ThisMaster Subscription Agreement (together with any schedules and the Order Formto which it is attached, the “Agreement”) is made and entered by andbetween Involvio LLC (“Involvio”) and the customer set forth on the applicableOrder Form (“Customer”), effective as of the date set forth on theapplicable Order Form (such date, the “Effective Date”). Each ofInvolvio and Customer may be referred to herein as a “Party” and,collectively, the “Parties”. The Parties understand and agree that thisAgreement is entered into between them pursuant to a reseller arrangementbetween Involvio and Cisco Systems, Inc. (“Cisco”),and that such Order Form may be submitted to Involvio by Cisco or an authorizedCisco reseller. The Parties further understand and agree that execution of thisAgreement by the Parties is a precondition to the provision of the InvolvioService (as defined below).
1.1. Licence.Subject to the terms and conditions of this Agreement, Involvio hereby grantsto Customer a non-exclusive, non-transferable, non-assignable licence to accessand use the Involvio Service for its internal business purposes during theTerm. Customer agrees to use the Involvio Service in accordance with thisAgreement and applicable law. For purposes of this Agreement, “InvolvioService” shall mean the Involvio software and related services available atinvolvio.com and through Involvio’s mobile applications, including theadministrative tools therein accessed through Customer’s Admin login.
1.2. Restrictions.Except as expressly permitted herein or as otherwise authorized by Involvio inwriting, Customer shall not: (i) modify, adapt, alter, translate, or createderivative works from the Involvio Service; (ii) sublicence, lease, rent, loan,sell, distribute, make available or otherwise transfer the Involvio Service toany third party; or (iii) reverse engineer, decompile, disassemble, or otherwiseattempt to derive the source code for the Involvio Service.
1.3. IPOwnership. Involvio shall retain sole and exclusive ownership ofrights, title and interest in the Involvio Service, including all intellectualproperty rights therein. Customer acquires no rights in the Involvio Serviceother than those specified in this Agreement.
2. Data and Confidentiality
2.1. DataOwnership. Customer owns all rights, title and interest in all datauploaded by Customer through the Involvio Service (as further described inSection 2.4, “Event Data”). Involvio is not responsible for the EventData provided by the Customer, and Customer assumes all responsibility for theaccuracy, integrity, legality and intellectual property ownership of the EventData. Further, Customer represents and warrants that it has obtained allrights, permissions and consents necessary to use and transfer the Event Dataas contemplated in this Agreement.
2.2. DataLicence to Involvio. Customer hereby grants to Involvio anon-exclusive, irrevocable, worldwide, perpetual, royalty-free, paid-up licenceand right to access and use the Event Data: (i) in order to perform itsobligations under this Agreement; (ii) in order to improve the InvolvioService; and (iii) in order to copy, compile, analyze, display and use theEvent Data on an aggregate, de-identified basis for Involvio’s sales, businessand marketing purposes (such aggregate data, the “Aggregate Data”).Involvio will own all right, title and interest in the Aggregate Data. For thesake of clarity, Aggregate Data will not contain any personally identifiableinformation provided by Customer under this Agreement or through the InvolvioService.
2.3. CustomerMaterial Licence. During the course of using the Involvio Service,Customer may provide Involvio with certain materials or content for use inconnection with the Services, including without limitation logos or images(collectively, “Customer Materials”). Customer hereby grants Involvio anon-exclusive, worldwide, royalty-free licence and right during the Term, touse such Customer Materials in connection with providing the Involvio Servicehereunder. Customer hereby represents and warrants to Involvio that it has thenecessary rights and consents to provide such Customer Materials to Involvioand to grant the licence contained in this Section 2.3.
2.4. StudentData. Customer acknowledges that the Event Data may contain certaindata and information, including Personal Information, regarding current,prospective or former students of Customer (each, a “Student” and allsuch data and information, collectively, “Student Data”). As used herein“Personal Information” means personally identifiable information regardingan individual, which information may include, without limitation, name,address, other contact information, email address, date of birth, password,student ID number, attendance data, class year, class schedule, areas of study,club memberships or affiliations, other account information and accountactivity information, or other similar information or data.
2.5. Confidentiality.Each Party agrees that it will not disclose to others or use for its ownbenefit or for the benefit of anyone other than the other Party, anyConfidential Information of the other Party except as: (i) permitted under thisAgreement; (ii) necessary to fulfill such receiving Party’s obligations underthis Agreement; and (iii) required to comply with applicable law or courtorder. “Confidential Information” shall include, without limitation, anyinformation which is marked as confidential and any information that should bereasonably known to the receiving Party to be confidential due to its nature orintent. Involvio’s Confidential Information shall include the InvolvioServices.
