IMPORTANT NOTICE: DISPUTES ABOUT THIS AGREEMENT AND THE SERVICES PROVIDED BY PROVIDER ARE SUBJECT TO BINDING ARBITRATION AND A WAIVER OF CLASS ACTION RIGHTS AS DETAILED IN THE “MANDATORY ARBITRATION AND CLASS ACTION WAIVER” SECTION BELOW.
This Agreement (the “Agreement”) is between Dash Education Solutions, LLC (“Provider”) and the entity accepting to these terms (“Institution”). This Agreement controls Institution’s access to Provider’s services (the “Service”) and its associated applications, portals, and website, etc.
To use the Services, you must be, and represent and warrant, that you are competent to agree to this Agreement. If you are agreeing to this Agreement on behalf of an organization or entity, you represent and warrant that you are authorized to agree to this Agreement on that organization or entity’s behalf and bind them to this Agreement (in which case, the references to “you” and “your” in this Agreement, except for in this sentence, refer to that organization or entity). If Provider has previously prohibited you from accessing or using the Services, you are not permitted to access or use the Services.
IF INSTITUTIONS or AUTHORIZED USERS REGISTER FOR A FREE TRIAL OR ARE OTHERWISE GIVEN EVALUATION ACCESS OF PROVIDER’S SERVICES, THIS AGREEMENT WILL ALSO APPLY.
Provider may, from time to time, modify this Agreement. Please check this page periodically for updates. If you do not agree to, or cannot comply with, the modified terms in this Agreement, you must stop using the Services. The updated terms to this Agreement will take effect upon their posting and will apply on a go-forward basis, unless otherwise provided in a notice to you, and except as provided in the Mandatory Arbitration and Class Action Waiver section of this Agreement. Your continued use of the Services after any such update constitutes your binding acceptance of such changes.
This Agreement commences on the date Institution and/or Authorized User first accepts it (“Effective Date”) and, unless terminated earlier pursuant any of the Agreement’s express provisions, will auto-renew on an annual basis for additional one year terms (the “Term“) unless earlier terminated pursuant to this Agreement’s express provisions or either party gives the other party written notice of non-renewal in keeping with the terms of this Agreement.
“Access Credentials” means any user name, identification number, password, license or security key, security token, PIN, or other security code, method, technology, or device used, alone or in combination, to verify an individual’s identity and authorization to access and use the Services.
“Action” means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity, or otherwise.
“Affiliate” of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person.
“Authorized User” means Institution’s employees, consultants, contractors, and agents as well as parents, guardians or other individuals authorized by the parents or guardians to act in their capacity to use the Service, and other individuals approved under Institution’s policies, or by Institution, to use the Service under Institution’s account, and (a) who are authorized by Institution to access and use the Services under the rights granted to Institution pursuant to this Agreement; and (b) for whom access to the Services has been purchased hereunder.
“Institution Data” means information, data, and other content, in any form or medium, that is collected, downloaded, or otherwise received, directly or indirectly from Institution or an Authorized User by or through the Services or that incorporates or is derived from the Processing of such information, data, or content by or through the Services. For the avoidance of doubt, Institution Data does not include Resultant Data or any other information reflecting the access or use of the Services by or on behalf of Institution or any Authorized User.
“Institution Systems” means the Institution’s information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Institution or through the use of third-party services.
“Documentation” means any manuals, instructions, or other documents or materials that the Provider provides or makes available to Institution in any form or medium and which describe the functionality, components, features, or requirements of the Services or Provider Materials, including any aspect of the installation, configuration, integration, operation, use, support, or maintenance thereof.
“Harmful Code” means any software, hardware, or other technology, device, or means, including any virus, worm, malware, or other malicious computer code, the purpose or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system, or network; or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality, or use of any data Processed thereby; or (b) prevent Institution or any Authorized User from accessing or using the Services or Provider Systems as intended by this Agreement. Harmful Code does not include any Provider Disabling Device.
“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
“Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.
“Losses” means any and all losses, damages, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
“Permitted Use” means any use of the Services by an Authorized User for the benefit of Institution in the ordinary course of its internal business operations.
“Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association, or other entity.
“Personal Information” means information that Institution provides or for which Institution provides access to Provider, or information which Provider creates or obtains on behalf of Institution, in accordance with this Agreement that: (i) directly or indirectly identifies an individual (including, for example, names, signatures, addresses, telephone numbers, email addresses, and other unique identifiers); or (ii) can be used to authenticate an individual (including, without limitation, employee identification numbers, government-issued identification numbers, passwords or PINs, user identification and account access credentials or passwords, financial account numbers, credit report information, student information, biometric, genetic, health, or health insurance data, answers to security questions, and other personal identifiers). Institution’s business contact information is not by itself Personal Information.
“Process” means to take any action or perform any operation or set of operations that the SaaS Services are capable of taking or performing on any data, information, or other content, including to collect, receive, input, upload, download, record, reproduce, store, organize, compile, combine, log, catalog, cross-reference, manage, maintain, copy, adapt, alter, translate, or make other derivative works or improvements, process, retrieve, output, consult, use, perform, display, disseminate, transmit, submit, post, transfer, disclose, or otherwise provide or make available, or block, erase, or destroy. “Processing” and “Processed” have correlative meanings.
“Provider Disabling Device” means any software, hardware, or other technology, device, or means (including any back door, time bomb, time out, drop dead device, software routine, or other disabling device) used by Provider or its designee to disable Institution’s or any Authorized User’s access to or use of the Services automatically with the passage of time or under the positive control of Provider or its designee.
“Provider Materials” means the Services, Specifications, Documentation, and Provider Systems and any and all other information, data, documents, materials, works, and other content, devices, methods, processes, hardware, software, and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans, or reports, that are provided or used by Provider or any Subcontractor in connection with the Services or otherwise comprise or relate to the Services or Provider Systems. For the avoidance of doubt, Provider Materials include Resultant Data and any information, data, or other content derived from Provider’s monitoring of Institution’s access to or use of the Services, but do not include Institution Data.
