Master Services Agreement

BY EXECUTING AN ORDER FORM THAT INCORPORATES BY REFERENCE THIS MASTER SERVICES & SOFTWARE LICENCE AGREEMENT (TOGETHER WITH THE ORDER FORM, THIS “AGREEMENT”), THE CUSTOMER ACCEPTS AND AGREES TO THIS AGREEMENT WHICH CONSTITUTES A LEGAL AND BINDING AGREEMENT BETWEEN THE CUSTOMER AND UCROO, INC.

THIS MASTER SERVICES & SOFTWARE LICENCE AGREEMENT IS EFFECTIVE BY AND BETWEEN:

(1) UCROO, a company incorporated in Delaware with registered number 82-2083526 and whose registered office is located at Suite 2663, 3001 Brighton Blvd, Denver CO 80216 (“Supplier“); and

(2) the organization agreeing to these terms (“Customer“).

RECITALS:

  1. The Customer wishes to retain the Supplier to provide the software development and related services and work product described herein and from time to time in separately executed statements of work or order forms.
  2. The Supplier has agreed to provide those services and the Customer has agreed to accept and pay for those services, subject to the terms and conditions of this Agreement.

NOW, THEREFORE, in consideration of the mutual covenants, terms and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Customer and Supplier agree as follows:

  1. DEFINITIONS AND INTERPRETATION
    1. Definitions

In this Agreement each of the following words and expressions shall have the following meanings:

Additional Services” means any additional services not selected by the Customer and not forming part of this Agreement upon signature and which the Customer wish to select from time to time in accordance with the terms of this Agreement and any Order Form;

Additional Services Fees” means the fees payable by the Customer for Additional Services agreed to;

Affected Party” has the meaning ascribed to it under Clause 15 (Force Majeure); 

Affiliate” means, in respect of any party, any entity Controlled, directly or indirectly, by that Party, any entity that Controls, directly or indirectly, that Party or an entity directly or indirectly under the common Control with such Party;

Agreement” means this agreement, comprising the recitals, clauses and schedules hereto and as amended or supplemented in accordance with its terms together with all Order Form which are attached to and made a part of this Agreement, whether such Order Forms are attached hereto on the Effective Date, or are mutually executed by the Parties (and deemed attached to this Agreement) after the Effective Date;

Applicable Laws” means any laws, regulations, regulatory constraints, obligations or rules (including binding codes of conduct and binding statements of principle incorporated and contained in such rules) applicable to the existence or operation of this Agreement or the provision of the Services from time to time;

Business Day” means a day other than a Saturday, Sunday or public holiday in the State of New York;

Change” has the meaning ascribed to it under Clause 10 (Changes);

Contract Year” means any period of 12 months commencing on the Effective Date or any anniversary thereof;

Control” means, in relation to a person or entity, direct or indirect control of that person or entity, including control that is exercisable as a result of or by means of arrangement of practices whether having legal or equitable force and whether or not based on legal or equitable rights, including but not limited to a sale of substantial part or of the whole of the business on ordinary commercial terms, and the terms “Controlled” and “Controlling” shall be construed similarly;

Customer Data” means all data or records of whatever nature and in whatever form relating to the Customer or the business of the Customer or any authorized End User, including Personal Information, whether subsisting before the date of this Agreement or as lawfully created or processed (as part of, or in connection with, the Services;

Customer Representative” means such person designated as such from time to time in the Order Form(s), or such other person as is notified in writing by the Customer to the Supplier from time to time; 

Disruption” has the meaning ascribed to it under Clause 7.1.3 (Liability);

Dispute” has the meaning ascribed to it under Clause 17 (Dispute Resolution);

Effective Date” means the earlier of (i) the signature of this Agreement; or (ii) the commencement of the Services provided hereunder;

“End Users” are the persons who access, attempt to access or use the Software during the Term;

Fees” has the meaning ascribed to it under Clause 2.3.2 (Price and Payment);

Force Majeure Event” has the meaning ascribed to it under Clause 15 (Force Majeure);

Good Industry Practice” means, in relation to any particular circumstances, the degree of care, skill, diligence and operating practice which would reasonably be expected from a reasonably skilled and experienced provider of services similar to the Services under the same or similar circumstances; 

“Intellectual Property” means any present or future development work, copyright, patent, trade-mark, trade name, service mark, design, program, procedure and method of computation, trade secret, data model, invention, drawing, plan, specification, process or similar property or other like rights or any right to apply for registration of any of the former;

Intellectual Property Rights” means all inventions (whether patentable or not), design rights, database rights, copyright, moral rights, semiconductor topography rights, unregistered trade and service marks, logos, get-up and trade names and, in each case, the goodwill attaching to them, all Registered Intellectual Property Rights, know-how, and any rights or forms of protection of a similar nature and having equivalent or similar effect to any of them which subsist anywhere in the world;

New Customer Materials” means any materials developed or created by the Supplier (or on behalf of the Supplier) specifically in relation to the provision of the Services to the Customer under this Agreement;

Operating Environment” means, collectively, the Customer platform and environment on, in or under which the Software is intended to be installed and operate, including such structural, functional, and other features, conditions, and components as hardware, operating software, and system architecture and configuration;

Order” means an order for Services or Additional Services placed by Customer by signing an Order Form;

