These Terms define the legal agreement when the nonprofit EduGuide works with organizations who use its online platform at EduGuide.org. EDUGUIDE IS WILLING TO GRANT YOU RIGHTS TO ESTABLISH AN ACCOUNT AND TO USE THE SERVICES ON EDUGUIDE.ORG DESCRIBED ON THE EDUGUIDE ORDER FORM ONLY UPON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS CONTAINED IN THIS AGREEMENT. PLEASE READ THE TERMS CAREFULLY. BY AUTHORIZING PAYMENT FOR EDUGUIDE, OR BY CLICKING ON "I ACCEPT", OR BY SIGNING THE ORDER FORM IN WRITING THAT REFERS TO THESE TERMS OF SERVICE YOU WILL INDICATE YOUR AGREEMENT WITH THEM. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY, EDUCATIONAL INSTITUTION OR OTHER LEGAL ENTITY OR PERSON, YOUR ACCEPTANCE REPRESENTS THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY OR PERSON TO THESE TERMS. IF YOU DO NOT AGREE WITH THESE TERMS, OR IF YOU DO NOT HAVE THE AUTHORITY TO BIND YOUR ENTITY OR PERSON, THEN EDUGUIDE IS UNWILLING TO GRANT YOU RIGHTS TO ESTABLISH AN ACCOUNT AND TO USE THE SERVICES PROVIDED BY THIS SITE. SOFTWARE AS A SERVICE AGREEMENT
Effective Date: June, 18 2014 1. Services. Web services include access to our online services at the EduGuide.org website as identified on the applicable order form and any updates or upgrades to our services which may be generally released by us to all customers from time to time. ("Services"). We reserve the right to update and modify the Services from time to time. 2. Provision of Online Services. Subject to the terms and conditions hereof, we shall provide, and we hereby grant a non-exclusive license, to you (defined below) to access and use the Services during the term of this Agreement only to the extent of authorized use specified in your order form for the Services. This Agreement provides for your use of the Services generated by our software, but it is not otherwise an agreement for the sale or license of any software. You may use the Services only for your internal business purposes of processing, storing and maintaining your data, and not for purposes of resale. 3. Restrictions on Use. 3.1 You agree that your use of the Services will be in a manner consistent with this Agreement and with all applicable laws and regulations. Without limiting the generality of the foregoing, You will not: (a) abuse or misuse the Services, including gaining or attempting to gain unauthorized access to the Services, or altering or destroying information in the Services except in accordance with accepted practices; (b) allow access to the Services other than the extent of authorized use specified in the applicable order form; (c) permit any third party to use or access the Services; (d) process or permit to be processed the data of any third party; or(e) to attempt to copy, archive, reverse-engineer, decompile, disassemble, create a derivative work from, or otherwise attempt to derive the source codes of any part of the our technology. 3.2 In addition, you are not authorized to use the Services or servers for the propagation, distribution, housing, processing, storing, or otherwise handling in any way lewd, obscene, or pornographic material, or any other material which we deem to be objectionable. The designation of any such materials is entirely at our sole discretion. 3.3 Your Account-Related Responsibilities. You are responsible for maintaining the confidentiality of your login ID, password, and any additional information that we may provide regarding accessing your account. If you knowingly share your login ID and password with another person who is not authorized to use the Services, this Agreement is subject to termination for cause. You agree to immediately notify us of any unauthorized use of your login ID, password, or account or any other breach of security. 4. Security. You will be solely responsible for acquiring and maintaining technology and procedures for maintaining the security of your link to the Internet. As part of the Services, we will implement reasonable security procedures consistent with prevailing industry standards to protect your information on our site from unauthorized access in Internet data centers housed in a secure location in the United States (the "Data Security Standard"). Provided that we are in compliance with the Data Security Standard, the parties agree that we shall not, under any circumstances, be held responsible or liable for situations (i) where data or transmissions are accessed by third parties through illegal or illicit means, or (ii) where the data or transmissions are accessed through the exploitation of security gaps, weaknesses, or flaws unknown to us at the time. We will promptly report to you any unauthorized access to your information on our site promptly upon discovery by us, and we will use diligent efforts to promptly remedy any breach of security that permitted such unauthorized access. In the event notification to persons included in such information is required, you will be solely responsible for any and all such notifications at its expense. 5. Confidential Information. 5.1 Each party ("Receiving Party") acknowledges that it may receive confidential information from other party ("Disclosing Party"). In our case, we claim as Confidential Information the training content, algorithms, logic, design, and coding methodology embodied in the Services, our website, and all software and technology we use to provide the Services. In your case, you claim as "Confidential Information" the information you provide in your use of the Services, including without limitation, your login ID, password, account information, and Non-Public Personal information (defined below). The Receiving Party agrees that it will not use in any way, for its own account or the account of any third party, the Confidential Information of the other party, except as expressly permitted by, or required to achieve the purposes of, this Agreement, nor disclose to any third party (except as required by law or to that party's attorneys, accountants and other advisors as reasonably necessary), any of the Disclosing Party's Confidential Information. 