“Provider Personnel” means all individuals involved in the performance of Services as employees, agents, or independent contractors of Provider or any Subcontractor.
“Provider Systems” means the information technology infrastructure used by or on behalf of Provider in performing the Services, including all computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Provider or through the use of third-party services.
“Representatives” means, with respect to a party, that party’s and its Affiliates’ employees, officers, directors, consultants, agents, independent contractors, service providers, sublicensees, subcontractors, and legal advisors.
“Resultant Data” means data and information related to Institution’s use of the Services that is used by Provider in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.
“Services” means the software-as-a-service offering described in the Documentation.
“Specifications” means the specifications for the Services set forth in the Documentation.
“Third-Party Materials” means materials and information, in any form or medium, including any open-source or other software, documents, data, content, specifications, products, equipment, or components of or relating to the Services that are not proprietary to Provider.
2.1. Administration of Institution’s Account. Institution may specify one or more administrators (each an “Administrator”) to manage its account. Administrators can set up, access, monitor, use, export and disclose all content posted by Authorized Users in accordance with applicable local laws. Institution is responsible for: (i) the selection of its Administrator(s); (ii) maintaining the confidentiality of passwords and Administrator accounts; (iii) managing access to Administrator accounts; and (iv) ensuring that each Administrator’s use of the Service complies with this Agreement. Provider shall not be held liable for any actions on the part of Institution’s Administrator(s).
Institution will promptly notify Provider if it becomes aware of any unauthorized access to Institution’s account or the Service. Institution is also responsible and liable for ensuring that it: obtains the relevant permissions required by law to text or email anyone via the Service; does not use misleading header information; clearly and conspicuously identify texts and emails as an advertisement if such is the case; includes a valid postal address for their business in their text and email campaigns; include a legally compliant method for recipients to opt-out of receiving future texts and emails; honor any such opt-request promptly and efficiently but no later than 10 business days within receipt of such (or earlier if required by law); remain fully liable for the texts and email campaigns even if they are sending it out on behalf of someone else.
2.3. Access and Use. Subject to and conditioned on Institution’s and its Authorized Users’ ongoing compliance with the terms and conditions of this Agreement, Provider hereby grants Institution a non-exclusive, non-transferable (except in compliance with Section 15.8) right to access and use the Services during the term, solely for use by Authorized Users in accordance with the terms and conditions herein. Such use is limited to Institution’s internal use. Provider shall provide to Institution the Access Credentials within a reasonable time following the Effective Date. The total Fees payable hereunder is subject to adjustment based on the average total number of Institutions students benefiting from the Service during a given term. The average will be calculated based on the number of users in the system at three (3) month intervals over the relevant period. The term of this Agreement shall begin on the date Institution’s order is submitted to Provider and end upon termination pursuant to this Agreement.
2.4. Documentation License. Provider hereby grants to Institution a non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 15.8) license to use the Documentation during the Term solely for Institution’s internal business purposes in connection with its use of the Services.
2.5. Service and System Control. Except as otherwise expressly provided in this Agreement, as between the parties:
(a) Provider has and will retain sole control over the operation, provision, maintenance, and management of the Provider Materials; and
(b) Institution has and will retain sole control over the operation, maintenance, and management of, and all access to and use of, the Institution Systems, and sole responsibility for all access to and use of the Provider Materials by any Person by or through the Institution Systems or any other means controlled by Institution or any Authorized User, including any: (i) information, instructions, or materials provided by any of them to the Services or Provider; (ii) results obtained from any use of the Services or Provider Materials; and (iii) conclusions, decisions, or actions based on such use.
2.6. Reservation of Rights. Nothing in this Agreement grants any right, title, or interest in or to (including any license under) any Intellectual Property Rights in or relating to, the Services, Provider Materials, or Third-Party Materials, whether expressly, by implication, estoppel, or otherwise. All right, title, and interest in and to the Services, the Provider Materials, and the Third-Party Materials are and will remain with Provider and the respective rights holders in the Third-Party Materials.
2.7. Administrators. Institution shall, throughout the Term, maintain within its organization at least one administrator to serve as such party’s primary point of contact regarding this Agreement. Each such administrator shall be responsible for providing all day-to-day consents and approvals on behalf of Institution under this Agreement. Institution shall ensure its administrators has the requisite organizational authority, skill, experience, and other qualifications to perform in such capacity.
2.8. Changes. Provider reserves the right, in its sole discretion, to make any changes to the Services and Provider Materials that it deems necessary or useful to: (a) maintain or enhance: (i) the quality or delivery of Provider’s services to its Institutions; (ii) the competitive strength of or market for Provider’s services; or (iii) the Services’ cost efficiency or performance; or (b) to comply with applicable Law.
2.9. Subcontractors. Unless otherwise specifically agreed to in signed writing, Provider may from time to time in its discretion engage third parties to perform Services (each, a “Subcontractor“)
2.10. Suspension or Termination of Services. Provider may, directly or indirectly, and by use of a Provider Disabling Device or any other lawful means, suspend, terminate, or otherwise deny Institution’s, any Authorized User’s, or any other Person’s access to or use of all or any part of the Services or Provider Materials, without incurring any resulting obligation or liability, if: (a) Provider receives a judicial order, subpoena, or law enforcement request that expressly or by reasonable implication requires Provider to do so; or (b) Provider believes, in its good faith and sole discretion, that: (i) Institution or any Authorized User has failed to comply with any material term of this Agreement, or accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement or in any manner that does not comply with any material instruction or requirement of the Specifications; (ii) Institution or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities; or (iii) this Agreement expires or is terminated. This Section 2.8 does not limit any of Provider’s other rights or remedies, whether at law, in equity, or under this Agreement.
