These Terms and Conditions of Use (the “Agreement”) govern the use of any and all of the Hosted Services provided by Silverback Learning Solutions, Inc. doing business as EdPower (“EdPower”). This Agreement is incorporated into the Master Software Subscription Agreement entered into by the customer (the “Customer”) and EdPower, jointly referred to as the “Parties”. Any capitalized terms in this Agreement, not otherwise defined, shall have the meaning as set forth in the Master Software Subscription Agreement. The Parties agree as follows
EDPOWER PROVIDES THE SERVICES TO CUSTOMER SOLELY ON THE TERMS AND CONDITIONS OF THIS AGREEMENT AND THE MASTER SOFTWARE SUBSCIRPTION AGREEMENT, ON THE CONDITION THAT CUSTOMER ACCEPTS AND COMPLIES WITH THEM. BY CLICKING THE "ACCEPT" BUTTON, CUSTOMER (A) ACCEPTS THE TERMS AND CONDITIONS OF THE MASTER SOFTWARE SUBSCRIPTION AGREEMENT, (B) ACCEPTS THIS AGREEMENT AND AGREE THAT CUSTOMER IS LEGALLY BOUND BY ITS TERMS AND CONDITIONS; AND (C) REPRESENTS AND WARRANTS THAT: (I) CUSTOMER IS OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (II) CUSTOMER HAS THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF CUSTOMER AND BIND CUSTOMER TO ITS TERMS AND CONDITIONS. IF CUSTOMER DOES NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, EDPOWER WILL NOT PROVIDE THE SERVICES TO CUSTOMER AND CUSTOMER MUST NOT ACCESS OR USE THE SERVICES. BY USING THE SERVICES, CUSTOMER ACCEPTS AND AGREES TO BE BOUND AND ABIDE BY THIS AGREEMENT.
1. 1. Changes to this Agreement. EdPower may revise and update this Agreement from time to time in its sole discretion. All changes are effective immediately when they are posted, and apply to all access to and use of the Hosted Services thereafter. Customer’s continued use of the Hosted Services following the posting of a revised Agreement means that Customer accepts and agrees to the changes. Customer is expected to check this page so it is aware of any changes, as they are binding on Customer.
2. SERVICES
2.1. Use Limitations. Customer and Authorized Users may access and use the Hosted Service solely during the applicable term of use for Customer’s internal education-related purposes. Such limits may include, as applicable, caps on the number of Authorized Users for the Hosted Service, the number of students for whom the Hosted Service may be used, and/or the volume of data that may be processed or stored. Customer will not permit access to or use of the Hosted Service for any other purpose, or in violation of any applicable usage limit, or by anyone other than Authorized Users. Customer will ensure that the Hosted Service is accessed and used in compliance with all applicable laws and regulations and the rights of others.
2.2. Restrictions. Customer will not, and shall ensure that Authorized Users do not, interfere with or disrupt the Hosted Service or attempt to gain access to any related systems or networks to which access is restricted. Customer will not: (i) copy, frame or mirror any portion of the Hosted Service; (ii) sell, resell, rent or lease the Hosted Service; (iii) decompile, reverse engineer, or otherwise attempt to obtain source code of the Hosted Service; (iv) modify, or attempt to modify the Hosted Service; (v) use the Hosted Service to store any data or information that is unlawful (pursuant to federal, state, local, or foreign law, as applicable) or that violates a third party’s rights, including without limitation a third party’s privacy rights; (vi) access or use the Hosted Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes; or (vii) encourage, enable, or permit any Authorized User or third party to do any of the foregoing.
2.3. Data Maintenance and Backup. EdPower will follow its archival procedures for Customer Data as established by EdPower in its reasonable discretion. In the event of any loss or corruption of Customer Data, EdPower will use its commercially reasonable efforts to restore the lost or corrupted Customer Data from the latest backup of such Customer Data maintained by EdPower in accordance with the archival procedure as established by EdPower in its reasonable discretion. EdPower will not be responsible for any loss, destruction, alteration, unauthorized disclosure, or corruption of Customer Data caused by any third party. EdPower’s efforts to restore lost or corrupted customer data pursuant to this Section will constitute EdPower’s sole liability and customer’s sole and exclusive remedy in the event of any loss or corruption of customer data.
3. CUSTOMER OBLIGATIONS
3.1. Customer Data and Content. Customer will be solely responsible for the accuracy, quality, suitability, integrity and legality of all Customer Data and Customer Content, if any, and for obtaining any third-party permissions needed in relation to the Customer Data and Customer Content.