5.2 "Non-Public Personal Information" means any of the following information received by us from you: any identifier that permits physical or online contacting of a specific individual person, including without limitation, any one or more of (i) first and last name, (ii) home or physical address, (iii) email address, (iv) telephone number, or (v) social security number. 5.3 The Receiving Party agrees that it will not use in any way, for its own account or the account of any third party, except as expressly permitted by, or required to achieve the purposes of, this Agreement, nor disclose to any third party (except as required by law or to that Party's attorneys, accountants and other advisors as reasonably necessary), any of the Disclosing Party's Confidential Information and will take reasonable precautions to protect the confidentiality of such information in at least the same manner as is necessary to protect its own Confidential Information. 5.4 Confidential Information will not include information that: (i) is known to the Receiving Party prior to receipt from the Disclosing Party, whether directly or indirectly, from a source other than one having an obligation of confidentiality to the Disclosing Party; (ii) becomes known (independently of disclosure by the Disclosing Party) to the Receiving Party, whether directly or indirectly, from a source other than one having an obligation of confidentiality to the Disclosing Party; (iii) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the Receiving Party; or (iv) is independently developed by the Receiving Party. The Receiving Party may disclose Confidential Information pursuant to the requirements of a governmental agency or by operation of law, provided that such Receiving Party gives the Disclosing Party written notice thereof as soon as practicable and reasonably cooperates with the Disclosing Party to contest such disclosure. 6. Service Fees; Taxes. You will pay any fees for Services You agreed to in accordance with the applicable order form ("Service Fees"). You also agree to pay, at our then current rates, for all goods or services that you request from us and that are not included in the Services. Payment is due upon receipt of our invoice. Fees are exclusive of sales, use, or other transaction-based taxes where applicable, and you agree to pay all such charges either as levied by taxing authorities or invoiced by us. Subsequent to the initial term specified in the applicable order form signed by the parties, we may increase Service Fees at any time effective thirty (30) days after providing notice to you; provided, however, that any such increase will not occur more than once in a consecutive twelve (12) month period and will not effect periods of service that have already been paid for. 7. Term. The initial term of this Agreement will be determined by the applicable order form. The initial term hereof shall automatically renew for successive terms unless either of us notifies the other in writing not less than thirty (30) days prior to the expiration of the current term of its intention not to renew. Either of us may choose not to renew without cause or for any reason. 8. Guaranteed Payment. Except for termination by you for cause, if this Agreement is terminated prior to the end of the initial term as specified in the applicable order form, the entire balance of unpaid Service Fees for the remainder of the initial term shall accelerate and become due and payable immediately in a lump sum. 9. Termination For Convenience. Subject to the guaranteed payment, you may terminate this Agreement at any time for convenience by thirty (30) days prior written notice. 10. Termination for Cause. Either of us may terminate this Agreement for cause if (i) the other party breaches any material term or condition of this Agreement and fails to cure such breach within thirty (30) days after receipt of written notice of the breach. 11. Survival. The following obligations shall survive the expiration or termination hereof: (i) any and all warranty disclaimers, limitations of liability, and indemnities, (ii) any covenant granted herein for the purpose of determining ownership of, or protecting, the intellectual property rights, including without limitation, the confidential information of either party, or any remedy for breach thereof, and (iii) the payment of taxes, duties, or any money due to either party. 12. Technical Support, Training, and Consulting Services. During the term hereof, we will provide technical support in the form of responses to questions by email or telephone at no additional charge. If additional services are required for the proper use and operation of the Services or if training or consulting services are requested, we will provide such services on a time and materials ("T&M") basis; that is, (i) you will pay us for all the time spent performing such services (including all travel time), plus materials, taxes, and reimbursable expenses; and (ii) the rates for such services shall be our then-current standard rates when such services are provided. Any monetary limit stated in an estimate for T&M services shall be an estimate only for your budgeting and our resource scheduling purposes. If the limit is exceeded, we will cooperate with you to provide continuing services on a T&M basis. We will invoice you monthly for T&M services. Charges shall be payable upon receipt of invoice. We reserve the right to require a non-refundable fee and/or cost deposit prior to commencement of services as well as a work order. What you need. But in the event…on-site training, custom content creation, strategic consulting…. 13. Limited Warranty; Disclaimers. We warrant that (i) we will undertake reasonable efforts to maximize uptime for the Services, except for routine maintenance, and (ii) the Services will be free of material defects and will conform to the descriptions provided in the applicable order form ("Limited Warranty"). Your sole and exclusive remedy for breach of this Limited Warranty shall be the prompt correction of material defects and non-conforming Services at our expense. 