MASTER SERVICES AGREEMENT

Last updated as of February 1, 2021

 

THIS MASTER SERVICES AGREEMENT GOVERNS CUSTOMER’S USE OF UPLIFT EDUCATIONAL SOLUTIONS LLC (UES) PRODUCT(S) (AS DEFINED BELOW) AND IS AN AGREEMENT BETWEEN CUSTOMER AND THE APPLICABLE UES CONTRACTING ENTITY SPECIFIED IN SECTION 1 BELOW. CAPITALIZED TERMS HAVE THE DEFINITIONS SET FORTH HEREIN.

BY ACCEPTING THIS AGREEMENT, EITHER BY: (1) EXECUTING A QUOTE THAT REFERENCES THIS AGREEMENT; (2) BY EXECUTING A COPY OF THIS AGREEMENT DIRECTLY; OR (3) ACCESSING THE UES PRODUCT(S). THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY AND REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS. THE TERM “CUSTOMER,” AS FURTHER DEFINED BELOW, WILL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MUST NOT USE UPLIFT EDUCATIONAL SOLUTIONS PRODUCT(S).

1. DEFINITIONS.

1.1 “Account Country” is the country associated with the Customer account. If Customer has provided a valid tax registration number for Customer’s account, then Customer’s Account Country is the country associated with such tax registration. If Customer has not provided a valid tax registration, then Customer’s Account Country is the country where the Customer billing address is located.

1.2 “Agreement” means this Master Services Agreement and all referenced exhibits.

1.3 “Customer” means the school, school district or other entity obtaining subscription access to UES’s Subscriptions Services, licenses a Licensed Product(s), or purchases UES Services.

1.4 “De-identified Data” means data originally derived from Customer data where personally identifiable information and other similar attributes about such data have been removed so that no individual identification can be made.

1.5 “Documentation” means all written user information, whether in electronic, printed or other format, delivered or made available to Customer by UES with respect to UES Product(s), now or in the future, including instructions, manuals, training materials, and other publications that contain, describe, explain, or otherwise relate to UES Product(s).

1.6 “Embedded Applications” means software developed by third parties that resides within the software developed by UES as part of the UES Product(s) and performs a very specific set of functions, pursuant to Exhibit E (Product Specific Terms).

1.7 “Hosting Services” means the hosting of the Customer’s UES Product(s) and Third Party Software by UES or its hosting providers from a server farm that is comprised of application, data and remote access servers used to store and run the UES Product(s) and Third Party Software, including associated offline components, as further detailed in Exhibit C (Hosting Services Policy).

1.8 “Intellectual Property Rights” means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how, other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world.

1.9 “Licensed Product(s)” means all software (including Embedded Applications) provided by UES to Customer via an on-premise license and subsequent versions provided under Support Services and all related Documentation provided to Licensee pursuant to this Agreement, now or in the future; provided, however, that Licensed Product(s) will not include any Third Party Software.

1.10 “Licensed Site(s)” means the internet address of the web-based, UES Product(s) whether hosted as a SaaS solution or hosted on-premise by the Customer or their third party vendor listed on a UES Quote.

1.11 “Licensee” means the school, school district or other entity licensing a Licensed Product(s) for an on-premise usage.

1.12 “Parties” means the UES Contracting Entity and the Customer of the UES Product(s).

1.13 “UES Contracting Entity” “UES” means the entity identified in the table below, based on your Account Country.

 

Account Country	UES Contracting Entity	Mailing Address
United States	Uplift Educational Solutions LLC	75 E Center St #624, Springville UT 84663
Canada	TBA	TBA
Latin America	Uplift Latino América S de R.L.	Lázaro Cárdenas #192, Cerro Azul, Ver. C.P. 92513
Any other country except from the above	Uplift Educational Solutions LLC	75 E Center St #624, Springville UT 84663

 

1.14 “UES Product(s)” means any Licensed Product(s), Subscription Service(s), or other product or Services provided to Customer and described on a Quote

1.15 “Professional Services” means the services which may be further discussed and described through a Statement of Work or Quote, pursuant to Exhibit B (Professional Services Policy) of this Agreement.

1.16 “Provincial Reporting Code (or PRC)” means UES Product(s) that may be available only to Canadian-based Customers to assist Customer in meeting specific provincial reporting requirements and that is designated as Provincial Reporting Code by UES.

1.17 “Quote” means UES’s standard order form that (i) specifies the UES Product(s) and other Services provided to Customer; (ii) references this Agreement; and (iii) is signed or incorporated to a signed agreement by authorized representatives of both Parties and deemed incorporated into the Agreement.

1.18 “SaaS” means the acronym for the phrase “software as a service”.

1.19 “Services” means any combination of the following: a) Support Services, b) Hosting Services, and/or c) Professional Services.

1.20 “Subscription Service(s)” means all SaaS software (including Embedded Applications) and subsequent versions provided under Support Services and all related Documentation provided to Customer pursuant to this Agreement, now or in the future; provided, however, that Subscription Services will not include any Third Party Software.

1.21 “Support Services” is defined in Exhibit A (Support Policy).

1.22 “State Reporting Code (or SRC)” means UES Product(s) that may be available to Customer to assist Customer in meeting specific state reporting requirements and that is designated as State Reporting Code by UES.

1.23 “Statement of Work” or “SOW” means any Professional Services project made between the Parties which references and incorporates the terms of this Agreement, and sets out the details of a particular project, including, without limitation, any applicable (i) methodologies; (ii) project responsibilities; or (iii) estimated or actual pricing.

1.24 “Term” means the duration of the Agreement as described in section 11.1.

1.25 “Third Party Software” means software products supplied or developed for a particular purpose by someone other than the UES Contracting Entity and is not licensed by UES. Third Party Software will not include Embedded Applications as defined herein. For clarity, UES licenses the Embedded Applications to Customer as part of Subscription Services and Licensed Products, whereas UES is not the licensor of Third Party Software.

1.26 “Transaction Data” mean system usage information of a user who progresses through the applications and functions of a UES Licensed Product and other third party systems to which the user authorizes.

1.27 “User(s)” means individuals authorized by the Customer who access and utilize UES Product(s). Users will include authorized representatives of the Customer, teachers, students, parents and/or student guardian(s), and applicants as applicable to the respective UES Product(s).

 

2. UES PRODUCT SUBSCRIPTION. The type of subscription or license grant applicable to Customer will be specified in the Quote.

2.1 SUBSCRIPTION SERVICE. Subject to this Agreement and the applicable portions of the Privacy Policy located at http://www.UES.com/privacy, as such policies may be updated from time to time, UES will (a) make the Subscription Services available to Customer and for the contracted number of Users at the Licensed Site(s) to and in conformance with the applicable Documentation; (b) provide applicable UES standard support for the Subscription Services to Customer and Users, and upgraded support if purchased, as described in Exhibit A (Support Policy); (c) use commercially reasonable efforts to make the Subscription Services available, except for: (i) planned downtime (of which UES will give advance electronic notice), and (ii) any force majeure event as described in Section 14.3.2 (Force Majeure), internet service provider failure or delay, Third Party Software, or denial of service attack; and (d) provide the Services in accordance with its policies, existing laws and government regulations applicable to UES’s provision of its Subscription Services to its customers generally (i.e., without regard for Customer’s particular use of the Subscription Services). All rights not expressly granted to Customer herein are expressly reserved by UES.

2.2 LICENSE GRANT. Where the Customer is contracts for an on-premises deployment of a Licensed Product , UES, during the term stated in the Quote, grants the Customer a restricted, personal, non-exclusive, non transferable, terminable access to use such Licensed Product specified in UES’s Quote, only at the Licensed Sites, not to exceed the maximum student enrollment as set forth in Section 7 (Pricing, Enrollment Increases) of this Agreement. As part of the Licensed Product, UES will provide the Support Services and Professional Services mutually agreed upon via a Statement of Work. Licensed Product will only be used as expressly authorized by this Agreement. All rights not expressly granted to Customer herein are expressly reserved by UES.

