MASTER SUBSCRIPTION AND SERVICES AGREEMENT
DATED: Nov 6, 2018
This Master Subscription and Services Agreement ("Agreement") is entered into by and between EduBrite Systems Inc., a California corporation, having its principal place of business at 4128 Business Center Drive, Fremont, CA 94538 USA ("EduBrite") and Customer.
This Agreement is effective between EduBrite and Customer as of the date of Customer is accepting this Agreement by signing up for a subscription and/or by executing an Order Form and/or by Customer first using the Platform Services. If Customer registers for a Free Trial for Our Platform Services, this Agreement will also govern that Free Trial.
For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
"Aggregate Information" means any information or data derived from Consumer Information, which is not specific to a person, does not refer to or identify any specific person, and cannot be used, alone or in conjunction with other information, to identify any specific person. Aggregate Information does not include credit card information.
"Client Services" means the consulting, integration, implementation, design, development, assessments, training, reviews and other professional and client services provided by EduBrite to Customer under a Statement of Work.
“Customer” means you and the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity.
"Consumer Information" means name, mailing address, telephone number, e-mail address, and any other non-public, identifying information available to EduBrite as a result of use of the Customer Micro Site(s) by consumers. Consumer Information does not include (i) any information that either EduBrite or the Customer has the right to use and which is obtained from Consumers other than through registration under this Agreement or (ii) Aggregate Information.
"Customer Data" means all electronic data or information submitted by Customer to the Platform Services.
"Customer UI" means the unique look and feel of the Customer Web Site(s) that is custom developed by Customer, EduBrite, or EduBrite’s authorized representatives, using the Platform Services and EduBrite CMS in accordance with the terms and conditions of this Agreement, provided that the Customer UI shall exclude all rights of EduBrite or EduBrite’s suppliers in the underlying code, tools or other materials necessary to effect the look and feel of the Customer Micro Site.
"Customer Technology" means (i) the Customer UI and Customer Data, and (ii) customized source code, graphics, audio, diagrams, photographs, the look and feel of Customer Micro Sites, and other Customer specific content furnished by Customer for display on Customer Micro Sites.
"Customer Microsite(s)" means Customer’s web site(s) made available, through use of the Platform Services.
"EduBrite IP Rights" means any patent, copyright, trade secret, trademark or other intellectual property right embodied in or related to the EduBrite Technology.
"EduBrite Marks" means the EduBrite name and logo, the edubrite.com name and logo, the edubrite.com domain name, powered by EduBrite name and logo, and any other product and service names used by EduBrite in connection with the Platform Services.
"EduBrite Technology" means the EduBrite Application, EduBrite APIs, EduBrite Webservices and all other proprietary and EduBrite Provider technology (including, without limitation, audio and visual data and information), documents, software, hardware, products, processes, algorithms, user interfaces, know-how, trade secrets, techniques, designs, inventions and other tangible or intangible technical material or information used or provided by EduBrite in connection with the Platform Services; all software, technology or other works developed or created by or for Customer with respect to its use of the Platform Services; and any modifications, improvements to, or derivative works of, any of the foregoing.
"Platform Services" means the online, electronic learning service provided by EduBrite via designated microsites, utilizing the EduBrite Technology.
"Order Form(s)" means the EduBrite ordering documents, executed by the parties from time to time, labeled "Order Form," representing the initial subscription for the Platform Services, and any subsequent subscriptions for the Platform Services. Such Order Form and each additional Order Form is hereby incorporated by reference into this Agreement.
"Services" means, collectively, Platform Services, Client Services.
“Statement(s) of Work" has the meaning set forth in Section 5.1.
"Suggestions" has the meaning set forth in Section 7.5.
"Support Services" means the product support services set forth in Exhibit A.
“Third Party Providers” means third-party providers of services and products, that offer products and services related to the Platform Services, including implementation, customization and other consulting services related to Customers’ use of the Platform Services and applications (both offline and online) that work in conjunction with the Platform Services, such as by exchanging data with the Platform Services or by offering additional functionality within the user interface of the Platform Services through use of the Platform Services’ application programming interface. “Third-Party Providers” do not include any third-party whose products and/or services are incorporated into or made part of the Platform Services by EduBrite or are otherwise offered to Customer by EduBrite under this Agreement (“EduBrite Providers”).
