SAAS TERMS AND CONDITIONS
- SUBSCRIPTION TO THE SERVICE
- Subject to the Agreement, Scholars, Inc. (“Scholars”) will use commercially reasonable efforts to provide Customer access to Scholars’ digital connectivity software as a service that connects students and/or recent graduates to business opportunities (the “Platform”), and all of the “Services” set forth herein and in Customer’s Order Form (as used herein, the “Services” shall include the Platform and the Software (defined below)). Access and use of the Platform shall be limited to the Service Capacity set forth on the Order Form. Scholars shall provide the Services to Customer, and provide Customer with training, implementation, and support services related thereto, on the terms and subject to the conditions set forth in this Agreement.
- RESTRICTIONS AND RESPONSIBILITIES
- Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services (including the Platform) or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Scholars or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; remove any proprietary notices or labels; and/or intentionally interfere in any manner with the operation of the Services or the Software.
- Further, Customer may not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.227-7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
- Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
- Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Scholars includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Customer includes non-public Customer Data (as defined below) provided by Customer to Scholars to enable the provision of the Services. The Receiving Party agrees: (a) to take reasonable precautions to protect such Proprietary Information, and (b) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (i) is or becomes generally available to the public, or (ii) was in its possession or known by it prior to receipt from the Disclosing Party, or (iii) was rightfully disclosed to it without restriction by a third party, or (iv) was independently developed without use of any Proprietary Information of the Disclosing Party or (v) is required to be disclosed by law.
3.2 Nothing in this Agreement shall be deemed to restrict Scholars from using Customer’s name and logo on Scholars’ websites and promotional materials to identify Customer as a user of the Services.
- INTELLECTUAL PROPERTY
- Scholars shall own and retain all right, title and interest in and to: (a) the Services; (b) the source code and object code underlying the Services and the underlying structure, ideas, know-how or algorithms relevant to the Services; (c) any software, documentation, data (other than Customer Data), applications, inventions or other technology related to or developed in connection with the Services; (d) all improvements, enhancements, or modifications to any of the foregoing (whether or not based upon any suggestions, enhancement requests, recommendations or other feedback provided by Customer relating to the Services); and (e) all intellectual property rights related to any of the foregoing (collectively, “Scholars IP”), and such Scholars IP shall be Scholars’ sole and exclusive property. Customer shall have no proprietary interest in the Scholars IP, and will not seek, and will require its employees, agents, or subcontractors not to seek, patent, copyright, trademark, registered design, or other protection for any rights in any Scholars IP. Customer acknowledges that the Scholars IP is protected by intellectual property rights owned by or licensed to Scholars. Other than as expressly set forth in this Agreement, no license or other rights in any Scholars IP are granted to the Customer.
- Customer hereby grants Scholars a license to use all necessary intellectual property rights of Customer free of charge and on a non-exclusive, worldwide, non-transferable, non-sublicenseable, fully paid-up, royalty-free, and perpetual basis to the extent necessary to enable Scholars to provide the Services. Customer hereby agrees to provide the trademarks, logos, color schemes, and other intellectual property for use by Scholars upon request in order to provide the Services. Except as set forth in this Section 4, nothing in this Agreement shall grant or shall be deemed to grant Scholars any right, title or interest in or to the Customer’s intellectual property rights. If Customer participates in a podcast or blog article with Scholars, then Scholars hereby grants Customer a license to use such podcast free of additional charge and on a non-exclusive, worldwide, non-transferable, and non-sublicenseable basis to the extent necessary to enable Customer to make reasonable use of the podcast or blog article.
- DATA COLLECTION AND USE
- As between Customer and Scholars, Customer shall own all right, title and interest in and to the Customer Data, as well as any data that is based on or derived from the Customer Data and provided to Customer as part of the Services. As used herein, “Customer Data” means information or data that is submitted, posted, or otherwise transmitted by or on behalf of Customer through the Platform, excluding Aggregated Data. Subject to the terms of the Agreement, Scholars is provided a limited license to Customer Data for the purpose of providing the Services, including a license to collect, process, store, and display Customer Data to the extent appropriate in providing the Services. Scholars shall use and disclose Customer Data solely for the purpose of providing the Services, and shall not use, sell, rent, transfer, distribute, or otherwise disclose or make available Customer Data for the benefit of anyone other than Customer without Customer’s prior written consent.