2.11. Beta Testing. From time to time, Beta versions of Services or a portion thereof may be made available. If and the extent such Beta versions are offered, they will be marked as “Beta” and will be provided without warranty of any kind to Institution and on an AS IS basis. Uses of Beta Services are entirely voluntarily, and unless otherwise specified in writing, are free of charge. Provider provides Beta versions of Services to variously assist Provider with testing functionality, determining their utility, and gathering general feedback on certain features of the Services. However, by their nature Institution understands that Beta Services are highly likely to contain defects, and that should Institution’s Users elect to work with Beta Services, that they may encounter serious performance problems and/or loss of data. Provider may discontinue Beta Services at any time in our sole discretion. We will have no liability for any harm or damage arising out of or in connection with use of a Beta Service.
3. Use Restrictions; Service Usage and Data Storage.
3.1. Use Restrictions. Institution shall not, and shall not permit any other Person to, access or use the Services or Provider Materials except as expressly permitted by this Agreement and, in the case of Third-Party Materials, the applicable third-party license agreement. For purposes of clarity and without limiting the generality of the foregoing, Institution shall not, except as this Agreement expressly permits:
(a) copy, modify, or create derivative works or improvements of the Services or Provider Materials;
(b) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available any Services or Provider Materials to any Person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud, or other technology or service;
(c) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Services or Provider Materials, in whole or in part;
(d) bypass or breach any security device or protection used by the Services or Provider Materials or access or use the Services or Provider Materials other than by an Authorized User through the use of his or her own then valid Access Credentials;
(e) input, upload, transmit, or otherwise provide to or through the Services or Provider Systems, any information or materials that are unlawful or injurious, or contain, transmit, or activate any Harmful Code;
(f) damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Services, Provider Systems, or Provider’s provision of services to any third party, in whole or in part;
(g) remove, delete, alter, or obscure any trademarks, Specifications, Documentation, warranties, or disclaimers, or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from any Services or Provider Materials, including any copy thereof;
(h) access or use the Services or Provider Materials in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any third party (including by any unauthorized access to, misappropriation, use, alteration, destruction, or disclosure of the data of any other Provider Institution), or that violates any applicable Law;
(i) access or use the Services or Provider Materials for purposes of competitive analysis of the Services or Provider Materials, the development, provision, or use of a competing software service or product or any other purpose that is to the Provider’s detriment or commercial disadvantage;
(j) access or use the Services or Provider Materials in, or in association with, the design, construction, maintenance, or operation of any hazardous environments, systems, or applications, any safety response systems or other safety-critical applications, or any other use or application in which the use or failure of the Services could lead to personal injury or severe physical or property damage; or
(k) otherwise access or use the Services or Provider Materials beyond the scope of the authorization granted under this Section 3.1.
3.2. Service Usage. The order sets forth relevant subscription and other Fees (each a “Service Allocation Fee“), in effect as of the Effective Date. The order will establish the tier related to the number of Authorized Users selected by Institution.
4. Institution Obligation.
4.1. Institution Systems and Cooperation. Institution shall at all times during the Term: (a) set up, maintain, and operate in good repair and in accordance with the Specifications all Institution Systems on or through which the Services are accessed or used; (b) provide Provider Personnel with such access to Institution’s Data and Institution Systems as is necessary for Provider to implement and perform the Services, in accordance with Availability Requirement and Specifications; and (c) provide all cooperation and assistance as Provider may reasonably request to enable Provider to exercise its rights and perform its obligations under and in connection with this Agreement.
4.2. Effect of Institution Failure or Delay. Provider is not responsible or liable for any delay or failure of performance caused in whole or in part by Institution’s delay in performing, or failure to perform, any of its obligations under this Agreement (each, a “Institution Failure“).
4.3. Corrective Action and Notice. If Institution becomes aware of any actual or threatened activity prohibited by Section 3.1, Institution shall, and shall cause its Authorized Users to, immediately: (a) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Services and Provider Materials and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and (b) immediately notify Provider of any such actual or threatened activity.
4.4. Non-Solicitation. During the Term and for two years after, Institution shall not, and shall not assist any other Person to, directly or indirectly recruit or solicit (other than by general advertisement not directed specifically to any Person or Persons) for employment or engagement as an independent contractor any Person then or within the prior 12 months employed or engaged by Provider or any Subcontractor and involved in any respect with the Services or the performance of this Agreement. In the event of a violation of this Section 4.4, Provider will be entitled to liquidated damages equal to the compensation paid by Provider to the applicable employee or contractor during the prior 12 months.
5. Service Levels.
5.1. Service Levels. Subject to the terms and conditions of this Agreement, Provider will use commercially reasonable efforts to make the Services Available at least ninety-nine and nine tenths percent (99.9% of the time as measured over the course of the Term (each such, a “Service Period“), excluding unavailability as a result of any of the Exceptions described below in this Section 5.1 (the “Availability Requirement“). “Service Level Failure” means a material failure of the Services to meet the Availability Requirement. “Available” means the Services are available for access and use by Institution and its Authorized Users over the Internet and operating in material accordance with the Specifications. For purposes of calculating the Availability Requirement, the following are “Exceptions” to the Availability Requirement, and neither the Services will be considered un-Available nor any Service Level Failure be deemed to occur in connection with any failure to meet the Availability Requirement or impaired ability of Institution or its Authorized Users to access or use the Services that is due, in whole or in part, to any: (a) access to or use of the Services by Institution or any Authorized User, or using Institution’s or an Authorized User’s Access Credentials, that does not strictly comply with this Agreement and the Specifications; (b) Institution Failure; (c) Institution’s or its Authorized User’s Internet connectivity; (d) Force Majeure Event; (e) failure, interruption, outage, or other problem with any software, hardware, system, network, facility, or other matter not supplied by Provider pursuant to this Agreement; (f) Scheduled Downtime; or (g) disabling, suspension, or termination of the Services pursuant to Section 2.8.
5.2. Service Level Failures and Remedies. In the event of a Service Level Failure, Provider shall not charge Institution for the days during which the Service was not available to Authorized Users. This shall be reflected as a reduction of the Fees for the Services due for the actual Service Period during which the Service Level Failure occurred (each a “Service Fee Reduction“), subject to the following:
(a) in no event will a Service Fee Reduction for any Service Period exceed fifty (50%) percent of the total Fees that would be payable for that Service Period if no Service Level Failure had occurred.