"Users" means Customer's employees, consultants, contractors, agents, partners, customers or students/trainees in case of academic institute/training provider who are authorized to use the Platform Services, have been supplied a user identification and password by Customer (or by EduBrite at Customer's request).
"Work Product" means the materials, including documentation and customized software, completed by EduBrite under a Statement of Work and any modifications or improvements to the EduBrite Technology, excluding any of Customer’s Confidential Information that may be included in such materials.
2. Free Trial
If Customer registers on EduBrite's website for a free trial then this section 2 shall apply. When Customer first agrees to these terms, EduBrite allows to use Platform Services available on trial basis free of charge for a fourteen (14) day period ("Free Trial Period") on behalf of Customer with no payment obligation and no obligation of continued subscription past the Free Trial Period. EduBrite shall have the right to immediately suspend Platform Services upon expiration of Customer’s Free Trial Period. To avoid any such interruption of Platform Services, Customer may elect to continue using the Services after its Free Trial Period by signing up for any paid subscription (a) Online , or (b) EduBrite’s written Order Form, which will set forth the subscription Term, the number of users (and how defined), pricing, fees (“Fees”), and reference to this Agreement.
ANY CUSTOMER DATA THAT CUSTOMER ENTERS INTO THE PLATFORM SERVICES DURING THE FREE TRIAL PERIOD MAY BE PERMANENTLY LOST UNLESS CUSTOMER PURCHASES A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE FREE TRIAL PERIOD. CUSTOMER CANNOT TRANSFER ANY MATERIALS, INFORMATION, OR DATA ENTERED OR CUSTOMIZATIONS MADE DURING THE FREE TRIAL TO A PLATFORM SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY SUCH FREE TRIAL (E.G., FROM ELITE TIER TO PREMIUM, OR STANDARD); THEREFORE, IF CUSTOMER PURCHASE A PLATFORM SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY SUCH FREE TRIAL, CUSTOMER MUST EXPORT MATERIALS, INFORMATION, AND DATA BEFORE THE END OF THE FREE TRIAL PERIOD OR THE FOREGOING WILL BE PERMANENTLY LOST.
3. EduBrite Platform Services.
3.1 Provision of Platform Services. EduBrite shall make the Platform Services available to Customer pursuant to the terms and conditions set forth in this Agreement and any and all Order Forms.
3.2 Continuous Development. The parties acknowledge and agree that EduBrite will use all reasonable efforts to continually develop, deliver and provide to Customer ongoing innovation to the Platform Services in the form of new features, functionality, capabilities and services. Accordingly, EduBrite reserves the right to modify the Platform Services from time to time. EduBrite shall make known to Customer any material modification to the Platform Services through technical release notes.
4. Use of the Platform Services.
4.1 EduBrite Responsibilities. EduBrite shall: (i) use all reasonable efforts to make the Platform Services generally available 24 hours a day, 7 days a week, as more fully described in Section 8 of this Agreement; in accordance with the terms and conditions of this Agreement, Exhibit A hereto, and the applicable Order Form; (ii) implement and maintain backup, security and business continuity measures, in accordance with best industry practices, in order to maintain the security and integrity of the Platform Services, Customer Data and Consumer Information, provided, however, that EduBrite will have no obligation to backup or maintain the security of Customer Data, Consumer Information and other data and materials that are within the control of Customer or that resides within the Customer’s systems; and (iii) comply with all applicable local, state, federal, and foreign laws (including laws regarding privacy and protection of consumer information) in making the Platform Services available to Customer.
EduBrite will not be responsible or liable for any failure to meet the foregoing responsibilities caused, in whole or in part, by the performance, adequacy, accuracy, concurrency or other matters related to Customer’s systems.
