TERMS OF SERVICE AGREEMENT
Posted: July 1, 2018
This TERMS OF SERVICE AGREEMENT, including all addenda, appendices, attachments, exhibits, and schedules as incorporated herein, (this “Agreement”) is entered into by and between JLG Innovations Inc., a Delaware corporation d/b/a Vital (“Provider”), and the client identified on the Purchase Order that references this Agreement (the “Client”). This Agreement shall be effective as of the date of the Purchase Order (“Effective Date”). Client and Provider are each referred to in the singular as a “Party” or in the plural as the “Parties.”
1. DEFINITIONS.
Capitalized terms used herein, but not defined elsewhere within the body of this Agreement shall have the meanings ascribed to them as follows:
a. “Authorized User” means each of the individuals authorized by Client to access and use the Services pursuant to the terms and conditions of this Agreement. For the avoidance of doubt, the term Authorized User shall include the following individuals as authorized in Client’s sole and absolute discretion: (i) instructors, teachers, or other educators; (ii) administrators, staff, or faculty; (iii) students (with respect to student-portal within the Mobile Application only); and (iv) other end-users as necessary.
b. “Client Content” means information, data and other content that is collected, uploaded or otherwise received, directly or indirectly, and in the unaltered form (as it is collected, uploaded, or received), from Client or an Authorized User by or through the Services, except for Usage Statistics. For the avoidance of doubt, Client Content includes: (i) any lesson plan, lesson materials, or other educational-related content developed by an Authorized User; and (ii) information reflecting the access or use of the Services by or on behalf of Client or any Authorized User, including any personally identifiable information pertaining to an Authorized User and submitted as part of the registration process to access the Services. For the further avoidance of doubt, Client Content does not include (i) the Derived Content or (ii) Usage Statistics.
c. “Derived Content” means the transformed, derived, modified, or otherwise altered items created or outputted from the Services and processing of the Client Content, including any derivative works of the Client Content outputted by the Services. By way of clarity, the Client will continue to own the underlying Client Content in the unaltered form as it is collected, uploaded, or received through the Services.
d. “Excused Downtime” means any unavailability or degradation due to: (i) a scheduled or routine maintenance; (ii) emergency maintenance, (iii) a Force Majeure Event; (iv) any other circumstances beyond Provider’s reasonable control, including the Client’s or Authorized Users’ misuse of the Services; and (iv) any suspension or termination of Client’s or any Authorized Users’ access to or use of the Services, as permitted by this Agreement.
e. “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent (including all reissues, divisions, continuations, and extensions thereof), copyright, trade name, trademark, service mark, logo, trade dress, trade secret, mask work, rights in technology, know-how, rights in content (including performance and synchronization rights), database protection, or other right in or to intellectual property that are in each case protected under the laws of any governmental authority having jurisdiction.
f. “Mobile Application” means those software applications related to the Services that are owned and/or operated by Provider which are developed specifically for use on smartphone and tablet devices, including all new versions, updates, revisions, improvements and modifications thereto, and which are made available for use by Authorized Users via remote access through a personal smartphone or tablet device.
g. “Purchase Order” means the completed purchase order form that references this Agreement and that is submitted by Client and accepted by Provider (and/or executed by the Parties) for the ordering of Services and/or Hardware. The terms and conditions of this Agreement is incorporated into each Purchase Order as if fully set forth therein.
h. “Usage Statistics” means information, data and other content that is derived by or through an Authorized User’s actual use of the Services (including processing of Client Content), such as page visits, clicks and click rates, timing metrics, error reports, crashes, reports, audits, and logs.
i. “Web Portal” means those Internet domains and websites/webpages related to the Services and owned and/or operated by Provider and which are made available for Authorized Users to, for example, upload, transform, and communicate lesson plans, teaching materials, and other education-related resources to other Authorized Users.
2. SERVICES & OBLIGATIONS.
a. Services; License. During the Term, Provider shall use commercially reasonable efforts, except for Excused Downtime, to host, manage, operate, and maintain the Vital software, as ordered by Client in the Purchase Order(s), for remote electronic access to, and use of, by Client and its Authorized Users through the Provider’s systems and hardware (collectively, the “Services”). Subject to and conditioned on Client’s payment of the Fees, Provider hereby authorizes Client to access and use the Services for Client’s educational, transformational, or other administrative purposes as it relates to Client Content. Client and its Authorized Users shall, at all times, agree to and comply with the terms and conditions of https://www.vital.education/terms-of-use when accessing and using the Web Portal (“Terms of Use”) and/or https://www.vital.education/end-user-license-agreement when accessing and using the Mobile Application (“EULA”), as the case may be. The terms and conditions to the Terms of Use and EULA are hereby incorporated into this Agreement.
