1. Parties; Effective Date.
These Standard Terms and Conditions (“Agreement”) set forth the terms and conditions under which School Technology Associates, Inc. (“Company”) will provide Customer: (a) access to software (“Software”); (b) professional, support and maintenance services (“Services”); and (c) hardware including any software embedded therein (“Hardware”), each as set forth in a quote submitted by Company to Customer and/or a purchase order submitted by Customer to Company (each, an “Order”). This Agreement supplements each Order. THIS AGREEMENT GOVERNS CUSTOMER’S USE OF THE SOFTWARE MADE AVAILABLE BY COMPANY AND CUSTOMER’S USE OF THE RELATED SERVICES AND HARDWARE DELIVERED BY COMPANY. BY EXECUTING THIS AGREEMENT OR BY EXECUTING OR SUBMITTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, CUSTOMER AGREES TO THE TERMS OF THIS AGREEMENT AND WILL BE REFERRED TO AS “YOU” OR “CUSTOMER” HEREIN.
(a) License Grant.
Subject to all limitations and restrictions contained herein and the applicable Order, Company grants Customer a nonexclusive, nonsublicensable, and nontransferable right to use the Software, as intended and set forth in the Documentation (“Use”). Upon termination or expiration of this Agreement or the Order for any reason, Customer will cease, and will ensure the Customer Personnel (defined below) cease, all use of the Software. Company reserves all rights in the Software not expressly granted herein. For purposes of this Agreement “Customer Personnel” means the employees or students of Customer. Customer shall be fully liable to Company for all breaches of this Agreement by Customer Personnel and any other activity of Customer Personnel with respect to the Software and this Agreement. Customer agrees that its license of the Software is neither contingent on the delivery of any future functionality nor dependent on any comments made by Company or its representatives regarding future functionality or features. For purposes of this Agreement, “Documentation” means any operator and user manuals, training materials, implementation guides, technical materials and other materials provided by Company.
(b) Customer Restrictions.
Except as expressly permitted under this Agreement, Customer shall not transfer, license, assign, distribute, translate, reverse engineer, decompile, disassemble, or modify the Software or Confidential Information (as defined herein), duplicate the Software or Confidential Information or portions thereof, or allow any third party to do any of the foregoing. Further, Customer shall not, and shall not permit the Customer Personnel to, (i) directly or indirectly: sell, rent, lease, transfer, assign, or exploit the Software other than as expressly provided herein; (ii) copy any features, functions, look and feel or graphics of the Software unless permitted herein or in the applicable documentation; or (iii) interfere with the integrity or performance of the Software. Neither Customer nor any User shall provide to Company any personal information, without Company’s prior written consent. Neither Customer nor any Customer Personnel may access or use the Software for the principal purpose of monitoring availability, performance or functionality.
Customer acknowledges and agrees that it is not relying on any statement or warranty not expressly provided herein with respect to the Software or maintenance, or other services provided hereunder. Customer acknowledges and agrees that any information from the Software is informational only and should not be Customer’s sole basis for actions or omissions. Customer is solely responsible for its use and Customer Personnel’s use of the information from the Software.
(a) Maintenance and Support.
Company shall use commercially reasonable efforts to provide corrections to reported problems that (i) prevent the Software from conforming in material respects to its specifications, and (ii) are replicated and diagnosed by Company as defects in the Software (“Maintenance Services”). Further, Company shall use commercially reasonable efforts to provide Hardware support and troubleshooting Services (“Hardware Services”), as agreed to in an Order. Company shall not be obligated to provide Maintenance Services for any software other than the generally available Software delivered to Customer pursuant to this Agreement (collectively the “Unsupported Code”).
(b) Services Warranty.
Company warrants that it and its employees and contractors shall have the proper knowledge, skill, training, background, expertise and resources necessary to provide the Services in a diligent, prompt competent and professional manner and in accordance with this Agreement.
EXCEPT AS OTHERWISE SET FORTH IN THIS SECTION, COMPANY SPECIFICALLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES IN CONNECTION WITH THE SERVICES, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE.
(a) Hardware Generally.
Subject to the terms and conditions of this Agreement, Company agrees to provide to Customer the Hardware, as set forth in an applicable Order. In the event Customer wishes to return any Hardware purchased from Company, Customer must notify Company of its intent to return the Hardware within thirty (30) days of the Effective Date. A restocking fee of 15% may apply, at Company’s discretion, as well as forfeiture of the install, training, and shipping fees. Hardware must be returned by Customer within thirty (30) days of its notice to Company of its intent to return the Hardware, in the original, unopened packaging and must be unused. Customer shall be responsible for all return shipping costs.
