TERMS AND CONDITIONS TO HELIOS ED SUBSCRIPTION SERVICES AGREEMENT
(Last Updated January 21, 2020)
This Agreement and the attached Terms and Conditions (together “Agreement”) is made and entered into between Mann InfoCom, Inc., dba Helios Ed, and the Client using the Subscription Services defined below (“Client”) as of the date the Client first accesses the Services (“Effective Date”).
“Affiliate” means an entity that directly or indirectly controls, is controlled by, or is under common control with a Party. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Applicable Law” or “Applicable Laws” means all laws, rules, regulations, and other binding requirements of any governmental authority with jurisdiction which are applicable to any Party under this Agreement.
“Documentation” means the instructions and other content available on Company’s websites, including any replacement pages, all of which may be amended from time to time.
“IP Rights” means all copyrights, patents, trademarks, trade secrets, moral rights and other intellectual property and proprietary rights.
“Service Data” means data, information or material uploaded or routed to Client via the Subscription Services, or transmitted using the Subscription Services, or otherwise provided to Client or Users by Company, together with any derivative works made therefrom. Service Data is deemed to be the Confidential Information of Company.
“Subscription Services” means the school and school district employee management and record keeping tools, features, functions and services offered by Company and listed above in this Agreement, including without limitation databases, public data and information, documentation, system and network interfaces, internal network, cloud and disk storage, software applications, operating systems, engines, warehouses and internal communications backbone used to provide access to and use of such services, and all IP Rights therein. The Subscription Services may be supplemented, revised, expanded, or updated from time to time by Company in its sole discretion, providing that all material features provided for in this Agreement shall continue to be available to Client.
“Tax” or “Taxes” means any and all sales, use, value-added, excise, or similar transaction taxes or duties, together with any penalties, fines, charges or interest thereon, imposed by any domestic or foreign taxing authority on or with respect to the sale of any services or materials in connection with the performance of the Agreement.
“User” and “Users” means employees of Client and any Affiliates which have been provided access to any part of the Subscription Services by Client. “Affiliate” means contractors, directors, volunteers, applicants, entities legally affiliated with Client, or other third parties controlled by or affiliated with Client.
“User Data” means data, information, documents or other material uploaded, routed or transmitted by Client or Users, or their respective equipment, and transmitted to Company or the Subscription Service.
- SUBSCRIPTION SERVICES.
2.1 Company Responsibilities. During the Term of the Agreement, Company agrees to:
2.1.1 host, maintain and support the Subscription Services and make them available to Client via the Internet or other data transmission system, pursuant to the terms and conditions of this Agreement, and any Documentation;
2.1.2 provide the Professional Services listed in this Agreement; and
2.1.3 adopt and implement commercially reasonable, industry standard data protection systems and procedures.
2.2 Access. Users may access and use the Subscription Services during the Term for Client’s internal business purposes only as provided for in this Agreement. Neither Users nor Client shall sell, resell, license, sublicense, distribute, rent, lease or otherwise commercially exploit the Subscription Services except as contemplated by the Agreement. Client and Users may not decompile, disassemble, translate or reverse engineer, or otherwise attempt to discover or access the source code, or underlying structure, ideas, know-how or algorithms relevant to the Subscription Services, nor remove from the Subscription Services any language or designation indicating the confidential nature thereof or the proprietary rights of Company or its suppliers.
2.3 Performance. Company shall provide the Subscription Services during the Term of the Agreement on a 24/7 basis, it being understood that the Subscription Services may be inaccessible or inoperable from time to time for any reason, including, without limitation: (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs which Company may undertake from time to time; or (iii) causes beyond the control of Company or which are not reasonably foreseeable by Company, including, without limitation, interruption or failure of telecommunication or digital transmission links, delays or failures due to Client’s Internet access connections, hostile network attacks, network congestion or other force majeure events.
