WHEREAS, Company and its Affiliates, are the developer and operator of a web-based e-learning platform called ‘VEDAMO’ which is an online based system for distance education and real-time communication via a video-conferencing classroom and learning management system (the “Platform”).
WHEREAS, Company and Customer desire to enter into this Agreement to memorialize their respective responsibilities for implementing, conducting and providing the Platform (“School Program”) to Customer and to Users authorized by Customer and to set forth the parties’ rights and responsibilities as regards use, confidentiality, data privacy and intellectual property protection in connection with the School Program.
THEREFORE, the parties hereby agree as follows:
1.1. The definitions and rules of interpretation in this Section apply in this Agreement and, unless expressly provided otherwise, any Services Order Form.
“Affiliate” means in respect of a party, any entity that from time to time, directly or indirectly, Controls, is Controlled by, or is under common Control with that party and any other entity agreed in writing by the parties as being an Affiliate in respect of either party;
“Applicable Tax” means any applicable national, federal, state and local sales, use, value added, excise and other similar taxes, fees and surcharges that are legally or by custom borne by a purchaser of goods or services;
“Authorized user” means employees, students and any other persons authorized by Customer to use the Platform in accordance with the terms and conditions of this Agreement and who has been provided a User Account by the Customer.
“Commencement Date(s)” means the date(s) specified in an Services Order Form, from which Company shall provide the Customer with access to the Services;
“Confidential Information” means non-public information that is disclosed by or on behalf of a Party under or in relation to this Agreement that is identified as confidential at the time of disclosure or should be reasonably understood to be confidential or proprietary due to the nature of the information and/or the circumstances surrounding its disclosure. Confidential Information includes, but is not limited to, all trade secrets, know how, proprietary information, techniques, technology, technical specifications for the Services, features, functionality and performance of the Services, operations and prospects, costs, markets, pricing policies and data. Confidential Information does not include information which, and solely to the extent it (i) is generally available to the public other than as a result of a disclosure by the Receiving Party or any of its representatives; (ii) was known to the Receiving Party prior to the date hereof on a non-confidential basis from a source other than disclosing Party or its representatives as evidenced by Receiving Party’s independent records; (iii) is independently developed by the Receiving Party without the benefit of any of the disclosing Party’s Confidential Information; or (iv) becomes lawfully known to the Receiving Party on a non-confidential basis from a source (other than disclosing Party or its representatives) who is not prohibited from disclosing the information to the Receiving Party by any contractual, legal, fiduciary or other obligation. In any dispute concerning the applicability of these exclusions, the burden of proof will be on the Receiving Party and such proof will be by clear and convincing evidence.
“Control” means the ownership of, or power to vote in respect of, at least 50% of the voting stock, shares or interests of an entity;
“Customer Data” means any data transferred to Company by the Customer for input into the Services and/or input into the Services by the Customer or the Authorised Users including all the data collected by the Company as specified in Section 4.3;
“Data Protection Legislation” means all data protection and privacy laws enacted in the applicable territories in which the Services are provided from time to time and any subordinate legislation thereof.
“Discloser” means a party disclosing its Confidential Information to the Recipient and in the case of the Customer may be the Customer, the Authorized users and/or the Customer’s Affiliates and in the case of Company may be Company and/or Company’s Affiliates, as applicable;
“Documentation” means the documentation pertaining to the use of the Services that is made available to Customer, as it may be updated from time to time by Company. Customer agrees to be, and is hereby bound by, the terms of such documentation as if such documentation was attached to and made a part of this agreement.
“Fees” means the Services license fees, Support fees, if any, and all other fees or charges arising under this Agreement as set out in each Services Order Form;
“Intellectual Property Rights” means: (a) patents, inventions, designs, copyright and related rights, database rights, knowhow and Confidential Information, trade marks (whether registered or unregistered) and related goodwill, trade names (whether registered or unregistered), and rights to apply for registration; (b) all other rights of a similar nature or having an equivalent effect anywhere in the world which currently exist or are recognised in the future; and (c) all applications, extensions and renewals in relation to any such rights;
“Platform” means the Company’s web-based e-learning platform as provided by Company to Customer, including any Upgrades provided to Customer and any other related services. Unless otherwise indicated, the Platform and Documentation are referred to collectively herein as “Platform”.