(b) Any Service Fee Reduction payable to Institution under this Agreement will be issued to Institution following the Service Period in which the Service Level Failure occurred. This Section 5.2 sets forth Provider’s sole obligation and liability and Institution’s sole remedy for any Service Level Failure.
5.3 Scheduled Downtime. Provider will use reasonable efforts to: (a) schedule downtime for routine maintenance of the Services in a standard maintenance window between the hours of 2 a.m. and 6 a.m., Eastern Standard Time (Tuesdays and Sundays); and (b) give at least 48 hours prior notice of all other scheduled outages of the Services (“Scheduled Downtime“) outside of the standard maintenance window.
5.4 Service Support. The Services include Provider’s standard Institution support services (“Support Services“) at the support levels in accordance with the Provider service support schedule then in effect. Provider may amend the Support Services from time to time in its sole discretion. Institution may purchase enhanced support services separately at Provider’s then current rates.
6. Data Backup.
The Provider Systems are programmed to perform routine data backups as set out in Provider’s backup policy in effect from time to time. In the event of any loss, destruction, damage, or corruption of Institution Data caused by the Provider Systems or Services, Provider will, as its sole obligation and liability and as Institution’s sole remedy, use commercially reasonable efforts to restore the Institution Data from Provider’s then most current backup of such Institution Data in accordance with the then current backup policy.
7.1. Provider Systems, Accessibility, and Security Obligations. Provider will employ measures in accordance with Provider’s data privacy, accessibility, and security policy as may be amended from time to time.
7.2 Data Breach Procedures. Provider maintains a data breach plan and shall implement the procedures required under such data breach plan on the occurrence of a data breach.
7.3. Prohibited Data. Institution acknowledges that the Services are not designed with security and access management for Processing the following categories of information: (a) data that is classified and or used on the U.S. Munitions list, including software and technical data; (b) articles, services, and related technical data designated as defense articles or defense services; and (c) ITAR (International Traffic in Arms Regulations) related data, (each of the foregoing, “Prohibited Data“). Institution shall not, and shall not permit, any Authorized User or other Person to, provide any Prohibited Data to, or Process any Prohibited Data through, the Services, the Provider Systems, or any Provider Personnel. Institution is solely responsible for reviewing all Institution Data and shall ensure that no Institution Data constitutes or contains any Prohibited Data.
7.4. Institution Control and Responsibility. Institution has and will retain sole responsibility for: (a) all Institution Data, including its content and use; (b) all information, instructions, and materials provided by or on behalf of Institution or any Authorized User in connection with the Services; (c) Institution’s information technology infrastructure, including computers, software, databases, electronic systems (including database management systems), and networks, whether operated directly by Institution or through the use of third-party services (“Institution Systems“); (d) the security and use of Institution’s and its Authorized Users’ Access Credentials; and (e) all access to and use of the Services and Provider Materials directly or indirectly by or through the Institution Systems or its or its Authorized Users’ Access Credentials, with or without Institution’s knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use.
7.5. Access and Security. Institution shall employ all physical, administrative, and technical controls, screening, and security procedures and other safeguards necessary to: (a) securely administer the distribution and use of all Access Credentials and protect against any unauthorized access to or use of the Services; and (b) control the content and use of Institution Data, including the uploading or other provision of Institution Data for Processing by the Services.
8. Fees and Payment.
8.1. Fees. Institution shall pay Provider the fees as set forth in the relevant order process (“Fees“) in accordance with this Section 8.
8.2. Taxes. All Fees and other amounts payable by Institution under this Agreement are exclusive of taxes and similar assessments. Without limiting the foregoing, Institution is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Institution hereunder, other than any taxes imposed on Provider’s income.
8.3. Payment. Institution shall be charged at sign up based on the anticipated number of Institution’s students who are anticipated to benefit from the Service in a given Term. Institution shall also be charged any and all other Fees, including as relevant, Implementation Fees, and other fees as may also be indicated and selected by Institution during the ordering process. Institution authorizes Provider to charge their Credit Card on file any and all Fees and Reimbursable Expenses as outlined above. All Fees and payments hereunder shall be in US dollars.
8.4. Late Payment. If Institution’s credit card declines or otherwise fails or is declined or becomes unauthorized after the fact, Institution shall promptly make any payment when due, and in addition to all other remedies that may be available:
(a) Provider may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable Law;
(b) Institution shall reimburse Provider for all reasonable costs incurred by Provider in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and
(c) if such failure continues for 15 days following written notice thereof, Provider may suspend performance of the Services until all past due amounts and interest thereon have been paid, without incurring any obligation or liability to Institution or any other Person by reason of such suspension.
8.5. No Deductions or Setoffs. All amounts payable to Provider under this Agreement shall be paid by Institution to Provider in full without any setoff, recoupment, counterclaim, deduction, debit, or withholding for any reason.
8.6. Fee Increases. Provider may increase Fees no more than once annually after the first contract year of the Term, by providing written notice to Institution at least 60 calendar days prior to the commencement of that contract year, and the related documents will be deemed amended accordingly.
8.7. Reimbursable Expenses. Institution shall reimburse Provider for out-of-pocket expenses incurred by Provider in connection with performing the Services (“Reimbursable Expenses“).
(a) Audit Procedure. Provider or its nominee (including its accountants and auditors) may, in Provider’s sole discretion, inspect and audit Institution’s use of the Services under this Agreement at any time during the Term and for 5 years following the termination or earlier expiration of this Agreement. All audits will be conducted during regular business hours, and no more frequently than once in any 12 month period, and in a manner that does not unreasonably interfere with Institution’s business operations. Institution shall make available all such books, records, equipment, information, and personnel, and provide all such cooperation and assistance, as may be requested by or on behalf of Provider with respect to such audit. Provider shall only examine information directly related to Institution’s use of the Software.