Order Form” means any statement of work and/or document signed or electronically agreed to by the Supplier and the Customer that references this Agreement and specified the roles and responsibilities (where appropriate) of the Parties with respect to a particular Order in connection with a request for Services or, as appropriate, Additional Services including, but not limited to, the Fees and any other relevant terms upon which the Supplier agrees to provide any Additional Services to the Customer;

Party” or “Parties” means a party to this Agreement and includes the successors or, as the case may be, permitted transferees of that party or parties;

Personal Information” means any data, either alone or in combination with other information, by which a natural person, including End Users, can be identified or located, or that can be used to identify or locate a natural person;

Registered Intellectual Property Rights” means all patents, utility models, registered designs, registered copyrights, plant variety rights, registered trade and service marks and domain names, together with:

(i) the goodwill attaching to any of the foregoing;

(ii) any applications for registration and rights to grant of any of the foregoing; and

(iii) any rights or forms of protection of a similar nature to any of the foregoing anywhere in the world;

Representatives” means the Customer Representative and the Supplier Representative;

Resources” has the meaning ascribed to it under Clause 7.1.3 (Liability);

Service Levels” means the service levels relating to the provision of the Services, as more particularly described in Schedule 1 (Service Levels);

Services” means any software-as-a-service offering (including the Software), along with hosted and cloud-based services, platform or infrastructure-as-a-service, associated management services together with support and professional services (including, without limitations, implementation, training or consulting) provided by the Supplier pursuant to this Agreement and any Order Form(s), in each case as more particularly described in the Order Form(s). For the avoidance, any Additional Services selected from time to time by the Customer shall be included in the definition of “Services” for all purpose of this Agreement, unless specified otherwise in the relevant Order Form; 

Site” means the physical location designated by Customer in, or in accordance with, this Agreement or any Order Form for delivery and/or installation of the Software;

Software” means the Campus web and mobile software application for an educational institution student portal system delivered by or on behalf of the Supplier, as described in the Order Form(s) as at the date of signature of this Agreement (together with any upgrade made by the Supplier and provided to the Customer from time to time), including, but not limited to, any tangible, verifiable work output such as a specification, programming, code, or other output developed in connection with the Software;

Supplier Materials” means any materials independently developed, including the Software, by the Supplier or on behalf of the Supplier outside the scope of this Agreement and used by the Supplier in the provision of the Services;

Supplier Representative” means such person designated as such from time to time in the Order Form(s), or such other person as is notified in writing by the Supplier to the Customer from time to time; 

“Support” has the meaning ascribed to it under Clause 9; and

Term” means the term during which any software is used by, or any services is provided to, the Customer as specified in the applicable Order Form(s), in each case in accordance with the terms and conditions of this Agreement and the applicable Order Form(s). 

  1. Interpretation
    1. References to this Agreement and other agreements

In this Agreement, except where the context otherwise requires:

  1. references to a Clause or Schedule shall be a reference to a Clause or Schedule of this Agreement;
  2. references to Order Form(s) shall mean reference to any and all Order Form(s) executed by the Parties from time to time in connection with the Services to be provided pursuant to this Agreement;
  3. the contents page and headings are for convenience only and shall not affect the interpretation of this Agreement; and
  4. to the extent that a provision of a Schedule to this Agreement conflicts with a provision of this Agreement (excluding such Schedule), the relevant provision of this Agreement shall take precedence.
  5. Singular, plural and gender

In this Agreement, except where the context otherwise requires, references to one gender include all genders and references to the singular include the plural and vice versa.

  1. References to persons and companies

In this Agreement, except where the context otherwise requires:

  1. references to a person include a reference to any individual, firm, company, government, state or agency of a state, local or municipal authority or government body or any joint venture, association or partnership (whether or not having separate legal personality);
  2. references to a company include any company, corporation or other body corporate wherever and however incorporated or established (including in succession to all, or substantially all, of the business of that company); 
  3. references to an individual include that individual’s estate and personal representatives.
  4. References to legislation 

In this Agreement, except where the context otherwise requires, reference to an enactment or statutory provision shall include a reference to any subordinate legislation made under the relevant enactment or statutory provision as from time to time amended, consolidated, modified, re-enacted or replaced; and

  1. Other references

In this Agreement, except where the context otherwise requires:

  1. if a period of time is specified as from or following a given day, or from the day of act or event, or within a number of days from the day of an act or event, it shall be calculated exclusive of that particular day; 
  2. the words and phrases “includes”, “including”, “in particular” (or any terms of similar effect) shall not be construed as implying any limitation; and
  3. general words shall not be given a restrictive meaning because they are preceded or followed by particular examples.
  4. SERVICES
    1. Provision of Services
      1. Subject to Clause 2.2, the Supplier shall provide the Services to the Customer for the Term and in accordance with the terms and conditions of this Agreement and the Order Form(s).
      2. The Services shall be performed by such employees or agents that the Supplier may choose as most appropriate to carry out the Services, including any subcontractors or delegates as appointed pursuant to Clause 16.
    2. Service Obligations

The Supplier shall:

  1. obtain and at all times comply with and maintain all necessary permits, licenses and authorizations required to enter into and perform its obligations under this Agreement;
  2. use commercially reasonable endeavor to provide the Services from the commencement of the Term;
  3. ensure that the Services are carried out by suitably qualified, skilled and experienced personnel; and
  4. cooperate with and provide all commercially reasonable assistance to the Customer in all matters relating to the Services.
  5. Quality of Service
    1. In performing its obligations under this Agreement, the Supplier shall:
      1. provide the Services in accordance with the Service Levels; and
      2. provide the Services in accordance with Good Industry Practice.
    2. In the event of any inconsistency between the levels of service that would apply under Clause 2.3.1(A) or 2.3.1(B), the Supplier shall be required to provide the Services with the standard of the Service Levels.
  6. Additional Services

At the Customer’s request, the Supplier may agree to perform Additional Services from time to time pursuant to a signed Order Form, in each case in accordance with the terms and conditions of this Agreement and the relevant Order Form.