2.3 Restrictions on Subscription Services and Licensed Product. The UES Product(s) may not be accessed by UES’s competitors, except with UES’s prior written consent.

2.3.1 Customer will use the UES Product(s) only for the internal business purposes of Customer and not: (a) to store or transmit malicious code, (b) interfere with or disrupt the integrity or performance of UES Product(s) or third-party data contained therein or any systems or networks; or (c) violate the regulations, policies, or procedures of such networks used with the UES Product(s), or (d) attempt to gain unauthorized access to a UES Product or its related systems or networks, the UES data or the data of any other UES customer.

2.3.2 In no event may UES Product(s): (a) be used other than at the Licensed Sites; (b) exceed the maximum User count for the UES Product as stated in the Quote; (c) be used to perform service bureau functions for third parties, or to process or manage data for websites other than the Licensed Sites; (d) be made available via a network or otherwise to any school, school district or third party other than the Licensed Sites; or (e) be accessed for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.

2.3.3 Customer will ensure its Users will not, and itself will not, whether through any affiliate, employee, consultant, contractor, agent or other third party: (a) sell, resell, distribute, host, lease, rent, license or sublicense, in whole or in part, the UES Product(s); (b) decipher, decompile, disassemble, reverse assemble, modify, translate, reverse engineer or otherwise attempt to derive source code, algorithms, tags, specifications, architecture, structure or other elements of the UES Product(s), in whole or in part, for any purposes or otherwise; (c) write or develop any derivative works based upon the UES Product(s). Customer will hold UES harmless from claims for damages resulting from Customer’s misuse of the UES Product(s), including UES’s Intellectual Property Rights. Customer will use commercially reasonable efforts to prevent unauthorized access to, or use of, the UES Product(s), and notify UES promptly of any such unauthorized access or use. Customer will not transfer, assign, provide or otherwise make UES Product(s) or Services available to any other party without the prior written consent of UES. Any attempted sublicense, assignment, or transfer of any rights, duties or obligations by Customer in violation of this Agreement will be void.

 

3. PROPRIETARY RIGHTS

3.1 Intellectual Property Rights. UES alone owns all rights, titles and interests, including all related Intellectual Property Rights, in and to the UES Product(s) and Services. This Agreement is not a sale and does not convey to Customer any rights of ownership in or related to the UES Product(s) and Services, or the Intellectual Property Rights owned by UES. Customer will not accrue any residual rights to the UES Product(s), including any rights to the Intellectual Property Rights in connection therewith.

3.2 Trademarks. The UES name, the UES logo, product names associated with the UES Product(s) and any other marks, logos, designs, sound, trade dress, etc. are trademarks of UES, and no right or license is granted by this Agreement to their use.

3.3 Confidentiality. To the extent allowed under applicable law, Customer agrees that the terms of this Agreement, including all pricing for UES Product(s) and Services, must be kept confidential and not disclosed to any third party without the prior written consent of UES. Customer agrees that UES may publicly refer to Customer (both in writing and orally) as a client, and may identify Customer as a client, among other places, on its website, in press releases, and in sales materials and presentations. Customer agrees to keep UES Product(s) confidential and to prevent unauthorized disclosure or use of UES Product(s) in Customer’s possession. Customer will notify UES immediately in writing of any unauthorized use or distribution of UES Product(s) of which Customer becomes aware and will take all steps necessary to ensure that such unauthorized use or distribution is terminated. For any UES Product(s) for which UES makes available passwords or other user identification technology to access such Subscription Services, Customer will advise all Users of such passwords or other user identifications that such passwords or user identifications must be maintained in confidence and not transmitted or shared. Customer is solely responsible for maintaining the confidentiality of each username and password used and is solely responsible for any and all activities that occur under all Customer’s accounts. Customer agrees to notify UES immediately of any unauthorized use of Customer’s accounts or any other breach of security. UES will not be liable for any loss that Customer may incur as a result of someone else using Customer’s passwords or accounts, either with or without the Customer’s knowledge.

UES agrees to use commercially reasonable efforts to maintain the confidentiality of Customer confidential information that is disclosed to UES in connection with the performance of Services, and to use such Customer confidential information solely for purposes of performing Services hereunder. De-identified Data used by UES for internal research, and improvement of UES Products is not subject to this section’s confidentiality obligations. While UES will not rent or sell information for marketing purposes and will not share or sell Customer data with third parties for marketing purposes, Customer hereby grants UES permission to use, copy, and/or combine with any De-identified Data the Customer and Users may generate within and through Licensed Products or Subscription Services. UES will require its employees, agents and subcontractors performing work hereunder to enter into a written agreement with UES that imposes obligations that are substantially similar to those imposed on UES hereunder. For purposes of this Section, “Customer confidential information” means any student or personnel data belonging to Customer, or any other Customer information or data labeled or identified as confidential at the time of disclosure, provided, however, that this definition and the obligations of this Section will not extend to any information that: (a) is or becomes publicly known through no fault or negligence of UES; (b) is or becomes lawfully available from a third party without restriction; (c) is independently developed by UES; or (d) is disclosed without restriction by Customer to any third party at any time. Customer grants to UES a non-exclusive, royalty-free license to use equipment, software, Customer data, or other material of the Customer solely for the purpose of enabling UES to perform its obligations under the Agreement. 3.4 Public Record Act. Notwithstanding anything herein to the contrary in section 3.3, UES acknowledges that, to the extent Customer is subject to public record acts or freedom of information acts, UES will work with Customer to provide appropriate information in response to such requests, to the extent such requested information is not UES’s proprietary information or otherwise exempted from disclosure.

3.5 Customer Data Security and Privacy. UES will abide by its policy, as set forth in Exhibit D (Data Privacy and Security Policy) with respect to the security and privacy of its Customer’s data within the UES Product(s).

3.6 Use of Feedback. Customer grants to UES a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into UES Product(s) and Services any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer or Users.

 

4. SUPPORT AND OTHER SERVICES. As part of the UES Product(s), UES will provide the Support Services set forth in Exhibit A (Support Policy) and Professional Services mutually agreed upon via a Statement of Work pursuant to Exhibit B (Professional Services Policy). Customer’s license of UES Product(s) does not, by itself, entitle Customer to any support, upgrades, patches, fixes or the like for Subscription Services; Customer must maintain a current Support Services subscription and pay any applicable Support Services fees to be eligible for Support Services. Support Services must be purchased for all licenses in Customer’s possession. Support Services may not be purchased or renewed for a subset of such licenses only. Support Services may not be used as a substitute for Professional Services.

 

5. FEES AND TAXES. Customer agrees to pay UES, in accordance with UES’s invoice terms, the fees charged for the UES Product(s) and related Services and/or other items ordered by Customer, together with any other charges made in accordance with this Agreement, and all applicable sales, use or other taxes or duties, however designated, except for taxes based on UES’s net income. Customer agrees to pay for UES’s pre-approved reasonable travel and lodging expenses for Professional Services performed at Customer’s premises. If Customer claims tax-exempt status, Customer agrees to provide evidence of such tax exemption to UES. To the extent that such tax exemption cannot be properly claimed or does not extend to certain taxes or transactions, Customer will be responsible for any and all taxes and assessments that arise from this Agreement and related transactions (except for taxes based upon UES’s net income). Customer will pay a monthly charge of 1.5% (18% annually) on all amounts not paid when due, or, if a lower maximum rate is established by law, then such lower maximum rate. All pricing set forth in any UES Quote or invoice will be in United States dollars unless otherwise specified.