- Scholars shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and Student Data and data derived therefrom) (“Aggregated Data”), and Scholars will be free (during and after the Term) to use Aggregated Data to improve and enhance the Services, the Platform, and the Software, and for other development, diagnostic and corrective purposes in connection with the Services and other Scholars offerings, and to disclose such data solely in aggregate or other de-identified form in connection with its business. Scholars shall not disclose to any third party any Aggregated Data that reveals or discloses Customer’s Proprietary Information or the identity of the Customer.
- PAYMENT OF FEES
- Customer will pay Scholars the then applicable fees described in the Order Form for the Services in accordance with the terms therein (the “Fees”). If Customer’s use of the Services exceeds the Service Capacity set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided on the Order Form. Scholars reserves the right to change the Services Fees and to institute new charges and Fees at the end of the Initial Service Term or then current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that Scholars has billed Customer incorrectly, Customer must contact Scholars no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to [email protected]
- Scholars may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Scholars thirty (30) days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Scholars’ net income.
- TERM AND TERMINATION
- Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Order Form. Unless otherwise set forth in an Order Form, each Order Form will renew for additional one-year terms unless either party gives written notice of non-renewal at least 30 days prior to the expiration of the then-current term. “Term” means collectively the initial term and each renewal term of this Agreement.
- In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment). Upon termination, Customer will pay in full for the Services listed in the Order Form. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
- WARRANTY AND DISCLAIMER
Scholars shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Scholars or by third-party providers, or because of other causes beyond Scholars’ reasonable control, but Scholars shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. SCHOLARS DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND SCHOLARS DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
- By Scholars. Scholars shall hold Customer harmless from liability to third parties resulting from infringement by the Service of any United States patent or any copyright or misappropriation of any trade secret, provided Scholars is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Scholars will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Service (a) not supplied by Scholars, (b) made in whole or in part in accordance with Customer specifications, (c) that are modified after delivery by Scholars, (d) combined with other products, processes or materials where the alleged infringement relates to such combination, (e) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (f) where Customer’s use of the Service is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Scholars to be infringing, Scholars may, at its option and expense (i) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (ii) obtain for Customer a license to continue using the Service, or (iii) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Service.
- By Customer. If any action is instituted by a third party against Scholars arising out of or related to (a) Customer’s breach of this Agreement or failure to comply with its obligations hereunder, or (b) acts or omissions of Customer or any of its employees, contractors, affiliates, or agents (including physical injury of any person or damage to property caused by any such person), Customer shall indemnify and hold Scholars harmless with respect to such action. Customer shall defend such action at its own expense on behalf of Scholars and shall pay all damages attributable to such claim which are finally awarded against Scholars or paid in settlement of such claim.
- LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, SCHOLARS AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND SCHOLARS’ REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO SCHOLARS FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT SCHOLARS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- FORCE MAJEURE
Any delay in the performance of any duties or obligations of either party (except the payment of money owed) will not be considered a breach of this Agreement if such delay is caused by an act, event, or occurrence beyond such party’s reasonable control, including, without limitation, acts of God, fires, floods, storms, landslides, epidemics, pandemics, lightning, earthquakes, drought, blight, famine, quarantine, blockade, governmental acts or inaction, orders or injunctions, war, insurrection or civil strife, sabotage, explosions, labor strikes, work stoppages, acts of terror, issues arising from bugs or other problems in the software, firmware or hardware of Scholars’ suppliers, or outages or issues with upstream providers or network carriers (any such event, a “Force Majeure Event”), provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as commercially feasible.
- TECHNICAL SUPPORT
Scholars will provide technical support to Customer via electronic mail on weekdays during the hours of 9:00 am through 5:00 pm Eastern time, with the exclusion of Federal holidays. Customer may initiate a helpdesk ticket by emailing [email protected] Scholars will use commercially reasonable efforts to respond to all helpdesk tickets within 1 business day.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by either party without the other party’s prior written consent, except in connection with a corporate reorganization or merger, acquisition, or sale of all or substantially all of its business and/or assets. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Scholars in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of Delaware without regard to its conflict of laws provisions. Customer hereby expressly consents to the exclusive personal jurisdiction and venue in the state and federal courts for the county in which Scholars’ principal place of business is located for any action arising from or related to this Agreement. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Customer shall always comply with all international and domestic laws, ordinances, regulations, and statutes that are applicable to its purchase and use of the Services and Software.