1. SAAS SERVICES AND SUPPORT
Subject to the terms of this Agreement, Company will use commercially reasonable efforts to provide Client with the Services described in the order form, and support services (“Support”) as provided in this Agreement. For purposes of this Agreement, an “executed order form” means an order form executed by Client. Company accepts these terms and conditions.
2. RESTRICTIONS AND RESPONSIBILITIES
2.1 Company grants to Client during the Term of this Agreement, and Client accepts, the non-exclusive right and license to permit the Client Administrator and Client’s Authorized Users (“Authorized Users”) to access, view and use Company proprietary interfaces, methodologies and Services for the intended purposes of the Services. Client may designate one or multiple Client Administrators, all of which together are referred to in this Agreement as “Client Administrator.”
2.2 Client does not have the right to re-license, sub-license or sell rights to, or offer access or use of, the Services, or to transfer or assign rights to access or use the Services, except for permitted uses by Client Administrators and Authorized Users as expressly provided in this Agreement. Client will not permit access to the Service by anyone other than the designated Client Administrator and Authorized Users. Client will promptly inform Company of any known violation of this Agreement.
2.3 Company may, in its sole discretion and without prior notice, suspend access to the Service by any Client Administrator, Authorized Users or unauthorized users of the Service Company determines are violating any terms of the Agreement, and terminate this Agreement as otherwise provided in this Agreement.
2.4 In no event will Client obtain any ownership interest in any Company intellectual property or proprietary information or methodologies by use or otherwise, and Client agrees it will not assert such an ownership interest now or in future. All rights not expressly granted to Client in this Agreement are expressly retained and reserved by and to Company.
2.5 Client will not, directly or indirectly: publish, make copies of Company’s proprietary text, graphics, charts and screens, create derivative works based on same (except to the extent expressly permitted by Company or authorized within the Services); use the Services other than as contemplated by this Agreement; or remove any copyright, patent, trademark, proprietary notices from any print materials generated through the Services. For purposes of this Agreement, “Services” includes attendant Company software, text, graphics, methodologies incorporated in the Services, documentation and associated materials, all of which are the sole and exclusive property of Company.
2.6 Client represents, covenants, and warrants that Client will use the Services only in compliance with this Agreement and all applicable laws and regulations. Client 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 any laws or regulations or otherwise from Client’s use of Services. Although Company has no obligation to monitor Client’s use of the Services, Company may do so and may prohibit any use of the Services it believes may be (or is alleged to be) in violation of the foregoing.
2.7 Client will 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, web servers and the like (collectively, “Equipment”). Client will also be responsible for maintaining the security of the Equipment, Client Administrator(s) and Authorized User passwords) and files, and for all uses of Client account or the Equipment with or without Client’s knowledge or consent.
2.8 In no event will Company directly interact with a student or child. Only the designated Client Administrator has the ability to permit Client access to the Services. The number of Authorized Users permitted under this Agreement is as provided on the order form. Please refer to the order form for the number of permitted Authorized Users. Company reserves the right to invoice Client for users in addition to the number of users permitted on the order form.
In the event Client becomes aware of a breach of its security in which child/student personal identifiable information has become available to unauthorized parties, Client will immediately notify Company, which will cooperate reasonably with Client to contain any breach, provided that Client is solely responsible for its internal security systems and for compliance with all relevant laws and regulations governing its activities in respect of the Services.
2.9 Services are provided as an outsourced institutional function. Client understands and agrees that the Services are a method of providing educational providers with student, teacher, parent, administrator and other Authorized User data reporting and analysis tools, and do not change any Client parental notification, student release or notification requirements as otherwise provided under FERPA, COPPA, HIPAA and any other relevant law. Persons under the age of 18 (or the age of majority in Client’s jurisdiction) are prohibited from accessing or using Company systems and Services without the prior, written consent of their parents or guardians in each instance. Client is solely responsible for obtaining all necessary permissions for Authorized Users to access and use the Services.
2.10 Company does not and will never use personally identifiable information for any purpose other than provision of Services to Client, which includes monitoring of anonymized metrics and data for maintenance and improvements of the Service. Company does not and will not communicate directly with any Authorized User other than Client Administrator and teachers as may be designated as Authorized Users by the Client Administrator. All Company communications with Client will be through the Client Administrator as then identified by Client. Company will never sell or otherwise disseminate personally identifiable information for any marketing or other purposes.
2.11 Without limitation of any other Client obligations under this Agreement, Client represents that it is familiar with the requirements applicable to Client under COPPA, FERPA, HIPPA and all other state and local laws and regulations governing Client Data and collection and use of personally identifiable information for children, students and other Authorized Users. Client will comply with all such laws and regulations. Client will indemnify and hold harmless Company from and against any loss or damage to which Company may become subject as a result of any Client breach of such laws and regulations. Company will provide Client with prompt notice of any such claim and cooperate reasonably in the resolution of the claim.