b. Service and System Control. Except as otherwise expressly provided in this Agreement: (i) Provider shall have sole control and ownership over the operation, provision, maintenance, and management of the Services, including: (i) the location(s) from where any of the Services are performed; (ii) selection, deployment, modification, and replacement of the Services; and (iii) the support of the Services, the maintenance, upgrades, and any other corrections, fixes, repairs, patches, minor or major releases related to the Services ; and (iii) the use and engagement of subcontractor(s) to perform Services, either directly or indirectly, for Client or Authorized Users.
c. Customer Support. Client will be entitled to assistance and technical support for the features, functionalities and operation of the Services, which will be accessible via email and telephone (contact information provided under separate cover) from 9:00 A.M. to 5:00 P.M., North American Central Time, on Monday through Friday, except for any holidays regularly scheduled by Provider.
d. Client Systems; Client Control. Client shall, at all times during the Term, procure, set up, maintain, and operate in good repair, at its sole cost and expense, all equipment, resources, technology, or systems, including computer hardware and equipment, any Internet access, third party software, and telecommunications services, necessary for Client and/or its Authorized Users to access and use the Services (collectively, the “Client Systems”). Client shall have sole control and responsibility over the operation, maintenance, and management of, and all access to and use of, the Client Systems, and sole responsibility for all access to and use of the Services by any person or entity (by or through the Client Systems), including any: (i) information, instructions, or materials, such as Client Content, provided pursuant to the Services; (ii) results obtained from any use of the Services; and (iii) conclusions, decisions, or actions based on any use of the Services. Provider shall not be responsible or liable for any delay or failure of performance caused, in whole or in part, by Client’s delay in performing, or failure to perform, any of its obligations under this Agreement.
e. Abuse. In the event Client becomes aware of any abuse, harassment, or inappropriate conduct by or towards any of the users of the Services, Client shall immediately notify Provider and reasonably cooperate with Provider to address such conduct.
f. Hardware. To the extent that Client purchases tablets or other hardware (“collectively, “Hardware”) from Provider, the Parties agree to the terms and conditions set forth on Appendix A (Hardware Purchase Addendum) with respect to such Hardware, which is hereby incorporated into this Agreement.
3. TERM & TERMINATION.
a. Term. The term of this Agreement shall commence on the Effective Date and continue in effect until the expiration of the Purchase Order (the “Term”), unless earlier terminated as permitted herein.
b. Termination. Either Party may terminate this Agreement and/or any Purchase Order(s): (i) for convenience, with or without cause, upon ninety (90) days’ advance written notice; or (ii) immediately upon written notice if the other Party breaches a material provision of this Agreement and (1) such breach is of a nature that is curable, and the breaching Party fails to cure such breach within thirty (30) calendar days after receipt of written notice of such breach, or (2) such breach is of a nature that is not curable, including, without limitation, a violation of laws.
c. Effect of Termination or Expiration. Upon termination or expiration of this Agreement: (i) all rights, licenses, consents, permissions, and authorizations granted to Client hereunder will immediately terminate; (ii) Client shall immediately cease all use of the Services; (iii) each Party shall promptly deliver to destroy all copies of the other Party’s Confidential Information; (iv) Provider shall delete all Client Content from Provider’s database within ninety (90) days, unless a law requires or Client requests for Provider to retain such data for a longer period; (v) Client shall pay all unpaid Fees and other amounts due to Provider through the date of termination or expiration, which shall become immediately due and payable; and (vi) if Client terminates this Agreement for convenience (in accordance with Section 2(b)(i)) or Provider terminates this Agreement for Client’s breach (in accordance with Section 2(b)(ii)), Client shall not be entitled to a refund of any pre-paid Fees, and Client shall pay all unpaid Fees and other amounts due to Provider for the remainder of the Term (had this Agreement not be terminated), which shall become immediately due and payable. Any right or obligation of the Parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement will survive any expiration or termination of this Agreement, including, but not limited to, Client’s payment obligations, Sections 5, 6, 7, 8, 9, 10, and this Section 3(c).
4. FEES, INVOICING, & PAYMENT.
a. Fees. Client shall pay to Provider the fees in the amounts set forth on the applicable Purchase Order(s) (the “Fees”) and all other amounts due to Provider hereunder. All Fees under this Agreement exclude any and all taxes and similar assessments now in force, enacted or imposed in the future on the transaction or delivery of the Services, all of which Client shall be solely responsible for paying. Provider may increase the Fees by providing written notice at least ten (10) calendar days’ prior to instituting such increased Fees.
b. Payments. Client shall pay all Fees and other amounts due no later than within the payment terms set forth in the Purchase Order or, if none, within thirty (30) days after the date of the applicable invoice thereof. Client shall make all payments hereunder in United States Dollars to the address or account specified by Provider. All amounts payable under this Agreement shall be paid by Client to Provider in full and, except as expressly allowed in this Agreement, without any setoff, recoupment, counterclaim, deduction, debit, or withholding for any reason.
