The definitions for some of the defined terms used in this Agreement are set forth below. The definitions for other defined terms are set forth elsewhere in this Agreement.
1.1 “Active User” means an employee of Subscriber or an individual consultant engaged by and acting under the direction and control of Subscriber, who is designated by Subscriber as having the right to access the Software.
1.2 “Affiliate” means, with respect to any entity, any other entity that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such entity. The term “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by contract, or otherwise.
1.3 “Documentation” means any written specifications, user documentation, training materials, validation test plans, and other documents relating to the Software that DTC provides to Subscriber.
1.4 “Software” means collectively: (i) the software program known as Kickboard™, which is a student data analysis application, and (ii) any Updates and Error Corrections that DTC makes available to Subscriber pursuant to the Support Services.
1.5 “Subscriber Data” means any data, files, and any other information that Subscriber inputs, processes, or stores using the Software.
1.6 “Support Services” means the Software maintenance and support services described in Subscription Order Form attached hereto.
1.7 “Term” has the meaning specified in Section 6.1 below.
1.8 “Update” means each patch and new release of the Software that DTC makes generally available for access by its Support Service subscribers without additional charge.
1.9 “Website” means the website located at the URL sent to Subscriber during registration in the form https://SCHOOLNAME.kickboardforteachers.com.
2.1 License Grant to Software and Documentation. Subject to the terms and conditions of this Agreement, DTC hereby grants to Subscriber during the Term a limited, non-exclusive, non-transferable (except as permitted under Section 10.2 below) license, without the right to grant sublicenses, to authorize Active Users to (a) access and use the Software over the Internet via the Website solely for Subscriber’s internal use, and (b) use the Documentation (all of the foregoing rights, collectively, the “License”). Subscriber shall be responsible to DTC for any and all acts or omissions of the Active Users.
2.2 Restrictions on Use. Subscriber will not (and will not permit any third party to): (i) reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code or interface protocols of the Software or the Website; (ii) modify, adapt, or translate the Software, the Website, or the Documentation (provided, however, that notwithstanding the foregoing, Subscriber, at its own expense, may translate any training materials that are included in the Documentation, provided that it includes DTC’s proprietary markings and restrictive legends on such translated training materials), (iii) make any copies of the Software, the Website, or the Documentation, (iv) resell, distribute, or sublicense the Software, the Website, or the Documentation; make the Software or the Website available on a “service bureau” basis, or otherwise allow any third party to use or access the Software, the Website, or the Documentation, (v) remove or modify any proprietary marking or restrictive legends placed on the Software, the Website, or the Documentation; (vi) use the Software, the Website, or the Documentation in violation of any applicable law or regulation or for any purpose not specifically permitted in this Agreement; or (vii) introduce into the Software or the Website any software, virus, worm, “back door,” Trojan Horse, or similar harmful code.
2.3 Section 365(n). All rights and licenses granted under or pursuant to this Agreement by DTC are, and shall otherwise be deemed to be, for purposes of Section 365(n) of the United States Bankruptcy Code (the “Code”), licenses to rights to “intellectual property” as defined under the Code. The Parties agree that Subscriber, as licensee of such rights under this Agreement, shall retain and may fully exercise all of its rights and elections under the Code. The Parties further agree that, in the event of the commencement of bankruptcy proceeding by or against DTC under the Code, Subscriber shall be entitled to retain all of its rights under this Agreement.
2.4 License Grant to Subscriber Data. Subscriber retains all right, title, and interest in and to the Subscriber Data. Subscriber hereby grants to DTC all necessary licenses in and to such Subscriber Data solely as necessary for DTC to provide the Software and/or perform its obligations hereunder. In all other cases, DTC will not use or access any Subscriber Data unless authorized to do so by Subscriber and, in such circumstances, DTC will access and use such Subscriber Data only as expressly authorized by Subscriber.
2.5 Confidentiality. DTC shall use commercially reasonable efforts consistent with prevailing industry standards to prevent the unauthorized access, use, or disclosure of Subscriber Data. Subscriber shall maintain the confidentiality of any non-public pricing information or product features provided by DTC.
At a day and time mutually convenient and agreed to by the Parties, DTC will provide Subscriber a sixty (60) minute training session on-site at Subscriber’s facility at no cost to Subscriber. In addition, Subscriber may participate in any webinar offered by DTC to its other subscribers at no cost to Subscriber.
4.1 License Fees. As consideration for the License and the Support Services, Subscriber will pay DTC the fees set forth on the Order Form (collectively, the “Fees”).