“Recipient” means a party receiving Confidential Information from the Discloser and in the case of Company may be Company and/or Company’s Affiliates, as relevant;
“Services” means the provision of the Platform and any related services that Company provides to the Customer pursuant to any Services Order Form;
“Services Order Form” means the Services Order Form by which Company and the Customer enter into an order and which identifies (a) the specifics of the Services ordered; (b) the Fees for the Services ordered; (c) the Commencement Date(s), Term and Usage Right(s) for the Services ordered; and (d) other appropriate information as Company may reasonably require to fulfil the order;
“Support” means the technical support services described in Exhibit A.
“Term” means the period of 12 (twelve) consecutive months following the Commencement Date, or any period specified in an Services Order Form. Company shall limit the Customer’s access to the Services at midnight of the Term’s last day;
“Upgrades” means maintenance patches, new releases, or new versions for Services provided to Customer.
“Usage Rights” means the conditional basis upon which Company provides the Services as set out in each Services Order Form, which may include specified permitted uses and Authorized users of the Services, technical storage or capacity limits relating to use of the Services and/or geographic constraints on access to the Services;
“User Account” – username and password with which an Authorized user accesses the Services.
“Virus” means any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices; and
“Year” shall mean the period of twelve months commencing on the Commencement Date and each and any period of twelve months commencing on an anniversary of the Commencement Date subsequent thereto.
1.3. Interpretation Aids:
1.3.1. Section, schedule and paragraph headings shall not affect the interpretation of this Agreement or any Services Order Form. References to Sections are to the Sections of this Agreement (as applicable). Any phrase introduced by the expressions including, includes, in particular or any similar expression shall be construed as illustrative only and shall not limit the sense of the words preceding those terms. Unless the context otherwise requires, words in the singular shall include the plural and words in the plural include the singular.
1.3.2. A reference to writing or written includes e-mail.
1.3.3. A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this Agreement and as amended by any subsequent statute or statutory provision. Where a change to a statute or statutory provision results in Company, Company’s Affiliates and/or any sub-contractors incurring additional or increased costs to achieve compliance in relation to the Services, Company reserves the right to amend the Fees to reflect such additional or increased costs on no less than 30 days’ prior written notice.
2.Scope of Services
2.1. This Agreement sets out a framework for the Customer to negotiate and agree individual Orders Forms with Company under which Company and/or Company’s Affiliates shall provide Services. Any terms or conditions that may be contained in any purchase order or other form (other than an agreed Services Order Form) used by the Customer shall be without force or effect unless expressly agreed otherwise by the parties in writing. Subject to the terms of this Agreement, Company will use commercially reasonable efforts to provide Customer the Services in accordance with the applicable Services Order Form. Subject to the terms hereof, Company will provide Customer with reasonable Support in accordance with the terms set forth in Exhibit A.
2.2. The terms and conditions of this Agreement form an agreement between the Customer and Company on matters such as the nature and management of the overall relationship between Company and Company’s Affiliates. Each Services Order Form that has been agreed and executed by the Customer and Company or an Affiliate of Company shall constitute a separate contract for the supply of the Services between Company and the Customer. In case of any discrepancies between the terms and conditions of this Agreement and the Services Order Form, the terms and conditions of the Services Order Form shall prevail.
2.3. In consideration of the payment by the Customer to Company of the Fees, Company grants Customer access to the Services from the applicable Commencement Date(s), until the end of the Term. The Service Period will automatically renew once for the same period unless indicated otherwise by the parties on the Services Order Form or a termination notice is sent in accordance with this Agreement.
2.4. Company grants Customer a nonexclusive, nontransferable, non-sublicensable and non-commercial license during the Term for Customer to access and use the Services, and for the Customer to allow the Authorized users to access and use the Services, solely for the purpose of Customer providing distance education to the Authorized users in accordance with the restrictions in and subject to the terms of this Agreement. In the event of any conflict between this Agreement and the General Terms and Conditions on Company’s website, the terms of this Agreement shall take precedence. No rights or licenses are granted except as expressly set forth herein.
2.5. Company’s responsibilities shall also include the recording of classroom content.
3.Restrictions and Responsibilities
3.1. Company shall use reasonable endeavors to meet any performance dates set out in an Services Order Form or agreed between the parties, but any such dates shall be estimates only and time shall not be of the essence in this Agreement or any Services Order Form. Customer acknowledges that Company has no direct control over the availability of bandwidth over the entirety of the internet and that, while Company will use such endeavors as Company deems appropriate to facilitate the Services, Company shall not be responsible for delays caused by such unavailability.
3.2. Company may upgrade the Services from time-to-time provided such changes do not materially and negatively impact the functionality, performance or security of the Services. The Customer may be unable to access the Services during any period in which routine or emergency maintenance is being carried out.