3.2. Security. Customer will: (i) use commercially reasonable efforts to prevent unauthorized access to or use of the Hosted Service, and will notify EdPower promptly of any such unauthorized access or use; and (ii) keep confidential and not disclose to any third parties, and will ensure that Authorized Users keep confidential and do not disclose to any third parties, any user identifications, account numbers, passwords, or other similar information for the Hosted Service.
3.3. Enforcement. Customer will be responsible for ensuring that the Authorized Users comply with the terms of this Agreement. Customer will promptly notify EdPower of any suspected or alleged breach and will cooperate with EdPower with respect to: (i) any investigation by EdPower of any suspected or alleged breach; and (ii) any action by EdPower to enforce these terms and conditions of use. EdPower may suspend or terminate any Customer or Authorized User’s access to the Hosted Service upon notice to Customer in the event that EdPower reasonably determines (in its sole discretion) that such Authorized User has breached this Agreement.
4. INTELLECTUAL PROPERTY
4.1. EdPower Property. As between EdPower and Customer, EdPower exclusively owns all rights, title and interests in and to the Hosted Service, the EdPower Content, all software, systems, algorithms, processes, interfaces, techniques, data, and other materials and technologies embodied in or used to provide the Hosted Service (other than Customer Data and Customer Content), all forms and templates designed, created, or modified using tools included in or furnished with the Hosted Service, and all Intellectual Property Rights in any of the foregoing.
4.2. Customer Property. As between Customer and EdPower, Customer exclusively owns all rights, title and interest in and to all Customer Data and Customer Content, and all Intellectual Property Rights therein.
4.3. License to EdPower. Customer hereby grants to EdPower: (i) a non-exclusive, irrevocable royalty-free license during the term of use to reproduce, distribute, create derivative works of, display, extract, process, and otherwise use the Customer Data and Customer Content, if any, in order to implement, configure, and operate the Hosted Service for Customer; and (ii) a non-exclusive, irrevocable, perpetual, royalty-free license to use, reproduce, extract and otherwise process the Customer Data, in aggregated or other de-identified form only, for EdPower’s internal purposes to develop, maintain, support and improve the Hosted Service and its other products, services, and technologies. EdPower’s rights under clause 3.3(ii) above will not include using, reproducing, extracting or otherwise processing any personally identifiable information.
4.4. Student Educational Records. The following provisions of this Section 3.4 shall apply to the extent, if any, that the Customer Data includes any student educational records. Nothing in this Agreement is intended to diminish any students’ (or their parent’s) rights in relation to their educational records. The parties acknowledge that student educational records are subject to the United States Family Educational Rights and Privacy Act (FERPA) and may be subject to other federal, state, and local privacy laws and regulations. Each party agrees to safeguard student educational records in its possession or control in compliance with all applicable requirements of FERPA and such other laws and regulations. EdPower specifically agrees not to disclose any personally identifiable information from education records in violation of FERPA, not to use such information for any sales, marketing, advertising, or other prohibited purposes, and to protect such information as Confidential Information of Customer for purposes of these terms and conditions of use. The Parties agree that EdPower is permitted to process or monitor such information solely to provide and maintain the integrity of the Hosted Service. EdPower will promptly notify Customer of any known unauthorized use or disclosure of student educational records in EdPower’s possession or control, and will take commercially reasonable corrective efforts to mitigate the effects and to prevent the recurrence of such violation.
5. CONFIDENTIALITY
5.1. Use of Confidential Information. The Parties agree that Confidential Information (as defined in Section 4.2) may be disclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”). During the Term of this Agreement and for a period of three (3) years from the date of termination or expiration of this Agreement, each Party shall hold all Confidential Information in confidence and not disclose it to a third party without the prior written consent of the Disclosing Party; provided, however, that any Confidential Information that is a trade secret, and specifically identified as the same by the Disclosing Party or reasonably ought to be known as such, shall be held in confidence indefinitely as permitted by law. The Receiving Party will take all commercially reasonable precautions to safeguard the confidential nature of such Information. The Disclosing Party agrees that the same procedures which the Receiving Party would use to protect its own confidential and proprietary information shall be deemed adequate to satisfy the Receiving Party’s obligation of confidentiality, but in no event less than reasonable industry procedures.