4.2 Payment Terms. Subscriber will pay all Fees within thirty (30) days of receipt of invoice. All amounts stated in this Agreement or on any invoice are in U.S. dollars, and all payments will be made in U.S. dollars.
4.3 Taxes. The Fees do not include applicable transaction taxes. If DTC is required by law to pay any federal, state, county, local, or value added tax, sales and use tax, goods and services tax, or similar applicable taxes based on this Agreement, DTC shall ensure that such taxes are invoiced to Subscriber in accordance with applicable rules so as to allow Subscriber to reclaim such value-added and/or similar tax from the appropriate government authority. Nothing in this Agreement, however, shall require Subscriber to pay any payroll, franchise, corporate, partnership, succession, transfer, income, excise, profits, or income tax of DTC.
5.1 Term. This Agreement begins on the Effective Date and will continue until terminated in accordance with Section 5.2 (the “Term”).
5.2 Termination. This Agreement may be terminated as follows:
( a ) Either Party may terminate for its convenience on thirty (30) days prior, written notice to the other Party.
( b ) In the event of a material breach of this Agreement by a Party, the other Party may terminate this Agreement by giving ten (10) days prior, written notice to the breaching Party; provided, however, that this Agreement will not terminate if the breaching Party has cured the breach before the expiration of such ten (10) day period.
( c ) Either Party may immediately terminate this Agreement on notice to the other Party if the other Party becomes insolvent, is unable to pay its debts as they mature, files for bankruptcy protection, is forced into bankruptcy, is placed under receivership, or makes a general assignment for the benefit of its creditors.
( d ) DTC may terminate this Agreement upon written notice to Subscriber under the limited circumstances set forth in Section 9.3 below.
5.3 Effect of Termination or Expiration. In the event of any termination or expiration of this Agreement:
( a ) Subscriber will promptly pay DTC for all amounts payable hereunder as of the effective date of termination or expiration;
( b ) all rights and licenses granted hereunder to Subscriber will immediately cease, and Subscriber will immediately cease all access of the Software and the Documentation; and
( c ) DTC will promptly return to Subscriber all Subscriber Data in a format mutually agreed to by the Parties.
5.4 Survival. The following provisions will survive any termination or expiration of this Agreement:
Section 1 (“Definitions”), Section 5.3 (“Effect of Termination or Expiration”), Section 6 (“Intellectual Property”), Section 7 (“Representations and Warranties; Disclaimer”) Section 8 (“Limitation of Liability”), Section 9 (“Indemnification”), Section 10 (“Miscellaneous Provisions”), and this Section 5.4 (“Survival”).
6.1 Subscriber Intellectual Property. As between DTC and Subscriber, Subscriber shall own all right, title, and interest in and to the Subscriber Data.
6.2 DTC Intellectual Property. As between DTC and Subscriber, DTC shall own all right, title, and interest in and to the Software, the Website, and the Documentation, including all source code, object code, operating instructions, and interfaces developed for or relating to the same, together with all modifications, enhancements, revisions, changes, copies, partial copies, translations, compilations, and derivative works thereto, including all copyrights and other intellectual property rights relating thereto (the “DTC Intellectual Property”). Subscriber will have no rights with respect to the DTC Intellectual Property other than those expressly granted under the License. Subscriber shall have no right to develop (or to permit any third party to develop) any software tool or other application that interfaces with the Software or the Website.
7.1 Mutual Representations and Warranties. Each Party represents and warrants that: (i) it has the full right, power, and authority to enter into this Agreement, to discharge its obligations hereunder, and to grant the licenses granted hereunder, and (ii) it does and will comply with all applicable federal, state, and local laws, rules, and regulations.
7.2 Additional Representations and Warranties of DTC. DTC further represents and warrants to Subscriber that: (i) the Software and the Website shall materially conform to the Documentation; and (ii) DTC will at all times employ those commercially reasonable methodologies, technologies, and other means reasonably necessary to prevent introduction, and will not intentionally introduce into Subscriber’s or any of its Affiliates’ websites, hardware, software, or network, any software, virus, worm, “back door,” Trojan Horse, or similar harmful code.
