STANDARD SERVICE PURCHASE AND SOFTWARE LICENSE TERMS

Transcription

1 STANDARD SERVICE PURCHASE AND SOFTWARE LICENSE TERMS The Terms and Cnditins cntained in this dcument (the Standard Terms ) apply t any transactin whereby we (smetimes referred t in this dcument as we us r ur ) prvide t yu ur custmer (referred t as yu r yur as identified in mre detail n the applicable Order Frm ( Order Frm )) (1) license rights t use ur Sftware fr a fixed term, (2) Materials fr use with the Sftware, r (3) Prfessinal Services. These Standard Terms are an integral part f an agreement (the Agreement ) that cnsists f (in rder f precedence) an Order Frm, these Standard Terms, and any dcuments incrprated by reference int either the Order Frm r Standard Terms (including thse incrprated by hyperlink reference). Yu acknwledge that the Order Frm and the Standard Terms cnstitute the entire agreement between the parties and will supersede and replace any prvisins in yur purchase rder r ther cntracting r purchasing dcuments that d nt exactly mirrr these terms. The Agreement will be effective as f the Order Date specified n the Order Frm and will be binding when the Order Frm has been executed by yu. We reserve the right t require yur submissin f ne r mre purchase rders in accrdance with the terms utlined in yur Order Frm. Capitalized terms used thrughut the Agreement are defined in the Order Frm, in sectin 5.0 (belw), and elsewhere in these Standard Terms. These Standard Terms may nly be superseded r amended by ther terms and cnditins yu and we have specifically dcumented in a signed Order Frm. 1.0 SOFTWARE: The fllwing terms and cnditins will apply t yur transactin with us as described in mre detail n the Order Frm: 1.1 General License Terms. All Sftware license rights that we grant yu are specifically subject t the fllwing general terms and cnditins: All licenses are nn-exclusive, nn-transferable and nn-assignable We either wn r have licensed frm third parties all rights necessary t grant the licenses being granted yu in the Sftware. We r ur licensrs wn and retain all rights, title and interest in and t the Sftware and all ideas, cncepts, methdlgies, frmats, specificatins, and ther knw- hw furnished by us r ur licensrs in cnnectin with this Agreement, as well as all related intellectual prperty rights All access and use f Sftware under this Agreement will be subject t ur Privacy Plicy, which can be fund at which is expressly made a part f this Agreement Licenses granted under this Agreement will be autmatically revked if this Agreement is terminated and autmatically terminate n the license expiratin date as identified n the Order Frm. We reserve the right t suspend r revke any license granted under this Agreement if yu breach this Agreement We reserve the right t terminate access t any Sftware t the extent we end f life r similar the Sftware. If we exercise this right we will transitin yu t an apprpriate alternative Sftware prduct that we wn r license. 1.2 Restrictins. Yu and yur Users will use the Sftware slely fr the purpses stated in the applicable license grants and will nt: (i) mdify, cpy r create derivative wrks based n the Sftware; (ii) frame r mirrr any cntent frming part f the Sftware, ther than fr yur wn internal educatinal r training purpses during the license term and nt in vilatin f any use r User restrictins; (iii) reverse engineer, decmpile r disassemble the Sftware; (iv) access r allw thers t access the Sftware in rder t build, market r ffer a cmpetitive prduct r service, r cpy any ideas, features, functins, answers, questins, cntents r graphics f the Sftware; (v) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share r therwise cmmercially explit r make the Sftware available t any third party, ther than t Users as cntemplated by this Agreement; (vi) send spam r therwise unslicited messages in vilatin f applicable laws; (vii) send r stre infringing, bscene, threatening, libelus, r therwise unlawful r trtius material, including material that is harmful t children r vilates third party privacy rights; (viii) intentinally send r stre any viruses, wrms, time bmbs, Trjan hrses r ther harmful r malicius cde, files, scripts, agents r prgrams; (ix) interfere with r disrupt the integrity r perfrmance f the Sftware r the data cntained therein; (x) attempt t gain unauthrized access t the Sftware r its related systems r netwrks; r (xi) publicly display r publicly perfrm the Sftware withut ur prir written permissin. 