  1. Customer Obligations

Customer shall be responsible, on a timely basis in accordance with this Agreement and any Order Form(s), for:

  1. performing all obligations identified in this Agreement and any Order Form(s);
  2. providing the Supplier with materials and such other resources as may be reasonably required by the Supplier to perform the Services hereunder;
  3. providing the Supplier with such reasonable access to the Site and Operating Environment as is necessary for the Supplier to perform the Services and its obligations hereunder on a timely basis; and
  4. participating with suitably qualified and authorized personnel in all meetings as may be scheduled.
  5. PRICE AND PAYMENT
    1. Pricing

The Customer shall pay to the Supplier the fees and charges specified in the Order Form(s) in consideration for the provision of the Services by the Supplier, including from time to time any Additional Services Fees as specified in the relevant Order Form (the “Fees“).

  1. Invoicing Procedures

The Supplier shall invoice the Customer for the Fees related to the Services as specified in the Order Form(s).

  1. Payment Terms
    1. All invoices submitted by the Supplier in accordance with this Agreement shall be paid by the Customer in accordance with the terms and conditions set forth in the Order Form(s), in the absence of which any invoice shall be paid within thirty (30) days of receipt of an invoice.
    2. When making a payment the Customer shall quote relevant reference numbers and the invoice number.
  2. Set-Off

Without prejudice to any other right or remedy a Party may have under this Agreement, each Party reserves the right to set-off any amount owed at any time to the other Party against any amount payable to it by such Party under this Agreement. 

  1. Late Payment 

If the Customer fails to pay any amount due and payable by it under this Agreement or under any judgment in connection with this Agreement:

  1. the Customer shall, (without prejudice to the other Party’s rights and remedies arising from such non-payment), pay to the other Party, in addition to such amount, interest on such amount at a rate of four (4) per cent per annum above the base rate from time to time of Federal Reserve Interest Rate, and such interest shall accrue daily from the due date until the date of actual payment, whether before or after judgment, and shall be compounded monthly; and
  2. the Supplier shall be entitled to suspend the performance of the Services (or any part thereof).
  3. Disputed Items
    1. If the Customer reasonably and in good faith disputes its obligation to pay part or all of any invoice submitted by the Supplier under this Agreement then, notwithstanding anything to the contrary in this Agreement:
      1. the Customer shall notify the Supplier in writing of the amount of the invoice which it disputes being obligated to pay (the “Disputed Amount“) and the reasons why it considers it is not obligated to pay the Disputed Amount;
      2. the Customer’s failure to pay the Disputed Amount will be deemed not to be a breach of this Agreement or a late payment in accordance with Clause 4.5 above;
      3. the Customer shall pay the undisputed balance of the invoice to the Supplier in accordance with Clause 4.3 above;
      4. the Parties shall as soon as reasonably practicable discuss and use their respective reasonable endeavors to agree how much (if any) of the Disputed Amount is payable to the Supplier; and
      5. if the Parties are unable to reach agreement pursuant to Clause 4.6.1(D) above within ten (10) Business Days, then either Party may refer the matter for resolution in accordance with the dispute resolution procedure set out in Clause 17.
  4. WARRANTIES
    1. Mutual Warranties
      1. As at the date of signature of this Agreement, each Party warrants to the other Party that:
        1. it is duly organized, validly existing, and in good standing as a corporation or other entity as represented herein under the laws and regulations of its jurisdiction of incorporation, organization, or chartering;
        2. it has the full right, power, and authority to enter into this Agreement, to grant the rights and licenses granted hereunder, and to perform its obligations hereunder and all the documents which are to be executed by it as envisaged by this Agreement;
        3. nothing contained in this Agreement will result in a breach of any provisions of its constitutional documents or result in a breach of any agreement, license or other instrument, order, judgment or decree of any court, governmental agency or regulatory body to which it is bound;
        4. the execution of this Agreement by its representative whose signature is set forth at the end hereof has been duly authorized by all necessary corporate and/or organizational action of the party; and
        5. when executed and delivered by both Parties, this Agreement will constitute the legal, valid, and binding obligation of such party, enforceable against such party in accordance with its terms.
    2. Customer Warranty

By signing this Agreement, the Customer further warrants to the Supplier that he has received the Order Form(s) accompanying this Agreement and agrees to the terms and conditions set forth therein.