4.2 Customer Responsibilities. Customer is responsible for all activities that occur under Customer's User accounts or by users of Customer Micro Sites. Customer shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data and Consumer Information; (ii) use commercially reasonable efforts to prevent unauthorized control or tampering or any other unauthorized access to, or use of, the Platform Services or the systems operated by or on behalf of Customer that capture, store or transmit Customer Data and Consumer Information, and notify EduBrite immediately of any unauthorized use or security breach; (iii) comply with all applicable local, state, federal, and foreign laws (including laws regarding privacy and protection of consumer information) in using the Platform Services; and (iv) obtain and maintain all computer hardware, software and communications equipment needed to access the Platform Services and pay all access charges (e.g., ISP fees) incurred while using the Platform Services. Customer shall limit access to the Platform Services to Customer’s Users. Customer shall permit EduBrite to review/audit Customer’s use of the Platform Services, which review/audit will occur during regular business hours on reasonable advance notice and will not interfere unreasonably with Customer’s business activities.
4.3 Use Guidelines. Customer shall use the Platform Services solely for its business purposes as contemplated by this Agreement and shall not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Platform Services available to any third party, other than as expressly permitted by this Agreement; (ii) interfere with or disrupt the integrity or performance of the Platform Services or the data contained therein; (iii) attempt to gain unauthorized access to the Platform Services or its related systems or networks; (iv) remove, alter or obscure any proprietary notices associated with the Platform Services; or (v) utilize the Platform Services in order to (a) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (b) send or store infringing, obscene, threatening, libelous, or otherwise unlawful, unsafe, malicious, abusive or tortuous material, including material harmful to children or violating third party privacy rights; or (c) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs.
4.5 Third-Party Providers. EduBrite does not provide any warranties, guaranties or indemnification regarding any Third Party Providers or any of their products or services, whether or not such products or services are designated by EduBrite as "certified," "validated" or otherwise. Any exchange of data or other interaction between Customer and a Third Party Provider, and, any purchase by Customer of any product or service offered by such Third Party Provider, is solely between Customer and such Third Party Provider.
5. Client Services.
5.1 Statements of Work. EduBrite may provide Client Services under the terms and conditions hereof, as specified in one or more statements of work that EduBrite and Customer may enter into from time to time (each, a "Statement of Work").
5.2 Modification. If Customer wishes to change the Client Services covered by a Statement of Work or wishes to obtain additional services not listed in a Statement of Work ("Additional Services"), Customer, through an authorized representative, shall so advise EduBrite, and EduBrite may perform the Additional Services at its discretion. Upon EduBrite’s receipt of Customer’s request for the Additional Services, the Customer and EduBrite shall mutually agree upon the scope of the Additional Services by completing a change order form.
5.3 Ownership of Work Product and Other Intellectual Property. EduBrite is the exclusive owner of all Work Product (including any revisions, modifications and enhancements thereto) and any other software, specifications, documentation, ideas, know-how, techniques, processes, inventions or other intellectual property that EduBrite or its subcontractors may develop, conceive or deliver under this Agreement, including all patents, copyrights and other intellectual property rights thereto. This Agreement is not a sale and does not transfer to Customer any title or ownership in and to the Work Product. Subject of the terms of this Agreement and upon receipt by EduBrite of full payment of fees and expenses due under the applicable Statement of Work, EduBrite grants to Customer a non-assignable, non-exclusive, non-transferable license to use the Work Product solely in connection with the Platform Services. Except as expressly set forth in this Agreement or an applicable Statement of Work, Customer shall not (a) use the Work Product for itself or for the benefit of any other person or entity, or permit any third party to make such use, and (b) copy, modify, transcribe, store, translate, sell, lease, or otherwise transfer the Work Product, in whole or in part.
5.4 Non-Solicitation. During the term of each SOW and for a period of one year thereafter, (a) Customer shall not employ or engage, or solicit for employment or engagement, any employee, independent contractor, consultant, agent or representative assigned or recommended by EduBrite to perform Services hereunder; and (b) EduBrite shall not employ or engage, or solicit for employment or engagement, any employee, independent contractor, consultant, agent or representative of Customer with whom EduBrite had contact in connection with the performance of Services hereunder. The foregoing restrictions shall not apply to the hiring of any person responding to a solicitation published to the general public (e.g., through newspaper, internet, etc.).
