Terms and Conditions

‍TERMS AND CONDITIONS

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1. SAAS SERVICES AND SUPPORT

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1.1 Subject to the terms of this Agreement, Company will use commercially reasonable efforts to provide Customer the services described in any order form executed between the Customer and Company ("Order Form"), or in the subscription plan selected by Customer through Company's website, application or other online ordering or registration process (the "Subscription Plan"), including any Software services, Implementation services and any Hypercare services, as such terms are used in the Subscription Plan or Order Form (collectively, the "Services"). As part of the registration or subscription process, Customer may be required to create an account, designate an administrative user and provide certain information including a user name, password and billing information for Customer's account. Company reserves the right to refuse registration of, suspend, or cancel accounts or passwords it deems inappropriate or in violation of this Agreement.

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1.2 Subject to the terms hereof, Company will provide Customer with reasonable technical support services in accordance with the terms applicable to Customer's Subscription Plan or, if applicable, as set forth in an Order Form.

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1.3 By clicking "I agree" or similar confirmation, by creating an account on the platform, by using the platform and the Company's Services or by executing an Order Form with Company, Customer agrees to be bound by the terms of this Agreement. If the individual accepting this Agreement is acting on behalf of an entity, such individual represents and warrants that they have authority to bind that entity to this Agreement.

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1.4 Company may update this Agreement from time to time upon written notice, including by email, through Customer's account or by posting an updated version through the Services. Unless otherwise stated in the notice, such modifications will become effective thirty (30) days after notice. Customer's continued access to or use of the Services after the effective date of the modified Agreement constitutes acceptance of the modified Agreement. If Customer does not agree to the modified Agreement, Customer must cancel the Services before the modified Agreement becomes effective.

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1.5 Subscription Plan and Pricing Page Updates. Company may update the Subscription Plan, pricing page and related plan materials from time to time. For new customers, the then-current Subscription Plan will apply as of signup. For existing customers, changes to features, service descriptions and other non-fixed plan details may take effect as updated, but pricing, committed usage limits and other commercial terms made available at the time of signup or the most recent renewal will remain in effect for the remainder of the then-current billing cycle or renewal term, unless otherwise expressly stated by Company.

2. RESTRICTIONS AND RESPONSIBILITIES

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2.1 Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services ("Software"); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of any third-party; or remove any proprietary notices or labels. With respect to any Software that is distributed or provided to Customer for use on Customer premises or devices, Company hereby grants Customer a non-exclusive, non-transferable, non-sublicensable license to use such Software during the Term only in connection with the Services.

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2.2 Further, Customer may not remove or export from United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any export-control restrictions in force from time to time in connection with the Services. Any export or re-export of the Services, Software or anything related thereto in breach of any trade or similar restrictions that may apply to the Company, the Customer or to the Services or Software are hereby expressly prohibited.

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2.3 Customer represents, covenants, and warrants that Customer will use the Services only in compliance with Company's standard published policies then in effect (the "Policy") and all applicable laws and regulations. Customer hereby 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 the foregoing or otherwise from Customer's use of Services. Although Company has no obligation to monitor Customer's use of the Services, Company may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.

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2.4 Customer shall 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"). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer's knowledge or consent.

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2.5 Customer is responsible for all activity occurring under its account, including activity by its authorized users, and for ensuring that its access to and use of the Services does not exceed or otherwise violate the usage limits, entitlements, feature restrictions, capacity limits, billing metrics and other constraints applicable to the Subscription Plan, pricing page or any applicable Order Form.

3. CONFIDENTIALITY; PROPRIETARY RIGHTS

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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 Customer includes non-public data provided by Customer to Company to enable the provision of the Services ("Customer 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 shall 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.

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3.2 Customer shall own all right, title and interest in and to the Customer Data. Company shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, and (c) all intellectual property rights related to any of the foregoing.

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3.3 Notwithstanding anything to the contrary, Company shall have the right to collect and analyze 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, information concerning Customer Data and data derived therefrom), and Company will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.

4. PAYMENT OF FEES

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4.1 Customer will pay Company the then-current fees for the Services based on the Subscription Plan, billing cycle, number of authorized users, usage limits and any other applicable pricing terms selected by Customer through Company's website, application, online ordering flow, account settings or any applicable Order Form (collectively, the "Fees"). Customer authorizes Company and its payment processors to charge Customer's payment method on a recurring basis for all Fees and applicable taxes.

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Unless otherwise specified at the time of purchase or in an Order Form, billing begins on the date Customer subscribes to the Services or otherwise completes the applicable online ordering process and renewals occur automatically on the same calendar day of each applicable billing cycle.

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If Customer's use of the Services exceeds any service capacity restrictions set forth on the Subscription Plan or Order Form, or if Customer purchases additional features, add-ons or users, Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. Company reserves the right to change the Fees, pricing structure, billing metrics or applicable charges and to institute new charges, upon at least thirty (30) days' prior written notice to Customer. For Customers on a monthly billing cycle, any such changes may take effect at the start of the next monthly renewal following the notice period. For Customers on an annual billing cycle, any such changes will take effect no earlier than the next annual renewal following the notice period. Customer acknowledges that pricing models may change from time to time, including from seat-based pricing to usage-based or consumption-based pricing.

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If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than sixty (60) days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Company's customer support department.

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Fees are non-cancellable and non-refundable except as expressly set forth in this Agreement. CUSTOMER ACKNOWLEDGES THAT THE FEES MAY BE RECURRING PAYMENTS AND AGREES TO PAY ALL RECURRING FEES IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT AND ANY ORDER FORM.