 

6. THIRD PARTY SOFTWARE LICENSE TERMS; EMBEDDED APPLICATIONS; OPEN SOURCE SOFTWARE. Third Party Software is licensed directly to the Customer pursuant to separate license terms between Customer and the third party supplier. All support, warranties, and services related to Third Party Software are provided by the supplier of the Third Party Software under such third party’s terms and conditions, and not by UES. For clarity, UES licenses the Embedded Applications to Customer as part of Subscription Services and Licensed Products, whereas UES is not the licensor of Third Party Software. UES will have no obligation to provide support for any customized software or any third-party applications not part of the UES Product(s). Further, UES will not be responsible for providing support: (i) for problems caused by Customer’s use of or access to the UES Product(s) other than as intended; (ii) for any use in violation of this Agreement; or (iii) for any unauthorized modifications made to the UES Product(s) by Customer or any third party. In the event the need for Support Services provided are traced to Customer’s or a third party’s errors, unauthorized use, or system changes, fees and expenses for said Support Services may be billed to Customer at UES’s then current rates and will be paid promptly by Customer. Only Sections 5, 6, 9 and 12 of this Agreement apply to Third Party Software and any related support and services set forth in this Agreement. In addition, UES Product(s) may contain Embedded Applications. If any additional license terms are identified in Exhibit E (Product Specific Terms), Customer will comply with such conditions with respect to such applications. Certain Embedded Applications may also be subject to “open source” licensing terms. In some cases, the open source licensing terms may conflict with portions of this Agreement, and to the extent of any such conflict, the open source licensing terms will govern, but only as to the software components subject to those terms. Notwithstanding the foregoing, Customer acknowledges that if any open source software component is licensed under terms that permit Customer to modify such component, and if Customer does so modify such component, then UES will not be responsible for any incompatibility due to such modifications.

 

7. PRICING; ENROLLMENT INCREASES. Pricing for access to UES Product(s) is based on the number of Users at the Licensed Sites. If Customer accesses UES Product(s) with more than the number of Users purchased as indicated in the Quote, then UES may submit an amended invoice for the amount of such excess usage, and Customer will pay the fees applicable to the variance within 30 days of the invoice date. Any such increase in Users will be maintained through the end of the then-current term. Such additional fees will be computed by multiplying the then-current per student license and support fees for UES Product(s) by Customer’s additional User count. Customer’s subsequent Support Services invoices will be based on the increased Users as well.

 

8. COMPATIBLE PLATFORMS/HARDWARE. Where applicable, Customer will be responsible for obtaining and maintaining all telephone, computer hardware, and other equipment needed for access to and use of the UES Product(s) and all charges related thereto. Customer is responsible for obtaining and maintaining an appropriate operating environment with the necessary hardware, operating system software and other items required to use and access UES Product(s). UES will not be responsible for any incompatibility between UES Product(s) and any versions of operating systems, hardware, browsers, or other products not specifically approved in writing by UES for Customer’s use with UES Product(s). UES will make written requirements available to Customer at Customer’s request.

 

9. LIMITED WARRANTY. UES warrants that the media on which Licensed Product is recorded will be free from defects in materials and workmanship under normal use for a period of ninety (90) days from the date of purchase. Licensee’s exclusive remedy under this Section will be replacement of the defective media. UES warrants that for Subscription Services during an applicable subscription term (a) this Agreement, the Quote, and the Documentation will accurately describe the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer’s data, (b) UES will not materially decrease the overall security of Subscription Services, and (c) UES will not materially decrease the overall functionality of the Subscription Services. For any claimed breach of a warranty above, the Customer and UES agree to first negotiate a resolution in good faith; and, if necessary, refer the matter to senior representatives of each Party for timely resolution.

 

10. DISCLAIMER OF OTHER WARRANTIES. UES PRODUCT(S) ARE PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND (EXCEPT AS PROVIDED IN SECTION 9), AND UES AND ITS LICENSORS EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, POTENTIAL IMPLEMENTATION DELAYS, AND NON INFRINGEMENT. UES DOES NOT WARRANT THAT THE FUNCTIONALITY CONTAINED IN THE UES PRODUCT(S) WILL MEET CUSTOMER’S REQUIREMENTS, OR THAT THE OPERATION OF THE UES PRODUCT(S) OR HOSTING SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT DEFECTS IN THE UES PRODUCT(S) WILL BE CORRECTED. FURTHERMORE, UES DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE UES PRODUCT(S) IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, SECURITY, OR OTHERWISE. CUSTOMER AGREES THAT THE USE OF UES PRODUCT(S) IS AT CUSTOMER’S OWN RISK. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY UES OR A UES REPRESENTATIVE WILL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF ANY WARRANTY. SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OF CERTAIN IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT FULLY APPLY TO CUSTOMER.

 

11. TERM AND TERMINATION

11.1 Term. This Agreement commences on the date Customer first executes it and continues until the term of all UES Product(s) or Services provided under any applicable Quote hereunder have expired or have been terminated.

11.2 Term of Purchased Subscriptions. The term of each subscription or license will be as specified in the applicable Quote specifying a start and end date. Except as otherwise specified in a Quote, renewal of promotional or one-time priced subscriptions or licenses will be at UES’s discretion.

11.3 Suspension. UES will have the right to suspend performance under this Agreement in the event that Customer is notified, with email notice being sufficient, that it is in breach of any of its obligations under this Agreement and fails to cure the breach within five (5) days of the notice.

11.4 Termination for Breach. Either party will have the right to terminate this Agreement in whole or in part upon thirty (30) days written notice to the other party, in the event the other party materially breaches this Agreement and fails to correct such breach within such thirty (30) day period; provided that UES will have the right to terminate this Agreement immediately upon written notice in the event that Customer breaches any of its obligations under Section 2 (UES Product Subscription) or Section 3 (Proprietary Rights). Customer further acknowledges that, as breach of the provisions of Section 3 could result in irreparable injury to UES, UES will have the right to seek equitable relief against any actual or threatened breach thereof, without proving actual damages.

11.5 No Termination for Convenience. Customer is not entitled to terminate this Agreement for any reason other than for the specific reasons set out in this Agreement or as expressly mandated by law. No termination for convenience will be permitted.

11.6 Termination for NonAppropriation. The Parties acknowledge and agree that if Customer is a governmental entity that is bound to statutory provisions that prevent it from committing to the payment of funds beyond its fiscal year, and if funds are not allocated for the UES Product(s) and Services captured in an applicable Quote that are the subject of this Agreement following the commencement of any succeeding fiscal year during which the Quote may continue, then Customer may terminate the applicable Quote without liability for any termination charges, fees, or penalties at the end of its last fiscal period for which funds were appropriated. Customer will be obligated to pay all charges incurred through the end of the last fiscal period for which funds were appropriated. Customer will give UES written notice that funds have not been appropriated (a) immediately after Customer receives notice of such non appropriation; and (b) at least thirty (30) days prior to the effective date of such termination. Customer will not utilize this clause as a right to terminate any Quote nor this Agreement for convenience. UES reserves the right to seek documentation evidencing such non appropriation of funds.

11.7 Effects of Termination. In the event of any termination of all or any portion of this Agreement, Customer will not be relieved of any obligation to pay any sums of money that have accrued prior to the date of termination. In addition, the provisions of Sections 3, 5, 6, 9, 11, 12, 13, 14 and 13 will survive termination of this Agreement. Immediately upon any termination of a subscription or license for any Subscription Services or Licensed Product under this Agreement, Customer will, at its own expense, either return to UES or destroy all copies of such UES Product(s), and Customer’s authorized representative will forward written certification to UES that all such copies of such UES Product(s) have either been destroyed or returned to UES.

11.8 Liquidated Damages. In the event that Customer enters into a multi-year Quote with UES and Customer terminates the contract or any portion thereof, Customer agrees to pay UES the remaining sum due to UES through the stated term in the applicable Quote as liquidated damages, as actual damages being impossible to calculate. This clause will not apply in the event Customer terminates this Agreement as (a) a result of UES’s breach in accordance with Subsection 11.4 herein, or (b) as a result of non appropriation of funds in accordance with Subsection 11.6 herein.