5.5 EduBrite Personnel. EduBrite shall ensure that its employees and contractors performing the Client Services are reasonably qualified and experienced. EduBrite shall use all reasonable efforts to replace any EduBrite employee or contractor who is working at customer location that Customer reasonably requests to be replaced.
5.6 Timely Performance. Customer acknowledges and agrees that the timely performance by EduBrite of the Client Services is dependent upon Customer performing its obligations under this Agreement, any Statement of Work (including those specified as “Customer Obligations” (or other similar heading) in any Statement of Work) and in any applicable Order Form, and that any delay or failure to perform by Customer shall extend the time for EduBrite to perform on a day-for-day basis.
6. Fees & Payment.
6.1 Fees. Customer shall pay all fees specified in all Order Forms and Statements of Work. Except as otherwise provided, all fees are quoted in United States dollars. Platform Services and related fees will be calculated in accordance with each Order Form. Unless otherwise specified in a Statement of Work, Customer shall pay Client Services’ fees for actual time spent and materials purchased for all Client Services performed by EduBrite in accordance with the EduBrite’s then-current standard rates and procedures. Except as otherwise provided, fees are non-refundable.
6.2 Invoicing & Payment. Unless otherwise stated in an Order Form or Statement of Work, (i) all fees and charges are due net 30 days from the invoice date, (ii) for Client Services, EduBrite will invoice Customer regularly according to its then current standard practices, and (iii) all payments made under this Agreement shall be in United States dollars.
6.3 Suspension of Services. If Customer's account is overdue (except with respect to charges then under reasonable and good faith dispute), in addition to any of its other rights or remedies available to EduBrite hereunder or at law or equity, EduBrite reserves the right to suspend the Services, without liability to Customer, until such undisputed amounts are paid in full; provided that, in any case, prior to any suspension of the Services under this Section 6.3, EduBrite has provided Customer fifteen (15) days prior written notice of its intention to suspend the Services and Customer has failed to bring its account current during such period.
6.4 Taxes. Unless otherwise stated in an Order Form or Statement of Work, EduBrite's fees do not include any local, state, federal or foreign taxes, levies or duties of any nature ("Taxes"). Customer is responsible for paying all Taxes, excluding only taxes based on EduBrite's income. If EduBrite has the legal obligation to pay or collect Taxes for which Customer is responsible, the appropriate amount shall be invoiced to and paid by Customer to EduBrite unless Customer provides EduBrite with a valid tax exemption certificate authorized by the appropriate taxing authority.
6.5 Billing and Contact Information. Customer shall maintain complete and accurate billing and contact information with EduBrite at all times.
7. Proprietary Rights.
7.1 Reservation of Rights. As between Customer and EduBrite, EduBrite owns all right, title and interest in and to the Platform Services, EduBrite Marks, EduBrite Technology, EduBrite IP Rights, and all rights of EduBrite or EduBrite’s suppliers in the underlying code, tools or other materials necessary to effect the look and feel of the Customer Micro Site(s). Customer’s use of the EduBrite Marks as authorized herein shall not create in Customer’s favor any right, title or interest therein. Customer hereby assigns and will assign and will cause each of its Users to assign to EduBrite all right, title and interest in and to any and all EduBrite Technology created, developed or reduced to practice by or on behalf of Customer or any of its Users, other than the limited license rights granted in this Agreement. Other than as expressly set forth in this Agreement, no license or other rights in or to the Platform Services, EduBrite Technology or EduBrite IP Rights are granted to Customer, and all such licenses and rights are hereby expressly reserved.
7.2 License Grant. Subject to the terms and conditions of this Agreement, EduBrite grants Customer and its Users a limited, worldwide, non-exclusive, non-transferable (except in connection with a permitted assignment of this Agreement), non-sublicensable right to (a) access and use the Platform Services, and (b) use EduBrite Technology, solely as expressly permitted by the Platform Services, in each case, solely in accordance with the terms of this Agreement.