14. EXCEPT FOR THE FOREGOING LIMITED WARRANTY, WE DISCLAIM ALL WARRANTIES, BOTH EXPRESS AND IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE. WE DO NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR 100% SECURE. 15. Intellectual Property Indemnity. We will indemnify, defend and hold you harmless from and against any lawsuit, liabilities, loss, cost or expense arising out of a third-party claim made against you that any Services infringes on any U.S. intellectual property right of a third party that is known to us prior to providing the Services to you; provided, however, that we are notified in writing of such claim promptly after such claim is made upon you. We will have the right to control any defense of any claim. In no event shall you settle any such claim without our prior written approval. We will have no liability or obligation if the claim arises from (i) any alteration or modification to the Services other than by us, (ii) any combination of the Services with other programs or data not furnished by us, or (iii) any use of the Services prohibited by this Agreement or otherwise outside the scope of use for which the Services is intended. If you are enjoined from using the Services, or if we believe that the Services may become the subject of a claim of intellectual property infringement, we, at our option and expense, may: (i) procure the right for you to continue to use the Services; (ii) replace or modify the Services so as to make it non-infringing; or (iii) terminate this Agreement, in which case we will refund to you any and all subscription fees paid in advance by you for those Services not provided by us and provide, at your request and free of charge, your data in a database document format. These remedies are your sole remedies for claims of infringement. 16. Consequential Damages Waiver. EXCEPT FOR INDEMNITY OBLIGATIONS EXPRESSLY PROVIDED HEREIN AND ANY VIOLATION OF CONFIDENTIALITY OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA AND/OR UNAUTHORIZED ACCESS OR ACQUISITION OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICES, INCLUDING WITHOUT LIMITATION THE USE OR INABILITY TO USE THE SERVICES, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICES OR THIS SITE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY'S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 17. Liability Cap. Except for our indemnity expressly provided herein and our confidentiality obligations, our aggregate liability, if any, including liability arising out of contract, negligence, strict liability in tort or warranty, or otherwise, shall not exceed the total of Service Fees payable by you for the three (3) months immediately preceding the claim for such liability. 18. Proprietary Rights Ownership. We retain sole and exclusive ownership of all intellectual property rights embodied in the Services, our content, our website, and all software and technology we use to provide the Services. 19. Notices. Any notice or communication required or permitted to be given hereunder may be delivered by hand, deposited with an overnight courier, sent by email or facsimile (provided delivery is confirmed), or U.S. Mail (registered or certified only), return receipt requested, in each case to addresses indicated herein or designated in writing by either party to the other. Such notice will be deemed to be given when received. 20. Assignment. This Agreement shall inure to the benefit of, and be binding upon, any successor to all or substantially all of the business and assets of each party, whether by merger, sale of assets, or other agreements or operation of law. Except as provided above, you shall not assign this Agreement or any right or interest under this Agreement, without our prior written consent. Any attempted assignment or delegation in contravention of this Section shall be void and ineffective. 21. Force Majeure. Neither party shall be liable for damages for any delay or failure of delivery arising out of causes beyond their reasonable control and without their fault or negligence, including, but not limited to, Acts of God. 22. Arbitration. Except for actions to protect intellectual property rights and to enforce an arbitrator's decision hereunder, all disputes, controversies, or claims arising out of or relating to this Agreement or a breach thereof shall be submitted to and finally resolved by arbitration under the rules of the American Arbitration Association ("AAA") then in effect. There shall be one arbitrator, and such arbitrator shall be chosen by mutual agreement of the parties in accordance with AAA rules. The arbitration shall take place in Lansing, Michigan. The arbitrator shall apply the laws of the State of Michigan to all issues in dispute. The findings of the arbitrator shall be final and binding on the parties, and may be entered in any court of competent jurisdiction for enforcement. Legal fees shall be awarded to the prevailing party in the arbitration. 23. Miscellaneous. This Agreement shall be construed under the laws of the State of Michigan, without regard to its principles of conflicts of law. This Agreement constitutes the entire understanding of the parties with respect to the subject matter of this Agreement and merges all prior communications, understandings, and agreements. This Agreement may be modified only by a written agreement signed by the parties. The failure of either party to enforce at any time any of the provisions hereof shall not be a waiver of such provision, or any other provision, or of the right of such party thereafter to enforce any provision hereof. If any provision of this Agreement is declared invalid or unenforceable, such provision shall be deemed modified to the extent necessary and possible to render it valid and enforceable. In any event, the unenforceability or invalidity of any provision shall not affect any other provision of this Agreement, and this Agreement shall continue in full force and effect, and be construed and enforced, as if such provision had not been included, or had been modified as above provided, as the case may be.