 

12. LIMITATION OF LIABILITY. UES WILL NOT BE LIABLE TO CUSTOMER FOR ANY SPECIAL, EXEMPLARY, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES; OR LOST PROFITS, LOST FUNDING, LOST SAVINGS, OR LOST OR DAMAGED DATA; OR FOR CLAIMS OF A THIRD PARTY; ARISING OUT OF THIS AGREEMENT, SUBSCRIPTION SERVICES, SUPPORT, SERVICES, OR OTHER ITEMS PROVIDED, OR THE USE OR INABILITY TO USE ANY OF THE FOREGOING, EVEN IF UES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR THEY ARE FORESEEABLE. IN ANY EVENT, IN RESPECT OF ANY CLAIM, DEMAND, OR ACTION ARISING OUT OF THIS AGREEMENT, CUSTOMER WILL BE LIMITED TO RECEIVING ACTUAL AND DIRECT DAMAGES IN A MAXIMUM AGGREGATE AMOUNT EQUAL TO THE CHARGES PAID BY CUSTOMER TO UES HEREUNDER FOR THE APPLICABLE UES PRODUCT ON WHICH THE CLAIM IS BASED IN THE PREVIOUS TWELVE (12) MONTHS. IN ADDITION, IN NO EVENT WILL THE LIABILITY OF UES RELATING TO UES PRODUCT(S) EXCEED THE TOTAL AMOUNT OF MONEY PAID BY CUSTOMER TO UES DURING THE IMMEDIATELY PRECEDING TWELVE (12) MONTH PERIOD WITH RESPECT TO THE PARTICULAR SUPPORT SERVICES OR HOSTING SERVICES, OR PROFESSIONAL SERVICES ON WHICH THE CLAIM IS BASED.

 

13. INDEMNIFICATION

13.1 Indemnification by UES. Subject to Section 12 (LIMITATION OF LIABILITY) UES herby agrees to defend, indemnify, and hold harmless the Customer from and against any and all losses, liabilities, costs, expenses and damages arising out of or relating to any claim by a third party alleging infringement of any Intellectual Property Rights as to the UES Product, provided that UES will have received from Customer (i) prompt written notice of such claim; (ii) the exclusive right to control and direct the investigation, defense and settlement of such claim; and (iii) all reasonable necessary cooperation of Customer. If Customer’s use of the UES Product is enjoined, UES may (i) substitute for the UES Product, a substantially and functionally similar product and documentation; (ii) procure for Customer the right to continue using the UES Product; or if (i) or (ii) are not possible after reasonable commercial efforts from UES, then UES may terminate this Agreement and credit a pro-rated return of unused portion of the subscription. The foregoing obligation of UES does not apply to the extent the claim arises from (i) modifications to the UES Product by anyone other than UES; (ii) combinations of the UES Product with products or process not provided or authorized by UES; or (iii) any unauthorized use, access or distribution of the UES Product.

13.2 Indemnification by Customer. To the extent permitted under applicable law, Customer agrees to indemnify and hold UES harmless against and from any claim, demand, expenses, or losses, including reasonable legal fees (including but not limited to attorney’s fees, costs and expenses), made by any third party against UES due to or arising out of: (a) Customer’s access, use of and/or connection to the UES Product(s); (b) Customer’s sharing of any content obtained through access or use of the UES Product(s) to any third party; (c) Customer’s violation of Section 2 (UES Products Subscription), or Section 3 (Proprietary Rights); (d) information Customer sent, submitted, electronically received, accessed, printed, downloaded, or transmitted through the UES Product(s); or (e) Customer’s gross negligence or willful misconduct.

 

14. GENERAL

14.1 Governing Law. THIS AGREEMENT WILL BE GOVERNED BY THE LAWS DEPENDING UPON THE ACCOUNT’S COUNTRY LOCATION AS LISTED IN THE TABLE BELOW. THE VENUE LISTED IN THE TABLE WILL BE THE EXCLUSIVE COURTS OF JURISDICTION AND VENUE FOR ANY LITIGATION, SPECIAL PROCEEDING OR OTHER PROCEEDING AS BETWEEN THE PARTIES THAT MAY BE BROUGHT, OR ARISE OUT OF, IN CONNECTION WITH, OR BY REASON OF THIS AGREEMENT. EACH PARTY HEREBY CONSENTS TO THE JURISDICTION OF SUCH COURTS. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement. This Agreement will not be subject to the Uniform Computer Information Transactions Act.

 

Account Country	Venue	Governing Law
United States	Utah County	Utah
Canada	TBA	TBA
Latin America	Tuxpan	Veracruz
Any other country except from the above	Utah County	Utah

 

14.2 Compliance Verification. During the term of the Agreement and for a period of one year following its termination, UES has the right to verify Customer’s full compliance with the terms and requirements of the Agreement. Customer must (a) provide any assistance reasonably requested by UES or its designee in conducting any such audit, (b) make requested personnel, records, and information available to UES or its designee, and (c) in all cases, provide such assistance, personnel, records, systems access and information in an expeditious manner to facilitate the timely completion of such compliance verification. If such verification process reveals any noncompliance, Customer must promptly cure any such noncompliance; provided, however, that the obligations under this section do not constitute a waiver of UES’s termination rights and do not affect UES’s right to payment for access to UES Product(s) and Services and interest fees related to usage in excess of the quantities purchased.

14.3 General Provisions.

14.3.1 Amendment. This Agreement may only be amended or modified by a writing specifically referencing the particular Section(s) of this Agreement to be modified and signed by authorized representatives of the Parties.

14.3.2 Force Majeure. UES will not be deemed in default of this Agreement for delays or failure in performance resulting from acts beyond its reasonable control, including but not limited to, default by subcontractors or suppliers, failure of Customer to provide promptly to UES accurate information and materials, as applicable, acts of God or of a public enemy, acts of terrorism, United States or foreign governmental acts in either a sovereign or contractual capacity, labor, fire, power outages, road icing or inclement conditions, flood, epidemic, restrictions, strikes, and/or freight embargoes.

14.3.3 Severability. If any provision of this Agreement is held to be illegal, invalid, or unenforceable, that provision must be severed or reformed to be enforceable, and the remaining provisions hereof and thereof will remain in full force. No delay or omission by UES in the exercise or enforcement of any of its powers or rights hereunder will constitute a waiver of such power or right. A waiver by UES of any provision of this Agreement must be in writing and signed UES and will not imply subsequent waiver of that or any other provision.

14.3.4 Payments. Customer agrees that its payment and other obligations under this Agreement are absolute and unconditional and not subject to any abatement, reduction, setoff, defense, counterclaim, or recoupment due or alleged to be due as a result of any past or future claim that Customer may have against UES. Customer agrees that it will use its best efforts to cooperate with UES, and will execute and deliver any and all documents in addition to those expressly provided for herein that may be necessary or appropriate to afford UES the opportunity to adequately provide the UES Product(s) and Services. Payment terms are defined in the applicable Quote.

14.3.5 Time to Bring Action. To the extent allowed under applicable law, Customer may bring no action arising out of this Agreement, regardless of form, more than one (1) year after the cause of action has arisen.

14.3.6 Notices. All notices under this Agreement must be in writing and delivered by overnight delivery service or certified mail, return receipt requested, with a copy by email. Notices delivered personally are deemed given upon documented receipt or refusal by recipient to accept receipt. In the case of notices to UES, such notices must be sent to:

 

Uplift Educational Solutions, LLC

Attn: General Counsel

75 E Center St. #624

Springville, UT 84663

 

In the case of notices to Customer, such notices will be sent to UES’s address of record for Customer. Either party may change its notice address by notifying the other in like manner.

14.3.7 Assignment. Neither UES or Customer may make any assignment of this Agreement or any interest herein, by operation of law or otherwise, without the prior written consent of the other; provided, however, that UES may assign its rights and obligations under this Agreement without the consent of the Customer in the event UES hereafter effects a corporate reorganization, consolidates with, or merges into, any person or transfers all or substantially all of its properties or assets to any entity. This Agreement will inure to the benefit of and be binding upon the Parties, their respective successors, executors, administrators, heirs and permitted assignees.