1.3 Sftware Operability: Maintenance and Access. During the Subscriptin Perid, we will use cmmercially reasnable effrts t make the Sftware available (subject t rutine maintenance windws and unavailability nt caused by us) t yu and yur Users via the Internet 24 hurs a day, 7 days a week. All access rights fr yu and yur Users will be via the wrldwide web using a brwser and Internet cnnectin cmpliant with the System Requirements (described in sectin 1.4) Outage Perids. The term Outage Perid means a perid f mre than 48 cnsecutive hurs in which yur Users are prevented frm accessing the Sftware due t factrs cmpletely within ur cntrl during a perid that yu are nt in breach f this Agreement. Outage Perids exclude (a) planned dwntime and (b)any Frce Majeure event. If yu experience an Outage Perid, then upn yur written request we will issue yu a credit fr the pr-rated share f fees yu have paid fr usage during the mnth during which the Outage Perid ccurs. Yur request fr this credit must be made within 30 days after the end f the Outage Perid. Yur sle and exclusive remedy fr an Outage Perid will be the abve credit. 1.4 System Requirements. Our System Requirements dcument (fund at ( System Requirements ) details the necessary hardware, sftware, system cnfiguratin, netwrk infrastructure, bandwidth and ther peratinal requirements necessary fr yu t successfully perate and use the Sftware. The System Requirements are subject t peridic change. Yu acknwledge that yu are respnsible fr the cst, peratin and availability f, and yu and yur Users cmpliance with, all elements f the System Requirements. 1.5 Respnsibility fr User Activity. Yu are respnsible fr all activities that ccur in User accunts and fr cmpliance by yur Users with these Standard Terms. Yu will: (i) have sle respnsibility fr the accuracy, quality, integrity, legality, reliability, and apprpriateness f all Custmer Data; (ii) use cmmercially reasnable effrts t prevent unauthrized access t, disclsure f r use f the Sftware, and ntify us prmptly f any such unauthrized access r use; and (iii) in cnnectin with this Agreement, cmply (and ensure cmpliance by yur Users) with all applicable lcal, state and federal laws, rules and regulatins. Edmentum Standard Service Purchase and Sftware License Terms rev // Page 1 f 5

2 1.6 Intellectual Prperty Reservatin f Rights. The Sftware we are prviding is licensed t yu, nt sld. Subject t the limited rights expressly granted t yu and yur Users herein, we reserve all rights, title and interest in and t the Sftware and any Materials we prvide, including all related intellectual prperty rights (except fr thse wned by ur third-party vendrs and licensrs, which are reserved t them). N ther rights are granted t yu r yur Users Rights t Custmer Data. As between yu and us, yu wn all rights, title and interest in and t all Custmer Data. Yu hereby grant us a nn-exclusive, ryalty free license t perpetually use, mdify, distribute and wrk with the Custmer Data t the extent that we d s in cmpliance with applicable law and ur Online Learning Prgrams Privacy Plicy Suggestins. We will have a ryalty-free, wrldwide, transferable, sub-licensable, irrevcable, perpetual license t use r incrprate int the Sftware any suggestins, enhancement requests, recmmendatins r ther feedback prvided by yu r yur Users relating t the Sftware Custm Learning Paths a. Rights t Custm Learning Paths. Certain Sftware allws yu t custmize the instructinal cntent f the Sftware t suit yur instructinal needs. Yur Learning Paths refers t the custm learning paths yu create using this feature f the Sftware. We make n warranties r cmmitments related t yur ability t access r use Yur Learning Paths during the term f yur licenses r at the expiratin r terminatin f yur licenses. b. Our Use f Yur Learning Paths. We may use r mdify Yur Learning Paths and may prvide them t ur ther custmers. c. Custmer Created, Mdified r Stred Cntent. Certain Sftware enables yu t create, custmize r stre cntent, dcumentatin r therwise. If yu d, yu accept, agree and acknwledge that (i) we can use and disseminate such items, (ii) at the expiratin r terminatin f yur licenses, we will nt be returning these items t yu and yu have n rights in such items and (iii) yu are respnsible fr ensuring that all laws, regulatins and judicial precedence is fllwed in such creatin, custmizatin, disclsure r strage, including but nt limited t intellectual prperty laws and yu will indemnify us and ur affiliates, successrs and assigns in the event yu fail t d s. 1.7 Limited Warranty fr Sftware. Subject t the terms f Sectin 4.6, we warrant that the Sftware will perfrm in substantial accrdance with the applicable Dcumentatin during