2.4 Client Responsibilities.
2.4.1 Client, for itself and all Users, agrees to: (i) provide Company with reasonable cooperation necessary to implement the Subscription Services; (ii) use commercially reasonable efforts to (a) prevent unauthorized access to, or use of, the Subscription Services, and (b) maintain the security and integrity of the Subscription Services and the Service Data, including by not sharing accounts or log-in credentials; and (iii) promptly inform Company of any actual or reasonably suspected unauthorized access to the Subscription Services or Service Data. Client agrees that it is and will be solely responsible for all Users’ use of the Subscription Services, and responsible for responding to User requests regarding their data. Client shall be solely responsible for providing, maintaining and ensuring compatibility of its systems with the Subscription Services, including securing Internet access connections. Client agrees to request support from Company through a maximum of two designated client representatives.
2.4.2 Client acknowledges and agrees that the Subscription Services may collect data and information which may be available from third party sources (including but not limited to teacher credentialing or other data available from federal, state or local government sources) as directed or authorized by Client. Client acknowledges that such data or information may not be complete, correct, or uncorrupted, and may not import or transfer into the Subscription Services correctly due to the systems and procedures of third parties.
2.5 Service Data and User Data Licenses.
2.5.1 During the Term of the Agreement, Company grants to Client a limited, non-exclusive, non-sublicensable, non-transferable, revocable license to access, capture, copy, store, transmit, maintain and display the Service Data solely to the extent necessary to provide the Subscription Services to Client under the Agreement.. Upon termination or expiration of the Agreement, Client will destroy all copies of the Service Data and certify the same in writing to Company; excluding (i) Service Data incorporated into reports or analytics created during the Term, and (ii) Service Data on back-up media, which may be destroyed or recycled according to Client’s retention schedule for such media..
2.5.2 . Client is solely responsible for User Data including (i) obtaining all necessary rights and consents to transmit User Data to Company, and (ii) any corruption, loss of data, inaccurate or incomplete data.
- OWNERSHIP. As between the Parties, (i) Company owns all right, title and interest, including all IP Rights, in and to the Subscription Services, Service Data, Documentation, any Company website, and Company trademarks, and (ii) Client owns all right, title and interest, including all IP Rights, in and to the User Data, and Client trademarks. The Agreement does not transfer or convey to either Party or any third party any of the foregoing rights, title or interest, but only a limited right of use revocable in accordance with this Agreement.
- TERM AND TERMINATION.
4.1 Generally. This Agreement will begin on the Effective Date and remain in full force and effect for the Initial Term specified above (the “Initial Term”). Upon the expiration of the Initial Term, the Agreement will automatically renew for additional consecutive annual terms (each a “Renewal Term”), unless prior to the expiration of the then-current term, either Client or Company provide 60 days’ written notice of its intention not to renew. The Initial Term, together with any and all Renewal Terms, is collectively referred to as the “Term.” Either Party may terminate the Agreement if the other Party breaches any material provision of the Agreement and has not cured the breach within thirty (30) days after receipt of written notice of the breach from the non-breaching Party. Notwithstanding this Section 4, Company may immediately terminate Client’s access to the Subscription Services if deemed necessary to protect the security or integrity of the Subscription Services, Service Data, User Data, or any other data or information contained therein. Upon termination, Client agrees to discontinue use of the Subscription Services, Service Data and Documentation.
4.2 Additional Term and Termination Rights.
4.2.1 Trial User. Approved Trial or Sandbox Clients may only use the Subscription Services for a maximum of 60 days from the date of initial registration. They may however terminate this Agreement within 15 days of the Effective Date by providing written notice to Company. Upon such termination, such Clients will owe no fees for such use.
4.2.2 Free Express User. The Initial Term for approved Free Express Clients shall be indefinite, and the Agreement may be terminated by either Party in its discretion on 60 days’ written notice.
5.1 Fees. Client agrees to pay Company the Service Fees set forth above in this Agreement. Any hour estimates listed for Professional Services are estimates only which may be exceeded. All prices are in United States dollars. Initial annual Technology Services payment is due prior to or at time of delivery of administrator access keys. Subsequent annual Technology Services payments and all Professional Services payments are due within 30 days of invoice mailing. In the event any invoice remains unpaid more than 30 days after mailing, Client shall incur a late payment charge of one (1) percent per month on all unpaid amounts. After the Initial Term, Company may increase the fees for the Subscription Services by providing Client notice of any fee increase at least 60 days prior to the expiration of the existing term.