5.2. Definition of Confidential Information. For purposes of this Agreement, “Confidential Information” includes any information disclosed by Disclosing Party to the Receiving Party, whether orally or in writing, whether designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information shall include, without limitation, all information relating to organizational structure, personnel data, marketing philosophy and objectives, project plans, strategy and vision statements, business initiatives, system design, methodologies, processes, competitive advantages and disadvantages, financial results, audit reports and materials related to same, systems, operations, technology, potential lender/investors introduced to the Receiving Party by the Disclosing Party (including third party report vendors), vendor lists, customer lists, product development, business plans, investment and funding programs, and any other information which would give the Disclosing Party an opportunity to obtain an advantage over its competitors or which the Disclosing Party is ethically obligated to protect from unauthorized sources. The Confidential Information shall include any analyses, compilations, studies, debt and capital structuring, capitalization (including the reorganization of the same) or other documents or records prepared by the Receiving Party or its employees, representatives or agents, including accountants and attorneys, (collectively referred to as “Related Parties”) to the extent such analyses and compilations incorporate or reflect any portion of the Confidential Information furnished by the Disclosing Party. Solely for purposes of clarity, EdPower Confidential Information includes, without limitation, the EdPower Content, the Hosted Service, any associated documentation, and any nonpublic financial information, pricing, business plans, techniques, methods, and processes furnished or made available by EdPower. Customer Data and, if applicable, any nonpublic Customer Content are the Confidential Information of Customer.
5.3. Exclusions. Receiving Party shall not be liable for use or disclosure of the Confidential Information of Disclosing Party if the Confidential Information: (i) is in the public domain at the time the Confidential Information is disclosed to Receiving Party or enters the public domain through no breach of this Agreement by Receiving Party; (ii) is known to Receiving Party at the time of disclosure to Receiving Party as demonstrated by written documentation or other competent evidence; (iii) is rightfully received by Receiving Party without a duty of confidentiality from a source other than Disclosing Party; (iv) is expressly approved for unrestricted release by Disclosing Party; or (v) is required to be disclosed pursuant to a valid judicial or governmental order.
5.4. Rights to Confidential Information. Nothing in this Agreement shall be construed as granting the Receiving Party expressly, by implication, estoppel or otherwise, any right, title or interests to the Confidential Information received from the Disclosing Party, except for purposes of providing or using the Hosted Services.
5.5. Return of Confidential Information. Promptly after any termination or expiration of this Agreement or the Master Software Subscription Agreement, and upon request of Disclosing Party, Receiving Party shall, unless otherwise agreed in writing, destroy or deliver to Disclosing Party any Confidential Information received by Receiving Party from Disclosing Party.
5.6. Permitted Disclosure. The foregoing provisions of this Section 4 will not restrict either party from disclosing the other party’s Confidential Information or the terms and conditions of use: (i) pursuant to the order or requirement of a court, administrative agency, or other governmental body, or as required by law, provided that the party required to make such a disclosure gives reasonable notice (where permissible) to the other party to enable it to contest such order or requirement; (ii) on a confidential basis to its legal or professional financial advisors; (iii) as required under applicable securities regulations; or (iv) on a confidential basis to present or future providers of venture capital or potential private investors in or acquirers of such party.
6. INDEMNIFICATION
6.1. Indemnification by Customer. Customer will defend, indemnify and hold harmless EdPower from and against any liabilities, damages, costs and expenses, including court costs and reasonable attorneys’ fees, arising out of or in connection with any third-party claim: (i) that the Customer Data or Customer Content, or the uploading or processing thereof in connection with the Hosted Service, infringes, misappropriates or violates the rights of a third party, including, but not limited to, a third party’s Intellectual Property Rights; or (ii) based on Customer’s or an Authorized User’s use of the Hosted Service (other than any claim for which EdPower is responsible under Section 5.2). Customer’s obligations under this Section 5.1 are contingent upon: (i) EdPower providing Customer with prompt written notice of such claim; (ii) EdPower providing reasonable cooperation to Customer, at Customer’s expense, in the defense and settlement of such claim; and (iii) Customer having sole authority to defend or settle such claim.
6.2. Indemnification by EdPower. EdPower will defend any suit or action brought against Customer by a third party to the extent that it is based upon a third-party claim that the Hosted Service infringes a United States patent or any copyright or misappropriates a trade secret, and will pay any costs, damages and reasonable attorneys’ fees attributable to such claim that are awarded against Customer. EdPower’s obligations under this Section 5.2 are contingent upon: (i) Customer providing EdPower with prompt written notice of such claim; (ii) Customer providing reasonable cooperation to EdPower, at EdPower’s expense, in the defense and settlement of such claim; and (iii) EdPower having sole authority to defend or settle such claim. In the event that EdPower’s right to provide the Hosted Service is enjoined or in EdPower’s reasonable opinion is likely to be enjoined, EdPower may obtain the right to continue providing the Hosted Service, replace or modify the Hosted Service so that it becomes non-infringing. EdPower will have no liability under this Section 5.2 to the extent that any third-party claim described herein is attributable to any Customer Data or Customer Content, or is based on use of the Hosted Service in a manner that breaches these terms and conditions, or results from any failure to comply with written instructions that EdPower provides to Customer with respect to the Hosted Service. The foregoing states EdPower’s sole liability and customer’s exclusive remedy with respect to any alleged or actual infringement or misappropriation of any third-party intellectual property rights by the Hosted Service. THE FOREGOING STATES EDPOWER’S SOLE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDY WITH RESPECT TO ANY ALLEGED OR ACTUAL INFRINGEMENT OR MISAPPROPRIATION OF ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHTS BY THE HOSTED SERVICE.