(b) Cost and Results of Audit. If the audit determines that Institution’s use of the Services exceeded the usage permitted by this Agreement by more than 5%, Institution shall pay to Provider all amounts due for such excess use of the Software, plus interest on such amounts, as calculated pursuant to Section 8.4. If the audit determines that such excess use equals or exceeds 10% of Institution’s permitted level of use, Institution shall also pay to Provider all costs incurred by Provider in conducting the audit. Institution shall make all payments required under this Section 8.8 within 30 days of the date of written notification of the audit results.
9.1. Confidential Information. In connection with this Agreement each party (as the “Disclosing Party“) may disclose or make available Confidential Information to the other party (as the “Receiving Party“). Subject to Section 9.2, “Confidential Information” means information in any form or medium (whether oral, written, electronic, or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, Institutions, and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, in each case whether or not marked, designated, or otherwise identified as “confidential”. Without limiting the foregoing: all Provider Materials are the Confidential Information of Provider and the financial terms and existence of this Agreement are the Confidential Information of Provider.
9.2. Exclusions. Confidential Information does not include information that the Receiving Party can demonstrate by written or other documentary records: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information’s being disclosed or made available to the Receiving Party in connection with this Agreement; (b) was or becomes generally known by the public other than by the Receiving Party’s or any of its Representatives’ noncompliance with this Agreement; (c) was or is received by the Receiving Party on a non-confidential basis from a third party that, to the Receiving Party’s knowledge, was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) the Receiving Party can demonstrate by written or other documentary records was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.
9.3. Protection of Confidential Information. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall for three (3) years:
(a) not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement;
(b) except as may be permitted by and subject to its compliance with Section 9.4, not disclose or permit access to Confidential Information other than to its Representatives who: (i) need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with this Agreement; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party’s obligations under this Section 9.3; and (iii) are bound by written confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 9;
(c) safeguard the Confidential Information from unauthorized use, access, or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care; and
(d) promptly notify the Disclosing Party of any unauthorized use or disclosure of Confidential Information and use commercially reasonable efforts to prevent further unauthorized use or disclosure; and
(e) ensure its Representatives’ compliance with, and be responsible and liable for, any of its Representatives’ non-compliance with, the terms of this Section 9.
(f) Notwithstanding any other provisions of this Agreement, the Receiving Party’s obligations under this Section 9 with respect to any Confidential Information that constitutes a trade secret under any applicable Law will continue until such time, if ever, as such Confidential Information ceases to qualify for trade secret protection under one or more such applicable Laws other than as a result of any act or omission of the Receiving Party or any of its Representatives.
9.4. Compelled Disclosures. If the Receiving Party or any of its Representatives is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, the Receiving Party shall: (a) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under Section 9.3; and (b) provide reasonable assistance to the Disclosing Party in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section 9.4, the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that, on the advice of the Receiving Party’s legal counsel, the Receiving Party is legally required to disclose and, on the Disclosing Party’s request, shall use commercially reasonable efforts to obtain assurances from the applicable court or other presiding authority that such Confidential Information will be afforded confidential treatment.
10. Intellectual Property Rights.
10.1 Provider Materials. All right, title, and interest in and to the Provider Materials, including all Intellectual Property Rights therein, are and will remain with Provider and, with respect to Third-Party Materials, the applicable third-party providers own all right, title, and interest, including all Intellectual Property Rights, in and to the Third-Party Materials. Institution has no right, license, or authorization with respect to any of the Provider Materials except as expressly set forth in Section 2.1 or the applicable third-party license, in each case subject to Section 3.1. All other rights in and to the Provider Materials are expressly reserved by Provider. In furtherance of the foregoing, Institution hereby unconditionally and irrevocably grants to Provider an assignment of all right, title, and interest in and to the Resultant Data, including all Intellectual Property Rights relating thereto.
10.2. Institution Data. As between Institution and Provider, Institution is and will remain the sole and exclusive owner of all right, title, and interest in and to all Institution Data, including all Intellectual Property Rights relating thereto, subject to the rights and permissions granted in Section 10.3.
10.3. Consent to Use Institution Data. Institution hereby irrevocably grants all such rights and permissions in or relating to Institution Data as are necessary or useful to Provider, its Subcontractors, and the Provider Personnel to enforce this Agreement and exercise Provider’s, its Subcontractors’, and the Provider Personnel’s rights and perform Provider’s, its Subcontractors’, and the Provider Personnel’s obligations hereunder.
The Parties acknowledge and agree that, the following shall apply to the extent that student data and information gathered under this Agreement contain educational records that contain personal information (“PII”) as those terms are defined under the Family Educational Rights and Privacy Act (“FERPA”), namely 34 C.F.R. § 99.3. Provider shall not collect, use or disclose PII except to carry out its obligations under this Agreement. Provider shall limit access to PII to those persons who require access in order to provide the Services hereunder. Provider shall handle PII it receives from Institution in accordance with applicable laws. Provider shall notify Institution as soon as commercially practical of any inquiries regarding the collection, use or disclosure of PII by Provider. Both Parties understand and agree to abide by the requirements of the Family Educational Rights and Privacy Act, 20 USC 1232g (FERPA) and related regulations at 34 CFR Part 99 regarding the confidentiality of and access to student records.
10.4. Consent to Use Institution Data to Offer Additional Opportunities. Institution hereby irrevocably grant all such rights and permissions in or relating to Institution Data for Provider, and for those third parties that Provider, in its sole discretion, deems potentially of interest to Institution and/or Authorized Users, to enable the offering and provision of additional services or opportunities to Institution and/or Authorized Users. This Section shall not be subject to Section 14.3.
11. Representations and Warranties.
11.1. Mutual Representations and Warranties. Each party represents and warrants to the other party that:
(a) it is duly organized, validly existing, and in good standing as a corporation or other entity under the Laws of the jurisdiction of its incorporation or other organization;
(b) it has the full right, power, and authority to enter into and perform its obligations and grant the rights, licenses, consents, and authorizations it grants or is required to grant under this Agreement;
(c) the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such party; and
(d) when executed and delivered by both parties, this Agreement will constitute the legal, valid, and binding obligation of such party, enforceable against such party in accordance with its terms
11.2. Additional Provider Representations, Warranties, and Covenants. Provider represents, warrants, and covenants to Institution that Provider will perform the Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and will devote adequate resources to meet its obligations under this Agreement.
