This Master Subscription Agreement (together with any schedules and the Order Form to which it is attached, the “Agreement”) is made and entered by and between Involvio LLC (“Involvio”) and the customer set forth on the applicable Order Form (“Customer”), effective as of the date set forth on the applicable Order Form (such date, the “Effective Date”). Each of Involvio and Customer may be referred to herein as a “Party” and, collectively, the “Parties”.
1. License
1.1. License. Subject to the terms and conditions of this Agreement, Involvio hereby grants to Customer a non-exclusive, non-transferable, non-assignable license to access and use the Involvio Services for its internal business purposes during the Term. Customer agrees to use the Involvio Services in accordance with this Agreement and applicable law. For purposes of this Agreement, “Involvio Services” shall mean the Involvio software and related services available at involvio.com and through Involvio’s mobile applications, including the administrative tools therein accessed through Customer’s Admin login.
1.2. Restrictions. Except as expressly permitted herein or as otherwise authorized by Involvio in writing, Customer shall not (i) modify, adapt, alter, translate, or create derivative works from the Involvio Services; (ii) sublicense, lease, rent, loan, sell, distribute, make available or otherwise transfer the Involvio Services to any third party, or (iii) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Involvio Services.
1.3. IP Ownership. Involvio shall retain sole and exclusive ownership of rights, title and interest in the Involvio Services, including all intellectual property rights therein. Customer acquires no rights in the Involvio Services other than those specified in this Agreement.
2. Data and Confidentiality 2.1. Data Ownership. Customer owns all right, title and interest in all data uploaded by Customer through the Involvio Services (as further described in Section 2.4, “Event Data”). Involvio is not responsible for the Event Data provided by the Customer, and Customer assumes all responsibility for the accuracy, integrity, legality and intellectual property ownership of the Event Data. Further, Customer represents and warrants that it has obtained all rights, permissions and consents necessary to use and transfer the Event Data as contemplated in this Agreement.
2.2. Data License to Involvio. Customer hereby grants to Involvio a non- exclusive, irrevocable, worldwide, perpetual, royalty-free, paid-up license and right to access and use the Event Data in order to (i) perform its obligations under this Agreement; (ii) improve the Involvio Services; and (iii) copy, compile, analyze, display and use the Event Data on an aggregate, de-identified basis for Involvio’s sales, business and marketing purposes (the “Aggregate Data”). Involvio will own all right, title and interest in the Aggregate Data. For the sake of clarity, Aggregate Data will not contain any Personal Data (as defined in Schedule 1).
2.3. Customer Material License. During the course of using the Involvio Services, Customer may provide Involvio with certain materials and/or content for use in connection with the Involvio Services, including without limitation logos or images (collectively, “Customer Materials”). Customer hereby grants Involvio a non-exclusive, worldwide, royalty- free license and right during the Term, to use such Customer Materials in connection with providing the Involvio Services hereunder. Customer hereby represents and warrants to Involvio that it has the necessary rights and consents to provide such Customer Materials to Involvio and to grant the license contained in this Section 2.3.
2.4. Personal Data. Customer acknowledges that the Event Data may contain certain data and information, including Personal Data (as defined in Schedule 1), regarding current, prospective or former students of Customer (each, a “Student” and all such data and information, collectively, “Student Data”). Such Personal Data shall include, 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 account activity information, and any other information provided by the Student in relation to whom the Customer is using the Involvio Services. Both Parties agree and acknowledge that any Processing (as defined in Schedule 1) of Student Data shall be in accordance with the terms of Schedule 1).
2.5. Confidentiality. Each Party agrees that it will not disclose to others, use for their own benefit or for the benefit of anyone other than the other Party, any Confidential Information of the other Party except as (i) permitted under this
Agreement; (ii) necessary to fulfill such receiving Party’s obligations under this Agreement; and (iii) required to comply with applicable law or court order. “Confidential Information” shall include, without limitation, any information which is marked as confidential and any information that should be reasonably known to the receiving Party to be confidential due to its nature or intent. Involvio’s Confidential Information shall include the Involvio Services.
2.6. Disclaimer. Customer acknowledges and agrees that, as between the Parties, Customer shall be solely responsible for all use of the Event Data, including Student Data, by or on behalf of itself and its authorized agents, contractors, consultants and employees (collectively, “Customer Agents”), including any other consultants engaged by Customer, regardless of whether any such Customer Agents may also have a contractual relationship with Involvio. Customer shall indemnify and hold harmless Involvio, and its agents, contractors, consultants, employees and officers, from and against any and all damages, losses, costs, liabilities or expenses, including reasonable attorneys’ fees, arising out of any claim relating to any use of Event Data or Student Data by any Customer Agent.