3.3. Company shall not be responsible for: any problems and/or interruptions of the functioning of the Services that are due to reasons beyond its control; or the functioning of the Platform if the Customer has not complied with the technical requirements for installation and operation of the computer systems or the requirements set out in the technical requirements and support policy; the availability, content, authenticity, or security of external websites or other sources of information; actions, negligence, or omissions by third parties, including but not limited to: providers of telecommunications, computer, and internet services, subcontractors, or for any errors or omissions on their devices, equipment, or systems; any content posted on the Platform. The Customer is solely responsible for the Customer Data that its Authorized users upload, publish, or display on or through the Services, or transmit to or share with other users; for any claims of third parties with respect to the content posted on the Platform by the Customer or Authorized users; creating backup copies and replacing any Customer Data posted or stored on the Platform.
3.4. Company shall be entitled to delete or remove (without notice to the Customer or Authorized user) any content on the Platform at its own discretion, for any reason or no reason, including without limitation, any content that in the sole judgment of the Company violates the Agreement or which might be offensive, illegal, or that might violate the rights, harm, or threaten the safety of users or others.
3.5. If the Customer does not notify Company otherwise in writing within a period of five days (or such other period as set out in the relevant Services Order Form) from the Company being given access to the Services, the Services shall be deemed accepted. The Customer acknowledges that Company may sub-contract any of its rights or obligations under this Agreement or any Services Order Form to a third party (including any Affiliate of Company).
3.6. Neither Customer nor any Authorized user shall store, distribute or transmit any Virus, or any material, information or data through the Services that is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; facilitates illegal activity; depicts sexually explicit images; or promotes unlawful violence, discrimination based on race, gender, colour, religious belief, sexual orientation, disability, or any other illegal activities.
3.7. Neither Customer nor any Authorized user shall, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); copy, duplicate, modify, translate, or create or distribute derivative works based on the Services or all or any portion of the Software or the Services (except to the extent expressly permitted by Company or authorized within the Services); access all or any part of the Services in order to build a product or service which competes with the Services; attempt to undertake any security testing of the Services without the prior written consent of Company; unless otherwise provided in this Agreement or in an Services Order Form, use the Services to provide services to third parties (including the Customer’s Affiliates); or remove any proprietary notices or labels; subject to any provision in this Agreement, transfer, temporarily or permanently, any of its rights under this Agreement or any Services Order Form; or attempt to obtain, or assist third parties in obtaining, access to the Services, other than as specifically agreed pursuant to this Agreement. The Customer shall use its best endeavors to prevent any unauthorized access to, or use of, the Services and shall notify Company promptly of any such unauthorized access or use.
3.8. Customer represents, covenants, and warrants that Customer will use the Services only in compliance with Company’s standard published policies then in effect (the “Policy”), including the terms and conditions of this Agreement, and all applicable laws and regulations. Customer hereby agrees to indemnify and hold harmless Company against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s or Authorized Users’ use of the Services. Although Company has no obligation to monitor Customer’s or Authorized Users’ use of the Services, Company may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
3.9. Customer and Authorized users shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, licenses, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer and Authorized user account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer and Authorized user account or the Equipment with or without Customer’s or Authorized user’s knowledge or consent. In relation to Authorized users, where reasonably requested by Company, the Customer shall provide Company with a current list of Authorized users, which shall be held by Company and used to facilitate access to the Services.
3.10. Customer agrees that Customer is solely responsible for the Customer Data sent or transmitted by Customer or displayed or uploaded by Customer in using the Services and for compliance with all applicable laws pertaining to the Customer Data, including, but not limited to, laws requiring Customer to obtain the consent of a third party to use the Customer Data and to provide appropriate notices of third-party rights. Customer represents and warrants that Customer has the right to upload the Customer Data to the Platform and that such use does not violate or infringe on any rights of any third party. Under no circumstances will Company be liable in any way for any (a) Customer Data that is transmitted or viewed while using the Services, (b) errors or omissions in the Customer Data, or (c) any loss or damage of any kind incurred as a result of the use of, access to, or denial of access to Customer Data. Although Company is not responsible for any Customer Data, Company may delete any Customer Data, at any time without notice to Customer, if Company becomes aware that it violates any provision of this Agreement, or any law. Customer retains copyright and any other rights Customer already hold in Customer Data which Customer submits, posts or displays on or through, the Services.