7. Warranties And Disclaimers. Each Party represents that it has validly entered into this Agreement and the Master Software Subscription Agreementand has the legal power to do so. Customer further warrants that it will use all Hosted Services in compliance with all applicable laws, rules, and regulations. EdPower warrants that the Hosted Service will provide the functionality set forth in the service description of the applicable Service Annex. As Customer’s sole and exclusive remedy and EdPower’s entire liability for any breach of the foregoing warranty, EdPower will, at its sole option and expense, modify the Hosted Service so that it conforms to the foregoing warranty or refund to Customer the fees paid for any unused portion of Customer’s subscription for the non-conforming Hosted Service
EXCEPT AS SPECIFICALLY PROVIDED HEREIN, THE HOSTED SERVICES ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EDPOWERr SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, WHETHER ARISING BY LAW, CUSTOM OR USAGE IN THE TRADE, COURSE OF DEALING, OR OTHERWISE, INCLUDING. WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. EDPOWER DOES NOT WARRANT THAT THE HOSTED SERVICES WILL SATISFY CUSTOMER’S REQUIREMENTS OR THAT THE HOSTED SERVICES ARE WITHOUT DEFECT OR ERROR OR THAT CUSTOMER’S ACCESS THERETO WILL BE UNINTERRUPTED. CUSTOMER ASSUMES RESPONSIBILITY TO TAKE ADEQUATE PRECAUTIONS AGAINST DAMAGES TO ITS OPERATIONS WHICH COULD BE CAUSED BY DEFECTS OR DEFICIENCIES IN THE HOSTED SERVICES.
EDPOWER DISCLAIMS ANY WARRANTY THAT THE HOSTED SERVICE WILL BE ERROR-FREE OR UNINTERRUPTED OR THAT ALL ERRORS WILL BE CORRECTED. EDPOWER DOES NOT GUARANTEE THE PRIVACY, SECURITY, AUTHENTICITY AND NON-CORRUPTION OF ANY INFORMATION TRANSMITTED OR RECEIVED THROUGH THE INTERNET, OR STORED IN ANY SYSTEM CONNECTED TO THE INTERNET. EDPOWER SHALL NOT BE RESPONSIBLE FOR ANY CONSEQUENCES WHATSOEVER OF COMPANY’S CONNECTION TO OR USE OF THE INTERNET, AND EDPOWER SHALL NOT BE RESPONSIBLE FOR ANY USE BY COMPANY OR ITS AUTHORIZED USERS OF ANY INTERNET CONNECTION IN VIOLATION OF ANY RULE, LAW OR REGULATION.
EDPOWER DOES NOT PROVIDE ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND IS ABSOLVED OF ANY AND ALL LIABILITY FOR THIRD PARTY PRODUCTS OR HOSTED SERVICES PROVIDED PURSUANT TO THE MASTER SOFTWARE SUBSCRIPTION AGREEMENT OR THIS AGREEMENT. IN THE EVENT OF ANY DAMAGES, DEFECT OR NON-CONFORMITY WITH RESPECT TO ANY THIRD PARTY PRODUCTS OR HOSTED SERVICES, THE CUSTOMER’S SOLE REMEDY IS WITH THE THIRD PARTY PROVIDER OF THE RESPECTIVE PRODUCT OR SERVICE. With the use of the Hosted Services, Customer may also be using or linking to the services of one or more third parties. EdPower does not endorse any third-party website, or the information, tools, services, or merchandise available at any third-party website. Customer’s use of these third-party services is subject to the separate policies, fees, and legal terms of that third party. EdPower does not have any responsibility or control for any third-party products, services, or websites.