3. Customer Responsibilities.
3.1. Branded Services. As part of the provision of the Involvio Services, Involvio may also provide branded services by including certain brands of Customer in the application portion of the Involvio Services (“Branded Services”). Customer acknowledges that Involvio’s performance of the Branded Services is dependent upon Customer’s timely and effective satisfaction of the Customer responsibilities as set forth herein or in the Order
Form (the “Customer Responsibilities”). Customer shall promptly provide to Involvio all Customer Materials requested by Involvio in order to provide the Branded Services. Customer acknowledges that (i) any failure by Customer to timely perform the Customer Responsibilities may result in a delay of the delivery of the Involvio Services by Involvio and (ii) Involvio shall not be responsible for any such delays.
3.2. Labs Program. If agreed by the Parties as mutually initialed on the signature page of this Agreement, Customer shall participate in a beta testing program for certain Involvio products and services designated by Involvio (each, a “Labs Program”). Accordingly, Customer agrees to comply with all reasonable instructions and requests of Involvio related to such Labs Program, including that: (i) Customer shall designate a primary point of contact with Involvio who shall have the primary responsibility for the administration of the Labs Program for Customer; (ii) Customer shall provide regular feedback
(“Customer Feedback”) regarding the Involvio products and services that are the subject of the Labs Program on a monthly basis or such other time periods as may be reasonably requested by Involvio; (iii) Customer shall provide reasonable cooperation and assistance to Involvio with respect to the integration of the applicable Involvio products or services with Customer’s systems and databases; and (iv) Customer hereby perpetually and irrevocably assigns to Involvio all right, title and interest in and to Customer Feedback and all related intellectual property rights in and to the Customer Feedback. In addition, Customer acknowledges that all products and services provided to Customer through the Labs Program are intended for evaluation and testing purposes only and not for commercial use. ANY SUCH USE IS AT CUSTOMER’S OWN RISK AND ALL SUCH PRODUCTS AND SERVICES ARE PROVIDED “AS-IS” WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A NON-PARTICULAR PURPOSE, AND INFRINGEMENT. SPECIFICALLY, INVOLVIO MAKES NO WARRANTY THAT: (I) THE APPLICABLE PRODUCT OR SERVICE WILL MEET CUSTOMER REQUIREMENTS; (II) CUSTOMER USE OF THE LABS PROGRAM WILL BE TIMELY, UNINTERRUPTED, SECURE, OR ERROR-FREE; (III) ANY INFORMATION OBTAINED BY CUSTOMER AS A RESULT OF THE LABS PROGRAM WILL BE ACCURATE OR RELIABLE; AND (IV) ANY DEFECTS OR ERRORS IN LABS PROGRAM WILL BE CORRECTED. Notwithstanding anything to the contrary in this Agreement, Involvio will have no liability, including with respect to indemnification obligations, under this Agreement arising out of or related to any Involvio products and services used by Customer involved in the Labs Program.
4. Fees
Customer shall pay to Involvio the fees set forth on the Order Form (the “Fees”). The Fees shall be payable by Customer within thirty (30) days of receiving an invoice from Involvio. If Customer does not pay the invoice within the thirty (30) day period, then Involvio shall have the right to charge Customer a fee of the greater of (i) one and onehalf percent (1.5%) per month until paid and (ii) the highest rate allowed by applicable law.
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 material breach of this Agreement and such breach is not cured within thirty (30) days following written notice of such material breach by the non- breaching Party to the 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. Suspension of Services. Involvio may suspend Customer’s access to the Involvio Services immediately if (i) Customer fails to pay Fees when due hereunder; (ii) Customer’s use of the Involvio Services is, in Involvio’s reasonable judgment, violating applicable law or is otherwise detrimental to Involvio or the Involvio Services; and (iii) in Involvio’s reasonable judgment, the Involvio Services or any component thereof suffered, or is about to suffer, a significant threat to security or functionality. Involvio will provide advance notice to Customer regarding any such suspension when, in Involvio’s sole discretion, reasonable based on the nature of the circumstances. Involvio may monitor or audit Customer’s use of the Involvio Services to ensure that Customer is complying with this Agreement.
6. Disclaimer
THE INVOLVIO SERVICES ARE PROVIDED "AS IS" AND TO THE FULLEST EXTENT PERMITTED BY LAW WITHOUT WARRANTIES, CLAIMS OR REPRESENTATIONS, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WARRANTIES OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, NOR ARE THERE ANY WARRANTIES CREATED BY COURSE OF DEALING, COURSE OF PERFORMANCE, OR TRADE USAGE. INVOLVIO DOES NOT WARRANT THAT THE INVOLVIO SERVICES WILL BE ERROR-FREE OR THAT CUSTOMER’S ACCESS TO THE INVOLVIO SERVICES WILL BE UNINTERRUPTED.