7.3 Restrictions. Except as expressly permitted by this Agreement, Customer shall not (i) use, make, have made, sell, offer to sell, reproduce, modify, copy or create derivative works based on the Platform Services, or EduBrite Technology; or (ii) disassemble, reverse engineer, or decompile the Platform Services, or EduBrite Technology, ; (iii) create Internet "links" to or from the Platform Services, or "frame" or "mirror" any content forming part of the Platform Services in such a manner as to utilize as a banner or pop under for advertising purposes; (iv) change, alter or remove "powered by EduBrite" or similar language from Customer Microsite(s); or (v) provide, maintain access or use the Platform Services in any manner inconsistent with this Agreement.
7.4 Customer Property. As between EduBrite and Customer, Customer owns all right, title and interest in and to any trademarks, trade names, service marks, or logos of Customer, Customer Data, Consumer Information, and Customer Technology. Customer Data and Consumer Information shall be considered Confidential Information of Customer subject to the terms of this Agreement. Customer hereby grants EduBrite a non-exclusive, royalty-free right to access and use (i) Customer's User accounts, including Customer Data and Consumer Information, solely in connection with performing the support for the Platform Services, and (ii) Aggregate Information for research, marketing and other purpose reasonably required to develop, deliver and provide to Customer ongoing innovation to the Platform Services. The parties acknowledge and agree that all right, title and interest in and to the Customer UI shall, as between Customer and EduBrite, remain the sole and exclusive property of Customer, provided, however, that Customer’s use thereof shall be subject to the applicable restrictions set forth in Section 7.3.
7.5 Suggestions. Customer may, from time to time, provide suggestions, techniques, know-how, comments, feedback or other input to EduBrite with respect to the Platform Services (collectively, "Suggestions"). Both parties agree that each Suggestion is and shall be given entirely voluntarily. Each Suggestion, even if designated as confidential by Customer shall not, absent a signed, written agreement with EduBrite, create an obligation of confidentiality for EduBrite. Customer agrees that it shall not give any Suggestion that is subject to license terms or restrictions that seek to require any EduBrite technology, service, product or documentation incorporating or derived from such Suggestion, or any EduBrite intellectual property, to be licensed or otherwise shared with Customer or any third party. Furthermore, except as otherwise set forth in a separate, subsequent written agreement between the parties, EduBrite shall be free to use, disclose, reproduce, license or otherwise distribute and exploit each Suggestion as it sees fit, entirely without obligation or restriction of any kind on account of intellectual property rights or otherwise. For the avoidance of doubt, Suggestions shall exclude any Customer Technology.
8. Service Levels
8.1 Service Level Guarantee. EduBrite warrants that for each microsite, the Platform Services shall be available ninety nine percent and half (99.9%) of the time in each calendar month, except as otherwise provided in this Agreement (the “Service Level Guarantee”). If EduBrite fails to maintain the Service Level Guarantee in any calendar month, then Customer will be eligible for prorated refund of the subscription fee paid, for the time period in which Service Level Guarantee was not maintained.
9.1 Definition of Confidential Information. As used herein, "Confidential Information" means all confidential and proprietary information of a party ("Disclosing Party") disclosed to the other party ("Receiving Party"), whether orally or in writing, that is either marked or designated as confidential or is identified in writing as confidential or proprietary within fifteen (15) days of disclosure to the Receiving Party or that a reasonable person would deem confidential or proprietary given the nature of the information and the circumstances under which it is disclosed. Confidential Information shall include, but not be limited to: the terms and conditions of this Agreement (including pricing and other terms reflected in all Order Forms and Statements of Work hereunder), Customer Data, Consumer Information, the Services, EduBrite Technology, Customer Technology, and the Disclosing Party’s business and marketing plans, technology and technical information, product designs, and business processes. Confidential Information shall not include any information that a Receiving Party can show: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
9.2 Confidentiality and Non-Use. During the term of this Agreement and for a period of three (3) years thereafter, each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind, but in no event shall either party exercise less than reasonable care in protecting such Confidential Information; provided that a Receiving Party may disclose Confidential Information of the Disclosing Party to its employees, agents and/or representatives who have a need to know such Confidential Information for purposes of this Agreement and who are bound to a written agreement protecting such Confidential Information as required hereby. In addition, without the Disclosing Party’s written permission, the Receiving Party shall not use any Confidential Information of the Disclosing Party other than in connection with the Receiving Party’s performance hereunder.