the Subscriptin Perid. This warranty is cntingent n yur use f the Sftware in accrdance with this Agreement and the applicable Dcumentatin. If we breach this express warranty, and yu prmptly infrm us f such in writing, we will at ur ptin and expense: (a) mdify the affected Sftware t generally cnfrm with the applicable Dcumentatin, r (b) prvide a replacement fr the affected Sftware which generally cnfrms with that Dcumentatin, r (c) refund yu the prtin f yur license price related t the applicable Sftware that is attributable t the remaining Subscriptin Perid. This will be ur sle bligatin, and yur sle remedy, with respect t any breach f this warranty. EXCEPT FOR THE EXPRESS WARRANTY PROVIDED IN THIS SECTION, THE SOFTWARE IS PROVIDED ON AN AS IS AND AS AVAILABLE BASIS, WITHOUT ANY ADDITIONAL WARRANTIES OF ANY KIND. WE DO NOT WARRANT THAT THE SOFTWARE WILL PERFORM UNINTERRUPTED OR BE ERROR- FREE OR THAT THE SOFTWARE WILL MEET YOUR PARTICULAR REQUIREMENTS. 2.0 THIRD PARTY SOFTWARE AND SERVICES. The fllwing terms and cnditins will apply t all Third-Party Sftware and Third Party Services. 2.1 Subject t Third Party s Warranties and Terms. Third Party Sftware and Third Party Services are distributed by us as a licensr, distributr r reseller. These prducts and services are prvided subject t the separate license and sale terms, cnditins and restrictins required by the third party. WE DO NOT PROVIDE, AND WE EXPRESSLY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE, ON ANY THIRD-PARTY SOFTWARE AND SERVICES WE SUPPLY OR MAKE AVAILABLE TO YOU. IN ADDITION, WE DO NOT GUARANTEE THE AVAILABILITY OF SUCH THIRD-PARTY SOFTWARE OR SERVICES AND SUCH SOFTWARE OR SERVICES MAY BE MODIFIED OR REMOVED AT ANY TIME. 2.2 Warranty Claims. We will use reasnable cmmercial endeavrs t facilitate warranty claims yu may make against the third party supplying such prducts r services. This is ur sle bligatin relative t these prducts r services. 3.0 PROFESSIONAL SERVICES. Prfessinal Services listed n the Order Frm will be prvided subject t the fllwing terms and cnditins: 3.1 Mutual Cperatin. Yu and we mutually agree t cperate with each ther in a prfessinal and curteus manner in the perfrmance f ur respective duties in the delivery f Prfessinal Services. 3.2 Scheduling Changes Caused by Yu. Yu agree t ntify us at least 5 business days in advance f yur intentin t reschedule previusly cnfirmed n-site Prfessinal Services sessins. If yu d nt prvide such ntice, and we are unable t re-assign the resurces scheduled t prvide yur Prfessinal Services, we reserve the right t charge yu a cancellatin fee f up t $750 fr each day cancelled withut such ntice. 3.3 Scheduling Changes Caused by Us. If we are required t reschedule (except fr reasns caused in whle r in part by yu r that are utside ur reasnable cntrl) a previusly cnfirmed n-site Prfessinal Services delivery sessin, we will use all reasnable effrts t prvide yu at least 5 business days ntice. If we d nt prvide such ntice, and yu incur reasnable direct, nn-refundable expenses which yu have made gd faith effrts t avid, we will upn yur written request (which must include dcumentatin f these expenses) prvide yu a credit fr such expenses. In n case, hwever, will the amunt f credit exceed $ Acceptance f Services and Warranty Warranty and Acceptance. We warrant that the Prfessinal Services we prvide will be perfrmed in a wrkmanlike manner. If yu reasnably determine that the Prfessinal Services have nt met this standard, yu must prvide us written ntice specifying any deficiencies in detail within 10 business days after the service delivery. We will then use reasnable cmmercial effrts t cure any such deficiencies prmptly which may include ur prviding additinal Prfessinal Services at ur expense. If yu d nt prvide ntice f any deficiencies t us within the 10-day perid, yur acceptance f the Prfessinal Services will be cnsidered final. Edmentum Standard Service Purchase and Sftware License Terms rev // Page 2 f 5