7. Indemnities
7.1. Involvio indemnity. Involvio shall, at its own expense, indemnify, defend and hold harmless Customer from and against all losses, costs and liabilities, including reasonable attorneys’ fees
(collectively, “Losses”), arising out of or related to any third party claim made or suit or proceeding brought against Customer alleging that any part of the Involvio Services directly infringes any duly issued U.S. patent, copyright, trade mark or other intellectual property right. The foregoing states the sole and exclusive liability of Involvio and the sole and exclusive remedy of Customer for intellectual property infringement claims.
7.2. Customer indemnity. Customer shall, at its own expense, indemnify, defend and hold harmless Involvio against all Losses arising out of a third party claim arising out of or related to (i)
Customer’s use of the Involvio Services in violation of this Agreement or in violation of law; (ii) the Event Data or Customer Materials; and (iii) Customer’s breach of this Agreement.
8. Limitation of Liability
8.1 IN NO EVENT 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 OR RELATING TO THIS AGREEMENT OR THE INVOLVIO SERVICES, EVEN IF INVOLVIO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (II) INVOLVIO’S TOTAL AGGREGATE LIABILITY TO CUSTOMER, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), WARRANTY OR OTHERWISE, ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL EXCEED THE AMOUNTS PAID BY CUSTOMER HEREUNDER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY. THE APPLICATION OF THIS CLAUSE 8.1 SHALL BE AT ALL TIMES SUBJECT TO CLAUSE 8.2 BELOW.
8.2 NOTHING IN THIS AGREEMENT EXCLUDES OR LIMITS THE LIABILITY OF EITHER PARTY FOR (I) DEATH OR PERSONAL INJURY CAUSED BY THAT PARTY’S NEGLIGENCE; (II) FRAUD OR FRAUDULENT MISREPRESENTATION OR (III) ANY OTHER MATTER TO THE EXTENT THAT SUCH EXCLUSION OR LIMITATION WOULD BE CONTRARY TO APPLICABLE LAW.
9. Miscellaneous
9.1. Notices. All notices, requests or communications to be given under this Agreement shall be in writing and shall be deemed duly given and served when delivered in person, by United States mail, postage prepaid, or by prepaid overnight courier service to the addresses set forth in the Order Form.
9.2. Governing Law. This Agreement and any dispute or claim arising out of, or in connection with, it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of England and Wales .
9.3. Waiver. No waiver, alteration or modification of any of the provisions of this Agreement shall be binding unless made in writing and signed by each of the Parties hereto. If either Party fails to enforce any term of this Agreement or fails to exercise any remedy, such failure to enforce or exercise on that occasion shall not prevent enforcement or exercise on any other occasion.
9.4. Force Majeure. Neither Party shall be liable hereunder by reason of any failure 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 of God, act of government, flood, fire, earthquake, civil unrest, internet delay, failure of a computer system or network, or act of terror.
9.5. No Agency. The Parties agree that, in the performance of this Agreement they are and shall be independent contractors. Nothing herein shall be construed to constitute either Party as the agent of the other Party for any purpose whatsoever, and neither Party shall bind or attempt to bind the other Party to any contract or the performance of any obligation or represent to any third party that it has any right to enter into any binding obligation on the other Party’s behalf. Notwithstanding the foregoing, Customer agrees that Involvio may, and hereby grants Involvio the right to, reference Customer as a customer of Involvio and as a user of the Involvio Services, in each case, in connection with Involvio’s marketing efforts.
9.6. Assignment. Involvio may freely assign this Agreement. Customer may not, without the prior written consent of Involvio (which shall not be unreasonably withheld), assign this Agreement, in whole or in part, either voluntarily or by operation of law, and any attempt to do so shall be a material default of this Agreement and shall be void.
9.7. Severability. If any provision of this Agreement is held invalid by any law, rule, order, or regulation of any government or by the final determination of any court of competent
the agreement by a local lawyer. Involvio is prepared to accept the removal of the exclusive jurisdiction.
jurisdiction, such invalidity shall not affect the enforceability of any other provisions and such provisions shall be interpreted so as to best accomplish the objectives of such invalid provisions within the limits of applicable law or applicable court decision.
9.8. Entire Agreement. This Agreement constitutes the complete and exclusive statement of the agreement 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 full legal right and corporate power and authority to enter into and perform all of its obligations under this Agreement and to comply with all terms and conditions of this Agreement.
9.10. Website Terms. In addition to the terms and conditions of this Agreement, Customer’s access to and use of the Involvio Services shall be in accordance with any “Terms of Use” contained thereon, as amended or supplemented from time to time; provided, however, that to the extent any terms in such “Terms of Use” are inconsistent with or conflict with the terms and conditions of this Agreement with regard to the access and use of the Involvio Services, the terms and conditions of this Agreement shall prevail.
9.11. Counterparts: This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same.