11.3. Additional Institution Representations, Warranties, and Covenants. Institution represents, warrants, and covenants to Provider that Institution owns or otherwise has and will have the necessary rights and consents in and relating to the Institution Data so that, as received by Provider and Processed in accordance with this Agreement, they do not and will not infringe, misappropriate, or otherwise violate any Intellectual Property Rights, or any privacy or other rights of any third party or violate any applicable Law.
11.4. DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 11.1 AND SECTION 11.2, ALL SERVICES AND PROVIDER MATERIALS ARE PROVIDED “AS IS.” PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR PROVIDER MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET INSTITUTION’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN INSTITUTION AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.
12.1 Provider Indemnification. Provider shall indemnify, defend, and hold harmless Institution and Institution’s officers, directors, employees, agents, permitted successors, and permitted assigns (each, a “Institution Indemnitee“) from and against any and all Losses incurred by Institution/Institution Indemnitee resulting from any Action by a third party (other than an Affiliate of Institution) that Institution’s or an Authorized User’s use of the Services (excluding Institution Data and Third-Party Materials) in accordance with this Agreement (including the Specifications) infringes or misappropriates such third party’s US patents, copyrights, or trade secrets. The foregoing obligation does not apply to the extent that the alleged infringement arises from:
(a) Third-Party Materials or Institution Data;
(b) access to or use of the Provider Materials in combination with any hardware, system, software, network, or other materials or service not provided by Provider or specified for Institution’s use in the Documentation;
(c) modification of the Provider Materials other than: (i) by or on behalf of Provider; or (ii) with Provider’s written approval in accordance with Provider’s written specification;
(d) failure to timely implement any modifications, upgrades, replacements, or enhancements made available to Institution by or on behalf of Provider; or
(e) act, omission, or other matter described in Section 12.2(a), Section 12.2(b), Section 12.2(c), or Section 12.2(d), whether or not the same results in any Action against or Losses by any Provider Indemnitee.
12.2. Institution Indemnification. Institution shall indemnify, defend, and hold harmless Provider and its Subcontractors and Affiliates, and each of its and their respective officers, directors, employees, agents, successors, and assigns (each, a “Provider Indemnitee“) from and against any and all Losses incurred by such Provider Indemnitee resulting from any Action by a third party (other than an Affiliate of a Provider Indemnitee) to the extent that such Losses arise out of or result from, or are alleged to arise out of or result from:
(a) Institution Data, including any Processing of Institution Data by or on behalf of Provider in accordance with this Agreement;
(b) any other materials or information (including any documents, data, specifications, software, content, or technology) provided by or on behalf of Institution or any Authorized User, including Provider’s compliance with any specifications or directions provided by or on behalf of Institution or any Authorized User to the extent prepared without any contribution by Provider;
(c) allegation of facts that, if true, would constitute Institution’s breach of any of its representations, warranties, covenants, or obligations under this Agreement; or
(d) negligence or more culpable act or omission (including recklessness or willful misconduct) by Institution, any Authorized User, or any third party on behalf of Institution or any Authorized User, in connection with this Agreement.
12.3 Indemnification Procedure. Each party shall promptly notify the other party in writing of any Action for which such party believes it is entitled to be indemnified pursuant to Section 12.1 or Section 12.2, as the case may be. The party seeking indemnification (the “Indemnitee“) shall cooperate with the other party (the “Indemnitor“) at the Indemnitor’s sole cost and expense. The Indemnitor shall promptly assume control of the defense and shall employ counsel of its choice to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing. The Indemnitor shall not settle any Action on any terms or in any manner that adversely affects the rights of any Indemnitee without the Indemnitee’s prior written consent, which shall not be unreasonably withheld or delayed. If the Indemnitor fails or refuses to assume control of the defense of such Action, the Indemnitee shall have the right, but no obligation, to defend against such Action, including settling such Action after giving notice to the Indemnitor, in each case in such manner and on such terms as the Indemnitee may deem appropriate. The Indemnitee’s failure to perform any obligations under this Section 12.3 will not relieve the Indemnitor of its obligations under this Section 12, except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure.
12.4. Mitigation. If any of the Services or Provider Materials are, or in Provider’s opinion are likely to be, claimed to infringe, misappropriate, or otherwise violate any third-party Intellectual Property Right, or if Institution’s or any Authorized User’s use of the Services or Provider Materials is enjoined or threatened to be enjoined, Provider may, at its option and sole cost and expense:
(a) obtain the right for Institution to continue to use the Services and Provider Materials materially as contemplated by this Agreement;
(b) modify or replace the Services and Provider Materials, in whole or in part, to seek to make the Services and Provider Materials (as so modified or replaced) non-infringing, while providing materially equivalent features and functionality, in which case such modifications or replacements will constitute Services and Provider Materials, as applicable, under this Agreement; or
(c) by written notice to Institution, terminate this Agreement with respect to all or part of the Services and Provider Materials, and require Institution to immediately cease any use of the Services and Provider Materials or any specified part or feature thereof.
12.5. Sole Remedy. THIS SECTION 12 SETS FORTH INSTITUTION’S SOLE REMEDIES AND PROVIDER’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES AND PROVIDER MATERIALS OR ANY SUBJECT MATTER OF THIS AGREEMENT INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
13. Limitations of Liability.
13.1. EXCLUSION OF DAMAGES. IN NO EVENT WILL PROVIDER OR ANY OF ITS LICENSORS, SERVICE PROVIDERS, OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT OR DIMINUTION IN VALUE; (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY OF THE SERVICES, OTHER THAN FOR THE ISSUANCE OF ANY APPLICABLE SERVICE FEE REDUCTION PURSUANT TO SECTION 5.2; (c) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY; (d) COST OF REPLACEMENT GOODS OR SERVICES; (e) LOSS OF GOODWILL OR REPUTATION; OR (f) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
13.2. CAP ON MONETARY LIABILITY. IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF PROVIDER AND ITS LICENSORS, SERVICE PROVIDERS, AND SUPPLIERS ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL AMOUNTS PAID TO LICENSOR UNDER THIS AGREEMENT IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
13.3. Mandatory Binding Arbitration and Class Action Waiver. PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT. This Agreement is governed by and construed in accordance with the internal laws of the State of Florida without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Florida. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.