  1. Supplier Warranties
    1. The Supplier further warrants to the Customer on a continuous basis throughout the term of this Agreement that:
      1. it shall perform the Services in accordance with all Applicable Laws;
      2. it shall maintain reasonable security measures to protect the Customer’s systems from third parties, and in particular from disruption by any “back door”, “time bomb”, “Trojan Horse”, “worm”, “drop dead device”, “virus” or other computer software routine intended or designed to: (i) permit access or use of information technology systems by a third person other than as authorized by the Customer or the Supplier; or (ii) disable, damage or erase or disrupt or impair the normal operation of the Customer’s or the Supplier’s information technology systems; 
      3. it has carried out sufficient due diligence in accordance with Good Industry Practice to satisfy itself as to all risk, contingencies and circumstances to do with the performance of the Services; and
    2. Except as set forth in this Agreement, all Services are provided “as-is”, and the Supplier makes no warranties, representations, or guarantees, express or implied, oral or written, with respect to the Services. There is no such thing as perfect security, and the Supplier cannot guarantee or warrant the security of any data (including Confidential Information or Personal Information) that the Supplier receives and stores on the Supplier’s systems. The Supplier does not warrant that the Services or its network are error-free. 
    3. The Supplier makes no warranties of merchantability, fitness for a particular purpose (including the Customer’s compliance with its statutory or regulatory obligations), or arising from a course of performance, dealing, or usage of trade. The Customer assumes all responsibility for determining if the Services are sufficient for Customer’s purposes.
  2. Disclaimer

EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT, EACH PARTY HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THIS AGREEMENT.

  1. TERM AND TERMINATION
    1. Term

This Agreement will commence upon the Effective Date and continue until the applicable Term for each Order Form has expired, unless each Order Form or this Agreement is terminated earlier in accordance with the terms of the applicable Order Form or this Agreement, respectively.

  1. Automatic Renewal
    1. The Agreement will automatically renew for an additional consecutive term equal to a Contract Year unless either Party provides notice of termination at least forty-five (45) days before the end of the then-current term.
    2. In the event of an automatic renewal pursuant to Clause 6.2.1, the Customer acknowledges and agrees that the Supplier may change the fees of the Services (including any Additional Services) applicable to the then-current term by written notice to the Customer at least sixty (60) days before the end of such term. 
  2. Termination Events
    1. Either Party may terminate this Agreement with immediate effect on a specified date by written notice to the other Party if such Party commits a material breach of any of its obligations under this Agreement and, in the case of a breach capable of remedy, fails to remedy such breach within thirty (30) Business Days of being given written notice to do so.
    2. The Supplier may terminate this Agreement by written notice to the Customer if: (i) any Fees remain unpaid (disregarding for these purposes non-payment in relation to a Disputed Amount) for a period in excess of thirty (30) Business Days following the due date for payment of such Fees; and (ii) the Customer fails to pay such Fees within thirty (30) Business Days following receipt of written notice giving full particulars of the outstanding Fees and requiring them to be paid.
  3. Consequences of Termination 
    1. Upon termination or expiry of this Agreement for whatever reason, unless otherwise agreed between the Parties, as soon as reasonably practicable the Supplier shall at no additional cost to the Customer:
      1. provide a copy of the Customer Data to the Customer in any format reasonably specified by the Customer;
      2. destroy or return any additional copies of the Customer Data and other confidential information of the Customer, provided that the Supplier may retain one copy of such information as it is required to retain by law and subject to the confidentiality obligations set out in Clause 14 (Confidentiality); and
    2. Upon termination or expiry of this Agreement for whatever reason, unless otherwise agreed between the Parties, as soon as reasonably practicable the Customer shall at no additional cost to the Supplier destroy or return any additional copies of confidential information of the Supplier.
  4. Survival of Rights on Termination

Termination or expiry of this Agreement for any reason shall not affect any rights or obligations which may have accrued or become due prior to the date of termination or expiry. The obligations of each Party set out in any Clause intended to survive such termination or expiry, including Clauses 6.4, 7, 11, 12.2.2 and 18, shall continue in full force and effect notwithstanding termination or expiry of this Agreement.

  1. LIABILITY
    1. Limitations and Exclusions 
      1. Where any Applicable Laws implies any term, condition or warranty, and such Applicable Laws avoid or prohibit provisions in a contract excluding or modifying the application of, or exercise of, or liability under, such term, condition or warranty, such term, condition or warranty shall be deemed to be included in this Agreement. The Supplier’s liability for any breach of such term, condition, or warranty if the breach relates to Services or Additional Services shall be limited, however, at Supplier’s option, to any one or more of the following:
        1. the supply of the Services or Additional Services again; or
        2. the payment of the cost of having the Services or Additional Services supplied again.
      2. Subject to Clause 7.4, neither Party shall be liable to the other Party or to any third party, whether in contract (including under any indemnity or warranty), in tort (including negligence), under any statute or otherwise, for or in respect of any:
        1. loss of income; 
        2. loss of business profits or contracts; 
        3. business interruption; 
        4. loss of the use of money or anticipated savings; 
        5. loss of information; 
        6. loss of opportunity, goodwill or reputation; 
        7. loss of, damage to or corruption of data; or
        8. indirect, consequential incidental loss or damages, even if the other Party had advised of the possibility of such damages;
      3. The Customer is responsible for the Customer Data and the content of its and its End User’s transmissions, including Customer data, over the Supplier’s Software and other related resources that are used in connection with the Services including but not limited to, communication, hosting and storage (together with the Software, the “Resources”). The Customer agrees that it and its End Users will not use the Resources for illegal purposes, to infringe the rights of a third party, or to interfere with or disrupt the Resources (“Disruption”). Disruptions include distribution of unsolicited communications or chain letters, defamatory, libelous or offending content, propagation of computer worms and viruses, and unauthorized use of the Resources to enter, or attempt to enter, another Resources machine. If a Disruption occurs, the Supplier may, in its reasonable discretion, immediately remove the Disruption, disable the mode of communication, suspend the Customer’s and/or its End User’s access to Resources or terminate this Agreement and, unless otherwise prohibited by Applicable Laws, the Customer is liable to the Supplier for claims arising from Customer Data or any Disruption. 
      4. No act or omission by the Supplier under this Agreement shall be interpreted or construed as being for the benefit of, or creating any the Supplier obligation toward, any third party or legal entity other than Customer.
    2. Recoverable Loss