c. Suspension for Non-Payment. If Client fails to make any payment when due, then: (i) Provider may charge interest on all past due invoices at a rate of 1.5% per month calculated daily and compounded monthly, or, if lower, the highest rate allowed under applicable law; (ii) Client shall also reimburse Provider for all costs incurred by Provider in collecting any late payments or interest, including attorney’s fees, court costs, and collection agency fees; and (iii) Provider may, but shall not be obligated to, suspend: (i) any and all Services to Client. Provider shall not incur any obligation or liability whatsoever to Client or any other person as a result of such suspension.
d. 30-Day Refund. Client may request a refund for the ordered and pre-paid Services (the “30-Day Refund”) within the first thirty (30) days after the Effective Date (e.g., the date of the Purchase Order) (the “Refund Period”). If Client is not happy with the Services during the Refund Period, the Client must contact Provider at support@vital.education and request a refund before the end of the Refund Period. If the ordered Services qualify for the 30-Day Refund, then (i) Provider will so inform the Client, (ii) the Client must stop accessing and using the Services, (iii) Provider may terminate Client’s access to the Services, and (iv) Provider will use commercially reasonable efforts to refund the Fees actually paid by Client for the refunded Services within sixty (60) days after the Refund Period. If Client receives a refund for all Services ordered under any Purchase Order and/or Client is no longer receiving any Services from Provider pursuant to this Agreement, then this Agreement shall automatically terminate on the expiration of the Refund Period. Notwithstanding anything to the contrary herein, Client shall not be entitled to any refunds requested after the Refund Period.
5. INTELLECTUAL PROPERTY MATTERS & COMPLIANCE.
a. Ownership of Services. All rights, title and interest in and to the Services, Derived Content, and Usage Statistics (including but not limited to, all ideas, inventions, inferences, discoveries, source and object software code, developments, derivative works, enhancements, upgrades, fixes and patches, formats and processes, and all Intellectual Property Rights in and to any of the foregoing) shall be and shall remain with Provider and its third party licensors or providers. Without limiting the foregoing, Client expressly acknowledges and agrees all rights, title and interest in and to any Derived Content and Usage Statistics, including any information developed or collected by Provider in connection with the use of the Services, other than the Client Content in its unaltered form, shall belong and shall remain with Provider, and Client hereby unconditionally and irrevocably grants to Provider an assignment of all right, title, and interest in and to the Derived Content and Usage Statistics, including all Intellectual Property rights relating thereto. Client shall not assert any claims to the contrary or otherwise do anything inconsistent with the allocation of ownership herein, including, but not limited to, challenging the validity of the authorizations or any Intellectual Property Rights granted to Provider herein. In the event Client is ever deemed to be the owner of any Intellectual Property Rights allocated to Provider herein, Client shall immediately take all necessary steps to evidence, transfer, perfect, vest, or confirm Provider’s right, title and interest in any Intellectual Property Rights. Provider is not transferring or granting to Client any right, title, or interest in or to (or granting Client any license or other permissions in or to) any Intellectual Property Rights of Provider. The sole exception of the foregoing reservation or rights is the limited, non-exclusive, and non-transferable authorization for Client and its Authorized Users to access and receive the Services under this Agreement, which is conditioned upon Client’s and its Authorized Users’ compliance with the terms and conditions of this Agreement and which shall automatically terminate upon expiration or termination of this Agreement.
b. Feedback. Client may provide Provider with comments concerning the Services or Client’s evaluation and use thereof (collectively, “Feedback”). Client hereby grants to Provider an exclusive, perpetual, irrevocable, royalty-free, full paid-up, worldwide right and license to copy, modify, create derivative works from, publically display, disclose, distribute, license and sublicense, incorporate and otherwise use and exploit the Feedback (including all Intellectual Property Rights therein), for any and all commercial and non-commercial purposes with no obligation or accounting of any kind to Client.
c. Client Content. As between Client and Provider, Client is and will remain the sole and exclusive owner of all right, title and interest in and to the Client Content, including all Intellectual Property Rights thereto, subject to the rights and permissions granted under this Agreement. Client hereby irrevocably, during the Term, grants all rights and permissions in or relating to the Client Content to Provider and its affiliates, subcontractors, and personnel as is necessary or useful to provide the Services and/or for Provider to enforce this Agreement and exercise its rights hereunder. Without limiting the foregoing, Client specifically grants Provider the non-exclusive right and license, during the Term, to collect, store, copy, modify, process, create derivative works from (including to create the Derived Content), publically display, distribute, incorporate and otherwise use the Client Content in accordance with this Agreement. Client represents, warrants, and covenants to Provider that: (i) Client owns or otherwise has and will have the necessary rights and consents in and relating to the Client Content so that, as received, processed and used by Provider (as permitted in this Agreement, including to create derivative works thereof), the Client Content (or processing, creation of derivative works thereof, and use thereof) does not and will not (1) infringe, misappropriate, or otherwise violate any Intellectual Property Rights of a third party, (2) violate any privacy or other rights of any third party, or (3) violate any applicable law, rule, or regulation; and (ii) the Client Content and the processing, creation of derivative works thereof, and use thereof by Provider (as permitted in this Agreement) complies with all applicable terms and conditions, such as those contained in Client’s privacy policies, governing the collection, use, and disclosure of such data.