3.11. Customer agrees and declares that neither Customer nor any Authorized user shall use the Services to; upload, post, email, transmit, or otherwise make available any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation; harvest or collect email addresses or other contact information of other Authorized users from the Services by electronic or other means for the purposes of sending unsolicited emails or other unsolicited communications; use the Services in any unlawful manner or in any other manner that could damage, disable, overburden, or impair the Service or the Provider; or falsely state, impersonate, or otherwise misrepresent Authorized user identity, including, but not limited to, the use of a pseudonym, upload, post, transmit, share, store, or otherwise make publicly available on the Platform any private information of any third party, including, without limitation, addresses, phone numbers, email addresses, social security numbers, and credit card numbers.
4.1. The Customer acknowledges and agrees that Company and/or its licensors (including Company’s Affiliates) own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions, documentation or other technology developed in connection with the implementation of the Services or Support, and (c) all Intellectual Property Rights related to any of the foregoing.
4.2. The Company acknowledges and agrees that all Intellectual Property Rights to the Customer Data created by the Customer or any third party, that is exchanged and recorded by the Platform, belong to the authors and holders of such content in accordance with the applicable law.
4.5. The Customer and Company undertake and guarantee that all personal data of Authorized users or third parties, subject to use by the Company, will be processed only to the extent necessary to provide the Services, in accordance with the provisions of Data Protection Legislation. In furtherance of the foregoing, the Customer undertakes to obtain and shall be responsible for obtaining the explicit consent of the Authorized users, if and when required under the applicable law for processing of their personal data. For the purposes of clarity, the Customer shall obtain the explicit consent of all Authorized users to whom the Customer provides User Accounts.
4.6. In cases when the Customer requests an archived recording of virtual classroom real-time sessions, the Customer shall have obtained explicit consent of the Authorized users for the recording. In the case of minors, consent should be provided by their parents or guardians. If any other restrictions are required by applicable legislation regarding minors, the Customer must fully comply with them.
4.7. Additionally, Company, its Affiliates and their licensors shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate into the Services any feedback or enhancement requests provided by the Customer and any Authorized user.
5.1. Customer will pay Company the then applicable Fees described in the Services Order Form for the Services in accordance with the terms therein. If Customer’s use of the Services exceeds the Services Capacity set forth on the Services Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. Unless otherwise provided for all Services Order Forms, Company shall invoice Customer and Customer shall pay Company all applicable Fees on or before the applicable Commencement Date. Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Term or then current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit.
5.2. The Customer shall pay all sums due to Company in cleared funds (in the currency specified in the relevant Services Order Form). All sums due to Company under or in relation to this Agreement and any Services Order Forms are exclusive of any Applicable Tax which shall be charged in addition and in accordance with the relevant regulations in force at the time of making the relevant taxable supply and shall be paid by the Customer in full at the same time as payment is due under the relevant invoice.
5.3. Customer shall promptly inform Company of any tax or other legal requirements in any jurisdiction that might prevent the Customer from paying any sum due under this Agreement or any Services Order Form or that requires Customer to withhold or deduct any portion of any payment due to Company pursuant to this Agreement or any Services Order Form. Where such restriction or requirement exist and Company is unable to reclaim or recover such deduction through the exercise of reasonable efforts, then the Customer shall be required to take all reasonable steps, to ensure Company receive the same net amounts by the due date for payment as if the restriction did not exist).
5.4. In addition to the initial Fees that are immediately due as of the effective date of the applicable Services Order Form, Company may choose to bill through an invoice, in which case, the confirmation of the full payment of the invoice determines the date of entry into force and the term of the validity of this Agreement.
5.5. Except where expressly stated otherwise in this Agreement or any Services Order Form, any Fees paid in accordance with this Section shall be non-refundable in any circumstances including upon early termination of this Agreement or the relevant Services Order Form.
6. Requesting Changes in The Services (Upgrades, Downgrades, Renewal, Cancellation).
6.1. In case the Customer would like to change and/or modify the Services or any part thereof as agreed between the parties in an Services Order Form the Customer shall send a Change Request to Company. Upon receiving the Change Request, Company shall, within reasonable time, provide the Customer with (i) a written proposal regarding the specification and proposed Fees related to the implementation of the Change Request; or (ii) a written explanation if the Change Request cannot be implemented. In any case Company shall fully be entitled to accept, propose changes to and/or reject a Change Request at its own discretion without providing any reason to Customer. Without limitations, any requests for functions or features of Services not specified in an effective Services Order Form, which cannot be implemented without development or architecture changes on the Services, or which have financial consequences on the Services or Company shall be considered as Change Request and are subject to the conclusion of a new Services Order Form.