To the extent it is able to do so, Company agrees to pass through any Hardware manufacturer warranty to Customer. Subject to the foregoing, Company makes no representations or warranties with respect to the Hardware. All Hardware is provided “as is” and all Hardware purchases are final. COMPANY SPECIFICALLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES IN CONNECTION WITH THE HARDWARE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE.
Customer shall pay Company the fees indicated on the Order. Unless otherwise provided in an Order, all fees shall be paid to Company within thirty (30) days of the date of invoice provided by Company to Customer. If payment is not received when due, Company reserves the right to, in addition to taking any other action at law or equity, to: suspend Customer’s access to the Software until overdue amounts are paid in full, including any interest assessed on the overdue amounts, and (b) terminate the Order and access to the Software.
6. TERM AND TERMINATION.
The term of this Agreement shall begin upon execution by Customer and shall continue until terminated in accordance with this Section. Notwithstanding the termination of this Agreement, the terms herein shall govern over any Order subject to this Agreement for so long as such Order remains in effect. This Agreement, the Order and any license created hereunder may be terminated by either party (i) on thirty (30) days written notice to the other party if the other party fails to perform any other material obligation required of it hereunder, and such failure is not cured within such thirty (30) day period; or (ii) by a party if the other party files a petition for bankruptcy or insolvency, has an involuntary petition filed against it, commences an action providing for relief under bankruptcy laws, files for the appointment of a receiver, or is adjudicated a bankrupt concern. Upon termination of this Agreement, neither Customer nor any User shall no longer access the Software or use the Hardware and Customer shall not circumvent any security mechanisms contained therein. Termination of this Agreement shall not limit Company from pursuing other remedies available to it, including injunctive relief, nor shall such termination relieve Customer’s obligation to pay all fees that have accrued or are otherwise owed by Customer under this Agreement.
(a) Customer Indemnity.
Customer shall indemnify, defend and hold harmless Company from and against any and all loss, cost, liability, damage, penalty, fine, judgment, claim or expense (including actual attorneys’ fees) (“Losses”) incurred by or asserted against Company in connection with or arising from: (a) Customer’s breach of its obligations under this Agreement; (b) Customer’s violation of applicable law; (c) Customer’s negligence or willful misconduct; or (d) in any suit or cause of action alleging that the Customer Data infringes or misappropriates any copyright, trademark, trade secret, patent or other intellectual property right of a third party.
(b) Company Indemnity.
Company shall indemnify, defend and hold harmless Customer from and against any and all Losses incurred by or asserted against Customer in connection with any suit or cause of action alleging that the Software infringes or misappropriates any copyright, trademark, trade secret, patent or other intellectual property right of a third party. The indemnity obligations of Company are subject to the following requirements: (i) Customer shall promptly notify Company of any and all such suits and causes of action; (ii) Company shall have sole control of any negotiations or defense of such suits and causes of action, and (iii) Customer assists as reasonably required by Company.
The foregoing intellectual property indemnification obligations of Company do not apply to the extent that the allegedly infringing Software or portions or components thereof or modifications thereto result from: (i) any change in the Software made by Customer or any third party for Customer; (ii) Customer’s use of the Software in combination with any hardware, software or other materials not expressly authorized by Company; (iii) Customer’s use of other than the most current release of the Software (“Exclusions”). This Section states Company’s entire liability and Customer’s exclusive remedies for infringement of intellectual property rights of any kind under this Agreement.
8. LIMITATION OF LIABILITY.
IN NO EVENT SHALL COMPANY BE LIABLE UNDER ANY THEORY OF LIABILITY, WHETHER IN AN EQUITABLE, LEGAL, OR COMMON LAW ACTION ARISING HEREUNDER FOR CONTRACT, STRICT LIABILITY, INDEMNITY, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, FOR DAMAGES WHICH, IN THE AGGREGATE, EXCEED THE AMOUNT OF THE FEES PAID BY CUSTOMER FOR THE SOFTWARE, HARDWARE OR SERVICES WHICH GAVE RISE TO SUCH DAMAGES IN THE ONE YEAR PRIOR TO THE CLAIM AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND AND HOWEVER CAUSED INCLUDING, BUT NOT LIMITED TO, BUSINESS INTERRUPTION OR LOSS OF PROFITS, LOSS OF DATA, BUSINESS OPPORTUNITIES, OR GOODWILL EVEN IF NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGE, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.
(a) Reservation of Rights.
By signing the Order, Customer irrevocably acknowledges that, subject to the licenses granted herein, Customer has no ownership interest in the Software or Company materials, including Documentation, provided to Customer. Company shall own all right, title, and interest in such Software and Company materials, including Documentation, subject to any limitations associated with intellectual property rights of third parties. Company reserves all rights not specifically granted herein. Any result or creation derived from Use of the Software is Company’s property. Customer agrees that no proprietary materials created in connection with this Agreement are “works made for hire” as that term is used in connection with the U.S. Copyright Act. To the extent that, by operation of law, Customer owns any intellectual property rights in such proprietary materials, Customer hereby irrevocably assigns and transfers to Company all rights, title and interest in such proprietary materials. Notwithstanding any other term of this Agreement, Company shall have a paid-up, royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use and exploit any ideas, suggestions, enhancement requests, recommendations or feedback provided by Customer or any Users relating to the Software.