Unless otherwise prohibited by Applicable Laws, each Party is liable to the other for direct losses and expenses incurred by the other Party as a result of any breach of Clause 14 (Confidentiality) and Clause 11 (Intellectual Property Rights).

  1. Liability Cap

Subject to Clause 7.4 and to the maximum extent permitted by law, each Party’s aggregate liability, whether in contract (including under any indemnity or warranty), in tort (including negligence), under any statute or otherwise, under or in connection with this Agreement or the provision of the Services shall in any Contract Year be limited to an amount equal to the total Fees paid by the Customer to the Supplier in such Contract Year.

  1. Exceptions

The limits on liability set out in this Agreement (including in this Clause 7) shall not apply in respect of:

  1. any liability for death or personal injury resulting from a Party’s gross negligence;
  2. any liability for fraud or fraudulent misrepresentation by a Party;
  3. willful default by any Party;
  4. the Parties’ obligations under, or liability for breach of, Clause 14 (Confidentiality) and Clause 11 (Intellectual Property Rights); or
  5. any other liability to the extent to which it cannot be lawfully excluded. 
  6. CONTRACT MANAGEMENT

The principal point of contact between the Customer and the Supplier in relation to issues arising out of this Agreement or the performance of the Services will be the Representatives specified in the Order Form(s). Either Party may change the identity of its Representatives at any time by giving written notice to the other Party.

  1. sERVICES Support 
    1. The Supplier shall provide support services provided to Customer as more particularly described in Order Form(s).
    2. Notwithstanding the provisions of Clause 9.1 and prior to any request for support made to the Supplier, the Customer agrees to provide, to the extent possible, support to End Users.
  2. CHANGES

Where either Party wishes to make a change to any Order Form or any document agreed pursuant to the terms of this Agreement or wishes a project to be undertaken (a “Change“), then such Change must be requested by the Customer by written notice to the Supplier and the signature of an Order Form specifying any such Changes so requested. Any other amendment to or variation of this Agreement must be made in accordance with Clause 18.7 (Amendment and Variation).

  1. INTELLECTUAL PROPERTY RIGHTS
    1. Proprietary Rights & Restrictions 
      1. The Supplier has appropriate rights and interest to or in its Software and other Intellectual Property (collectively, the “IP”), and the Supplier reserves these rights and interests in connection with the IP, except as expressly granted to the Customer pursuant to this Agreement. 
      2. Except as may be expressly granted in this Agreement or an Order Form, the Supplier does not transfer any title to or interest in its IP. The IP contains valuable Intellectual Property of the Supplier and, where appropriate, its subcontractors and delegates. 
      3. Except as permitted by this Agreement, or applicable license or similar usage right as offered or published by the Creative Commons Corporation, the Customer shall not: 
        1. attempt to decompile, disassemble, modify the source code of, or reverse engineer the IP; 
        2. use, reproduce, transmit, modify, adapt or translate the IP; 
        3. rent, lease, license, transfer, assign, sell or otherwise provide access to the IP on a temporary or permanent basis; 
        4. use or cause or allow a third party to use the Software and, as appropriate, any and all Services in any way to develop competing products or services; 
        5. use any Supplier’s subcontractor or delegate or third-party Intellectual Property or components on a standalone basis unless such standalone use is expressly authorized by the Supplier or its subcontractor or delegate; and
        6. alter, remove or cover proprietary notices in or on the IP. 
      4. Any default in Customer’s obligations under this section may cause irreparable harm to the Supplier. If the Customer takes or threatens any action that may infringe on the Supplier’s IP rights, the Supplier may seek injunctive or other equitable relief in addition to any damages to which the Supplier may be entitled.
      5. The Supplier shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by Customer relating to the operation of the Services. 
    2. Supplier Ownership and License
      1. Save as expressly set out in this Agreement, the Customer shall not acquire any right, title or interest in or to the Intellectual Property Rights subsisting in the Supplier Materials.
      2. The Supplier grants a non-exclusive, irrevocable, non-transferable, non-sublicensable, royalty-free license to the Customer and the Customer’s Affiliate for the Term to use the Supplier Materials solely for, and only to the extent necessary for, the receipt of and the benefit of the Services.
      3. The Customer agrees that its licensing of the Services is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by the Supplier with respect to future functionality or features.
    3. Customer Ownership and License
      1. The Customer Data and the Intellectual Property Rights subsisting in the Customer Data shall at all times remain the sole property of the Customer. Save as expressly set out in this Agreement, the Supplier shall not acquire any right, title or interest in or to the Customer Data or the Intellectual Property Rights subsisting in the Customer Data.
      2. The Customer grants a non-exclusive, royalty-free license to the Supplier and the Supplier’s Affiliate for the Term to use the Customer Data solely for, and only to the extent necessary for, the provision of the Services.
    4. New Customer Materials
      1. Save as expressly set out in this Agreement, the Customer shall not acquire any right, title or interest in or to the Intellectual Property Rights subsisting in the New Customer Materials.
      2. The Customer hereby assigns to the Supplier, with full title guarantee and free from all third-party rights, the Intellectual Property Rights and all other rights subsisting in the New Customer Materials.
      3. The assignment set out in Clause 11.4.2 above shall either take effect on the Effective Date or as a present assignment of future rights that will take effect immediately on the coming into existence of the New Customer Materials, as appropriate. To the extent that such future rights cannot lawfully be assigned as a present assignment, the Customer shall, at the request of the Supplier, promptly assign such rights to the Supplier.
      4. The Customer shall waive or procure a waiver of any moral rights (droit moral) in the New Customer Materials assigned to the Supplier under this Agreement.
    5. Background IP
      1. Notwithstanding anything to the contrary herein, the ownership of any Intellectual Property Right which exists prior to or is developed independently of this Agreement and made available by a Party for purposes of this Agreement (“Background IP”) shall not be altered or transferred or assigned merely by virtue of its use for the purposes of this Agreement. 
      2. Each Party grants the other Party a non-exclusive, irrevocable, non-transferable, non-sublicensable, royalty-free license to use its Background IP to the extent necessary to fulfill its obligations under this Agreement but for no other purpose.
  2. DATA PROTECTION
    1. Notifications and Registrations