6.2. If Company’s proposal sent as a response to the Change Request is acceptable to Customer, then Customer shall, within fourteen (14) days of Customer’s receipt of Company’s proposal, provide Company with (i) a new duly signed Services Order Form including the agreed changes or modifications which shall constitute a new order once Company has accepted and signed it; and (ii) the agreed Fees for such changes or modifications, if any. The confirmation by the Company of the payment of the fee determines the date of entry into force and the term of the validity of the changed and/ or modified service.
6.3. For clarification, new Orders Forms will be handled independently with individual Terms,.
6.4. Any cancellation, or downgrade to the Services will only take effect following the end of the applicable Term. For the avoidance of any doubt the Fees paid in relation to such Services are nonrefundable.
7. Term and Termination
7.1. Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Services Order Form (“Term”), and shall be automatically renewed for an additional period of 12 months duration, unless either party requests termination at least thirty (30) days prior to the end of the then-current term. In the event that Company and Customer enter into more than one Services Order Form, except as otherwise provided, the term of all subsequent Services Order Forms entered into shall last until the expiration of the Term provided for in the first Services Order Form.
7.2. Without affecting any other right or remedy available to it, either party may terminate this Agreement and/or any or all Services Order Forms with immediate effect by giving written notice to the other party if:
- the other party fails to pay any amount due under this Agreement or any Services Order Form on the due date for payment and remains in default not less than fourteen (14) days after being notified in writing to make such payment. In the event of non-payment, Company may terminate this Agreement and/or any applicable Services Order Form without notice to Customer;
- the other party commits a material breach of any term of this Agreement or any Order which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of thirty (30) days after being notified in writing to do so. The failure of Customer to meet its obligation under this Agreement shall be considered a material breach of the Agreement;
- in the case of Company, the Customer becomes a Competitor;
- a receiver or similar officer is appointed for the other party or its property, or the other party makes a general assignment for the benefit of its creditors, or the other party commences, or has commenced against it, proceedings under any bankruptcy, insolvency or debtor’s relief law, which proceedings are not dismissed within sixty (60) days, or the other party becomes insolvent or is liquidating, dissolving or ceasing business operations.
7.3. Customer will pay in full for the Services up to and including the last day on which the Services is provided. Except as otherwise agreed by the parties, all Fees pre-paid prior to termination shall remain nonrefundable, except where Company is the breaching party, in which case, Company shall refund Customer on a prorated basis. Any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Agreement or any Services Order Form which existed at or before the date of termination shall not be affected or prejudiced. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
7.4. Company may suspend the Customer’s right to access the Services or use any portion or all of the Services immediately upon notice to the Customer if it determines:
- That the Customer’s (or an Authorized user’s) use of or access to the Services (i) poses a security risk to Company, the Services or any third party; (ii) may adversely impact availability or performance of the Services, the Software or the systems or software of any other customer of Company; (iii) may subject Company or any third party to any liability; or (iv) may be fraudulent; or
- That the Customer, or any Authorized user, is in breach of this Agreement or any Order or any other agreement by which software being used on or in conjunction with the Services is licensed.
7.5. Subject to the terms of this Agreement, Company shall reinstate the suspended Services once it has established that the cause of the suspension has been remedied or ceased to exist. Where the cause of the suspension persists for more than thirty (30) days, Company may immediately terminate this Agreement and/or any or all Orders.
8. Data Privacy
8.1. Compliance with Children Online Privacy Protection Act (“COPPA”): Customer is solely responsible for obtaining the prior written consent of parents or guardians for all Authorized users below the age of thirteen (13) years, consenting to the applicable Authorized user’s use of the Services, prior to the Authorized user’s use of the Services. Customer agrees, to the extent required by applicable law such as COPPA, that:
- Prior to granting access to any user, Customer shall provide all users, and for children who are under the age of 13 (thirteen) years, the parent or guardian of such child, with public notice of the type of information to be disclosed to Company under this Agreement and the right of any user to forbid, prevent, refuse and/or opt-out of such disclosure. For children who are under the age of 13 (thirteen) years, such notice shall provide for the right of a parent or guardian of a user to forbid, prevent, refuse and/or opt-out of such disclosure. This notice shall also provide the time period within which a parent or guardian of a user must act to forbid the disclosure. No child under 13 shall be authorized by Customer to use the Services without the prior written consent of the parent or guardian of a such child.