Claims relating to this Agreement or the Service will be resolved through final and binding arbitration, except as set forth below. The parties agree that the Agreement affects interstate commerce and that the Federal Arbitration Act governs the interpretation and enforcement of these arbitration provisions. Initial Dispute Resolution: The parties agree that most disputes can be resolved without resort to litigation. The parties agree to use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation with each other, and good faith negotiations shall be a condition to either party initiating a lawsuit or arbitration. Accordingly, before initiating a lawsuit or arbitration, Institution Agrees to contact Provider to attempt to resolve the dispute in good faith.
Binding Arbitration & Class Action Waiver: If the parties do not reach an agreed-upon solution within a period of thirty (30) days from the time the informal dispute resolution is initiated under the Initial Dispute Resolution provision above, then either party may initiate binding arbitration as the sole means to resolve claims, subject to the terms set forth below. Specifically, all claims arising out of or relating to the Agreement (including its formation, performance and breach), the parties’ relationship with each other and/or your use of the Services shall be finally settled by binding arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules, excluding any rules or procedures governing or permitting class actions.
Filing a Demand. To start an arbitration, you must do the following: (a) Write a Demand for Arbitration (“Demand”) that (i) briefly explains the dispute, (ii) lists your and Provider’s names and addresses, (iii) specify the amount of money in dispute, if applicable, (iv) identify the requested location for a hearing if an in-person hearing is requested, and (v) state what you want in the dispute; (b) Send one copy of the Demand to the AAA, along with a copy of this Agreement and the filing fee required by the AAA; and (c) Send one copy of the Demand for Arbitration to us at firstname.lastname@example.org.
The parties understand that, absent this mandatory arbitration provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court. If you are a resident of the United States, arbitration may take place in the county where you reside at the time of filing, unless you and we both agree to another location or telephonic arbitration. For individuals residing outside the United States, arbitration shall be initiated in Hillsborough County, Florida, United States, and you and Provider agree to submit to the personal jurisdiction of any federal or state court in Hillsborough County, Florida, United States, in order to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.
THE PARTIES AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that arbitration can proceed on a class basis, then the disputes, claims or controversies will not be subject to arbitration and must be litigated in state or federal court located in Broward County, Florida. The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of the Agreement, including, but not limited to any claim that all or any part of the Agreement is void or voidable, or whether a claim is subject to arbitration. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be written, and binding on the Parties and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Arbitration will be held in Hillsborough County, Florida. If any court or arbitrator determines that this arbitration provision is void or unenforceable for any reason or that the parties are not bound to arbitrate their claims, then the disputes, claims or controversies deemed not to be subject to arbitration must be litigated in state or federal court located in Broward County, Florida. Exception: Litigation of Intellectual Property Claims: Notwithstanding the foregoing, disputes, claims, or controversies concerning (1) either party’s patents, copyrights, moral rights, trademarks, and trade secrets or (2) claims of piracy or unauthorized use of the Services (collectively, “IP Claims”) shall not be subject to arbitration.
14.1 Termination. In addition to any other express termination right set forth elsewhere in this Agreement:
(a) Provider may terminate this Agreement, effective on written notice to Institution, if Institution: (i) fails to pay any amount when due hereunder, and such failure continues more than fifteen (15) days after Provider’s delivery of written notice thereof; or immediately if Institution breaches any of its obligations under Section 3.1, Section 7.3, or Section 9;
(b) either party may terminate this Agreement, effective on written notice to the other party, if the other party materially breaches this Agreement, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured ninety (90) days after the non-breaching party provides the breaching party with written notice of such breach; and
(c) either party may terminate this Agreement, effective immediately upon written notice to the other party, if the other party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
(d) either party may terminate this Agreement, effective immediately upon written notice to the other party, for any or no reason.
14.2. Effect of Termination or Expiration. Upon any expiration or termination of this Agreement, except as expressly otherwise provided in this Agreement:
(a) Other than as specifically stated in this Agreement, all rights, licenses, consents, and authorizations granted by either party to the other hereunder will immediately terminate;
(b) Except as otherwise permitted in this Agreement, Provider shall have the right to permanently erase all Institution Data and Institution’s Confidential Information from all systems Provider directly or indirectly controls, provided that, for clarity, Provider’s obligations under this Section 14.4(b) do not apply to any Resultant Data;
(c) Institution shall immediately cease all use of any Services or Provider Materials and (i) promptly return to Provider, or at Provider’s written request destroy, all documents and tangible materials containing, reflecting, incorporating, or based on any Provider Materials or Provider’s Confidential Information; and (ii) permanently erase all Provider Materials and Provider’s Confidential Information from all systems Institution directly or indirectly controls; and (iii) certify to Provider in a signed written instrument that it has complied with the requirements of this Section 14.4(c);
(d) notwithstanding anything to the contrary in this Agreement, with respect to information and materials then in its possession or control: (i) the Receiving Party may retain the Disclosing Party’s Confidential Information; and (ii) Provider may retain Institution Data; (iii) Institution may retain Provider Materials, in the case of each of subclause (i) and (ii) and (iii), in its then current state and solely to the extent and for so long as required by applicable Law; (iv) Provider may also retain Institution Data in its backups, archives, and disaster recovery systems until such Institution Data is deleted in the ordinary course; and (v) all information and materials described in this Section 14.2(d) will remain subject to all confidentiality, security, and other applicable requirements of this Agreement;
(e) Provider may disable all Institution and Authorized User access to the Provider Materials;
(f) if either party terminates this Agreement, Institution will be relieved of any obligation to pay any Fees attributable to the period after the end of the current month of the date of such termination;
(g) Provider shall have no obligation to transfer Institution Data to Institution upon expiration or termination.