2.6. Disclaimer.Customer acknowledges and agrees that, as between the Parties, Customer shallbe solely responsible for all use of the Event Data, including Student Data, byor on behalf of itself and its authorized agents, contractors, consultants andemployees (collectively, “Customer Agents”), including any consultantsengaged by Customer, regardless of whether any such Customer Agents may alsohave a contractual relationship with Involvio. Customer shall indemnify andhold harmless Involvio, and its agents, contractors, consultants, employees andofficers, from and against any and all damages, losses, costs, liabilities orexpenses, including reasonable legal fees, arising out of any claim relating toany use of Event Data or Student Data by any Customer Agent.
3. Customer Responsibilities
3.1. Branded Services. As part of the provision ofthe Involvio Service, Involvio may also provide branded services by includingcertain brands of Customer in the application portion of the Involvio Service. Customeracknowledges that Involvio’s performance of the such branded services isdependent upon Customer’s timely and effective satisfaction of the Customerresponsibilities as set forth herein or in the Order Form (the “CustomerResponsibilities”). Customer shall promptly provide to Involvio allCustomer Materials requested by Involvio in order to provide the branded services.Customer acknowledges that: (i) any failure by Customer to timely perform theCustomer Responsibilities may result in a delay of the delivery of the InvolvioService by Involvio; and (ii) Involvio shall not be responsible for any suchdelays.
3.2. Labs Program. If agreed to by the Parties asmutually initialed on the signature page of this Agreement, Customer shall participatein a beta testing program for certain Involvio products and services designatedby Involvio (each, a “Labs Program”). Accordingly, Customer agrees to comply with all reasonable instructionsand requests of Involvio related to such Labs Program, including that: (i)Customer shall designate a primary point of contact with Involvio who shallhave the primary responsibility for the administration of the Labs Program forCustomer; (ii) Customer shall provide regular feedback (“Customer Feedback”)regarding the Involvio products and services that are the subject of the LabsProgram on a monthly basis or such other time periods as may be reasonablyrequested by Involvio; (iii) Customer shall provide reasonable cooperation andassistance to Involvio with respect to the integration of the applicableInvolvio products or services with Customer’s systems and databases; and (iv)Customer hereby perpetually and irrevocably assigns to Involvio all rights,title and interest in and to Customer Feedback and all related intellectualproperty rights in and to the Customer Feedback. In addition, Customeracknowledges that all products and services provided to Customer through theLabs Program are intended for evaluation and testing purposes only and not for commercialuse. Any such use is at Customer’s ownrisk and all such products and services are provided “as-is” without warrantyof any kind, OTHER THAN THOSE IMPLIED BY LAW. Specifically, Involvio makes nowarranty that: (i) the applicable product or service will meet Customerrequirements; (ii) Customer use of the Labs Program will be timely,uninterrupted, secure, or error-free; (iii) any information obtained byCustomer as a result of the Labs Program will be accurate or reliable; and (iv)any defects or errors in Labs Program will be corrected. Notwithstandinganything to the contrary in this Agreement, Involvio will have no liability,including with respect to indemnification obligations, under this Agreementarising out of or related to any Involvio products and services used byCustomer involved in the Labs Program.
Customershall pay to Cisco or a Cisco authorized reseller (as directed from time totime by Involvio) the fees as set forth on the Order Form (the “Fees”).
5. Term and Termination
5.1. Term.The term of this Agreement is as stated on the Order Form.
5.2. Termination.Either Party may terminate this Agreement if the other Party commits a materialbreach of this Agreement and such breach is not cured within thirty (30) daysfollowing written notice of such material breach by the non-breaching Party tothe breaching Party. Sections 1.2, 1.3, 2.1, 2.2, 2.4, 2.5, 2.6, 4, 5.2, 6, 7,8, and 9 shall survive the expiration or termination of this Agreement.
5.3. Suspensionof Services. Involvio may suspend Customer’s access to the InvolvioService immediately if: (i) Customer fails to pay Fees when due hereunder; (ii)Customer’s use of the Involvio Service is, in Involvio’s reasonable judgment,violating applicable law or is otherwise detrimental to Involvio or theInvolvio Service; and (iii) in Involvio’s reasonable judgment, the InvolvioService or any component thereof suffered, or is about to suffer, a significantthreat to security or functionality. Involvio will provide advance notice toCustomer regarding any such suspension when, in Involvio’s sole discretion,reasonable based on the nature of the circumstances. Involvio may monitor oraudit Customer’s use of the Involvio Service to ensure that Customer iscomplying with this Agreement.
THEINVOLVIO SERVICE IS PROVIDED "AS IS" AND WITHOUT WARRANTIES, CLAIMSOR REPRESENTATIONS, EITHER EXPRESS, IMPLIED, OTHER THAN THOSE IMPLIED BY LAW,NOR ARE THERE ANY WARRANTIES CREATED BY COURSE OF DEALING, COURSE OFPERFORMANCE, OR TRADE USAGE. INVOLVIO DOES NOT WARRANT THAT THE INVOLVIOSERVICE WILL BE ERROR-FREE OR THAT CUSTOMER’S ACCESS TO THE INVOLVIO SERVICE WILLBE UNINTERRUPTED.
