This Master SubscriptionAgreement (together with any schedules and the Order Form to which it isattached, the “Agreement”) is madeand 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 applicableOrder Form (such date, the “EffectiveDate”). Each of Involvio and Customer may be referred
to herein as a “Party” and, collectively, the “Parties”.
1.1. License. Subject to the terms andconditions of this Agreement, Involvio hereby grants to Customer anon-exclusive, nontransferable, non-assignable license to access and use theInvolvio Service for its internal business purposes during the Term. Customeragrees to use the Involvio Service in accordance with this Agreement andapplicable law. For purposes of this Agreement, “Involvio Service” shall mean the Involvio software and relatedservices available at involvio.com and through Involvio’s mobile applications,including the administrative tools therein accessed through Customer’s Adminlogin.
1.2. Restrictions. Except as expressly permitted herein or asotherwise authorized by Involvio in writing, Customer shall not (i) modify,adapt, alter, translate, or create derivative works from the Involvio Service;(ii) sublicense, lease, rent, loan, sell, distribute, make available or otherwisetransfer the Involvio Service to any third party, or (iii) reverse engineer,decompile, disassemble, or otherwise attempt to derive the source code for theInvolvio Service.
1.3. IP Ownership. Involvio shall retain soleand exclusive ownership of rights, title and interest in the Involvio Service,including all intellectual property rights therein. Customer acquires no rightsin the Involvio Service other than those specified in this Agreement.
2. Data & confidentiality
2.1. Dataownership. Customer owns all right, title and interest in all datauploaded by Customer through the Involvio Service (as further described inSection 2.4, “Event Data”).
Involvio is not responsible forthe Event Data provided by the Customer, and Customer assumes allresponsibility for the accuracy, integrity, legality and intellectual propertyownership of the Event Data. Further, Customer represents and warrants that ithas obtained all rights, permissions and consents necessary to use and transferthe 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, license and right to access and use the Event Data inorder to (i) perform its obligations under this Agreement; (ii) to improve theInvolvio Service; and (iii) 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 interestin the Aggregate Data. For the sake of clarity, Aggregate Data will not containany personally identifiable information provided by Customer under thisAgreement or through the Involvio Service.
2.3. Customer Material License.During the course of using the Services, Customer may provide Involvio withcertain materials and/or content for use in connection with the Services,including any logos or images (collectively, “Customer Materials”). Customer hereby grants Involvio anon-exclusive, worldwide, royalty- free license and right, during the Term, touse such Customer Materials in connection with providing the Serviceshereunder. Customer hereby represents and warrants to Involvio that it has thenecessary rights and consents to provide such Customer Materials to Involvioand to grant the license contained in this Section 2.3.
2.4. Student Data. Customeracknowledges that the Event Data may contain certain data and information, includingPersonal Information, regarding current, prospective or former students ofCustomer (each, a “Student” and allsuch data and information, collectively, “StudentData”). As used herein “PersonalInformation” means personally identifiable information regarding anindividual, which information may include, without limitation name, address,other contact information, email address, date of birth, password, student IDnumber, attendance data, class year, class schedule, areas of study, clubmemberships or affiliations, other account information and/or account activityinformation, other information or data that can be used for identity theft(including that which is not personally identifiable) and other sensitiveinformation regarding such individual.
2.5. Confidentiality. Each Partyagrees that it will not disclose to others, use for their own benefit or forthe benefit of anyone other than the other Party, any Confidential Informationof the other Party except as (i) permitted under this Agreement; (ii) necessaryto fulfill such receiving Party’s obligations under this Agreement; and (iii)as required to comply with applicable law or court order. “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. Customeracknowledges and agrees that, as between the Parties, Customer shall be solelyresponsible for all use of the Event Data, including Student Data, by or onbehalf of itself and its authorized agents, contractors, consultants andemployees
(collectively, “Customer Agents”), including any otherconsultants engaged by Customer, regardless of whether any such Customer Agentsmay also have a contractual relationship with Involvio. Customer shallindemnify 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 ofany claim relating to any use of Event Data or Student Data by any CustomerAgent.
3. Customer Responsibilities.
3.1. Branded Services. To the extentthat Customer’s Order Form includes a subscription for “Branded Services”,Customer acknowledges that Involvio’s performance of the Branded Services isdependent upon Customer’s timely and effective satisfaction of the Customerresponsibilities as set forth herein or in any Order Form (the “Customer Responsibilities”). Customershall promptly provide to Involvio all Customer Materials requested by
Involvio in order to provide theBranded Services. Customer acknowledges that (i) any failure by Customer totimely perform the Customer Responsibilities may result in a delay of thedelivery of the Involvio Services by Involvio and (ii) Involvio shall not beresponsible for any such delays.