Both Parties shall ensure that they have secured such consents, registrations and notifications as may be required to enable the Supplier and the Supplier’s Affiliate to process personal data to the extent required to provide and/or receive the Services.

  1. Protection of Customer Data
    1. The Supplier shall maintain commercially reasonable administrative, physical and technical safeguards for the protection, confidentiality and integrity of Customer Data. 
    2. The Customer acknowledges that the Customer’s use of the Software will involve transmission over the internet and other networks, only part of which may be owned or controlled by the Supplier. The Customer further acknowledges that Customer Data may be accessed by unauthorized parties when communicated across the internet, the Supplier’s network or other electronic means. The Supplier shall not be responsible for any Customer Data which is delayed, lost, altered, intercepted or stored during the transmission of any data whatsoever across networks not owned or controlled by the Supplier.
  2. FERPA COMPLIANCE
    1. The Supplier may receive information pertaining to students of the Customer. The Supplier shall treat such information in a confidential matter and in conformance with the Family Educational Rights and Privacy Act (“FERPA”). Supplier represents, warrants, and agrees that it will: 
      1. hold the FERPA records in strict confidence and will not use or disclose the FERPA records except as (a) permitted or required by this Agreement, (b) required by law, or (c) otherwise authorized by the Customer in writing; 
      2. safeguard the FERPA records according to commercially reasonable administrative, physical and technical standards that are no less rigorous than the standards by which the Supplier protects its own confidential information; and
      3. continually monitor its operations and take any action necessary to assure that the FERPA records are safeguarded in accordance with the terms of this Agreement.
  3. CONFIDENTIALITY
    1. Confidentiality

Subject to Clause 14.2 below, each of the Parties shall keep the Confidential Information confidential and not disclose it to any third party. For the purposes of this Clause 14, “Confidential Information” shall include the existence and contents of this Agreement and any other agreement or arrangement contemplated by this Agreement, as well as:

  1. any information concerning the business, finances, assets, liabilities, dealings, transactions, know how, customers, suppliers, processes or affairs of the other Party (including, where appropriate, Customer Data and Personal Information); and
  2. any information which is expressly indicated to be confidential or is imparted by one Party to the other in circumstances importing an obligation of confidence,

which either Party may from time to time receive or obtain (orally, visually, in writing, electronically or by any other means) as a result of entering into, or performing its obligations pursuant to, this Agreement or otherwise.

  1. Exceptions

The provisions of Clause 14.1 above shall not prohibit the disclosure of Confidential Information if and to the extent:

  1. disclosed to officers, employees or agents of the relevant Party (the “Disclosed Representatives“), in each case, to the extent required to enable such Party to enjoy its rights and carry out its obligations under this Agreement and provided that the Disclosed Representatives are informed of the confidential nature of the Confidential Information before disclosure and required to comply with the provisions of this Clause 14 in respect of such information as if they were a Party to this Agreement;
  2. required by applicable law or by the rules of any relevant stock exchange or regulatory or supervisory authority for the purpose of any judicial proceedings arising out of this Agreement or any other agreement entered into under or pursuant to this Agreement; 
  3. disclosed to the professional advisors of the relevant Party (the “Advisors“), provided that the Advisors are informed of the confidential nature of the Confidential Information before disclosure and required to comply with the provisions of this Clause 14 in respect of such information as if they were a Party to this Agreement;
  4. the Confidential Information becomes publicly available (other than as a result of a breach of an obligation of confidentiality);
  5. the other Party has given its prior written consent to the disclosure;
  6. the Confidential Information is obtained from a third party who is not in breach of any undertaking or duty as to confidentiality whether express or implied;
  7. the Confidential Information is already in the possession of that Party and is not subject to an obligation of confidentiality or a restriction on use; or
  8. the Confidential Information is independently developed.