- Where a user or a parent or guardian of a user elects to opt-out of a disclosure, Customer shall prevent such a user from using the Services. Where a user or parent or guardian of a user decides to opt-out of such disclosure after the user has commenced use of the Services, Customer must withdraw the user from participation in the School Program and use of the Services and provide written notice to Company within 48 hours of such withdrawal.
- The failure of Customer to meet its obligation under this Section 8.1 shall be considered a material breach of the Agreement, which shall entitle Company to terminate the Agreement, as well as to pursue all other rights and remedies at law or in equity against the Customer.
8.2. Compliance with FERPA: Customer is solely responsible for ensuring that Customer is compliant with all applicable laws and regulations related to the disclosure of student data and other student information (“Student Records”), including but not limited to FERPA, in connection with the use of the Services. Without limiting the generality of the foregoing, for all Student Records disclosed to Company by use of the Services, Customer agrees, to the extent required by applicable law such as FERPA, that:
- Prior to granting access to any user, Customer shall provide all proposed users with public notice of the type of information to be disclosed to Company under this Agreement and the right of any user to forbid, prevent, refuse and/or opt-out of such disclosure. For users who are under the age of 18 (eighteen) years, such notice shall provide for the right of a parent or guardian of a user to forbid, prevent, refuse and/or opt-out of such disclosure. This notice shall also provide the time period within which a parent or guardian of a user must act to forbid the disclosure.
- Where a user or a parent or guardian of a user elects to opt-out of a disclosure, Customer shall prevent such a user from using the Services. Where a user or parent or guardian of a user decides to opt-out of such disclosure after the user has commenced use of the Services, Customer must withdraw the user from participation in the School Program and use of the Services provide written notice to Company of such withdrawal.
- The failure of Customer to meet its obligation under this Section 8.2 shall be considered a material breach of the Agreement, which shall entitle Company to terminate the Agreement, as well as to pursue all other rights and remedies at law or in equity against the Customer.
8.3. Customer warrants that all consents required by applicable laws and this Agreement have been received from the parent or guardian or other necessary party prior to permitting, authorizing or granting access to any person, individual or Authorized users to use the Services. The failure of Customer to meet its obligation under this Section 8 shall be considered a material breach of the Agreement, which shall entitle Company to terminate the Agreement, as well as to pursue all other rights and remedies at law or in equity against the Customer.
9.1. Confidentiality Undertaking. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose Confidential Information during the negotiation and course of this Agreement. The Receiving Party agrees: (i) to take reasonable precautions to protect such Confidential Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Confidential Information. Receiving Party will refrain from using the Confidential Information except to the extent necessary to exercise its rights or perform its obligations under this Agreement. Receiving Party will likewise restrict its disclosure of the Confidential Information to those who have a need to know such Confidential Information in order for Receiving Party to perform its obligations and enjoy its rights under this Agreement. Such persons must have, prior to such disclosure, agreed in writing to confidentiality terms that are no less restrictive than the requirements of this section and Receiving Party will remain responsible for any unauthorized use or disclosure of the Confidential Information by any of them. Upon termination of this Agreement (or earlier, upon request by Company), Receiving Party shall cease to use all Confidential Information and promptly return to Company (or destroy, upon request by Disclosing Party) any documents (whether written or electronic) in its possession or under its control that constitutes Confidential Information.
9.2. Notwithstanding the foregoing subsection, Receiving Party may disclose Disclosing Party’s Confidential Information or the existence and/or the terms and conditions of this Agreement if required to be disclosed by law or by a court of competent jurisdiction or by any regulatory body; provided that immediately upon receiving any such request, the Receiving Party promptly notifies Disclosing Party in writing of such requirement to enable Disclosing Party to seek a protective order to protect the confidentiality of such information, take action to assure confidential handling of the Confidential Information, or take such other action as it deems appropriate to protect the Confidential Information.
9.3. Where Receiving Party becomes aware that Confidential Information has been disclosed to or obtained by an unauthorized person, the Receiving Party shall promptly to inform the Disclosing Party without delay and take all steps necessary to prevent the occurrence of harm or to mitigate such harm to the maximum extent, unless the Parties agree otherwise.
9.4. This Section shall remain in full force and effect notwithstanding any termination of this Agreement or any Services Order Forms. In addition to any other remedies for breach of the foregoing confidentiality undertakings, the parties will be entitled to equitable relief in the event of any breach of threatened breach thereof.
9.5. The parties shall work together in good faith to issue at least one mutually agreed upon press release within 90 days of the effective date of Services Order Form, and Customer otherwise agrees to reasonably cooperate with Company to serve as a reference account upon request.