14.3.8 Facilities. Customer acknowledges that certain Services are intended to be performed by UES off-site (e.g., through remote communication capabilities). If any portion of the work will be performed on Customer’s premises, Customer agrees to provide appropriate access to utilities, workspace, and other onsite accommodations reasonably necessary to enable UES to perform such work.

14.3.9 Export. Without in any way limiting the restrictions on transfer set forth elsewhere in this Agreement, Customer specifically agrees that Customer will not, directly or indirectly, export or transfer any export- controlled commodity, technical data or software: (a) in violation of any laws, regulations, rules, or other limitations imposed by any government authority; or (b) to any country for which an export license or other governmental approval is required at the time of export, without first obtaining all necessary licenses or other approvals.

14.3.10 U.S. Government Restricted Rights. UES Product(s) is a “commercial item” as that term is defined in 48 C.F.R. §2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are defined in 48 C.F.R. §12.212 and 48 C.F.R. §227.7202, as applicable, and all as amended from time to time. Consistent with 48 C.F.R. §12.212, 48 C.F.R. §227.7202 and 48 C.F.R. §52.227-19, and other relevant sections of the Code of Federal Regulations, as applicable, and all as amended from time to time, all U.S. Government end users acquire UES Product(s) only with those rights set forth herein.

14.3.11 Essential Basis of the Agreement. Customer acknowledges and understands that the disclaimers, exclusions and limitations of liability set forth in this Agreement form an essential basis of the agreement between the Parties, that the Parties have relied upon such disclaimers, exclusions, and limitations of liability in negotiating the terms and conditions herein, and that absent such disclaimers, exclusions, and limitations of liability, the terms and conditions of the Agreement would be substantially different.

14.3.12 Entire Agreement. This Agreement and/or exhibits referenced herein, and any addendums and amendments, constitute the complete and entire agreement between the Parties with respect to its subject matter, and supersedes all prior discussions, understandings, arrangements, proposals and negotiations with respect to same. The terms and conditions of this Agreement will prevail notwithstanding any variance with the terms and conditions of any purchase order or other documentation submitted by Customer with respect to UES Product(s) or any Services, and UES hereby refuses any such different or additional provisions in purchase orders or other documents. By mutual agreement of the Parties, this Agreement is effective upon execution of a Quote and supersedes all prior Agreements entered into by the Parties, the Parties’ agents, and/or the Parties’ previous affiliates. This Agreement may not be modified or amended without the written agreement of both Parties that specifies the particular Section(s) being modified. The order of precedence is the executed Quote, then this Agreement, then any referenced and applicable exhibits and privacy policy.

 

EXHIBIT A

SUPPORT POLICY

 

1. Definitions. Capitalized terms not defined herein have the meanings assigned to them in the Agreement between Customer and UES to which these Support and Services Policies (“Policies”) are attached. In addition, for purposes of these Policies, the following definitions will apply:

1.1 “Errors” means a reproducible failure of Licensed Product to operate in accordance with its standard Documentation, despite the proper installation and use of the Licensed Product in a proper operating environment and on hardware and system software sufficient to meet UES’s then-current minimum requirements, which are subject to change as New Versions are released. User mistakes are not Errors within the meaning of these Policies. Errors may be due to problems in Licensed Product, Subscription Service, the Documentation, or both.

1.2 “Fix” means a patch, service pack or corrective update of Licensed Product that UES may prepare in its discretion on an interim basis, prior to issuance of a New Version, to correct programming Errors that prevent or obstruct normal operation of Licensed Product or Subscription Service in accordance with the applicable Documentation and developed by UES.

1.3 “New Products” means new products, programs or modules offered by UES and are distinguished from New Versions and Fixes. New Versions and Fixes may include New Products that provide features, functions or applications not included in the Licensed Product originally licensed by Licensee and for which additional license fees apply as determined by UES to access. A New Product may be usable with or in addition to the Licensed Product originally licensed by Licensee. New Products will be licensed to Licensee under the terms of UES’s then-current license agreement only after payment of applicable fees.

1.4 “New Version” mean an updated version of Licensed Product issued by UES, which may include Fixes, together with such other modifications, updates, enhancements and improvements to Licensed Product that UES may, in its discretion, develop and deem ready for distribution and that UES standardly provides to all customers with a current support subscription to such Licensed Product or Subscription Service.

1.5 “Support Services” means those support services described in Section 3.1 below that will be provided hereunder with respect to Subscription Services and Licensed Products during the relevant Support Term.

1.6 “Support Term” means the length of time Support Services are to be provided hereunder and for which the Customer or Licensee has paid any applicable Support Services fees, including any initial Support Term and any renewal Support Terms.

1.7 “Telephone and E-mail Support” means telephone and e-mail support services, available Monday through Friday, during UES’s normal business hours, exclusive of UES’s holidays, regarding Subscription Services and Licensed Product.

 

2. Support Term; Fees. Support Services for Licensed Products provided under certain licensing arrangements are available at an additional cost. If the Customer separately purchases a Support Term, such purchases will be listed separately in the Quote. Support is provided as a part your purchased Subscription Services listed on the Quote and will not require purchase of a separate Support Term. Support with your Subscription Services will continue with the duration of your purchase of a Subscription Service. For Support Services purchased concurrently with a license, the initial Support Term will begin upon shipment (FOB UES’s place of shipment) of Licensed Product (or, in the case of a when made available for download electronically, upon UES’s provision of the necessary licensing information to enable Licensee to download Licensed Product) or launch date when access to the Subscription Services is provided; and terminate one (1) year thereafter, unless a different Support Term is specified in UES’s written acknowledgment of the client’s order, or unless terminated earlier in accordance with the terms of these Policies or the Agreement. Either Party may terminate the provision of Support Services as of the end of the then-current Support Term by providing written notice to the other party prior to the end of the then-current Support Term that such party does not wish to renew the Support Term. Licensee/Customer must provide written notice of non-renewal at least thirty (30) days prior to the applicable Support Term. If notice of non-renewal is not given by either party, the Support Term will automatically renew for the applicable renewal term stated on UES’s renewal invoice at the then current Support fees; otherwise, the Support Term will terminate at the end of Licensee’s current paid-up Support Term. If Licensee’s/Customer’s Support Term is so terminated due to nonpayment, and then UES subsequently reinstates Licensee’s/Customer’s access to support, such reinstated access will remain subject to the terms of these Policies and payment of applicable reinstatement fees. UES reserves the right to charge reinstatement fees in the event deactivated licenses are reactivated. For the initial Support Term, Licensee/Customer must pay the charges specified in UES’s initial invoice. For renewal Support Terms, Licensee/Customer must pay UES’s then-current annual Support Services fees. UES may supply new or modified Support and Services Policies or other terms and conditions in a renewal term, in which event such new or modified Support and Services Policies or other terms and conditions will govern UES’s provision in such renewal term.

 

3. Support Services Scope. UES, or an entity under contract with and authorized by UES to provide Support Services, will provide Support Services for Licensed Product and Subscription Services during the Support Term. The scope of Support Services will be as follows:

3.1 Support. Support Services include: (a) Telephone and E-mail Support; (b) access to an online support website, as maintained by UES for customers maintaining a current support subscription; (c) Fixes, as developed and made generally available by UES in its discretion to address Errors that Licensee is experiencing in using Licensed Product or Customer is experiencing in any Subscription Service; and (d) New Versions, as developed and made generally available by UES. Support Services do not include New Products. UES determines, in its sole discretion, what constitutes a New Product (for which additional license fees apply), and what improvements and enhancements to existing functionality of a Licensed Product or Subscription Service are to be included in a New Version (and are therefore provided at no charge to customers with a current support subscription).

3.2 Custom Programs. For any custom programs developed for Licensee/Customer by UES, Support Services are available only on a time and materials basis at UES’s current rates and charges for these services; support for custom programs is not included in Support Services. In addition, to the extent that Licensed Product or Subscription Service includes any functionality that allows the user to customize screens or reports, UES will support the application infrastructure utilized to create such customizations but will not be responsible for supporting any such customizations.

