presence’s performance of any scheduled maintenance or upgrades, which may result in the unavailability of the Platform. The extent to which any new features or functionality may be made available to You will depend on Your then-current Subscription Plan. 

18.9 Acknowledgements. You acknowledge and agree that Presence is in the business of commercially licensing the Kanga Platform or providing Kanga Services relating to the Kanga Platform to third parties and that the Platform may contain errors. PRESENCE SHALL NOT HAVE ANY DUTIES OR RESPONSIBILITIES UNDER THESE KANGA TERMS OTHER THAN THOSE SPECIFICALLY SET FORTH IN THESE KANGA TERMS AND NO IMPLIED OBLIGATIONS SHALL BE READ INTO THESE KANGA TERMS. PRESENCE RETAINS ALL RIGHT, TITLE, AND INTEREST IN AND TO THE KANGA PLATFORM NOT EXPRESSLY LICENSED UNDER THESE KANGA TERMS.

18.10 Severability. If any provision of these Kanga Terms is held invalid or unenforceable for any reason, these Kanga Terms will continue in full force and effect. 

18.11 Injunctive Relief. Notwithstanding anything to the contrary contained within these Terms, in the event of Your or Your employees, partners, or End User(s) unauthorized access to or use of the Kanga Services in violation of these Kanga Terms, You agree that Presence is entitled to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.

18.12 Arbitration. Kanga Subscribers agree that any dispute arising out of or related to these Kanga Terms, or the Kanga Platform shall be resolved by binding arbitration in New York. By agreeing to arbitration, you waive the right to a court or jury trial and to participate in class actions.

18.13 Notices. To Presence: You may send notices to Presence at the following address: PresenceLearning, Inc., 530 Seventh Ave, M1, New York, NY 10018, Attn: Legal Department or via email at legal@presence.com. To You: Notices will be sent to You by the email You provided or other legally acceptable means.

18.14 Independent Contractors. The parties are and shall remain independent contractors and nothing in these Kanga Terms shall be deemed to create any agency, partnership, or joint venture relationship between the parties. Neither party shall be deemed to be an employee or legal representative of the other nor shall either party have any right or authority to create any obligation on behalf of the other party.

18.15 Governing Law. These Kanga Terms are governed by and construed under the laws of New York State without regard to conflict of law rules. The parties consent to the exclusive jurisdiction and venue of the courts located in and serving New York, New York. 

18.16 California Resident (CCPA and CPRA Disclosures). If you are a California resident, you may have certain privacy rights under the California Consumer Privacy Act (“CCPA”) and the California Privacy Rights Act (“CPRA”), including the right to request access to, correct, or delete your personal information, and the right to opt out of the sale or sharing of your personal information (if applicable). You may also report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs:

1625 North Market Blvd., Suite N 112Sacramento, CA 95834

Telephone: (800) 952-5210

For more information on your California privacy rights and how to exercise them, please review our Privacy Policy or contact us at legal@presence.com.