9.3 Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party's expense, if the Disclosing Party wishes to contest the disclosure.
9.4 Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information in breach of this Section 9, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies are inadequate.
10. Warranties & Disclaimers.
10.1 Platform Services Warranty. For the term of each subscription for the Platform Services and as long as Customer has paid all applicable fees due to EduBrite hereunder, EduBrite represents and warrants that the Platform Services will be available to the customer as described in this Agreement.
10.2 Mutual Warranty. Each party represents and warrants that it has the legal power and authority to enter into this Agreement.
10.3 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, EDUBRITE MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. EDUBRITE HEREBY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
EduBrite does not represent or warrant that: (i) the Services will meet Customer's business requirements; (ii) the Platform Services will be error-free or uninterrupted or that the results obtained from its use will be accurate or reliable; or (iii) all deficiencies in the Platform Services can be found or corrected. EduBrite will not be responsible for: (a) any failure to meet the Platform Services warranty of Section 10.1 caused by acts within the control of Customer or any User or interoperability of specific Customer applications or equipment with the Platform Services; (b) loss of data that is not due to a breach of this agreement by EduBrite; (c) the inability of Customer to access or interact with any other service provider through the Internet, other networks or users that comprise the Internet or the informational or computing resources available through the internet; or (d) service provided by other service providers.
11.1 Indemnification by EduBrite. EduBrite shall defend, indemnify and hold Customer, its affiliates, officers, directors and shareholders harmless against any loss or damage (including reasonable attorneys' fees) incurred in connection with claims, demands, suits, or proceedings (“Claims”) made or brought against Customer by a third party alleging that the use of the Platform Services as contemplated hereunder infringes any patent, copyright or trade secret rights of a third party. In the event that the Platform Services or any part thereof are likely to, in EduBrite’s sole opinion, or do become the subject of an infringement related Claim, and EduBrite cannot, at its option and expense, procure for Customer the right to continue using the Platform Services, or any part thereof, or modify the Platform Services, or any part thereof, to make them non infringing, then EduBrite may terminate the Platform Services. EduBrite shall have no liability for any claim of infringement based on (i) the use or combination of the Platform Services or any part thereof with software, hardware, or other materials not provided by EduBrite, or (ii) modification of the Platform Services by a party other than EduBrite, where the use of unmodified Platform Services would not constitute infringement. The foregoing states EduBrite’s entire liability and Customer’s exclusive remedy for patent, copyright, trademark or other proprietary rights infringement.
11.2 Indemnification by Customer. Customer shall defend, indemnify and hold EduBrite, its affiliates, officers, directors and shareholders harmless against any loss or damage (including reasonable attorneys' fees) incurred in connection with Claims (i) made or brought against EduBrite by a third party alleging that the Customer Technology or Customer Data infringes the intellectual property rights of, or has otherwise harmed, a third party, (ii) based on the offer, marketing, sale design, construction, assembly, production, packaging, labeling, advertising, instructions or warnings (or lack thereof) of any products or services through the Customer Micro Site(s), including Claims based upon infringement, product liability, personal injury or death relating to any products or services offered through the Customer Micro Site(s), (iii) based upon any Users use of the Platform Services not in accordance with the terms hereof (iv) based on a breach of Section 4.4 of this Agreement, or (v) based on any failure or alleged failure of the Customer to comply with any applicable law, rule or regulation in connection with its Customer Micro Site(s), including, without limitation, all federal, state and/or foreign consumer privacy laws.