10. Warranty and Disclaimer
10.1. Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Implementation of the Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption.
10.2. HOWEVER, COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION OF THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND COMPANY MAKES NO WARRANTY, PROMISE OR OBLIGATION WITH RESPECT TO THE SERVICES, ITS USE, REPAIR OR PERFORMANCE. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, COMPANY DISCLAIMS ANY WARRANTY, PROMISE OR OBLIGATION THAT THE SERVICES SHALL BE FIT FOR ANY PARTICULAR USE OR PURPOSE, REGARDLESS OF WHETHER SUCH USE OR PURPOSE IS MADE KNOWN TO COMPANY OR NOT. COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, REASONABLE SKILL AND CARE, ABILITY TO ACHIEVE A PARTICULAR RESULT OR ARISING FROM COURSE OF DEALING OR USAGE OF TRADE AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DONE AT THE CUSTOMER’S OR ITS AUTHORIZED USERS’ OWN DISCRETION AND RISK, AND THE CUSTOMER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO ITS OR ITS AUTHORIZED USERS’ COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
11.1. Company shall defend, indemnify and hold Customer harmless against any and all claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the infringement by the Services of any United States patent or any copyright or misappropriation of any trade secret, provided that Company is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Company will not be responsible for any settlement it does not approve in writing.
11.2. The foregoing obligations do not apply with respect to portions or components of the Services (i) not supplied by Company, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified by Customer or Authorized users after delivery by Company, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Service is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Company to be infringing, Company may, at its option and expense (a) replace or modify the Services to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Services, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused Fees for the Services.
11.3. The Customer shall defend, indemnify and hold harmless Company and the Related Persons against any and all claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with (i) the Customer’s or the Authorized users’ use of the Services in breach of this Agreement, any Order or any reasonable instructions from Company; and (ii) claims made or brought, or administrative proceedings initiated against Company and/or the Related Persons by a third party that (a) Customer Data; or (b) Customer’s use of Customer Data infringes the rights of, or has otherwise harmed, a third party (e.g. by way of Customer Data including personal data).
11.4. The indemnified Party shall notify the indemnifying Party promptly in writing of the relevant claim and tender to the indemnifying Party control of the defense or settlement of the claim, including the right to settle the claim solely for monetary consideration, provided that indemnifying Party will not enter into any settlement agreement in any claim related to or concerning the indemnified Party without indemnified Party’s prior written consent unless such settlement provides the indemnifying Party with a complete release without imposing any additional costs or obligations and does not require admission of guilt or liability by the indemnified Party.
12. Limitation of Liability
12.1. NOTWITHSTANDING ANYTHING TO THE CONTRARY, COMPANY, ITS AFFILIATES, ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), AND RELATED PERSONS SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, MISREPRESENTATION, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; FOR ANY LOSS OF PROFITS, LOSS OF BUSINESS, DEPLETION OF GOODWILL AND/OR SIMILAR LOSSES, OR PURE ECONOMIC LOSS, OR FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL; OR FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE LESSER OF A) FEES PAID BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT WITHIN THE LAST 12 MONTHS FOR THE CORRESPONDING SERVICES ORDER FORM OF THE ACT THAT GAVE RISE TO THE LIABILITY; OR B) USD $500. IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
12.2. The Customer acknowledges and agrees that the Customer would be able to insure itself against business interruption and theft, loss, destruction or corruption of data or information (and shall give due consideration to acquiring such insurance).
13. Export Control
Company shall comply with all United States laws and regulations controlling the export of certain commodities and technical data, including without limitation all Export Administration Regulations of the United States Department of Commerce. Among other things, these laws and regulations prohibit or require a license for the export of certain Customer of commodities and technical data to specified countries. Company hereby gives written assurance that it will comply with all United States export control laws and regulations, that it bears sole responsibility for any violation of such laws and regulations, and that it will indemnify, defend, and hold Customer harmless for the consequences of any such violation. Customer is obliged, and holds the responsibility, to comply, and not to be in violation with any United States laws and regulations controlling the export of certain commodities and technical data, including without limitation all Export Administration Regulations in regard to its own data, its users and their data.
14. Force Majeure
Company shall not be in breach of this Agreement nor any Services Order Form nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement or any Services Order Form if such delay or failure results from events, circumstances or causes beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of Company or any other party), failure of a utility service or transport or telecommunications network or the internet, act of God, disease, epidemic, pandemic, quarantine, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors. In such circumstances Company shall be entitled to a reasonable extension of the time for performing such obligations, provided that if the period of delay or non-performance continues for three months, either party may terminate this Agreement and any affected Services Order Forms by giving thirty (30) days’ written notice to the other party.