3 3.4.2 Failure t Cure. If yu give us ntice under subsectin and we are unable t cure the deficiency within 60 days after yur ntice, yu may terminate the directly affected prtins f service and btain a refund f amunts yu have paid fr the terminated Prfessinal Services Sle remedies. The remedies specified in this sectin 3.4 are yur nly Prfessinal Services related remedies. 3.5 Cmpliance with Wrkplace Rules. We will have the persn r persns we assign t perfrm the Prfessinal Services cmply with thse f yur lawful wrkplace rules yu have prvided t us and them in writing in advance. 3.6 Subcntractrs. We may, in ur reasnable discretin, use third parties, including, but nt limited t agents, t perfrm any f ur bligatins regarding delivery f the Prfessinal Services. 4.0 GENERAL TERMS 4.1 Fees and Payment Fees. Yu agree t timely pay all amunts due t us as shwn n the Order Frm and acknwledge that by submitting a signed Order Frm, yu are representing t us that the emplyee r agent signing n yur behalf has the requisite authrity t bind yu t the terms and cnditins f the Agreement, including the payment bligatins identified n the Order Frm. Except if specified in the Order Frm r in sectin (re Outages) all such amunts are nn- cancellable and nn-refundable. T the extent that yu fail t timely pay all amunts due as identified n the applicable Order Frm, yu accept that we can institute any and all cllectin effrts and legal claims that we deem apprpriate and that yu shall pay us fr all csts and expenses (including attrney s fees) we incur in cnnectin with such cllectin effrts and claims Taxes. Except t the extent yu prvide us with a valid tax exemptin certificate authrized by the apprpriate taxing authrity cvering all applicable taxes therwise due and payable, we will invice yu fr and yu will pay any applicable direct r indirect lcal, state, federal r freign taxes, levies, duties r similar gvernmental assessments f any nature, including, but nt limited t, value-added, grss receipts, sales, use r withhlding taxes assciated with yur license r purchases under this Agreement, except fr taxes based n ur net incme r real prperty Acceptance. All Sftware will be deemed accepted upn ur making it available t yu nline and will thereafter be subject t the limited warranty prvisin f this Agreement. 4.2 Cnfidentiality Definitin f Cnfidential Infrmatin. "Cnfidential Infrmatin" means all cnfidential and prprietary infrmatin disclsed by ne party (the Disclser ) t the ther (the Receiver ) and that is either designated as cnfidential r f a type that shuld be reasnably expected t be cnfidential. Cnfidential Infrmatin includes the Custmer Data, ur Sftware, business and marketing plans, technlgy and technical infrmatin, prduct designs, and business prcesses, but des nt include any infrmatin that, withut breach f bligatin wed t Disclser: (a) is r becmes generally knwn t the public; (b) was knwn t the Receiver prir t its disclsure by the Disclser; (c) was independently develped by the Receiver; r (d) is received frm a third party Prtectin. The Receiver will nt disclse r use any Cnfidential Infrmatin f the Disclser fr any purpse utside the scpe f this Agreement, except with the Disclser's prir written permissin. The Receiver will prtect the Cnfidential Infrmatin f the Disclser as if it were the Receiver s wn Cnfidential Infrmatin, and at a minimum, with reasnable care. This bligatin will survive terminatin f this Agreement fr a perid f 3 years. Yu accept and acknwledge that yu input the infrmatin and data int ur Sftware, including any Student persnal infrmatin that yu deem necessary and that we have n cntrl ver such input, that certain third parties may have access t such infrmatin and data t assist in enhancing the Sftware and in facilitating yur Users use and access f the Sftware and that we may retain the data and infrmatin that yu prvide in accrdance with ur nrmal retentin and destructin practices n certain r ur servers, SAN and/r clud backups Cmpelled Disclsure. If by curt rder, legal requirement r regulatry authrity the Receiver is frced t disclse Cnfidential Infrmatin f the Disclser, the Receiver will (t the extent legally permitted) give the Disclser prmpt ntice f the rder and will prvide, at the Disclser s request and cst, reasnable assistance t cntest the disclsure Remedies. If the Receiver disclses r uses (r threatens t disclse r use) any Cnfidential Infrmatin f the Disclser in breach f this sectin, the Disclser will have the right, in additin t any ther available remedies, t seek injunctive relief t prevent further (r the threatened) disclsure. 