5.2 Taxes. The Services Fees are exclusive of Taxes. Each Party agrees to be responsible for the payment of its own taxes applicable under all laws, including taxes based on a Party’s income, unemployment, social security and other payroll and wage taxes. To the extent Company is required to collect any taxes owed by Client, Company shall separately state the amount of tax due on its invoices to Client with all other applicable information.
6.1 Mutual Warranties. Each Party represents and warrants that it will at all times during the Term of this Agreement comply with all Applicable Laws.
6.2. Company Warranties. Company represents and warrants that (i) it is the owner of the Subscription Services or otherwise has the right to grant Client the rights and license set forth in this Agreement, and (ii) any Professional Services will be provided by qualified personnel in a professional and skillful manner. .
EXCEPT TO THE EXTENT SET FORTH IN SECTIONS 6.1 AND 6.2, CLIENT ACCEPTS THE SUBSCRIPTION SERVICES “AS IS” AND “AS AVAILABLE”, WITH NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING COMPANY DOES NOT REPRESENT OR WARRANT THAT THE SUBSCRIPTION SERVICE WILL PERFORM WITHOUT INTERRUPTION OR ERROR OR IS SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION. COMPANY HAS NO RESPONSIBILITY TO CONTINUE TO PROVIDE ACCESS TO PUBLIC DATA AND INFORMATION WHICH GOVERNMENT AGENCIES MAY IN THE FUTURE ELECT TO RESTRICT FROM USE OR DISTRIBUTION BY COMPANY.
Sections 3, 4, 8, 9, 10 and 11 shall survive termination or expiration of the Agreement, in addition to any provisions that by their nature should, or by their own express terms do, survive or extend beyond termination or expiration of the Agreement.
8.1 General Indemnity. To the fullest extent allowed by Applicable Law, a Party (the “Indemnitor”) shall defend the other Party, its Affiliates, and their respective officers, stockholders, directors, partners, agents and employees (collectively, the “Indemnified Parties”) against any and all claims, demands, suits, or actions, actual or threatened by a third party (“Claims”), and shall release, indemnify, and hold harmless the Indemnified Parties for and from any and all liabilities, obligations, losses, damages, deficiencies, penalties, levies, fines, judgments, settlements, costs and expenses, including interest, litigation costs, and reasonable attorney’s fees flowing from such Claims (“Losses”), to the extent such Claims or Losses arise out of or result from the gross negligence of, or willful misconduct or material breach by, Indemnitor, its Affiliates, or anyone for whose acts Indemnitor may be liable in the performance or nonperformance of the Indemnitor’s obligations under the Agreement. Losses may include, but are not limited to, injury to or death of any person (including employees), or damage to or destruction of any property, real or personal.
8.2 IP Infringement Indemnity. Regarding any Claim against Client Indemnified Parties arising from, and in connection with or otherwise relating to the infringement of any IP Rights of a third party and arising out of or related to the Subscription Services (the “Infringing IP”), Company’s shall, at Company’s option after consulting with Client (in each case, without any cost or expense to Client), either: (i) procure the right for Client to continue to use the Infringing IP; (ii) modify or replace the Infringing IP so that it is no longer infringing, provided however that such modification or replacement shall not degrade the functionality, operation or performance of the Subscription Services; or (iii) if subsections (i) and (ii) are deemed commercially unreasonable by Company in its sole discretion, Company shall have the option to terminate this Agreement and provide Client a pro rata refund of fees paid. Company’s obligations in this Section 8.2 shall not apply to the extent such Claim arises out of: (i) the failure of Client or any User to implement the Subscription Services in accordance with the Documentation; (ii) breach of this Agreement by Client, a User, a Client Indemnified Party or any of their respective Affiliates; or (iii) the negligence, fraud or willful misconduct of Client, a User or a Client Indemnified Party. This Section 8.2 states Company’s sole liability and Client’s sole remedy related to any Infringing IP as between Company and Client.
8.3 Indemnification Procedure. The Indemnified Party shall promptly give the Indemnitor notice of any Claim for which the Indemnified Party seeks indemnity under this Section 8. The Indemnitor shall have reasonable control over the defense and settlement of Third Party Claims; provided however, that the Indemnitor shall not enter into any Claim settlement requiring payment of money or other affirmative act (or inaction) by Indemnitee without Indemnitee’s consent, which shall not to be unreasonably withheld, delayed, or conditioned.