 

EXHIBIT B

PROFESSIONAL SERVICES POLICY

 

This Exhibit B sets forth the additional policy and party expectations supporting UES’s provision of Professional Services to the Customer/Licensee in connection with the solution provided pursuant to this Agreement.

 

1. Performance of Professional Services.

1.1. Statements of Work. For many professional services projects, UES will capture the project details in signed statement of work (each a Statement of Work” or “SOW”) setting forth the agreed upon scope of the professional service, estimated or actual pricing and any special payment terms and, if applicable, project schedule, and estimated delivery dates. Both Parties will execute each Statement of Work and each is incorporated into this Agreement. For professional services projects not requiring the completion of a SOW, alignment between the Parties on such services are captured in a request form, change order or in the signed Quote. If there is a conflict between the terms set forth in this Agreement and a Statement of Work, the terms set forth in the applicable Statement of Work will control.

1.2 Delivery and Cooperation. Customer/Licensee acknowledges that Customer’s cooperation is essential to the timely performance of UES’s services. Customer will, to the extent required in connection with the performance of UES’s services: (i) provide UES with any necessary Customer materials; (ii) provide UES with any required access to Customer’s personnel, facilities or data; (iii) cause the appropriate personnel to cooperate with UES as required for UES to provide UES’s services, including responding promptly to questions or issues; and (iv) make all payments when due. Customer’s delay or failure to do so may delay the estimated delivery schedules set forth in the Statement of Work or otherwise communicated to the Customer. If Customer/Licensee fails to do any of the foregoing, both Parties will cooperate in good faith to develop a revised written delivery schedule and written Statement of Work or change order signed by both Parties with new pricing. Unless otherwise expressly agreed in a Statement of Work, all Professional Services will be deemed accepted upon delivery.

 

2. Fees and Expenses. In addition to providing Support Services during the Support Term, UES will perform such other Professional Services (training, installation, consulting, project management, etc.) as may be specified in a UES Quote, written acknowledgment of Customer/Licensee’s order, or as may be subsequently agreed upon by the Parties in a SOW; provided that UES may, at its option, arrange for any such services to be performed by another entity on behalf of UES. Customer/Licensee agrees to pay for such services at the rates and charges specified in UES’s written acknowledgment of Customer/Licensee’s order, or, for work subsequently requested, at the rates agreed upon by Customer/Licensee and UES for such subsequent work. UES reserves the right to require a purchase order or equivalent documentation from Customer/Licensee prior to performing any such Services, or to require prepayment of certain Services. Unless otherwise specified, all rates quoted are for services to be performed during UES’s normal business hours; additional charges may apply for evenings, weekends or holidays. Unless otherwise agreed, the Customer/Licensee will also pay UES for travel expenses (lodging, meals, transportation and other related expenses) incurred in the performance of services. All such additional charges will be due and payable concurrently with payment for services. UES reserves the right to impose a minimum labor charge for each on-site visit. The rates and charges specified in UES’s acknowledgment of Customer/Licensee’s order will apply to those services originally ordered; however, UES reserves the right to change service rates or other terms as a condition of entering into any subsequent service engagement. If Customer/Licensee pays in advance for any services, all services must be scheduled and delivered within twelve (12) months of such payment, unless otherwise agreed in writing by UES; any portion of any prepaid services amount that has not been used by Customer/Licensee toward services rendered within such twelve (12) month period will be forfeited.

 

3. Training. UES reserves the right to limit the number of persons permitted to attend any training class in accordance with UES’s training standards.

 

4. Changes to Project Scope. Customer/Licensee may request changes to the scope of a Statement of Work. Any changes to the scope of a statement of work will result in a change order to such statement of work or a new statement of work. Any scope changes will be made pursuant to the terms set forth in a Statement of Work, to be mutually agreed upon by the Parties.

 

5. Services Cancellation. Customer/Licensee will pay a cancellation charge equal to fifty percent (50%) of the services fee and any non-refundable expenses incurred by UES if Customer/Licensee cancels any scheduled professional services less than fourteen (14) days before the occurrence of any service dates that UES has scheduled at Customer/Licensee’s request.

 

6. Ownership of Materials. UES is the owner of all copyrights, patent rights and other intellectual property rights in any software code, documentation, reports or other deliverables (collectively, “Deliverables”) created for or provided to Customer/Licensee pursuant to any Professional Services, unless otherwise agreed to in writing. Provided that all UES fees and expenses associated with the development and provision of such Deliverables are paid timely, Customer/Licensee will have a paid-up, royalty-free license to use such Deliverables for Customer/Licensee’s internal use only, solely for the purpose for which such Deliverables were provided. Nothing in this Agreement will prevent UES from providing any Deliverables to UES’s other customers or third parties. Notwithstanding the foregoing, UES acknowledges and agrees that any confidential information of a Customer/Licensee incorporated into any Deliverable remains subject to the provisions of such Section.

 

7. Data Loads. For most Licensed Products and Subscription Services, successful implementation requires proper data loads in specific formats and layouts. UES will inform the Customer/Licensee of the specific instructions such as data file layouts to support the data load for the implementation of a Licensed Product or Subscription Service. If the Customer/Licensee is unable to provide the data as required, UES may offer services to complete the data load at an additional charge. If such services are purchased, Customer/Licensee agrees to follow UES’s specific instructions and use best efforts to support the data load activity as outlined by UES any such data load or migration. UES will not directly access non-UES applications to assist the Customer/Licensee in any data migration activity. Successful implementation is the shared obligation of both Parties. 

 

EXHIBIT C

HOSTING SERVICES POLICY

 

1. Term; Fees. Hosting Services are available at an additional cost. For Hosting Services purchased concurrently with Customer’s access to Subscription Services, Customer’s initial Hosting Term will begin as of the start date listed on the signed Quote and terminate one (1) year thereafter, (“Hosting Term”) unless a different Hosting Term is specified in the UES Quote, or unless terminated earlier in accordance with the terms of these Policies or the Agreement. Either Party may terminate the provision of Hosting Services as of the end of the then-current Hosting Term by providing written notice to the other party prior to the end of the then-current Term that such party does not wish to renew the Hosting Term. UES will provide Customer with at least sixty (60) days’ notice if UES determines that it will no longer offer Hosting Services to Customer (but in any event will continue providing Hosting Services for the balance of the current term for which Customer has prepaid for such Services). If notice of non-renewal is not given by either party, then UES will invoice Customer for the applicable renewal fees for a subsequent Hosting Term. If Customer’s Hosting Term is terminated due to non-payment, and then UES subsequently reinstates Customer’s access to Hosting Services, such reinstated access will remain subject to the terms of these Policies and payment of applicable reinstatement fees. For the initial Hosting Term, Customer must pay the charges specified in UES’s initial invoice. For renewal Terms, Customer must pay UES’s then-current annual Hosting Services fees. UES may supply new or modified Support and Services Policies or other terms and conditions to Customer related to the provision of Hosting Services in a renewal term, in which event such new or modified Support and Services Policies or other terms and conditions will govern UES’s provision of Hosting Services in such renewal term.

 

2. Availability. Customer acknowledges that the Subscription Service may be inaccessible or inoperable from time to time due to planned maintenance or to causes that are beyond the control of UES or are not reasonably foreseeable by UES, including, but not limited to: a force majeure event as defined in the Agreement, the interruption or failure of telecommunication or digital transmission links; hostile network attacks; network congestion; or other failures (collectively “Downtime”). UES will use commercially reasonable efforts to minimize any disruption, inaccessibility and/or inoperability of the Subscription Service caused by Downtime, whether scheduled or not. The foregoing does not apply to non-production systems, such as test, training and archival systems, which are available on an hourly basis.