Customer shall own all data collected through the Software including, but not limited to, user data (“Customer Data”). Customer hereby grants to Company a perpetual, non exclusive, worldwide, sublicensable, transferable license to use the Customer Data for the purposes of: (i) providing the Software or Services to Customer; and (ii) improving the Software. Customer is responsible for obtaining all necessary rights and permissions to enable, and grants such rights and permissions to, Company, and its contractors and subcontractors to use, provide, store and process Customer Data in the Software. This includes Customer making necessary disclosures and obtaining consent, if required, before providing individuals’ information, including personal or other information in such data. Nothing in this Agreement shall preclude Company from using in any manner or for any purpose it deems necessary, the know-how, techniques, or procedures acquired or used by Company in theperformance of Services hereunder.
“Confidential Information” includes all confidential or proprietary information disclosed by a party, on or after the Effective Date, whether tangible or intangible and in whatever form or medium provided, as well as any information generated by a party that contains, reflects, or is derived from such information. Without granting any right or license, the obligations of the parties hereunder shall not apply to any material or information that: (i) is or becomes a part of the public domain through no act or omission by the receiving party; (ii) is independently developed by the receiving party without use of the disclosing party’s Confidential Information; (iii) is rightfully obtained by the receiving party from a third party without any obligation of confidentiality; or (iv) is already known by the receiving party without any obligation of confidentiality prior to obtaining the Confidential Information from the disclosing party. In addition, neither party shall be liable for disclosure of Confidential Information if made in response to a valid order of a court or authorized agency of government, provided that, to the extent legally permitted, notice is promptly given to the disclosing party so that the disclosing party may seek a protective order and engage in other efforts to minimize the required disclosure. The parties shall cooperate in seeking such protective order and in engaging in such other efforts. Nothing in this Agreement shall be construed to convey any title or ownership rights to a party’s Confidential Information, including any intellectual property rights therein, to the other party. Each party agrees at all times to keep strictly confidential all Confidential Information belonging to the other party. Each party agrees to restrict access to the other party’s Confidential Information only to those employees or subcontractors who: (i) require access in the course of their assigned duties and responsibilities; and (ii) have agreed to be bound by provisions no less restrictive than those set forth in this Section.
11. General Provisions.
Customer agrees to comply with all applicable laws, regulations, and ordinances relating to its performance under this Agreement. Company shall have the right to use third parties, including employees of Company’s affiliates and subsidiaries in performance of its obligations and Services hereunder. This Agreement, together with the Order, contain the entire understanding of the parties with respect to the subject matter addressed herein and supersede, replace and merge all prior understandings, promises, representations and agreements, whether written or oral, relating thereto. No terms, provisions, or conditions of any purchase order issued by Customer to Company will have any effect on the obligations of the parties under or otherwise modify this Agreement. No waiver shall be implied from a failure of either party to exercise a right or remedy. In addition, no waiver of a party’s right or remedy will affect the other provisions of this Agreement. Company shall not be responsible or liable for any delay or failure in performing its obligations under this Agreement if such delay or failure is the direct result of causes outside of Company’s reasonable control; provided that Company uses commercially reasonable efforts to resume performance of its obligations as soon as practically possible. This Agreement shall be governed by the laws of the State of Minnesota (exclusive of its choice of law rules). The parties agree that any litigation arising between the parties in relation to this Agreement shall be initiated and maintained in the State and federal courts located in the State of Minnesota, and the parties hereby irrevocably submit to the exclusive jurisdiction and venue of such courts. If any provision of this Agreement and/or an Order is held by a court of competent jurisdiction to be invalid or unenforceable, such provision will be enforced to the fullest extent that it is valid and enforceable under applicable law. All other provisions of this Agreement shall remain in full force and effect. Company shall give notice by means of electronic mail to Customer’s e-mail address in the Order or otherwise on file with Company, or by written communication sent by first class mail or pre-paid post to Customer’s address on file with Company. Customer shall give notice to Company at any time by letter sent by e-mail to firstname.lastname@example.org or by letter delivered first class mail to Company at P.O. Box 102, Chaska, MN 55318. All notices shall be deemed to have been given five days after mailing (if sent by first class mail) or twenty-four (24) hours after sending by e-mail. Customer may not assign this Agreement or the Order, in whole or in part, without Company’s prior express written consent. Any attempted assignment without such consent shall be void. This Agreement will be binding upon and will inure to the benefit of the parties and their respective successors and assigns.