11.3 Indemnification Conditions. Any indemnification obligations set forth in this Agreement shall be subject to the following conditions: (i) the indemnified party shall notify the indemnifying party in writing promptly upon learning of any claim or suit for which indemnification is sought; (ii) the indemnifying party shall have control of the defense or settlement, provided that the indemnified party shall have the right to participate in such defense or settlement with counsel at its selection and at its sole expense; and (iii) the indemnified party shall reasonably cooperate with the defense, at the indemnifying party's expense.
12. Limitation of Liability.
12.1 Limitation of Liability. EXCEPT FOR AMOUNTS DUE HEREUNDER, LIABILITY ARISING FROM THE INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 11 OR LIABILITY ARISING FROM A BREACH BY EITHER PARTY OF SECTION 9 HEREOF, IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE 1 MONTH SUBSCRIPTION FEE (ACTUAL OR PRO-RATED), PERTAINING TO SUBSCRIPTION OF PLATFORM SERVICES WHILE THE PLATFORM SERVICES IS STILL ACTIVE.
12.2 Exclusion of Consequential and Related Damages. EXCEPT FOR LIABILITY ARISING FROM THE INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 11 OR LIABILITY ARISING FROM A BREACH BY EITHER PARTY OF SECTION 9 HEREOF, IN NO EVENT SHALL EITHER PARTY OR ANY EDUBRITE PROVIDER HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, LOSS OF USE, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. SOME STATES AND JURISDICTIONS DO NOT ALLOW LIMITATIONS ON DURATION OR THE EXCLUSION OF AN IMPLIED WARRANTY, SO THE ABOVE LIMITATION MAY NOT APPLY. Neither party shall be responsible or liable for any loss, damage or inconvenience suffered by the other or by any third person, to the extent that such loss, damage or inconvenience is caused by the failure of the other party to comply with its obligations under this Agreement.
12.3 Limitation of Action. Except for actions for non-payment or breach of either party's intellectual property rights, no action (regardless of form) arising out of this Agreement may be commenced by either party more than one (1) year after the cause of action has accrued.
13. Term & Termination.
13.1 Term of Agreement/Subscriptions. This Agreement commences on the Effective Date and continues until all Statements of Work, Platform Services subscriptions and Order Forms entered into hereunder have terminated or expired, unless earlier terminated as provided below. Platform Services subscriptions commence on the start date specified in the relevant Order Form and continue for the subscription term specified therein.
13.2 Termination. This Agreement may be terminated:
(a) by Customer by providing written notice to EduBrite within thirty (30) days of receiving notification from EduBrite of any material and adverse change in the functionality of the Platform Services;
(b) by EduBrite if Customer fails to timely make any payment due hereunder and fails to cure such default within fifteen (15) days of receiving notice in writing from EduBrite of such failure (whether or not EduBrite avails itself of its right to suspend Services pursuant to Section 6.3 hereof); or
(c) by either party in the event (i) the other party materially breaches any of its duties, obligations or responsibilities under this Agreement and fails to cure such breach or provide the other party with an acceptable plan for curing such breach within thirty (30) days after receipt by the breaching party of written notice specifying the breach; (ii) the other party makes an assignment for the benefit of creditors; (iii) any proceedings should be commenced against the other party under any bankruptcy, insolvency, or debtor’s relief law, and such proceedings shall not be vacated or set aside within sixty (60) days from the date of commencement thereof; or (iv) the other party is liquidated or dissolved.
13.3 Outstanding Fees. Termination shall not relieve Customer of the obligation to pay any fees accrued or payable to EduBrite prior to the effective date of termination. In the event of termination of this Agreement by Customer pursuant to Section 13.2, promptly after the effective date of such termination, EduBrite shall refund to Customer any prepaid fees paid by Customer for the remainder of the then current subscription term excluding any discount that was offered.
13.4 Customer Data. Customer should download the data prior to effective termination date using available tools in the application. Post termination date, EduBrite shall have no obligation to maintain any Customer Data and shall thereafter delete all Customer Data in its systems or otherwise in its possession or under its control.
13.5 Surviving Provisions. The following provisions shall survive the termination or expiration of this Agreement for any reason and shall remain in effect after any such termination or expiration: Sections 5.3, 6, 7 (excluding Section 7.2), 9, 10, 11, 12, 13 and 14.