4.3 Indemnities Our Indemnificatin f Yu. Subject t the cnditins described belw and the prvisins f sectin 4.6, we will defend, indemnify and hld yu harmless against any lss, damage r csts (including reasnable attrneys' fees) incurred in cnnectin with claims, demands, suits, r prceedings (cllectively called Claims ) made r brught against yu by a third party, as fllws: a. Fr Persnal Injury r Prperty Damage. Our indemnity cvers Claims alleging persnal injury r prperty damage t the extent caused by the willful miscnduct r grss negligence f ur persnnel while n yur premises. b. Fr Infringement. Our indemnity cvers Claims alleging that yur Users use f the Sftware in accrdance with the terms f this Agreement, r any Materials furnished by us in cnnectin with this Agreement infringes the intellectual prperty rights f a third party. We will have n indemnificatin bligatins r ther liability fr any claim f infringement r misapprpriatin t the extent (a) based n specificatins r directins yu prvided, (b) yur use f a superseded r altered versin f sme r all f the Sftware r Materials if infringement wuld have been avided by the use f a subsequent r unaltered release f the Sftware r Materials prvided t yu r (iii) yur use ccurs in a jurisdictin ther than the United States. If the Sftware becmes, r in ur pinin is likely t becme, the subject f an infringement claim, we may, at ur ptin and expense, either prcure fr yu the right t cntinue using the Sftware; replace r mdify the Sftware s that it becmes nn-infringing and remains functinally equivalent; r require the return f the affected Sftware and refund yu the prtin f yur purchase price attributable t the returned prduct fr the remaining Subscriptin Perid. Edmentum Standard Service Purchase and Sftware License Terms rev // Page 3 f 5

4 4.3.2 Yur Indemnificatin f Us. Subject t the cnditins described belw and sectin 4.6, and t the extent nt prhibited by applicable law, yu will defend, indemnify and hld us harmless against any lss, damage r csts (including reasnable attrneys' fees) incurred in cnnectin with Claims made r brught against us by (i) a third party alleging that the Custmer Data, yur use f the Sftware in vilatin f this Agreement, r any materials, data r infrmatin prvided by yu r yur representatives either: (a) infringes the intellectual prperty rights f a third party, r (b) has therwise harmed a third party, r (ii) anyne wh has suffered persnal injury r prperty damage based upn yu r yur emplyees, agents r Students r Users negligence r intentinal miscnduct Cnditins. These indemnities will be cnditined n the party seeking indemnity: (a) prmptly prviding the ther with a written ntice f the Claim; (b) giving the ther party sle cntrl f the defense and settlement f the Claim, prvided that the ther party may nt settle any Claim unless the party seeking indemnity is uncnditinally released frm liability; and (c) at n charge, prviding the ther party with all reasnable assistance relative t the defense f the Claim Exclusive Remedies. Our and yur exclusive indemnificatin respnsibilities are stated in this sectin Care f Custmer Data. We will make peridic backups f Custmer Data yu enter int ur Sftware and will therwise use reasnable cmmercial care, cnsistent with general industry practice, t prtect such Custmer Data against lss. We are nt respnsible fr lst Custmer Data. Yu will be respnsible fr the maintenance f Custmer Data held in ur Sftware r learning management systems and fr replacing it if it is lst r destryed fr any reasn. 4.5 Frce Majeure. The term Frce Majeure means circumstances beynd the reasnable cntrl f a party (such as acts f Gd, gvernment restrictins, wars, insurrectins, labr strife, r failure f suppliers, cmmunicatin r data systems, subcntractrs, r carriers) which delay r prevent the party frm perfrming under the terms f this Agreement. Affected perfrmance bligatins will be suspended during the duratin f the Frce Majeure. In the event the Frce Majeure persists fr mre than 90 days, the ther party may terminate the affected prtins f this Agreement upn written ntice. 4.6 Disclaimers, Limitatins and Exclusins Warranty Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN SECTIONS 1.7 OR 3.4 OF THIS AGREEMENT, WE MAKE NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND WE SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW Limitatin f Liability. EXCEPT FOR BREACHES OF CONFIDENTIALITY OBLIGATIONS (WHICH ARE LIMITED TO $50,000 IN THE AGGREGATE FOR ALL CLAIMS AGAINST EITHER PARTY IN ANY CALENDAR YEAR), IN NO EVENT WILL EITHER PARTY'S MAXIMUM AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT, INDEMNIFICATION OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS ACTUALLY PAID BY YOU TO US UNDER THE APPLICABLE ORDER FORM DURING THE PRIOR TWELVE MONTHS. THE ABOVE LIMITATION WILL NOT APPLY TO EITHER PARTY IN THE EVENT YOUR STATE STATUTES ARE FOUND TO GOVERN THIS AGREEMENT AND THEY SPECIFICALLY PROHIBIT A LIMITATION OF LIABILITY PROVISION Exclusin f Cnsequential and Related Damages. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR FOR ANY INDIRECT, SPECIAL, LIQUIDATED, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 4.7 U.S. Gvernmental Users. The Sftware and Dcumentatin are "Cmmercial Items," as defined at 48 C.F.R , and are licensed subject t Restricted Rights applicable t Cmmercial Items and nly with thse rights expressly granted under this Agreement. The U.S. Gvernment will nt be entitled t technical infrmatin that is nt custmarily prvided t the public r t use, mdify, reprduce, release, perfrm, display, r disclse the Sftware r Dcumentatin except as allwed under this Agreement. 4.8 Term and Terminatin Term f this Agreement. This Agreement will begin n the Order Frm Date and will, unless earlier terminated in accrdance with this sectin, cntinue in effect until the end f the last Subscriptin Perid identified in the applicable Order Frm Terminatin fr Cause. A party may terminate this Agreement fr cause: (i) 30 days after written ntice f a material breach t the ther party if such breach remains uncured at the expiratin f such perid; r (ii) if the ther party ceases t cnduct business in the rdinary curse, files a petitin fr liquidatin bankruptcy, fails t have an invluntary petitin fr bankruptcy dismissed r cnverted t a nn-liquidatin bankruptcy within 60 days after filing, r makes an assignment f essentially all assets fr the benefit f creditrs Outstanding Fees. Terminatin will nt relieve yu f the bligatin t pay any fees payable t us prir t the effective date f terminatin. 4.9 Surviving Prvisins. The fllwing prvisins will survive any terminatin r expiratin f this Agreement: 1.6, 1.7, 2.1, 4.2, 4.3.1, 4.3.2, 4.3.4, 4.6, 4.9 and Assignment. Neither party may assign any f its rights r bligatins hereunder, whether by peratin f law r therwise, withut the prir written cnsent f the ther party (nt t be unreasnably withheld). Ntwithstanding the freging, we may assign this Agreement in its entirety withut yur cnsent, in cnnectin with a transactin invlving a sale f all r substantially all f ur assets r equity thrugh merger r therwise. Any attempt by a party t assign its rights r bligatins under this Agreement in breach f this sectin will be vid and f n effect. Subject t the freging, this Agreement will bind and inure t the benefit f the parties, their respective successrs and permitted assigns Student/Parent Cnsents and Cmmunicatin. Yu are respnsible fr btaining any necessary r legally required cnsents frm students, parents and/r guardians related t yur Users access and use f the Sftware. T the extent that yur license includes ur prviding a virtual instructr assciated with the licensed cntent, yu accept and acknwledge that such virtual instructr may peridically be cmmunicating with students and their parents and/r guardians. Edmentum Standard Service Purchase and Sftware License Terms rev // Page 4 f 5

5 4.12 Entire Agreement. This Agreement cnstitutes the entire agreement between the parties, and supersedes all prir agreements, prpsals r representatins, written r ral, cncerning its subject matter. N mdificatin, amendment, r waiver f any prvisin f this Agreement will be effective unless in writing and signed by bth parties. T the extent f any cnflict r incnsistency between the prvisins in these Standard Terms and an Order Frm, the terms f the Order Frm will prevail Gverning Law. This Agreement will be gverned by the internal laws f the State f Minnesta, withut regard t its cnflicts f laws rules unless the statutes r applicable rules gverning yur activities where yur sitused require that the laws f the State where yur sitused apply, in which case they will, withut regard t the cnflict r laws rules Third Parties. There are n third-party beneficiaries t this Agreement Ntices. All ntices under this Agreement will be in writing and will be deemed given upn: (a) persnal delivery; (b) the secnd business day after mailing; (c) the secnd business day after sending by cnfirmed facsimile; r (d) the secnd business day after sending by cnfirmed . Ntices t us will be addressed t the attentin f Directr f Custmer Finance. Ntices t yu will be addressed t the attentin f the persn signing the Order Frm fr yu Relatinship f the Parties. The parties are independent cntractrs. This Agreement des nt create a partnership, franchise, jint venture, agency, fiduciary r emplyment relatinship between the parties Severability. If any prvisin f this Agreement is held by a curt f cmpetent jurisdictin t be cntrary t law, the prvisin will be subject t mdificatin by the curt and interpreted s as best t accmplish the bjectives f the riginal prvisin t the fullest extent permitted by law, and the remaining prvisins f this Agreement will remain in effect Waiver. N failure r delay by either party t exercise a right under this Agreement will be a waiver f that right. 