2.12 HIPAA obligations.
Company: (a) will not use or further disclose protected health information (“PHI”) other than as permitted or required by this Agreement or as required by law; (b) will use appropriate safeguards to prevent use or disclosure of PHI other than as provided for by this Agreement; (c) will report to Client any use or disclosure of PHI not provided for under this Agreement of which Company becomes aware, (d) will ensure that any agents, including a subcontractor to whom Company provides PHI received from Client, or created or received by Company on Client’s behalf, agree to the same restrictions and conditions that apply to with respect of such PHI.
Client: (a) will use appropriate safeguards and be solely responsible for obtaining proper consent for use, storage and upload of PHI with respect to the Services, prevent use or disclosure of PHI other than as provided for by this Agreement and insure that Client safeguards meet the requirements of the HIPAA Security Rule as of the applicable compliance date for this rule; (c) will report to Company any use or disclosure of PHI not provided for under this Agreement of which Client becomes aware, (d) will ensure that any agents, including any subcontractors to which Client provides PHI or created or received by Company on Client’s behalf, agree to the same restrictions and conditions that apply to Client with respect of such PHI; (e) will maintain Client’s internal records as may become available in connection with the Services in compliance with HIPAA requirements.
3. CONFIDENTIALITY; PROPRIETARY RIGHTS
3.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Company includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Client includes non-public data provided by Client to Company to enable the provision of the Services (“Client Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary 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 Proprietary Information. The Disclosing Party agrees that the foregoing will not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
3.2 Client will own all right, title and interest in and to the Client Data. Company will own and retain all right, title and interest in and to (a) the Services and attendant methodologies, text, graphics, software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Services and Support, and (c) all intellectual property rights related to any of the foregoing.
3.3 Client agrees that Company will have a non-exclusive right and license to right collect and analyze anonymized Client Data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, data derived therefrom). Company will be free (during and after the Term) to (i) use such information and data to improve and enhance the Services and for other development, research, diagnostic and corrective purposes in connection with the Services and other Company offerings, and (ii) disclose such data solely in aggregate or other anonymized form in connection with its business. In no event will Company use personally identifiable information for any purpose other than fulfillment of Company obligations to Client under this Agreement. No rights in Client Data are granted to Company except as expressly set forth in this Agreement.
4. PAYMENT OF FEES
4.1 Executed order forms constitute the Company invoice for Services and are due and payable net 30. Client will pay Company the Fees provided in any executed order (the “Fees”). If Client’s use of the Services exceeds the service capacity in the order or otherwise requires the payment of additional Fees (per the terms of any executed order), Client will be billed for such usage and Client agrees to pay the additional Fees. Invoices for additional Services will be submitted monthly and are due net 30 unless otherwise specified. If Client believes that Company has billed Client incorrectly, Client must contact Company no later than 60 days after the date Client provides an executed order to Company, in order to receive an adjustment or credit. Inquiries should be directed to Company at: email@example.com.
4.2 Services, including Fees, will be as provided in an executed order form. Service Fees are final and non-refundable except as specifically provided in this Agreement.
4.3 Unpaid overdue amounts are subject to a late fee of 1.5% per month on any outstanding balance from the date due until paid in full. Client is responsible for all costs of collection, including reasonable attorneys’ fees, collection fees and cost. Notwithstanding any other provision of this Agreement, in the event payment is not received within thirty (30) days of invoice, Company may suspend or terminate Service without prior notice and without liability therefor. Client will be responsible for all taxes associated with Services other than U.S. taxes based on Company’s net income.
5. TERM AND TERMINATION
5.1 Subject to earlier termination as provided below, this Agreement is for the Service Term as specified on the order (the “Term”). Provided Client is not then in breach of this Agreement, Client will be given the opportunity to renew this Agreement at then-current Fees.
5.2 In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement and such breach remains uncured during the thirty day period. In the event this Agreement is terminated due to Company breach, Client will pay in full for the Services up to and including the last day on which the Services are provided. In the event of termination by Company for breach, Client is liable for Service Fees to the end of the Term and for any accrued but unpaid additional Fees.
5.4 Upon any termination other than for Client breach (including non-payment), Company will make all Client Data available to Client for electronic retrieval for a period of thirty (30) days following termination. Thereafter, Company may, but is not obligated to, delete stored Client Data and retain same only for archival purposes and general internal Company purposes as otherwise permitted in this Agreement.