15.1. Independent Contractors. Each party shall act as an independent contractor hereunder, with sole responsibility for its own operations, personnel and operating expenses, and nothing contained in this Agreement shall be construed to create a partnership or joint venture between parties.
15.2. Assignability. Neither Party shall assign, pledge or otherwise transfer any of its rights, interest or obligations hereunder, whether by operation of law or otherwise, without the prior express written consent of the other Party. Notwithstanding the foregoing, Company may assign this Agreement to an affiliate or to an acquirer or successor in interest in connection with a Change of Control of the Company without the prior written consent of Distributor. “Change of Control” means the closing of (a) a merger, consolidation or similar transaction providing for the acquisition of the direct or indirect ownership of more than fifty percent (50%) of Company’s shares or similar equity interests or voting power of the outstanding voting securities or that represents the power to direct the management and policies of Company, or (b) the sale of all or substantially all of Company’s assets related to the subject matter of the Agreement.
15.3. Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of each of the Parties and their respective successors and permitted assigns.
15.4. Remedies. It is agreed that a Party claiming breach by the other Party, in addition to any other remedy to which it may be entitled, shall be entitled to seek injunctive relief and such other equitable relief as a court of competent jurisdiction may order to prevent breaches of, and to compel specific performance of, the obligations of the applicable provisions. The rights and remedies of the Parties hereunder are cumulative and not exclusive of any rights or remedies which the Parties would otherwise have. No single or partial exercise of any such right or remedy by a Party, and no discontinuance of steps to enforce any such right or remedy, shall preclude any further exercise thereof or of any other right or remedy of such Party.
15.6. Amendment. This Agreement shall not be amended or modified except by a written instrument signed by both parties. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party and any such amendment shall be effective only to the extent specifically set forth in such writing.
15.7. Waiver of Provisions. No waiver by any Party of any of the provisions hereof is effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof or of any of the other provisions, terms or conditions hereof; nor will any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
15.8. Severability. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining portions hereof or affecting the validity or enforceability of such provision in any other jurisdiction.
15.9. Governing Law. This Agreement and the rights and obligations of the parties shall be governed by and construed in accordance with the laws of the State of New York excluding any conflict of laws rules or other principle that might refer the governance or construction of this Agreement to the laws of another jurisdiction.
15.10. Binding Effect. The terms, conditions and provisions of this Agreement and all obligations of the parties shall inure to the benefit of, and be binding upon, the parties hereto and their respective successors and permitted assigns.
15.11. Binding Effect. The terms, conditions and provisions of this Agreement and all obligations of the parties shall inure to the benefit of, and be binding upon, the parties hereto and their respective successors and permitted assigns.
15.12. Notices. Any notice given under this Agreement shall be made in writing and shall be deemed to have been duly given or made if delivered personally, or mailed (postage prepaid by registered or certified mail), or sent by email or facsimile to the parties at their respective addresses set in the applicable Services Order Form. Any notice so sent shall be deemed to have been given or delivered at the time that it is either (i) personally delivered or (ii) within two business days after the date deposited in the United States mail or one business day after delivery to an overnight courier, if sent by mail or courier, or (iii) when receipt is acknowledged, if sent by email or facsimile, as the case may be. Any party may change its address by giving notice in writing, stating its new address, to the other party.
15.13. Counterparts; Execution. This Agreement may be executed in any number of counterparts, and by each of the Parties on separate counterparts, each of which, when so executed, shall be deemed an original, but all of which shall constitute but one and the same instrument. Delivery of an executed counterpart of this Agreement by telefacsimile or electronically shall be equally as effective as delivery of a manually executed counterpart of this Agreement. Any Party delivering an executed counterpart of this Agreement by telefacsimile or electronically shall also deliver a manually executed counterpart of this Agreement, but the failure to deliver a manually executed counterpart shall not affect the validity, enforceability or binding effect of this Agreement.
Company will provide Technical Support to Customer via both online chat and electronic mail on weekdays during the hours of 9:00 am through 5:00 pm EST time, with the exclusion of Saturdays, Sundays and Public Holidays (“Support Hours”).
Customer may initiate a helpdesk ticket during Support Hours by our online chat or any time by emailing email@example.com.
Company will use commercially reasonable efforts to respond to all helpdesk tickets within one (1) business day.