9.1 LIMITATION OF LIABILITY. Except for each Party’s indemnity obligations under Section 8 or its fraud or intentional misconduct, EACH PARTY’S LIABILITY FOR ALL CLAIMS ARISING OUT OF THE AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, WILL NOT EXCEED THE AMOUNT PAID BY CLIENT TO COMPANY UNDER THE AGREEMENT DURING THE TWELVE (12) MONTHS PRIOR TO WHEN THE LIABILITY ARISES.
9.2 EXCLUSION OF CONSEQUENTIAL DAMAGES. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOST REVENUES, PROFITS, OR GOODWILL, FOR ANY MATTER ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OR NONPERFORMANCE OF THE AGREEMENT, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT OR OTHERWISE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.3 DATA BREACH LIMIT. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, COMPANY’S MAXIMUM LIABILITY FOR CLAIMS, LOSSES OR OTHER LIABILITY RELATED TO THE UNAUTHORIZED USE OF DISCLOSURE OF DATA SHALL NOT EXCEED $500,000.
10.1 Confidential Information. Each Party (the “Receiving Party”) understands that the other Party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Confidential Information” of the Disclosing Party). Confidential Information of Company includes non-public information regarding features, functionality and performance of the Subscription Service. Confidential Information of Client includes non-public data provided by Client to Company to enable the provision of the Services. The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after three (3) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law. The confidentiality obligations of each Party and its employees shall survive the expiration or termination of this Agreement.
10.2 Injunctive Relief. Recipient acknowledges that disclosure of any Confidential Information or Trade Secret by it or its employees will give rise to irreparable injury to Discloser or the owner of such information, not adequately compensated by damages. Accordingly, Disclosing Party may seek and obtain injunctive relief against the breach or threatened breach of the undertakings contained herein, in addition to any other legal remedies which may be available, without the requirement of posting bond. Receiving Party further acknowledges and agrees that the covenants contained herein are necessary for the protection of Disclosing Party’s legitimate business interests and are reasonable in scope and content.
- GENERAL PROVISIONS.
11.1 Interpretation. Words in the singular shall be held to include the plural and vice versa, the word “including” and words of similar import shall mean “including, without limitation,” and the headings contained herein are for reference purposes only and shall not affect in any way the meaning or interpretation of the Agreement.
11.2 Notices. Any notices, requests or other communications required or permitted to be given hereunder shall be in writing and shall be delivered by hand, by overnight courier, by email or by facsimile.
11.3 Governing Law. All matters arising from or relating to the Agreement shall be governed and construed in accordance with the laws of the state of California, United States of America, without giving effect to any choice-of-law provision or rule (whether of the state of California or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. The Federal or state courts situated in Alameda County, California, United States of America, have exclusive jurisdiction over the resolution of all disputes that arise under the Agreement, and each Party irrevocably submits to the personal jurisdiction of such courts. The United Nations Convention on Contracts for the International Sale of Goods shall not be applicable to the parties’ rights or obligations under the Agreement.
11.4 Publicity. Company may identify Client as a customer of Company, and may include the name and trademarks of Client on its website and in marketing materials.
11.5 Assignment. No Party may assign any of its rights under the Agreement or delegate its performance under the Agreement without the prior written consent of the other Party. Notwithstanding the foregoing, upon notice, Company may assign its rights and delegate its performance under the Agreement, and any licenses granted hereunder, to: (i) any entity that acquires all or substantially all of its assets or substantially all of the assets of that portion of its business that manages the Agreement; (ii) any Affiliate that controls, is controlled by, or is under common control with Company; and (iii) any successor in a merger, acquisition, or reorganization, including any judicial reorganization.
11.6 Successors and Assigns; No Third Party Beneficiaries. The Agreement is legally binding upon and inures to the benefit of the parties and their permitted successors and assigns. No third party is intended to benefit from, nor may any third party seek to enforce, any of the terms of the Agreement.