d. Compliance with Laws. Client shall comply with all applicable laws, statutes, ordinances and regulations attendant upon its performance under this Agreement. Client shall obtain any necessary licenses, certificates, permits, approvals or other authorizations required by all laws, statutes, ordinances and regulations applicable to Client’s procurement and use of the Services and submission and delivery of Client Content to Provider. Without limiting the generality of the foregoing, for any Client Content or other data submitted to Provider pertaining to individuals younger than thirteen (13) years of age, Client represents, warrants, and covenants to Provider that either: (i) it does and will, to the extent allowed by law, consent on behalf of that individual’s legal guardians to register (or allow that individual to register) as an Authorized User and to send Provider any Client Content or other data pertaining to that individual, including personally identifiable information, such as his or her name and email address; or (ii) if the Client cannot consent on behalf of the individual’s legal guardians at any time, then Client will obtain verifiable consent, as required by the Children’s Online Privacy Protection Act (“COPPA”), and will proactively forward and make available such signed consent to the Provider before registering that individual (or allowing that individual to register) as an Authorized User and before sending Provider any Client Content or other data pertaining to that individual, including personally identifiable information, such as his or her name and email address. Provider shall not be liable for Client’s failure to obtain verifiable consent or to forward and make available such signed consent to Provider. If Client has ever previously provided consent pertaining to an individual younger than thirteen (13) years of age that is no longer valid, for any reason, Client shall immediately notify Provider and cause that individual to immediately cease all use of the Services.
e. U.S. Government Rights. This section is applicable only if Client is a United States government agency or a contractor to a United States government agency. The Services (including but not limited to, all ideas, inventions, inferences, discoveries, source and object software code, developments, derivative works, enhancements, upgrades, fixes and patches, formats and processes, and all Intellectual Property Rights therein and thereto), and any related documentation contain commercial computer software and documentation which are proprietary data belonging solely to Provider and its licensors. Pursuant to DFARS 227.7202 or FAR 12.212, as applicable, the U.S. Government's right to use, reproduce or disclose the Services and any related documentation acquired under this Agreement is subject to the restrictions of this Agreement. The terms and conditions of this Agreement are fully applicable to the Government’s use and disclosure of the Services and any related documentation and shall supersede any conflicting terms or conditions. No license of any kind is granted in the case of acquisitions which contain or are subject to the clause FAR 52-227.19 COMMERCIAL COMPUTER SOFTWARE-RESTRICTED RIGHTS (JUNE 1987) or DFARS 252.227-7013 RIGHTS IN TECHNICAL DATA AND COMPUTER SOFTWARE (OCT 1988) or any other clause which purports to grant to the government rights greater than, or additional to those, set forth in this Agreement.
6. CONFIDENTIALITY.
a. Definitions. In the course of this Agreement, each Party may obtain nonpublic information from the other Party that is confidential and proprietary in nature (“Confidential Information”). Confidential Information includes, but is not limited to, the terms of this Agreement, information relating to the Services, information regarding a Party’s current, future and proposed products and services, product designs, plans and roadmaps, prices and costs, trade secrets, patents, patent applications, development plans, ideas, samples, media, techniques, works of authorship, models, inventions, know-how, processes, algorithms, software schematics, code and source documents, data, formulas, financial information, procurement requirements, suppliers, investors, employees, business and contractual relationships, sales and marketing plans and any other information the receiving Party knows or reasonably ought to know is confidential, proprietary or trade secret information of the disclosing Party. Confidential Information also includes any and all nonpublic information provided to the disclosing Party by third parties. Confidential Information does not include information that the receiving Party can demonstrate by records: (i) was rightfully known to the receiving Party without restriction on use or disclosure prior to such disclosure to the receiving Party in connection with this Agreement; (ii) prior to or after the time of disclosure becomes generally known by the public other than by the receiving Party’s noncompliance with this Agreement; or (iii) was or is received by the receiving Party on a non-confidential basis from a third party that was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality.
b. Obligations. The Parties agree that at all times, and notwithstanding the termination or expiration of this Agreement, they shall hold all Confidential Information of the other Party in strict confidence and trust, and shall not use, reproduce or disclose the Confidential Information of the other Party to any person or entity except as specifically permitted in this Agreement. Each Party may disclose Confidential Information of the other Party only to those of its employees, contractors, consultants and advisors who have previously agreed to be bound by terms and conditions at least as restrictive as those set forth in this Agreement and who have a need to know such information.