7.3 Disclaimer. DTC cannot guarantee that the Software or the Website will be available at all times, or that every error in the Software or problem raised by Subscriber will be resolved. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 7.1 AND SECTION 7.2, THE SOFTWARE, ITS COMPONENTS, ANY UPDATES, DOCUMENTATION, AND OTHER MATERIALS PROVIDED HEREUNDER, AS WELL AS THE WEBSITE AND ANY SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.” EXCEPT AS EXPRESSLY SET FORTH IN SECTION 7.1 AND SECTION 7.2, NEITHER PARTY MAKES ANY WARRANTY WITH RESPECT TO THE SOFTWARE, THE DOCUMENTATION, THE SUBSCRIBER DATA, THE WEBSITE, THE SERVICES, OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT AND HEREBY DISCLAIMS ANY AND ALL EXPRESS, IMPLIED OR STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF TITLE, MERCHANTABILITY, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, ERROR-FREE OR UNINTERRUPTED OPERATION AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. To the extent that a Party may not as a matter of applicable law disclaim any implied warranty, the scope and duration of such warranty will be the minimum permitted under such law.
8.1 Liability Exclusion. NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY (NOR TO ANY PERSON CLAIMING RIGHTS DERIVED FROM SUCH OTHER PARTY’S RIGHTS) FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION LOST REVENUES OR PROFITS, OR LOSS OF GOODWILL OR REPUTATION) WITH RESPECT TO ANY CLAIMS BASED ON CONTRACT, TORT OR OTHERWISE (INCLUDING NEGLIGENCE AND STRICT LIABILITY) ARISING OUT OF OR RELATING TO THE SOFTWARE, THE WEBSITE, THE SERVICES, THE DOCUMENTATION, OR OTHERWISE ARISING OUT OF OR RELATING TO THIS AGREEMENT, REGARDLESS OF WHETHER THE PARTY LIABLE OR ALLEGEDLY LIABLE WAS ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF.
8.2 Limitation of Damages. EACH PARTY’S MAXIMUM LIABILITY ARISING OUT OF OR RELATING TO THE SOFTWARE, THE WEBSITE, THE SUPPORT SERVICES, THE DOCUMENTATION, OR OTHERWISE ARISING OUT OF OR RELATING TO THIS AGREEMENT, REGARDLESS OF THE CAUSE OF ACTION (WHETHER IN CONTRACT, TORT, INDEMNITY, BREACH OF WARRANTY OR OTHERWISE), WILL NOT EXCEED THE AGGREGATE AMOUNT OF THE FEES PAID TO DTC BY SUBSCRIBER UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE ON WHICH THE CLAIM ARISES, PLUS THE TOTAL AMOUNT OF ANY FEES PAYABLE UNDER THIS AGREEMENT TO DTC BY SUBSCRIBER BUT UNPAID.
8.3 Exceptions. THE FOREGOING EXCLUSIONS AND LIMITATIONS OF LIABILITY SET FORTH IN SECTION 8.1 AND SECTION 8.2 SHALL NOT APPLY TO (I) THE FAILURE OF SUBSCRIBER TO MAKE PAYMENTS, (II) LIABILITY RESULTING FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF A PARTY, (III) USE OF THE SOFTWARE, THE WEBSITE, AND/OR THE DOCUMENTATION OUTSIDE THE SCOPE OF THE APPLICABLE LICENSE GRANTED PURSUANT TO THIS AGREEMENT, (IV) LIABILITY RESULTING FROM A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS HEREUNDER, OR (V) A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 8.
9.1 Indemnification by DTC. DTC will indemnify, defend, and hold harmless Subscriber and its Affiliates and its and their respective officers, directors, employees, and agents (each, a “Subscriber Indemnitee”) from and against any and all liabilities, settlement payments, awards, damages, losses, costs, and expense, including, but not limited to, reasonable attorneys’ fees (collectively, “Losses”) incurred by such Subscriber Indemnitees in connection with any third-party claim to the extent arising from, relating to, or alleging that the Software, the Website, and/or the Documentation infringes or misappropriates any United States patent, copyright, or trade secret (except to the extent covered by the indemnity under Section 9.4 below).
9.2 Exceptions to DTC Indemnification Obligations. DTC shall not be obligated to indemnify, defend, or hold harmless the Subscriber Indemnitees hereunder to the extent (i) the Loss arises from or is based upon use by Subscriber or any Active User of (a) the Software and/or the Website in a manner for which they were not intended; or (b) any unauthorized enhancements, modifications, alterations, or implementations of the Software and/or the Website; or (ii) the claim arises from use of the Software and/or the Website in combination with unauthorized modules, apparatus, hardware, software, or services; or (iii) the claim arises from any use of the Software and/or the Website that violates this Agreement or any applicable law or regulation of any governmental authority or self-regulatory agency or authority; or (iv) the claim arises from any use of the Software and/or the Website for which they were not designed.