 

3. 3. Acceptable Use Policy. Customer acknowledges that UES does not monitor or police the content of communications or Customer data or its users’ activities transmitted through the Subscription Services, and that UES will not be responsible for the content of any such communications or transmissions. Customer must use the Subscription Services exclusively for authorized and legal purposes, consistent with all applicable laws and regulations and UES’s policies. Customer agrees not to post or upload any content or data which: (a) is libelous, defamatory, obscene, pornographic, abusive, harassing or threatening; (b) violates the rights of others, such as data which infringes on any intellectual property rights or violates any right of privacy or publicity; or (c) otherwise violates any applicable law. UES may remove any violating content posted or transmitted through the Hosting Services, without notice to Customer. UES may suspend or terminate any user’s access to the Hosting Services upon notice in the event that UES reasonably determines that such user has violated the terms and conditions of this Agreement.

 

4. Security. In addition to complying with “Exhibit D: Security and Privacy”, Customer will not: (a) breach or attempt to breach the security of the Hosting Services or any network, servers, data, computers or other hardware relating to or used in connection with the Hosting Services, or any third party that is hosting or interfacing with any part of the Hosting Services; or (b) use or distribute through the Hosting Services any software, files or other tools or devices designed to interfere with or compromise the privacy, security or use of the Hosting Services or the operations or assets of any other customer of UES or any third party. Customer will comply with the user authentication requirements for use of the Hosting Services. Customer is solely responsible for monitoring its authorized users’ access to and use of the Hosting Services. UES has no obligation to verify the identity of any person who gains access to the Hosting Services by means of an access ID. Any failure by any authorized user to comply with the Agreement is a material breach by Customer, and UES will not be liable for any damages incurred by Customer or any third party resulting from such breach. Customer must immediately take all necessary steps, including providing notice to UES, to effect the termination of an access ID for any authorized user if there is any compromise in the security of that access ID or if unauthorized use is suspected or has occurred. UES WILLL NOT BE RESPONSIBLE FOR ANY COSTS OR EXPENSES RELATED TO A SECURITY INCIDENT THAT IS CAUSED BY THE ACTS OR OMISSIONS, MISCONDUCT, NEGLIGENCE, OR FRAUD BY OR OF CUSTOMER OR ANY OF ITS USERS, EMPLOYEES, AGENTS, OR CONTRACTORS.

 

5. Data. Customer has sole responsibility for the legality, reliability, integrity, accuracy and quality of the data it processes through and submit to the Hosting Services.

 

EXHIBIT D

DATA PRIVACY AND SECURITY

 

1. Ownership of Materials; Confidentiality; Compliance.

1.1. All pre-existing proprietary data, materials and other intellectual property of UES that is provided to Customer by UES in connection with the performance of this Agreement (collectively, “UES’s Pre-existing Intellectual Property”) will remain UES’s property, except where any written or other tangible materials or customizations delivered to Customer under a specific Statement of Work and Quote is licensed differently.

1.2. All Customer data and records uploaded or transmitted to UES under this Agreement (collectively, “Customer Documents and Data”) continues to be the property of Customer. UES will maintain all such Customer Documents and Data in strict confidence and will not disclose any such Customer Documents and Data, or copies thereof, to any person or entity other than Customer’s legal counsel or Customer’s designated contact, or pursuant to the Agreement. The data shared pursuant to this Agreement, including persistent unique identifiers, will be used for no purpose other than the performance of the Services, improvement of UES Product(s), or internal research. Should UES, either during or following termination of the Agreement, desire to use any Customer Documents and Data for its own purposes not contemplated in this Agreement, it must first obtain the prior written approval of Customer. Customer Documents and Data will not consist of De-identified Data.

1.3. UES acknowledges that Customer and Customer Users retain full right and ownership to all of their user-generated content (such content not encompassing any modifications to UES’s Pre-existing Intellectual Property),unless such rights are specifically granted to UES in a writing signed by Customer and the User or, if the User is a minor child, by the child’s parent/guardian. UES agrees not to edit, make available, distribute or otherwise disclose any information or content, including any Customer Documents and Data, generated or obtained from Customer or Users, whether submitted on UES’s Site or otherwise obtained, unless: (1) integral to and clearly contemplated by the particular nature of the Services or otherwise permitted pursuant to this Agreement, or (2) written permission is first procured.

1.4. The Parties acknowledge that (i) Customer Documents and Data may include personally identifiable information from education records that are subject to the Family Educational Rights and Privacy Act, as amended (“FERPA Records”); and (ii) to the extent that Customer Documents and Data includes FERPA Records, UES will be considered a “School Official” (as that term is used in FERPA and its implementing regulations) and will comply with the requirements and obligations of School Officials under FERPA. Each party represents and warrants to the other party that it will comply with all provisions of FERPA applicable to such party’s performance hereunder.

1.5. The Parties also acknowledge that Customer Documents and Data may include personally identifiable information from children under the age of 13, subject to the Children’s Online Privacy Protection Act and related regulations (“COPPA”). Where applicable, Customer acknowledges that it will act as agent for the parents of students under the age of 13 for purposes of COPPA. Customer represents to UES that through the duration of this Agreement, the Customer is duly authorized to provide the data to UES for processing based on having obtained parental consent where necessary. Customer further acknowledges that it has read, fully understands, and agrees to abide by UES’s Privacy Policy, available at www.UES.com/privacy and as may be revised from time-to-time, incorporated by reference herein.

1.6. UES will safeguard and keep confidential personal or sensitive information obtained from a Customer User, including, but not limited to, personally identifying information such as the name, email address or screen name of the Customer User.

1.7. The terms herein will not be construed as prohibiting either party hereto from disclosing information to the extent required by law, regulation, or court order, provided such party notifies the other party promptly after becoming aware of such obligations and permits the other party to seek a protective order or otherwise to challenge or limit such required disclosure.

 

2. Disposition of Data.

2.1. Upon written request and in accordance with the applicable terms in Sections 2.2 or 2.3, below, UES will dispose or delete all Customer Documents and Data within a commercially reasonable time period when it is no longer needed for the purpose for which they were obtained. Customer must inform UES when Customer Documents and Data is no longer needed. Disposition will include (1) the shredding of any hard copies of any Customer Documents and Data; (2) erasing; or (3) otherwise modifying the personal information in those records to make the information unreadable or indecipherable by human or digital means. Nothing in this Agreement authorizes UES to maintain Customer Documents and Data beyond the time period reasonably needed to complete the disposition. Upon request by Customer, UES will provide written notification to Customer when all Customer Documents and Data have been disposed. Upon receipt of a request from Customer, UES will immediately provide Customer access to Customer confidential information, specifically personnel data, within ten (10) calendar days of receipt of said request, as commercially reasonable.

2.2. Partial Disposal During Term of this Agreement. Throughout the Term of this Agreement, Customer may request partial disposal of Customer Documents and Data that is no longer needed. Partial disposal of Customer Documents and Data will be subject to Customer’s request to transfer such data to a separate account. To the extent Customer is unable to transfer such data by their own accord, UES agrees to assist Customer to transfer any Customer Documents and Data in question, so long as it is commercially reasonable to do so. To the extent transfer or partial disposal of Customer Documents and Data is not commercially reasonably, UES will inform the Customer of the actual costs to undertake such a transfer, and Customer may reasonably agree to pay the cost of such transfer. All transfers must comply with applicable law. UES is not liable or in breach of this Agreement when it denies a transfer it reasonably believes is not in compliance with the law. Any transfer made on Customer’s written request that such transfer is compliant with the law requires Customer to fully indemnify, defend, and hold harmless UES from complying with Customer’s instructions.

2.3. Complete Disposal Upon Termination of this Agreement. Upon termination of this Agreement, UES will dispose of or delete all Customer Documents and Data within a commercially reasonable time period following termination; provided, however, in no event will UES dispose of Customer confidential information pursuant to this provision unless and until UES has received affirmative written confirmation from Customer that Personnel Data need not be transferred to a separate account.