c. Compelled Disclosures. The receiving Party may disclose Confidential Information if required to do so as a matter of law, regulation or court order, provided that: (i) the receiving Party shall use all reasonable efforts to provide the disclosing Party with at least 10 days’ prior notice of such disclosure, (ii) the receiving Party shall disclose only that portion of the Confidential Information that is legally required to be furnished, and (iii) the receiving Party shall use reasonable efforts to seek from the party to which the information must be disclosed confidential treatment of the disclosed Confidential Information.
d. Public Announcements. Neither Party shall issue or release any announcement, statement, press release or other publicity or marketing materials relating to this Agreement or otherwise use the other Party’s trademarks, service marks, trade names, logos, domain names or other indicia of source, affiliation or sponsorship, in each case, without the prior written consent of the other Party, which consent may be withheld in the withholding Party’s discretion; provided, however, that Provider may, without Client's consent, include Client's name and/or other indicia in its lists of Provider’s current or former Clients of Provider on Provider’s website(s) or other electronic content or in promotional and marketing materials.
7. INDEMNIFICATION.
Each Party (as the “Indemnifying Party”) shall defend, indemnify and hold harmless the other Party, the other Party’s affiliates, and their respective officers, directors, employees, contractors, consultants, licensors, and agents, (each, an “Indemnitee”) from and against any liability, claim, demand, suit, cause, settlement, payment, loss, disbursement, interest, award, judgement, damages (including punitive damages), lien, fine, fee, penalty, and costs or expenses (including reasonable attorneys’ fees and litigation-related expenses) (“Loss”) incurred by an Indemnitee arising out of or relating to any claim, suit, action, or proceeding by a third party to the extent that such Loss arises from any allegation that: (a) the Indemnifying Party infringed upon or misappropriated any Intellectual Property Right of a third party, except that Provider’s indemnification obligations shall not extend to any Loss related to any (i) access to or use of the Services by Client or its Authorized Users in combination with any services, software, hardware, systems, networks, data, or other materials or services not supplied by Provider, (ii) use of the Services by Client or its Authorized Users other than as authorized in this Agreement, or (iii) modification of the Services other than as authorized in writing by the Provider; (b) the Indemnifying Party breached a material term of this Agreement, including (i) any representations and warranties made herein, (ii) its confidentiality obligations, and (iii) its obligation to comply with applicable laws.
8. WARRANTY DISCLAIMERS.
EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT (INCLUDING THE TERMS OF USE AND/OR EULA), THE SERVICES AND THE STORAGE OF CLIENT CONTENT ARE PROVIDED SOLELY “AS IS”, “AS AVAILABLE”, AND WITH ALL FAULTS. PROVIDER DOES NOT MAKE AND HEREBY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY; AND PROVIDER SPECIFICALLY DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY, QUALITY, PERFORMANCE, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES, OR STORAGE OF CLIENT CONTENT, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CLIENT’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, WILL BE AVAILABLE 24 HOURS PER DAY / 7 DAYS PER WEEK, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, ERROR-FREE, OR THAT THE RESULTS OBTAINED FROM THE SERVICES, PROCESSING OF CLIENT CONTENT, OR ANY SOFTWARE OR OTHER CONTENT CONTAINED IN OR PROVIDED THROUGH THE SERVICES ARE ACCURATE OR RELIABLE. ANY USE OF THE SERVICES AND THE STORAGE OF CLIENT CONTENT IS AT CLIENT’S OWN RISK. IN NO EVENT SHALL PROVIDER OR ITS LICENSORS BE LIABLE FOR THE ALTERATION, THE DESTRUCTION, THE DAMAGE, THE CORRUPTION, THE LOSS, OR THE RECOVERY OF ANY CLIENT CONTENT.
9. LIMITATION OF LIABILITY.
EXCEPT OF ITS INDEMNIFICATION OBLIGATIONS, BREACH OF ITS CONFIDENTIALITY OBLIGATIONS, MISAPPROPRIATION OR INFRINGEMENT OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, OR WILLFUL MISCONDUCT OR GROSS NEGLIGENCE, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY, UNDER OR IN CONNECTION WITH THIS AGREEMENT (INCLUDING ANY PURCHASE ORDER) OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (I) LOSS OF PRODUCTION, LOSS OF USE, LOSS OF BUSINESS, LOSS OF REVENUE, LOSS OF PROFIT, LOSS OF SAVINGS, COST OF REPLACEMENT GOODS OR SERVICES, LOSS OF TECHNOLOGY, LOSS OF GOODWILL, LOSS OF RIGHTS, OR DIMINUTION IN VALUE; (II) IMPAIRMENT, INABILITY TO USE, OR LOSS, INTERRUPTION, OR DELAY OF THE SERVICES; (III) LOSS, DAMAGE, CORRUPTION, OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY, OR (IV) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES. IN NO EVENT SHALL THE COLLECTIVE AGGREGATE LIABILITY OF PROVIDER, ITS AFFILIATES, OR ANY OF THEIR RESPECTIVE LICENSORS, SERVICE PROVIDERS, SUBCONTRACTORS, OR SUPPLIERS TO CLIENT OR ANY OTHER PARTY, UNDER OR IN CONNECTION WITH THIS AGREEMENT (INCLUDING ANY PURCHASE ORDER) OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, EXCEED THE FEES ACTUALLY PAID BY CLIENT TO PROVIDER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE EVENT GIVING RISE TO SUCH CLAIM(S) OR CAUSE(S) OF ACTION. THE FOREGOING LIMITATIONS OF LIABILITY APPLY REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