14. General Provisions.
14.1 Relationship of the Parties. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties and EduBrite will be considered an independent contractor when performing any services hereunder.
14.2 Notices. All notices under this Agreement shall be in writing and shall be delivered to the addresses first set forth above. Notice shall be deemed to have been given upon receipt. Notices to EduBrite shall be addressed to the attention of its Chief Executive Officer. Notices to Customer shall be addressed to the contact specified in the applicable Order Form. Either party may change its address for notice by giving notice of such address change in the manner provided herein.
14.3 Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
14.4 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
14.5 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior express written consent of the other party. Notwithstanding the foregoing, either party may assign this Agreement together with all rights and obligations hereunder, without consent of the other party, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets related to this Agreement not involving a direct competitor of the other party. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
14.6 Governing Law. This Agreement shall be governed by the California laws without regards to its conflicts of law provisions. The provisions of any federal or state Uniform Computer Information Transactions Act shall not apply. The parties expressly exclude the application of the United Nations Convention on Contracts for the International Sale of Goods. The federal and state courts in the Northern District of California shall have exclusive jurisdiction with respect to any action arising out of, relating to or in any way connected with this Agreement, its negotiation or termination, or the Platform Services.
14.7 Export Control Laws. Each party shall comply with all United States and foreign export control laws or regulations applicable to its performance under this Agreement.
14.8 Force Majeure. Except for the obligation to make payments, nonperformance of either party shall be excused to the extent that performance is rendered impossible by strikes or other labor problems, fire, flood, civil unrest, acts of terror, governmental acts or orders or restrictions, failure of suppliers, or any other reason where failure to perform is beyond the reasonable control of the non-performing party.
14.9 Entire Agreement. This Agreement, including all exhibits and addenda hereto, along with all Order Forms and Statements of Work executed hereunder, constitute the entire agreement between the parties as to its subject matter, and supersede all previous and contemporaneous agreements, proposals or representations, written or oral, concerning the subject matter of this Agreement. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom the modification, amendment, or waiver is to be asserted. Customer agrees that its agreement hereunder is not contingent upon the delivery of any future functionality or features not specified herein or in an Order Form nor dependent upon any oral or written, public or private comments made by EduBrite with respect to future functionality or features for the Platform Services. In the event of any conflict between the provisions in this Agreement and any Order Form or Statement of Work, the terms of such Order Form or Statement of Work shall prevail. No terms or conditions stated in a Customer purchase order or in any other Customer order documentation shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.
14.10 Construction. The titles of the sections of this Agreement are for convenience of reference only and are not to be considered in construing this Agreement. Unless the context of this Agreement clearly requires otherwise: (i) references to the plural include the singular, the singular the plural, and the part the whole, (ii) ”or” has the inclusive meaning frequently identified with the phrase “and/or,” (iii) ”including” has the inclusive meaning frequently identified with the phrase “including but not limited to” or “including without limitation,” and (iv) references to “hereunder,” “herein” or “hereof” relate to this Agreement as a whole. Any reference in this Agreement to any statute, rule, regulation or agreement, including this Agreement, shall be deemed to include such statute, rule, regulation or agreement as it may be modified, varied, amended or supplemented from time to time. The parties agree that this Agreement shall be fairly interpreted in accordance with its terms without any strict construction in favor of or against either party and that ambiguities shall not be interpreted against the drafting party.
EduBrite offers 24x7x365 days online support.
- Online Self Service entitlements include: Knowledge Base, Video Tutorials & FAQs
- Online communication with EduBrite support team using Users Community
When reporting a case to EduBrite support, Customer shall provide the following details. More details about the support structure and process are here:
- Problem Summary A complete description of the problem or error condition being experienced. When available, include steps to reproduce, relevant error logs and supporting data files required to replicate the issue. Including the screenshots or a recorded video of the issue always help to identify the problem faster.
- Case Priority Clearly communicate the Priority (Urgent, High, Medium, Low).
- Related to Instance Indicate which Microsite this case is associated to.
- Attempted Resolution List steps taken so far to identify root cause.