14.3. Surviving Terms. The provisions set forth in the following sections, and any other right or obligation of the parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: Section 3.1, Section 9, Section 11.4, Section 12, Section 13, Section 14, and Section 15.
15.1. Hosting of the Service; Export Restrictions. The Service is controlled and operated from facilities in the United States. Provider makes no representations that the Service is appropriate or available for use in other locations. Institutions who access or use the Service from other jurisdictions (or who allow their Authorized Users to do so) do so of their own volition and are responsible for compliance with all applicable United States and local laws and regulations, including but not limited to export and import regulations. If Institution is located outside of the United States, Institution agrees that Provider may transfer, store and process Institution Data in locations other than Institution’s country. The export and re-export of content via the Service may be controlled by the United States Export Administration Regulations or other applicable export restrictions or embargo. The Service may not be used in any country that is subject to an embargo by the United States and Institution may not use the Service in violation of any export restriction or embargo by the United States or any other applicable jurisdiction. In addition, Institution must ensure that the Service is not made available for use by persons or entities blocked or denied by the United States government.
15.2. Further Assurances. On a party’s reasonable request, the other party shall, at the requesting party’s sole cost and expense, execute and deliver all such documents and instruments, and take all such further actions, as may be necessary to give full effect to this Agreement.
15.3. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
15.4. Notices. Any notice, request, consent, claim, demand, waiver, or other communications under this Agreement have legal effect only if in writing and addressed to each party as provided during the ordering process (or to such other address or such other person that such party may designate from time to time in accordance with this Section 15.4).
Notices sent in accordance with this Section 15.4 will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; (c) when sent, if by facsimile or email, (in each case, with confirmation of transmission), if sent during the addressee’s normal business hours, and on the next business day, if sent after the addressee’s normal business hours; and (d) on the fifth (5th) business day after the date mailed by certified or registered mail, return receipt requested, postage prepaid.
15.5. Interpretation. For purposes of this Agreement: (a) the words “include,” “includes,” and “including” are deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; (c) the words “herein,” “hereof,” “hereby,” “hereto,” and “hereunder” refer to this Agreement as a whole; (d) words denoting the singular have a comparable meaning when used in the plural, and vice-versa; and (e) words denoting any gender include all genders. Unless the context otherwise requires, references in this Agreement: (x) to sections, exhibits, schedules, attachments, and appendices mean the sections of, and exhibits, schedules, attachments, and appendices attached to, this Agreement; (y) to an agreement, instrument, or other document means such agreement, instrument, or other document as amended, supplemented, and modified from time to time to the extent permitted by the provisions thereof; and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. The parties intend this Agreement to be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The exhibits, schedules, attachments, and appendices referred to herein are an integral part of this Agreement to the same extent as if they were set forth verbatim herein.
15.6 Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
15.7. Entire Agreement. This Agreement constitutes the sole and entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement, the related exhibits, schedules, attachments, and appendices (other than an exception expressly set forth as such therein), the following order of precedence governs: (a) first, this Agreement, excluding its exhibits, schedules, attachments, and appendices; (b) second, the exhibits, schedules, attachments, and appendices to this Agreement as of the Effective Date; and (c) third, any other documents incorporated herein by reference.
15.8. Assignment. Institution shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance under this Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without Provider’s prior written consent, which consent shall not be unreasonably withheld, conditioned, or delayed. For purposes of the preceding sentence, and without limiting its generality, any merger, consolidation, or reorganization involving Institution (regardless of whether Institution is a surviving or disappearing entity) will be deemed to be a transfer of rights, obligations, or performance under this Agreement for which Provider’s prior written consent is required. No assignment, delegation, or transfer will relieve Institution of any of its obligations or performance under this Agreement. Any purported assignment, delegation, or transfer in violation of this Section 15.8 is void. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective successors and permitted assigns.
15.9 Force Majeure.
(a) No Breach or Default. In no event will either party be liable or responsible to the other party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, (except for any obligations to make payments), when and to the extent such failure or delay is caused by any circumstances beyond such party’s reasonable control (a “Force Majeure Event“), including acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the date of this Agreement, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of Law or any action taken by a governmental or public authority, including imposing an embargo, export or import restriction, quota, or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation. Either party may terminate this Agreement if a Force Majeure Event affecting the other party continues substantially uninterrupted for a period of 60 days or more.
(b) Affected Party Obligations. In the event of any failure or delay caused by a Force Majeure Event, the affected party shall give prompt written notice to the other party stating the period of time the occurrence is expected to continue and use commercially reasonable efforts to end the failure or delay and minimize the effects of such Force Majeure Event.
15.10. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
15.11. Amendment and Modification; Waiver. No amendment to or modification of or rescission, termination, or discharge of this Agreement is effective unless it is in writing, identified as an amendment to or rescission, termination, or discharge of this Agreement and signed by an authorized representative of each party. No waiver by any party of any of the provisions hereof shall be 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; nor shall 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.
15.12. Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
15.13. Submission to Jurisdiction. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of Florida in each case located in the city of Fort Lauderdale and County of Broward, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. Service of process, summons, notice, or other document by mail to such party’s address set forth herein shall be effective service of process for any suit, action, or other proceeding brought in any such court.
15.14. Waiver of Jury Trial. Each party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby.
15.15. Equitable Relief. Institution acknowledges and agrees that a breach or threatened breach by Institution of any of its obligations under Section 9 or, in the case of Institution, Section 3.1, Section 4.3,or Section 7.3, would cause Provider irreparable harm for which monetary damages would not be an adequate remedy and that, in the event of such breach or threatened breach, Provider will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
15.16. Attorneys’ Fees. In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either party against the other party arising out of or related to this Agreement, the prevailing party is entitled to recover its actual attorneys’ fees and court costs from the non-prevailing party.
15.17. Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, email, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.