Except where prohibited by any applicable law or regulation, prior to disclosure of any Confidential Information pursuant to Clause 14.2.2, the Party being required to make the disclosure shall promptly notify the other Party of such requirement with a view to providing the other Party with the opportunity to resist such disclosure or otherwise to agree the timing and content of such disclosure.

  1. Parties

Reference to a “Party” in this Clause 14 (Confidentiality) shall include the Supplier’s and the Customer’s Affiliates, and the Supplier and the Customer shall each procure compliance by their respective Affiliates with this Clause 14 (Confidentiality).

  1. FORCE MAJEURE
    1. Notification and Effect of Force Majeure

Neither Party shall be liable to the other Party for any failure to fulfill its duties hereunder if and to the extent that such failure results from any circumstances beyond the reasonable control of that Party (a “Force Majeure Event“) provided that the Party unable to fulfill its duties pursuant to this Clause 15 (the “Affected Party“) shall:

  1. give written notice to the other Party as soon as reasonably practicable upon becoming aware of the Force Majeure Event, such notice to contain the following information:
    1. details of the Force Majeure Event that has occurred;
    2. the date from which the Force Majeure Event has prevented or hindered the Affected Party in the performance of its duties hereunder;
    3. the duties hereunder so affected;
    4. its best estimate of the date upon which it will be able to resume performance of the affected duties hereunder;
  2. provides regular updates to the other Party regarding the status of the Force Majeure Event and the Affected Party’s performance of its duties hereunder;
  3. at all times continue to take steps in accordance with Good Industry Practice to resume full performance of its obligations under this Agreement; and
  4. at all times use all reasonable endeavors to mitigate the consequences of the Force Majeure Event,

and the relief from liability provided under this Clause 15 (Force Majeure) shall last for the duration of the Force Majeure Event only.

  1. Financial Consequences

Notwithstanding anything to the contrary in this Agreement, to the extent the provision of the Services or any part thereof is prevented or materially affected by a Force Majeure Event, the Customer’s obligation to pay the Fees shall be proportionately reduced for the duration of the Force Majeure Event.

  1. Termination

If the Affected Party is excused under this Clause 15 (Force Majeure) from the performance of any material obligations under this Agreement for a continuous period of twenty (20) Business Days, then the other Party may at any time thereafter, terminate this Agreement with immediate effect and without penalty, in which case it shall provide the Affected Party with written notice of termination.

  1. SUBCONTRACTORS
    1. The Supplier is permitted to subcontract or delegate any of its rights or obligations under this Agreement without the Customer consent.
    2. Any subcontracting under Clause 16.1 above shall not relieve the Supplier of its obligations to the Customer under this Agreement and the Supplier shall be fully responsible to the Customer for the acts or omissions of its subcontractors and their personnel. Any obligation on the Supplier to do, or refrain from doing, any act or thing shall include an obligation upon the Supplier to procure that any subcontractors also do, or refrain from doing, such act or thing.
    3. Subject to Clause 16.2, any work undertaken by any of the Supplier’s subcontractors shall be undertaken to the same standard as stated in this Agreement. 
    4. If the Customer requests or selects other third party software or services to be integrated or used with the Software and Services, the Customer agrees that the Supplier may allow such third party providers to access Customer Data as required for the interoperation of such software or services with the Software and Services, and any exchange of data or other interaction between the Customer and a third party provider is solely between the Customer and such third party provider. The Supplier shall not be responsible for any disclosure, modification or deletion of Customer Data resulting from any such access by such third-party.
  2. DISPUTE RESOLUTION
    1. The Parties shall resolve any dispute in relation to any aspect of, or failure to agree any matter arising in relation to, this Agreement or any document agreed or contemplated as being agreed pursuant to this Agreement (a “Dispute“) by first attempting to resolve such Dispute informally through discussion between the Customer’s Representative and the Supplier’s Representative, who shall meet with a view to resolving resolve the Dispute. 
    2. If the individuals specified in Clause 17.1 cannot resolve the Dispute completely within ten (10) Business Days of the Dispute being referred to them, then either of the Parties may refer the Dispute to an independent third person, to which the Parties agree to cooperate fully, with power:
      1. to intervene and direct some form of resolution, in which case the Parties will be bound by that resolution; or
      2. to mediate and recommend some form of non-binding resolution;
    3. If, within twenty (20) Business Days of the Dispute having been referred to the individuals specified in Clause 17.2 no agreement has been reached, the dispute resolution process shall be deemed to have been exhausted in respect of the Dispute, and each Party shall be free to pursue the rights granted to it by this Agreement in respect of such Dispute without further reference to the dispute resolution process.
    4. In the event of a Dispute, the Supplier shall (unless otherwise requested in writing by the Customer) continue to perform its obligations under this Agreement.
  3. GENERAL
    1. Entire Agreement
      1. This Agreement constitutes the entire agreement between the Parties in relation to its subject matter and supersedes any previous agreement between the Parties with respect thereto. 
      2. The Parties acknowledge and agree that in entering into this Agreement they have not relied on any statement, representation, warranty, assurance, covenant, indemnity, undertaking or commitment given or implied from anything said or written in communications between the Parties prior to the date of signature of this Agreement which is not expressly set out in this Agreement. 
      3. Nothing in this Clause excludes or limits liability for fraud or fraudulent misrepresentation.
    2. Order of Precedence 

Unless otherwise specified herein or in the Order Form(s), this Agreement shall supersede the provisions of an Order.