10. MISCELLANEOUS.
a. Force Majeure. Except for Client’s obligation to make payments to Provider, neither Party shall be liable to the other Party in any way for any failure or delay in the performance of its obligations under this Agreement due to any cause beyond such Party's reasonable control, including acts of God, explosions, failure of utilities, mechanical breakdowns, failures of third parties to provide software, hardware, or other materials, or other such occurrence (each, a “Force Majeure Event”); provided, however, that the Party affected by the Force Majeure Event shall provide the other Party with notice of the Force Majeure Event and use commercially reasonable efforts to minimize the effect of the Force Majeure Event upon such Party's performance.
b. Further Assurances. Upon a Party’s reasonable request, the other Party shall, at the requesting Party’s sole cost and expense, execute and deliver all such documents and instruments, and take all such further actions, necessary to give full effect to this Agreement.
c. Independent Contractor. The relationship between Client and Provider is that of an independent contractor. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.
d. Governing Law; Venue. This Agreement shall be governed by and construed in accordance with the internal laws of the State of Missouri without giving effect to any choice or conflict of law provision or rule. Each party irrevocably submits to the exclusive jurisdiction and venue of the federal and state courts having jurisdiction over St. Louis County, Missouri in any legal suit, action or proceeding arising out of or based upon this Agreement. In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either Party hereto against the other Party arising out of or related to this Agreement, the prevailing Party shall be entitled to recover its reasonable attorneys' fees and litigation-related expenses from the non-prevailing Party.
e. Right to Preliminary and Injunctive Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations hereunder involving Intellectual Property Rights, Confidential Information, compliance with laws, or by the Parties exceeding the scope of the authorization to use the Services would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to seek equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
f. Entire Agreement; Order of Precedence. This Agreement, together with all Purchase Order(s), sets forth the entire, final, complete, and exclusive expression of the Parties’ agreement on the matters contained in this Agreement. All prior written and oral negotiations and agreements, and all contemporaneous oral negotiations and agreements, between the Parties on the matters contained in this Agreement are expressly merged into and superseded by this Agreement. Except for the Terms of Use, the EULA, and the terms and conditions set forth in the Purchase Order, this Agreement shall govern in lieu of all other pre-printed or standardized provisions that may otherwise appear on any other paper or electronic record of either Party. In the event of a conflict between this Agreement, the Purchase Order, the Terms of Use and/or EULA, such terms and conditions should be read as closely together as possible and, to the extent they cannot, then the terms and conditions shall have the following precedence (in descending order): (i) the terms and conditions of the Terms of Use shall control, but only with reference to access and use of the Web Portal; (ii) the terms and conditions of the EULA shall control, but only with reference to access and use of the Mobile Application; (iii) the terms and conditions of the Purchase Order shall control; then (iv) the terms and conditions of this Agreement shall control.
g. Amendment. Provider reserves the right to amend or modify this Agreement from time to time, provided that changes in this Agreement will be posted at https://www.vital.education/terms-of-use. All amendments, modifications, and other changes to this Agreement will be effective when the updated Agreement is posted, and the Client’s and its Authorized Users’ continued receipt and use of the Services after any changes to this Agreement are posted will be considered Client’s acceptance of those changes. Notwithstanding the foregoing, Provider will use commercially reasonable efforts to provide Client with written notification of any material changes to this Agreement via email and/or a notification post on the Web Portal and/or Mobile Application. In the event Client objects to any such amendments, modifications, and other changes to this Agreement, Client shall notify Provider within ten (10) days from the posting of such changes or, with respect to material changes, from the date notification of such material changes is sent/posted by Provider, in which case the Parties shall negotiate, in good faith, to resolve such objections. Except for the amendments, modifications, and other changes to this Agreement as posted at https://www.vital.education/terms-of-use, no other amendment to or modification of this Agreement is effective unless it is in writing, identified as an amendment to this Agreement, and signed by an authorized representative of each Party.