7.1. Involvioindemnity. Involvio shall, at its own expense, indemnify, defend andhold harmless Customer from and against all losses, costs and liabilities,including reasonable legal fees (collectively, “Losses”), arising out ofor related to any third-party claim made or suit or proceeding brought againstCustomer alleging that the Involvio Service as provided by Involvio directly infringesany duly issued Australian patent, copyright, trademark or other intellectualproperty right. The foregoing states the sole and exclusive liability ofInvolvio and the sole and exclusive remedy of Customer for intellectualproperty infringement claims.
7.2. Customerindemnity. Customer shall, at its own expense, indemnify, defend andhold harmless Involvio against all Losses arising out of a third-party claimarising out of or related to (i) Customer’s use of the Involvio Service inviolation of this Agreement or in violation of law; (ii) the Event Data orCustomer Materials; and (iii) Customer’s breach of this Agreement.
8. Limitation of Liability
IN NOEVENT SHALL: (I) INVOLVIO BE LIABLE TO CUSTOMER, WHETHER IN CONTRACT, TORT(INCLUDING NEGLIGENCE), WARRANTY OR OTHERWISE FOR ANY INDIRECT, INCIDENTAL,SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS,LOSS OF DATA, OR COST OF SUBSTITUTE GOODS AND SERVICES) ARISING OUT OF ORRELATING TO THIS AGREEMENT OR THE INVOLVIO SERVICE, EVEN IF INVOLVIO HAS BEENADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (II) INVOLVIO’S TOTAL AGGREGATELIABILITY TO CUSTOMER, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE),WARRANTY OR OTHERWISE, ARISING OUT OF OR RELATING TO THIS AGREEMENT EXCEED THEAMOUNTS PAID BY CUSTOMER HEREUNDER IN THE TWELVE (12) MONTH PERIODIMMEDIATELY PRECEDING THE EVENT FIRST GIVING RISE TO SUCH LIABILITY.
9.1. Notices.All notices, requests or communications to be given under this Agreement shallbe in writing and shall be deemed duly given and served when delivered inperson, by United States mail, postage prepaid, or by prepaid overnight courierservice to the addresses set forth in the Order Form.
9.2. GoverningLaw. This Agreement shall be governed by and construed in accordancewith the laws of the State of New South Wales (and any conflicts-of-lawprinciples of such state that would result in the application of the law ofanother jurisdiction shall be disregarded). Each Party hereby irrevocably submits to theexclusive jurisdiction of New South Wales and agrees not to commence any legalaction under or in connection with this Agreement in any other court or forum.
9.3. Waiver.No waiver, alteration or modification of any of the provisions of thisAgreement shall be binding unless made in writing and signed by each of theParties hereto. If either Party fails to enforce any term of this Agreement orfails to exercise any remedy, such failure to enforce or exercise on thatoccasion shall not prevent enforcement or exercise on any other occasion.
9.4. ForceMajeure. Neither Party shall be liable hereunder by reason of anyfailure or delay in the performance of its obligations (except payment obligations)to the extent such failure or delay in performance is a result of an act ofGod, act of government, flood, fire, earthquake, civil unrest, internet delay,failure of a computer system or network, or act of terror.
9.5. NoAgency. The Parties agree that, in the performance of this Agreement,they are and shall be independent contractors. Nothing herein shall beconstrued to constitute either Party as the agent of the other Party for anypurpose whatsoever, and neither Party shall bind or attempt to bind the otherParty to any contract or the performance of any obligation or represent to anythird party that it has any right to enter into any binding obligation on theother Party’s behalf. Notwithstanding the foregoing, Customer agrees that Involviomay, and hereby grants Involvio the right to, reference Customer as a customerof Involvio and as a user of the Involvio Service, in each case, in connectionwith Involvio’s marketing efforts.
9.6. Assignment.Involvio may freely assign this Agreement. Customer may not, without the priorwritten consent of Involvio (which shall not be unreasonably withheld), assignthis Agreement, in whole or in part, either voluntarily or by operation of law,and any attempt to do so shall be a material breach of this Agreement and shallbe void.
9.7. Severability.If any provision of this Agreement is held invalid by any law, rule, order, orregulation of any government or by the final determination of any court ofcompetent jurisdiction, such invalidity shall not affect the enforceability ofany other provisions and such provisions shall be interpreted so as to bestaccomplish the objectives of such invalid provisions within the limits ofapplicable law or applicable court decision.
9.8. Entire Agreement.This Agreement constitutes the complete and exclusive statement of theagreement between the Parties, and supersedes all prior agreements, proposals,negotiations and communications between the Parties, both oral and written,regarding the subject matter hereof.
9.9. Authority.Customer hereby represents and warrants that it has and shall have the fulllegal right and corporate power and authority to enter into and perform all ofits obligations under this Agreement and to comply with all terms andconditions of this Agreement.
9.11. Counterparts:This Agreement may be executed in counterparts, each of which shall bedeemed an original, but all of which together shall constitute one and thesame.