5.0 DEFINITIONS Cncurrent License means a Sftware license that may be accessed during the Subscriptin Perid by any User, but may nly be accessed by ne individual User at a time. Curse Enrllment shall mean a Cnsumable License plus the nn-exclusive services f a virtual instructr qualified t prvide nline teaching services assciated with the Cnsumable License. Cnsumable License means a Sftware license t a single curse assigned t a single, Named User. Within thirty days f the date in which a Cnsumable License is made available t a Named User, yu may remve that Named User and reassign the Cnsumable License t a different Named User fr future use althugh such reassignment shall nt extend the riginal Subscriptin Perid. The Subscriptin Perid fr a Cnsumable License begins upn the earlier f (i) when the curse cntent is first accessed by any Named User r (ii) sixty days fllwing the date that access is first made available t a Named User, and ends ne year later. Custmer Data means all electrnic data, materials and ther infrmatin yu and/r yur Users have entered r stred in the Sftware, including, but nt limited t data and recrds relating t student infrmatin, perfrmance r use, yur teacher data and supplemental instructinal materials. Dcumentatin means the technical specificatins and/r functinality particulars regarding the Sftware that we prvide yu with the Order Frm, if any. Materials means thse materials that we prvide yu, if any, in cnnectin with yur Sftware license and/r Prfessinal Services purchases that yur Users can use slely fr their internal educatinal purpses during the applicable Subscriptin Perid. Named User means a specific Student User identified by name and designated as the sle Student User f the specific license. Order Frm means the Order Frm prepared and ffered by us and returned t us by yu indicating yur acceptance f the terms and cnditins f this Agreement. T the extent that yu fail t execute and return the applicable Order Frm t us, yu accept and acknwledge that by using the Sftware (r any f yur Users using the Sftware), yu agree t the terms and cnditins f this Agreement. Reusable License means a Sftware license whereby nly ne Named User is designated t use the license at a time, but may be reassigned t anther Named User during the Subscriptin Perid. While a Reusable License is assigned t a specific Named User, it may nt be used by any ther Student User at any time until reassigned t anther Named User. Sftware means the nline educatinal sftware that is identified n the Order Frm that we make available t yur Users via ur Internet-based learning management system. The term Sftware includes bth ur Sftware and Third Party Sftware. Prfessinal Services means the services identified n the Order Frm that we agree t prvide t yu t assist in yur implementatin and/r n-ging use f the Sftware. Students means thse f yur students that are prvided access t the Sftware. Site License means a Sftware License that may be accessed during the Subscriptin Term by all authrized Users lcated in the specific physical site identified n the Order Frm. Prgram License means a Sftware License that may be accessed during the Subscriptin Term by the authrized number f Users identified n the Order Frm. Subscriptin Perid means the perid f time during which yu will have access t the Sftware yu license under the Agreement. This perid will begin with the start date identified in the applicable Order Frm r upn prcessing f yur PO in the event that dates are nt identified upn the Order Frm, and (unless earlier terminated, suspended r revked in accrdance with the Agreement) will last fr the duratin f yur Sftware license access identified n the Order Frm. Third Party Sftware means sftware r cntent that we license frm a third party fr license t ur custmers under licensing terms and cnditins specified by the prducer. Third Party Services means the services that yu purchase frm us that are identified n the Order Frm and that are perfrmed by an entity r individual ther than ur emplyees and independent cntractrs. Users means thse Students that yu supply (r authrize us t supply) user identificatins and passwrds t and fr which yu ve purchased an adequate quantity f the applicable Sftware licenses fr. Users may include ne r mre Students. We, Us r Our, whether r nt capitalized, refer t the entity r entities identified n the first page f the Order Frm (Edmentum, Inc., r Educatin City, Inc.). Edmentum Standard Service Purchase and Sftware License Terms rev // Page 5 f 5