h. Notices. Except as otherwise stated in this Agreement, each Party giving or making any notice, consent, request, demand, certificate, or other communication pursuant to this Agreement (each, a “notice”) shall provide the notice in writing and delivered: (i) personally; (ii) by a nationally recognized overnight courier; or (iii) by pre-paid, first class, certified or registered mail, return receipt requested, and address such notice to the receiving Party’s legal department at the receiving Party’s address listed in the Purchase Order (the “Addressee”). A Party may change the address to which a notice shall be delivered or mailed by giving written notice thereof to the other Party in accordance with this Section.
i. Miscellaneous. Headings contained in this Agreement are for reference purposes only and are not to affect the meaning or interpretation of this Agreement. For purposes of this Agreement, (i) the words “include”, “includes” and “including” and any other forms of “include” are deemed to be followed by the words “without limitation”; (ii) the word “or” is not exclusive; (iii) the words “herein”, “hereof”, “hereby”, “hereto” and “hereunder” refer to this Agreement as a whole; and (iv) references to content posted on any website referred to in this Agreement shall mean such content as it may be revised from time-to-time. If any provision, or part thereof, of this Agreement becomes or is declared invalid, illegal or unenforceable in any respect under any law, such provision, or part thereof, shall be null and void, and deemed deleted from this Agreement. The rights and remedies of the Parties set forth in this Agreement are not exclusive of, but are cumulative to, any rights or remedies now or subsequently existing at law, in equity, by statute or otherwise, except in those cases where this Agreement specifies that a particular remedy is sole or exclusive, but neither Party may retain the benefit of inconsistent remedies. The validity, legality and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired. No waiver by any Party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege. Except for the owner(s) of any third party software that is embedded in the Services, each of which is an intended third party beneficiary of this Agreement, this Agreement is for the sole benefit of the Parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon and other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement. Client shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without Provider's prior written consent. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns. This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument. A signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
Appendix A: Hardware Purchase Addendum
In addition to the terms in the Agreement, Client’s selection, procurement, and use of the Hardware is governed by this Appendix A (Hardware Purchase Addendum), and the terms and conditions of this Appendix A are incorporated by reference into the Agreement and the applicable Purchase Order(s) between Client and Provider. In the event of conflict between this Appendix A and the Agreement, the terms and conditions of this Appendix A controls with respect only to the Client’s selection, procurement, and use of the Hardware.
1. HARDWARE PURCHASE. Subject to the terms and conditions of this Appendix A, Provider agrees to resell to Client, and Client agrees to purchase from Provider, the Hardware ordered by Client in a Purchase Order submitted to Provider, at the prices set forth therein. Client shall pay Provider for such Hardware in accordance with the Agreement and Purchase Order.
2. HARDWARE DELIVERY. Provider shall strive to deliver, or shall cause its third party provider to deliver, the Hardware within a timely manner to the delivery location(s) agreed upon by the Parties, at Client’s cost. Provider will use reasonable efforts to ensure the Hardware is shipped on a timely basis, but shall not be liable if it does not do so or for any delays in delivery. Delivery terms shall be as set forth in the applicable Purchase Order or, if none, then FOB point of shipment. Title and risk of loss of all Hardware transfers to Client upon the delivery of such Hardware to Provider’s (or its third party provider’s) designated carrier. The Hardware will be delivered with all documentation, in the English language, normally accompanying or included with the shipments of such Hardware.
3. LIMITED HARDWARE WARRANTY. Client agrees that if any new Hardware is damaged, Provider’s sole obligation and Client’s sole remedy is for Provider to assist Client is seeking a warranty or other claim with the third party manufacturer or vendor of the Hardware, the third party reseller of the Hardware, or the carrier delivering the Hardware, as the case may be (the “Limited Hardware Warranty”). To be eligible for the Limited Hardware Warranty, Client must contact Provider at support@vital.education and request to return the new Hardware within ten (10) days after delivery of the Hardware (the “Hardware Return Period”). If the Hardware qualifies for the Limited Hardware Warranty, then (i) Provider will so inform the Client and Provider will work with the Client and the third party manufacturer or vendor of the Hardware, the third party reseller of the Hardware, or the carrier delivering the Hardware, as the case may be, to facilitate the return of the Hardware (which may include, among other things, assisting Client in obtaining a Returned Merchandise Authorization (“RMA”) number, if required), and (ii) the Client must return the Hardware in the manner (e.g., ship-to address, packing instructions, shipping instructions, etc.) and within the time frame as directed by Provider. All returns, replacements, and/or refunds of the Hardware are subject to the return, replacement, and/or refund policies and procedures of the applicable third party manufacturer or vendor of the Hardware, the third party reseller of the Hardware, or the carrier delivering the Hardware. Provider will use commercially reasonable efforts to work with the applicable third party to either, at such third party’s option, ship replacement Hardware to Client or remit, within a commercially reasonable time after the Hardware return was accepted by the applicable third party, the amounts paid for such Hardware less the applicable third party’s restocking fees, freight, and other costs. Notwithstanding anything to the contrary herein, Client shall not be entitled to any returns/refunds/replacements for Hardware that (1) is requested to be returned after the Hardware Return Period, (2) is not returned in accordance with Provider’s or the applicable third party’s instructions, (3) is not covered under the applicable third party’s return, replacement, and/or refund policies and procedures, or (4) is not accepted by the applicable third party for any reason, including in connection with returned materials that are not damaged or that have been marked, altered, abused, or otherwise damaged by the actions or omissions of Client.