8. Limitation of Liability. EXCEPT FOR LIABILITY ARISING FROM A BREACH OF SECTION 4, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY with respect to any subject matter of this Agreement, Master Software Subscription Agreement, or under contract, negligence, strict liability or any other legal or equitable theory (i) for any special, punitive, incidental, exemplary, or consequential damages (including, but not limited to, claims for any lost profits, business interruption, cost of procurement of substitute goods, loss or disclosure of personal identifiable information, technology, services or rights); (ii) for failure or malfunction of the Hosted Services, interruption of use or loss or corruption of data (whether by EdPower or a third party contractor); or (iii) any other pecuniary loss arising out of the use of or inability to use (a) the Hosted Services by Customer or (b) services and support provided by EdPower, or (iv) for any matter beyond EdPower’s commercially reasonable control. To the extent that the exclusion or limitation of any special, punitive, incidental, exemplary, or consequential damages is prohibited by law, any such prohibited limitations and exclusions shall not apply.
9. Maximum Liability. IN NO EVENT WILL EdPEDPOWER’S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE HOSTED SERVICE OR IMPLEMENTATION SERVICES EXCEED THE TOTAL FEES PAID BY CUSTOMER IN THE TWELVE-MONTH PERIOD PRECEDING ANY CLAIM OR ACTION, REGARDLESS OF THE FORM OR THEORY OF THE CLAIM OR ACTION.
10. Regulatory Compliance. The Parties understand and intend that this Agreement complies with all applicable federal and state laws, as they shall be amended from time to time. The Agreement shall be interpreted to facilitate such compliance. In the event that either Party determines that the Agreement does not comply with applicable law or regulations or that the performance of the Agreement may cause either Party to be in violation of such law or regulation, the Parties shall exercise commercially reasonable efforts to revise the Agreement to comply with applicable laws and regulations. In the event that the Parties cannot agree on an appropriate revision, either Party may terminate this Agreement upon 30 days prior written notice; provided, that either Party may terminate the Agreement immediately if performing the Agreement within such 30-day period would subject the Party to fines, penalties or other liabilities as a result of the violation. In the event of termination of this Agreement by the Customer, pursuant to this Section 9, the Customer shall remain liable for payment of the service fees for those Hosted Services rendered up to the point of termination.
11. Choice Of Law And Forum. This Agreement and all matters arising out of or relating to this Agreement will be governed by the laws of the State of Idaho, without regard to its conflict of laws provisions. Any legal action or proceeding relating to this Agreement will be brought exclusively in the state or federal courts located in the Fourth Judicial District of the State of Idaho. EdPower and Customer hereby agree to submit to the jurisdiction of, and agree that venue is proper in, those courts in any such legal action or proceeding.
12. Assignment. Customer may not assign or transfer this Agreement, in whole or in part, without EdPower’s prior written consent, and any attempted assignment or transfer without such consent will be null. EdPower may assign or transfer this Agreement at any time, in its sole discretion. Subject to the foregoing restrictions, this Agreement will be binding upon and will inure to the benefit of the parties’ permitted successors and assigns.
13. Notices. All notices required or permitted under this Agreement will be in writing, will reference this Agreement, and will be deemed given: (i) when delivered personally; (ii) one (1) business day after deposit with a nationally-recognized express courier, with written confirmation of receipt; (iii) upon confirmation of delivery by email, or (iv) three (3) business days after having been sent by registered or certified mail, return receipt requested, postage prepaid. All such notices will be sent to the addresses set forth above or to such other address as may be specified by either party to the other party in accordance with this Section.
14. Waiver. The failure by either party to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision.
15. Entire Agreement. The Agreement, with the Master Software Subscription Agreement, constitutes the entire agreement between EdPower and Customer regarding the terms and conditions of EdPower’s relationship with Customer. The Agreement and Master Software Subscription Agreement supersede all prior negotiations, representations, or agreements between EdPower and Customer, whether written or oral, concerning EdPower’s relationship with Customer.
16. Third-Party Benefit. There are no other third-party beneficiaries of this Agreement.
17. Severability. In the event any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement will remain in full force and effect.
18. Amendments. The Agreement may only be modified or amended by a supplemental written agreement signed by EdPower and Customer.
19. Force Majeure. Neither party will be responsible for any failure or delay in the performance of its obligations under this Agreement (except for any payment obligations) due to causes beyond its reasonable control, which may include, without limitation, labor disputes, strikes, lockouts, shortages of or inability to obtain energy, raw materials or supplies, denial of service or other malicious attacks, telecommunications failure or degradation, pandemics, epidemics, public health emergencies, governmental orders and acts, material changes in law, war, terrorism, riot, explosions, fires, flood, storm, earthquake, or acts of God (each a “Force Majeure Event”). Upon the occurrence of a Force Majeure Event, the non-performing party will be excused from as long as the Force Majeure Event continues and such party continues to use commercially reasonable efforts to resume performance.