11.7 Relationship of the Parties. Company shall furnish all Subscription Services as an independent contractor. Nothing contained in the Agreement shall be deemed to create an association, partnership, joint venture, or relationship of principal and agent or master and servant between the parties, or to grant either Party the right or authority to assume, create or incur any liability or obligation of any kind, express or implied, against, in the name of, or on behalf of, the other Party.
11.8 Complete Agreement. The Agreement constitutes the final agreement between the parties. It is the complete and exclusive expression of the parties’ agreement on the matters contained in the Agreement. All prior and contemporaneous negotiations and agreements between the parties on the matters contained in the Agreement are expressly merged into and superseded by the Agreement. In entering into the Agreement, neither party has relied upon any statement, representation, warranty, or agreement by or from the other Party except for those expressly contained in the Agreement.
11.9 Modification. The terms of the Agreement may not be modified or amended other than by a writing executed by both parties by their duly authorized representatives.
11.10 Savings Clause. If any provision of the Agreement is determined to be invalid, illegal or unenforceable, the remaining provisions of the Agreement remain in full force if the essential terms and conditions of the Agreement for each Party remain valid, binding and enforceable.
11.11 Waiver. Any delay by a Party in exercising its rights hereunder shall not constitute a waiver of its rights or its entitlement to enforce any provision of this Agreement.
11.12 Counterparts; E-Signatures. The Agreement may be executed in one or more counterparts, each of which is deemed an original and all of which, taken together, constitutes a single enforceable agreement. Each Party agrees, for itself and all Affiliates or Users, that this Agreement and any document associated with the Subscription Services may be executed via electronic signature.
11.13 Binding Arbitration. In the event of any dispute, claim, question, or disagreement arising from or relating to the Agreement or the breach thereof (collectively “Dispute”), the Parties shall use their best efforts to settle the Dispute. Such efforts will include, at a minimum, that they consult, meet in person and negotiate with each other in good faith and, recognizing their mutual interests, attempt to reach a just and equitable solution satisfactory to both parties.
- If the Parties do not resolve the Dispute pursuant to the foregoing paragraph within a period of 30 days, then, upon notice by either Party to the other, the Parties agree to mediate the Dispute in good faith according to the American Arbitration Association’s Commercial Mediation Procedures in a location mutually agreeable to the Parties. The Parties shall work in good faith with the mediator to attempt to complete the mediation within 30 days of such notice.
- If the Parties do not resolve the Dispute through mediation pursuant, then, upon notice by either Party to the other, the Dispute shall be finally settled by arbitration administered by the American Arbitration Association in accordance with the provisions of its Commercial Arbitration Rules. The arbitration shall be conducted on a confidential basis. The arbitration shall be conducted before a single arbitrator mutually agreed to by the Parties. Any decision or award as a result of any such arbitration proceeding shall be in writing and shall provide an explanation for all conclusions of law and fact and shall include the assessment of costs, expenses, and reasonable attorneys’ fees. Any arbitration shall be conducted by an arbitrator experienced in contract and technology law, shall include a written record of the arbitration hearing, and shall be conducted in a location mutually agreeable to the Parties. An award of arbitration may be confirmed in a court of competent jurisdiction. The arbitrator shall award to one or both Parties as prevailing party, if any, as determined by the arbitrator, some or all of its costs and fees in their sole discretion. “Costs and fees” mean all reasonable pre-award expenses of the arbitration, including the arbitrators’ fees, administrative fees, out-of-pocket expenses such as copying and telephone, witness fees, and attorneys’ fees.
- Exception: Company and Client each agree that the protection of Confidential Information shared is necessary and reasonable in order to protect the Disclosing Party and its business. Company and Client each expressly agree that due to the unique nature of the Disclosing Party’s Confidential Information, monetary damages would be inadequate to compensate the Disclosing Party for any breach by the Receiving Party of its covenants and agreements set forth in the Agreement. Accordingly, Company and Client each agree and acknowledge that any such violation or threatened violation would cause irreparable injury to the Disclosing Party and that, in addition to any other remedies that may be available, in law, in equity or otherwise, the Disclosing Party shall be entitled to obtain injunctive relief against the threatened breach or continued breach by the Receiving Party, without the necessity of proving actual damages.