4. WARRANTY DISCLAIMER. CLIENT ACKNOWLEDGES THAT: (A) THE HARDWARE TO BE PURCHASED HEREUNDER WILL BE OF A TYPE, DESIGN, SIZE, CAPACITY AND MANUFACTURER SELECTED BY CLIENT; (B) PROVIDER IS NOT A MANUFACTURER OF, OR DEALER IN, THE HARDWARE; (C) NEITHER THE VENDOR OR MANUFACTURER OF THE HARDWARE (NOR ANY AGENT THEREOF) IS AN AGENT OF PROVIDER; (D) PROVIDER HAS NOT, WILL NOT, AND HAS NO OBLIGATION TO, INSPECT THE HARDWARE PRIOR TO DELIVERY TO CLIENT; (E) PROVIDER IS NOT RESPONSIBLE FOR REPAIRS, SERVICE OR DEFECTS IN THE HARDWARE OR OPERATION THEREOF; AND (F) PROVIDER HAS NOT MADE, WILL NOT MAKE, AND HEREBY DISCLAIMS ANY REPRESENTATION, WARRANTY OR COVENANT, EXPRESS OR IMPLIED, OF ANY KIND AS TO ANY MATTER WHATSOEVER ON WHICH CLIENT MAY RELY, INCLUDING, WITHOUT LIMITATION, PROVIDER DISCLAIMS THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, COMPLIANCE WITH SPECIFICATIONS, CONDITION, TITLE, QUALITY, DESIGN, DURABILITY, OR SUITABILITY FOR CLIENT’S PURPOSE OF THE HARDWARE IN ANY RESPECT, OR ANY PATENT INFRINGEMENT, OR LATENT OR PATENT DEFECTS. PROVIDER SHALL NOT BE LIABLE TO CLIENT FOR ANY LIABILITY, LOSS OR DAMAGE CAUSED OR ALLEGED TO BE CAUSED DIRECTLY BY THE HARDWARE OR ANY INADEQUACY THEREOF OR DEFICIENCY OR DEFECT THEREIN, EXCEPT FOR ANY LIABILITY, LOSS OR DAMAGE CAUSED BY THE ACTS OR GROSSLY NEGLIGENT OMISSIONS OF PROVIDER, AND CLIENT HEREBY ACKNOWLEDGES THE FOREGOING DISCLAIMER BY PROVIDER.
5. INDEMNIFICATION. Client will defend, indemnify and hold harmless Provider and its affiliates, and each of their officers, shareholders, directors, employees and agents (collectively, “Indemnitees”) from and against any and all liabilities, claims, demands, losses, damages, expenses, fines, costs (including without limitation costs of compliance with any non-monetary relief), amounts paid in settlements or judgments, plus interest thereon, and including without limitation, reasonable attorneys’ fees, witnesses’ and experts’ fees, investigation expenses, cost of management time, any and all out-of-pocket expenses, consequential damages, and all other expenses and costs incident to the foregoing (collectively, “Damages”) arising out of or resulting from Client’s selection, procurement, or use of the Hardware.
6. LIMITATIONS OF LIABILITY. IN NO EVENT SHALL PROVIDER BE LIABLE TO CLIENT, UNDER OR IN CONNECTION WITH THIS APPENDIX A (HARDWARE PURCHASE ADDENDUM) OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (I) LOSS OF PRODUCTION, LOSS OF USE, LOSS OF BUSINESS, LOSS OF REVENUE, LOSS OF PROFIT, LOSS OF SAVINGS, COST OF REPLACEMENT GOODS OR SERVICES, LOSS OF TECHNOLOGY, LOSS OF GOODWILL, LOSS OF RIGHTS, OR DIMINUTION IN VALUE; (II) IMPAIRMENT, INABILITY TO USE, OR LOSS, INTERRUPTION, OR DELAY OF THE HARDWARE OR THE OPERATION THEREOF; (III) LOSS, DAMAGE, CORRUPTION, OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY, (IV) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; OR (V) FOR ANY OTHER DAMAGES IN EXCESS OF THE PURCHASE PRICE OF THE HARDWARE ACTUALLY PAID BY CLIENT TO PROVIDER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE EVENT GIVING RISE TO SUCH CLAIM(S) OR CAUSE(S) OF ACTION. THE FOREGOING LIMITATIONS OF LIABILITY APPLY REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.