5.5 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.
6. WARRANTY AND DISCLAIMER
6.1 Company will use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and will perform the Services in a 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 will use reasonable efforts to provide advance notice in writing or by email of any Company scheduled Service disruption.
6.2 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 PROVIDED IN THIS SECTION 5, ALL SERVICES ARE PROVIDED “AS IS,” “WHERE-IS” WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE TITLE AND NON-INFRINGEMENT. CLIENT AGREES THAT COMPANY WOULD NOT HAVE ENTERED INTO THIS AGREEMENT BUT FOR THESE WARRANTY EXCLUSIONS AND THE LIMITATIONS OF LIABILITY AS EXPRESSLY PROVIDED IN THIS AGREEMENT IN SECTIONS 7 AND 8. CLIENT EXPRESSLY ACCEPTS THESE EXCLUSIONS AND LIMITATIONS AND AGREES THEY ARE FAIR AND REASONABLE.
Except as otherwise provided in any order, Company will hold Client harmless from liability to third parties resulting from infringement by the Service of any United States patent or any copyright or misappropriation of any trade secret, provided Company is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable Client 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. The foregoing obligations do not apply with respect to portions or components of the Service: (i) not supplied by Company, (ii) made in whole or in part in accordance with Client specifications, (iii) that are modified after delivery by Company, (iv) that are combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Client continues allegedly infringing activity after being notified to stop or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Client’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 Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Client a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Client’s rights under this Agreement and provide Client with a refund of any prepaid, unused Fees for the Services. Client acknowledges that Company would not have entered into this Agreement without the limitations in this Section 7.
8. LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT (INCLUDING WITHOUT LIMITATION ANY ACCEPTED ORDER), COMPANY AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), WILL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) 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; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLIENT CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE SERVICES IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FOR PURPOSES OF THIS SECTION 7, “COMPANY” INCLUDES ITS SHAREHOLDERS, OFFICERS, MEMBERS, DIRECTORS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES.
9.1 Services include an on-line help desk feature that provides instructions for use of the Services, including written and video instructions, as well as suggestions and tips. Client is strongly encouraged to utilize the help desk feature. Most Support issues can be resolved by reviewing these materials. Client may access the on-line help center 24/7/365 at: https://support.schoolhack.io.
Please note that all ticket requests must be sent via the on-line help center at: https://support.schoolhack.io.
9.2 Company will use commercially reasonable efforts to respond to Client Support requests via email during normal business hours, Monday through Friday ET, except holidays. Ticket requests must be sent via the on-line help center support ticket feature. Other support may be requested via email to: firstname.lastname@example.org.
9.3 All updates and new releases that become available generally to Company clients relevant to the Services detailed on the order are included during the Term without additional Fees.
10.1 If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
10.2 This Agreement is not assignable, transferable or sub-licensable by Client except with Company’s prior written consent in each instance, which consent is in Company’s discretion. This Agreement is binding on Company, its successors and assigns and Client and its permitted successors and assigns.
10.3 This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement. All waivers and modifications must be in a writing signed by both parties.
10.4 No agency, partnership, joint venture, or employment is created as a result of this Agreement. Neither party has any authority of any kind to bind the other party in any respect whatsoever.
10.5 All notices under this Agreement will be in writing and given by confirmed email to the parties’ respective email address for notice as provided on the order, or sent for next day confirmed delivery by a recognized overnight delivery service to the address provided by each party in the order. Notice is valid on receipt or refusal.
10.6 This Agreement will be governed by the laws of the State of Vermont without regard to its conflict of laws provisions. The parties agree that any dispute that cannot be resolved amicably between the parties will be adjudicated exclusively in the appropriate State court of Vermont or the United States District Court for the District of Vermont. Client agrees not to contest venue as appropriate in Burlington, Vermont. Client expressly consents to the personal and subject matter jurisdiction of such courts for such purpose.
10.7 Client agrees that Company may include Client's name and logo as a Company customer in Company promotional materials.
10.8 Each party represents to the other that it is authorized to enter into this Agreement and that the obligations of this Agreement are enforceable in accordance with their terms and that the signatory is authorized to enter into this Agreement.
10.10 Headings are for convenience only and will not be used to limit or otherwise affect the interpretation of any provision.
10.11 Client agrees that Company’s intellectual property rights are special and unique, and that breach by Client of such rights will result in Company damages inadequately compensated by monetary damages alone. Therefore, in addition to any other remedies available at law or equity, Company will have the right to injunctive relief to prevent a breach or threatened breach of such rights without posting a bond or further proof of irreparable harm. In the event Company is required to enforce such rights, it will be entitled to an award of attorneys’ fees and costs.