9.3 Infringement Claims. In the event that DTC reasonably determines that the Software or the Website is likely to be the subject of an claim of infringement or misappropriation of third-party rights, DTC shall have the right (but not the obligation), at its own expense and option, to: (a) procure for Subscriber the right to continue to use the Software and/or the Website for the remainder of the then-current Term, (b) replace the infringing components of the Software and/or the Website with other components with the same or similar functionality that are reasonably acceptable to Subscriber, or (c) suitably modify the Software and/or the Website so that it is non-infringing and reasonably acceptable to Subscriber. If none of the foregoing options are available to DTC on commercially reasonable terms, DTC (A) may terminate this Agreement without further liability to Subscriber, and (B) shall refund to Subscriber an amount equal to a pro rata portion of the Fees prepaid by Subscriber for the Software. This Section 9.3, together with the indemnity provided under Section 9.1, states Subscriber’s sole and exclusive remedy, and DTC’s sole and exclusive liability, regarding infringement or misappropriation of any intellectual property rights of a third party.
9.4 Indemnification by Subscriber. Subscriber will indemnify, defend, and hold harmless DTC and its Affiliates and its and their respective officers, directors, employees, and agents (each, an “DTC Indemnitee”) from and against any and all Losses incurred by such DTC Indemnitees in connection with any third-party claim to the extent arising from, relating to, or alleging that any materials provided by Subscriber hereunder, including, without limitation, the Subscriber Data, when used in connection with the Software and/or Website: (i) infringes or misappropriates any United States patent, copyright, trade secret, or other intellectual property right of any third party (except to the extent covered by the indemnity under Section 9.1 above), or (ii) violates any applicable federal, state, and local laws, rules, and regulations, including, without limitation, those relating to data privacy, such as the Family Educational Rights and Privacy Act.
10.1 Relationship of the Parties. Each Party is an independent contractor of the other Party. Nothing herein will constitute a partnership between or joint venture by the Parties, or constitute either Party the agent of the other.
10.2 Assignment. Neither Party may assign or otherwise transfer any of its rights or obligations under this Agreement without the prior, written consent of the other Party; provided, however, that a Party may, upon written notice to the other Party and without the consent of the other Party, assign or otherwise transfer this Agreement: (i) to any of its Affiliates or (ii) in connection with a change of control transaction (whether by merger, consolidation, sale of equity interests, sale of all or substantially all assets, or otherwise), provided that in the case of a change of control of Subscriber, the acquiring company is not a competitor of DTC. Any assignment or other transfer in violation of this Section will be null and void. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the Parties hereto and their permitted successors and assigns.
10.3 Force Majeure. Except with respect to failure to pay any amount due under this Agreement, nonperformance of either Party will be excused to the extent that performance is rendered impossible by strike, fire, flood, governmental acts, orders or restrictions, failure of suppliers, or any other reason where failure to perform is beyond the control and not caused by the negligence of the non-performing Party.
10.4 Choice of Law. This Agreement, and any disputes directly or indirectly arising from or relating to this Agreement, will be governed by and construed in accordance with the laws of the State of Delaware, without regard to principles of conflicts of law.
10.5 Exclusive Forum. The Parties hereby consent and agree to the exclusive jurisdiction of the state and federal courts located in Delaware for all suits, actions, or proceedings directly or indirectly arising out of or relating to this Agreement, and waive any and all objections to such courts, including but not limited to objections based on improper venue or inconvenient forum, and each Party hereby irrevocably submits to the jurisdiction of such courts in any suits, actions or proceedings arising out of or relating to this Agreement.
10.6 Miscellaneous. No modification of or amendment to this Agreement will be effective unless in writing signed by authorized representatives of both Parties. The rights and remedies of the Parties to this Agreement are cumulative and not alternative. No waiver of any rights is to be charged against any Party unless such waiver is in writing signed by an authorized representative of the Party so charged. Neither the failure nor any delay by any Party in exercising any right, power, or privilege under this Agreement will operate as a waiver of such right, power, or privilege, and no single or partial exercise of any such right, power, or privilege will preclude any other or further exercise of such right, power, or privilege or the exercise of any other right, power, or privilege. If any provision of this Agreement is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of this Agreement will remain in full force and effect, and, if legally permitted, such offending provision will be replaced with an enforceable provision that as nearly as possible effects the Parties’ intent. This Agreement contains the entire understanding of the Parties with respect to the subject matter hereof and supersedes all prior agreements and commitments with respect thereto. There are no other oral or written understandings, terms or conditions and neither Party has relied upon any representation, express or implied, not contained in this Agreement. This Agreement may be executed in counterparts (which may be exchanged by facsimile), each of which will be deemed an original, but all of which together will constitute the same Agreement.