  1. Further Assurances

Each Party shall from time to time execute such documents and perform such acts and things as may reasonably be required to give full effect to the provisions of this Agreement and the transactions contemplated by it.

  1. Invalidity
    1. If any provision or part of any provision set out in this Agreement is or becomes invalid or unenforceable under the law of any relevant jurisdiction, the validity of the remainder of the Agreement shall not be affected and such provision shall be deemed modified to the minimum extent necessary to make it consistent with applicable law. 
    2. The modified provision shall be enforceable and enforced, provided it does not impose on any party obligations or benefits that are materially greater than those provided under the original provision. 
  2. Assignment
    1. Subject to Clause 18.5.2, neither Party may assign, novate or otherwise transfer any of its rights or obligations under this Agreement to any person without the prior written consent of the other Party.
    2. Each Party shall be entitled to assign, novate or otherwise transfer any or all of its rights and obligations under this Agreement to any of its Affiliate with the prior written consent of the other Party (such consent not to be unreasonably withheld or delayed), in which case the Supplier shall enter into such documents as are reasonably necessary to give effect to such assignment, novation or transfer.
    3. Any change of control of the Customer or any Affiliate of the Customer, including a sale of all or substantially all of the assets of the Customer or any Affiliate of the Customer, which results in a competitor of the Supplier having the power to direct or cause the direction of the management of the Customer or the Customer’s assets, is deemed an assignment. 
    4. Any assignment of this Agreement without the prior written consent of the other Party shall constitute a material breach of this Agreement and shall be null and void. Subject to the foregoing, this Agreement shall bind and will inure to the benefit of the Parties and their permitted successors and assigns.
  3. Third Party Rights
    1. This Agreement is for the benefit of the Parties only. None of its provisions are for the benefit of, or enforceable by, any third party. 
    2. No third party shall have the right to:
      1. rely on the Services provided by the Supplier; or 
      2. seek to impose liability on Supplier as a result of the Services or any Supplier Materials or New Customer Materials, as applicable, furnished to the Customer.
  4. Amendment and Variation

Unless otherwise specified in this Agreement, no amendment or variation of this Agreement shall be effective unless it is in writing and signed by or on behalf of each of the Parties to this Agreement.

  1. Waiver
    1. No waiver of any right or remedy under this Agreement or provided by law shall be effective unless it is in writing (which for this purpose, does not include email) and signed by or on behalf of the Party granting it. 
    2. The failure to exercise, or delay in exercising, any right or remedy under this Agreement or provided by law does not:
      1. constitute a waiver of that right or remedy;
      2. restrict any further exercise of that right or remedy;
      3. affect any other rights or remedies.  
    3. No single or partial exercise of any right or remedy shall prevent any further or other exercise thereof or the exercise of any other right or remedy.
  2. Notices
    1. Unless expressly provided otherwise in this Agreement, any notice required to be given under this Agreement (each, a “Notice“) shall be in writing, in English, signed in manuscript by or on behalf of the Party giving it, and delivered by hand, commercial courier or by pre-paid recorded delivery to the addresses set out in the Order Form(s).
    2. Either Party may amend the notice details set out in the Order Form(s) by giving written notice to the other Party in accordance with this Clause ‎18.9.
    3. In the absence of evidence of earlier receipt, a Notice shall be deemed to have been received, and shall take effect:
      1. at the time of delivery, if delivered by hand; 
      2. in the case of a commercial courier, on the date and at the time of signature of the courier’s delivery receipt; or
      3. in the case of pre-paid recorded delivery, on the date and at the time of signature of the courier’s delivery receipt,

provided that, if deemed receipt occurs before 9am on a Business Day, the Notice shall be deemed to have been received at 9am on that day, and if deemed receipt occurs after 5pm on a Business Day, or on a day which is not a Business Day, the Notice shall be deemed to have been received at 9am on the next Business Day.

  1. Notices under this Agreement shall not be validly served if sent by email.
  2. Independent Contractor
    1. Nothing in this Agreement or any document referred to in it or in any matter or any arrangement contemplated by it constitutes a partnership, association, joint venture, fiduciary relationship or other co-operative entity between the Parties for any purpose whatsoever. 
    2. Except as expressly provided in this Agreement, neither Party has any power or authority to bind the other Party or impose any obligations on it and neither Party shall purport to do so or hold itself out as capable of doing so.
  3. Severability 

If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.

  1. Counterparts

This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, email, or other means of electronic transmission (to which a signed PDF copy is attached) shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.

  1. Governing Law and Jurisdiction
    1. This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of the State of Delaware.
    2. The Parties irrevocably agree that any action brought by either party to interpret or enforce any provision of this Agreement or to settle any dispute or claim that arises out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims) shall be brought in, and each party agrees to, and does hereby, submit to the jurisdiction and venue of, the state or federal court of the district encompassing the Supplier’s primary place of business.