2.4. Transfer to Succeeding Vendor Upon Termination. Upon termination, or upon a party’s receipt of effective notice of termination, of this Agreement, UES will, if so requested by Customer, securely transfer all Customer Documents and Data directly from UES’s Site to the hosting site or platform of another vendor designated by Customer, such transfer to occur on a date on or after the effective date of termination as directed by Customer in a format mutually agreed by UES. UES will have no obligation to transfer Customer Documents and Data in a form or format specified by succeeding vendor, but UES will provide Customer Documents and Data in a manner that is agreed upon as industry standard. To the extent transfer or partial disposal of Customer Documents and Data is not commercially reasonably, UES will inform the Customer of the actual costs to undertake such a transfer, and Customer may reasonably agree to pay the cost of such transfer.

 

3. Data Security. UES agrees to abide by and maintain adequate data security measures, consistent with industry standards and technology best practices for digital storage of sensitive personal data, to protect Customer Documents and Data from unauthorized disclosure or acquisition by an unauthorized person. The general security obligations of UES are set forth below. These security measures will include, but are not limited to:

 

3.1. Passwords and Employee Access. UES will secure usernames, passwords, and any other means of gaining access to the Services or to Personnel Data, at a level meeting or exceeding the applicable standards. UES will only provide access to Personnel Data to employees or contractors who require access pursuant to the Agreement.

3.2. Security Protocols. The Parties agree to maintain security protocols that meet industry standards in the transfer or transmission of any data, including ensuring that data may only be viewed or accessed by parties legally allowed to do so. UES will maintain all data obtained or generated pursuant to this Agreement in a secure digital environment and will not copy, reproduce, or transmit data obtained pursuant to this Agreement, except as necessary to fulfill the purpose of data requests by Customer.

3.3. Employee Training. UES will provide periodic security training to those of its employees who operate or have access to the system. Further, UES will provide Customer with contact information of an employee whom Customer may contact if there are any security concerns or questions.

3.4. Security Technology. UES will employ industry standard measures to protect data from unauthorized access. The service security measures will include server authentication and data encryption. UES will host data pursuant to this Agreement in an environment using a firewall that is updated according to industry standards.

3.5. Security Coordinator. UES will provide the name and contact information of UES’s security coordinator for the Personnel Data received pursuant to this Agreement upon written request.

3.6. Subprocessors Bound. UES will enter into written agreements whereby subprocessors agree to secure and protect Personnel Data in a manner consistent with the terms of this Section 3. UES will periodically conduct or review compliance monitoring and assessments of subprocessors to determine their compliance with this Section 3. For the purposes of this Agreement, the term “subprocessor” means a party other than Customer or UES, whom UES uses for data collection, analytics, storage, or other service to operate and/or improve its software, and who has access to Personnel Data.

3.7. Periodic Risk Assessment. UES further acknowledges and agrees to conduct digital and physical periodic risk assessments at least annually and remediate any identified security and privacy vulnerabilities in a timely manner.

 

4. Data Breach. In the event Personnel Data is accessed or obtained by an unauthorized individual or third party, UES will provide notification to Customer within a reasonable amount of time of confirmation of the incident, not exceeding seventy-two (72) hours. UES will follow the following process:

 

4.1. The security breach notification will be written in plain language, will be titled “Notice of Data Breach,” and will present the information described herein under the following headings: “What Happened,” “What Information Was Involved,” “What We Are Doing,” “What You Can Do,” and “For More Information.” Additional information may be provided as a supplement to the notice.

4.2. The security breach notification described above in Section 4.1 will include, at a minimum, the following information:

 

4.2.1.The name and contact information of Customer’s Designee or his designee for this purpose.

4.2.2. A list of the types of personal information that were or are reasonably believed to have been the subject of a breach.

4.2.3. If the information is possible to determine at the time the notice is provided, then either (1) the date of the breach, (2) the estimated date of the breach, or (3) the date range within which the breach occurred. The notification will also include the date of the notice.

4.2.4. Whether the notification was delayed as a result of a law enforcement investigation, if that information is possible to determine at the time the notice is provided.

4.2.5. A general description of the breach incident, if that information is possible to determine at the time the notice is provided.

 

4.3. UES agrees to adhere to all requirements in applicable state and federal law with respect to a data breach related to the Customer Documents and Data, including, when appropriate or required, the required responsibilities and procedures for notification and mitigation, where commercially reasonable, e of any such data breach.

 

4.4. UES further acknowledges to have a written incident response plan that reflects best practices and is consistent with industry standards and federal and state law for responding to a data breach, breach of security, privacy incident, or unauthorized acquisition or use of the Personnel Data or any portion thereof, including personally identifiable information and agrees to provide Customer, upon request, with a copy of said written incident response plan.

 

4.5. If Customer requests UES’s assistance providing notice of unauthorized access, and such assistance is not unduly burdensome to UES, UES will assist in notifying the affected individual(s) of the unauthorized access, which will include the information listed in Sections 4.1 and 4.2, above. 

 

EXHIBIT E

PRODUCT SPECIFIC TERMS

 

This Exhibit contains terms and conditions specifically for certain products or services of UES. Such terms do not apply to all UES products in general.

 

1. TERMS RELATING TO EMBEDDED APPLICATIONS

 

1.1 Google. The following terms are applicable to a certain Embedded Application known as Google Classroom (the “Classroom”): Classroom may only be used in conjunction with the Subscription Services and solely for Customer’s internal business purposes.

 

1. a) Google, Inc. (“Google”) will have no liability whatsoever to Customer for any damages, whether direct, indirect, incidental, or consequential arising from Customers use of Subscription Services or Classroom.
2. b) Customer is prohibited from publishing the results of any benchmark tests run on Classroom.
3. c) Customer will be prohibited from timesharing, rental, facility management, or service bureau use of Classroom.
4. d) Customer’s records may be audited, by UES or Google, during normal business hours to verify compliance with the terms of this Agreement.
5. e) Google will be a third party beneficiary of this Agreement.
6. f) Should Classroom contain any source code provided by Google, such source code will be governed by the terms of this Agreement.

 

1.2 GPL Software. Certain Embedded Applications included with the Subscription Services may be free software licensed under the terms of the GNU General Public License (GPL). Customer may obtain a complete machine-readable copy of the source code for such free software under the terms of the GPL, without charge except for the cost of media, shipping, and handling, upon written request to UES. The GPL software is distributed in the hope that it will be useful, but WITHOUT ANY WARRANTY, including even the implied warranties of MERCHANTABILITY or FITNESS FOR A PARTICULAR PURPOSE. A complete copy of the GPL is included within the Subscription Services.

 

2. STATE OR PROVINCIAL REPORTING CODE. UES makes no representation that the UES SIS, nor any of its other products include any SRC or PRC designed to meet the reporting requirements of Licensee’s state or province, as applicable. If UES does offer SRC or PRC for Licensee’s state or province, Licensee acknowledges that the SRC or PRC is intended as a tool to assist Licensee in complying with state or provincial regulatory requirements; however, UES does not warrant or guarantee that the SRC or PRC conforms to, or that use of the SRC or PRC will ensure Licensee’s compliance with, all state or provincial regulatory requirements that may apply or that the SRC or PRC will be maintained to conform to such requirements now or in the future. It is Licensee’s, and not UES’s, responsibility to understand and comply with all such requirements.

3. HARDWARE. If Customer is purchasing any hardware through UES, Customer acknowledges that such hardware purchase is being facilitated by UES as an accommodation to Customer only. The warranties on any hardware not manufactured by UES will be limited to those provided by the manufacturers of such hardware and/or the vendors through which such hardware is being supplied. UES will pass through any manufacturer’s or other vendor’s warranty to the extent permitted by the manufacturer or other vendor, as applicable. Customer agrees to look solely to the applicable manufacturer or other vendor, and not to UES, to fulfill any such warranties and any maintenance, repair, support, or other service obligations related to such hardware. Unless otherwise specifically agreed to in writing by UES, UES does not provide support for any of the hardware or third party software being purchased by Customer through UES. Any requests for such support should be directed to the applicable hardware or software manufacturer. Customer further agrees that any claims related to any such hardware, whether for breach of warranty or otherwise, must be made directly against the applicable manufacturer or other vendor, and not against UES, and that UES will have no liability whatsoever in connection with such claims.