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4.2 If Company offers invoice billing to Customer, full payment for invoices issued in any given month must be received by Company thirty (30) days after the invoice date unless otherwise stated in the applicable Order Form. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Company's net income.

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4.3 If Customer's Subscription Plan includes user seats or similar user-based entitlements, Customer may add additional users during a billing cycle up to a maximum permitted under Customer's plan, if any. Any added users will be billed immediately on a prorated basis for the remainder of the then-current billing cycle. On renewal, all active user seats will be billed at the full applicable rate for the next billing cycle.

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4.4 Customer may remove users at any time through the Services or by notifying Company, but any such removal will not entitle Customer to any refund, credit or prorated reduction for the then-current billing cycle. Unless otherwise stated in the Services, any removed seat will remain available for reassignment through the end of the then-current billing cycle, after which billing will be adjusted to reflect the reduced number of users.

5. TERM AND TERMINATION

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5.1 This Agreement begins when Customer accepts it or first accesses or uses the Services and continues until all subscriptions or Services under it have expired or been terminated. Unless otherwise stated in an Order Form or Subscription Plan, subscriptions renew automatically for successive monthly or annual terms, as applicable, unless cancelled in accordance with this Agreement.

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5.2 Termination for Cause. In addition to any other remedies it may have, either party may terminate this Agreement immediately upon written notice if the other party materially breaches any of the terms or conditions of this Agreement and such breach is not cured within thirty (30) days of written notice of such breach.

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5.3 Cancellation by Customer. Customer may cancel its Subscription Plan at any time and any cancellation will take effect at the end of the then-current billing period and Customer will continue to have access to the applicable Services through the end of that billing period. Customer will not be entitled to any refund, credit or prorated reimbursement for any prepaid Fees for the then-current billing period, except as expressly set forth in this Agreement.

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5.4 Effect of Termination. Upon any termination or expiration, Customer will pay in full for the Services through the last day on which the Services are made available to Customer. Upon termination or expiration, Company will make all Customer Data available to Customer for electronic retrieval for a period of thirty (30) days, but thereafter Company may, but is not obligated to, delete stored Customer Data, unless a longer retention period is required by law or expressly agreed to in writing. 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.

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5.5 Suspension; Paused and Inactive Accounts; Deletion. Company may suspend, restrict, lock or disable access to the Services in the event of failed payment, non-payment, breach of this Agreement, suspected fraud, abuse, security concerns or as otherwise determined by Company or by a super administrator acting within the Services. Customer may also voluntarily pause its account where such functionality is made available. If any account remains paused, suspended, restricted, locked, inactive, expired or otherwise not in good standing for a period of three hundred sixty-five (365) consecutive days, including any trial or pilot account that does not convert to a paid subscription, Company may permanently delete the account and any associated Customer Data without further notice, and Company will have no obligation to maintain, restore or recover such account or Customer Data after deletion.

6. WARRANTY AND DISCLAIMER

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Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Implementation Services, if applicable, in a professional and workmanlike manner. Company does not guarantee that any particular features, functionality, integrations or service levels will be available under all Subscription Plans and certain features may be subject to additional terms, limitations or Fees. 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 shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. Artificial intelligence and machine learning are rapidly evolving fields of study. Given the probabilistic nature of machine learning, use of the Services may in some situations result in incorrect output that does not accurately reflect real people, places, or facts. Customer should evaluate the accuracy of any output as appropriate for your use case, including by using human review.

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HOWEVER, 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 SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED "AS IS" AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

7. FEEDBACK; SURVEY

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Unless otherwise agreed to in writing, Company may, with your consent, use your name, company name, trademarks and other communications in Company marketing and promotional materials for the limited purpose of surveys, reviews, ratings, webinars, testimonials and comments that you provided Company through the Services ("Feedback"). By submitting Feedback, you agree that: (a) your disclosure is voluntary, free, unsolicited, and without restriction; (b) your Feedback does not contain the confidential or proprietary information of third parties, including but not limited to Student Data; and (c) Company is free to use the Feedback without any compensation to you and to disclose the Feedback on a non-confidential basis or otherwise to anyone.

8. INDEMNITY

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Company shall hold Customer harmless from liability to third parties resulting from infringement by the Service of any 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 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 Customer specifications, (iii) that are modified after delivery by Company, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer'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 Customer a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer's rights hereunder and provide Customer a refund of any prepaid, unused fees for the Service.

9. LIMITATION OF LIABILITY

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NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, COMPANY AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL 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 CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT 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.

10. MISCELLANEOUS

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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. This Agreement may be entered into in any number of counterparts and by the parties on separate counterparts, each of which is an original, but all of which together constitute one and the same instrument. Counterparts delivered by electronic mail (including .pdf or any electronic signature, including www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes. This Agreement is not assignable, transferable or sublicensable by Customer except with Company's prior written consent. Company may transfer and assign any of its rights and obligations under this Agreement without consent. 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, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. Notwithstanding the foregoing, Company may modify this Agreement as expressly permitted under Section 1.2.

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No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Company in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys' fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of Delaware without regard to its conflict of laws provisions. The parties shall work together in good faith to issue at least one mutually agreed upon press release within 90 days of the Effective Date, and Customer otherwise agrees to reasonably cooperate with Company to serve as a reference account upon request.

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