3.1. Labs Program. To the extent thatCustomer is selected to participate in a beta testing program for certainInvolvio products and services (each, a “LabsProgram”) and Customer accepts such invitation, Customer agrees to complywith all reasonable instructions and requests of Involvio related to such LabProgram, including that: (i) Customer shall designate a primary point ofcontact with Involvio who shall have the primary responsibility for theadministration of the Labs Program for Customer; (ii) Customer shall provideregular 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 right,title and interest in and to Customer Feedback and all related intellectualproperty rights in and to the
Customer Feedback. In addition,Customer acknowledges that all products and services provided to Customerthrough the Labs Program are intended for evaluation and testing purposes onlyand not for commercial use. Any such use is at Customer’s own risk and all suchproducts and services are provided “as-is” without warranty of any kind,whether express or implied, including but not limited to the implied warrantiesof merchantability, fitness for a non-particular purpose, and infringement.Specifically, Involvio makes no warranty that (i) the applicable product orservice will meet Customer requirements; (ii) Customer use of the Labs Programwill be timely, uninterrupted, secure, or error-free; (iii) any informationobtained by Customer as a result of the Labs Program will be accurate orreliable; and (iv) any defects or errors in Labs Program will be corrected.Notwithstanding anything to the contrary in this Agreement, Involvio will haveno liability, including with respect to indemnification obligations, under thisAgreement arising out of or related to any Involvio products and services usedby Customer involved in the Labs Program.
Customer shall pay to Involviothe fees set forth on the Order Form (the “Fees”).The Fees shall be payable by Customer within thirty (30) days of receiving aninvoice 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 ofthe greater of (i) one and one-half 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 thisAgreement is as stated on the Order Form.
5.2. Termination. Either Party mayterminate this Agreement if the other Party commits a material breach of thisAgreement and such breach is not cured within thirty (30) days followingwritten notice of such material breach by the non- breaching Party to thebreaching Party. Sections 1.2, 1.3, 2.1, 2.2, 2.4, 4, 5.2, 6, 7, 8, and 9survive the termination of this Agreement.
5.3. Suspension of Services.Involvio may suspend Customer’s access to the Involvio Service immediately if(i) Customer’s nonpayment of Fees due hereunder; (ii) Customer’s use of theInvolvio Service is, in Involvio’s reasonable judgment, violating applicablelaw or is otherwise detrimental to Involvio or the Involvio Service; and (iii)in Involvio’s reasonable judgment, the Involvio Service or any componentthereof suffered, or is about to suffer, a significant threat to security orfunctionality. Involvio will provide advance notice to Customer regarding anysuch suspension when, in Involvio’s sole discretion, reasonable based on thenature of the circumstances. Involvio may monitor or audit Customer’s use ofthe Involvio Services to ensure that Customer is complying with this Agreement.
THEINVOLVIO SERVICES ARE PROVIDED "AS IS" AND 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 ANYWARRANTIES 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 INVOLVIOSOFTWARE AND RELATED SERVICES WILL BE UNINTERRUPTED.
7.1. Involvio indemnity. Involvioshall, at its own expense, indemnify, defend and hold harmless Customer fromand against all loses, costs and liabilities, including reasonable attorneys’fees (collectively, “Losses”),arising out of or related to any third party claim made or suit or proceedingbrought against Customer alleging that the Involvio Service infringes any dulyissued U.S. patent, copyright, trademark or other intellectual property right.The foregoing states the sole and exclusive liability of Involvio and the soleand exclusive remedy of Customer for intellectual property infringement claims.
7.2. Customer indemnity. Customershall, at its own expense, indemnify, defend and hold harmless Involvio againstall Losses arising out of a third party claim arising out of or related to (i)Customer’s use of the Involvio Service in violation of this Agreement or inviolation of law; (ii) the Event Data or Customer Materials; and (iii)Customer’s breach of this Agreement.
8. Limitation of Liability
IN NO EVENT SHALL (I) INVOLVIO BE LIABLE TO CUSTOMER, WHETHERIN CONTRACT, TORT (INCLUDING NEGLIGENCE), WARRANTY OR OTHERWISE FOR ANYINDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR
PUNITIVE DAMAGES (INCLUDING, WITHOUTLIMITATION, LOSS OF PROFITS, LOSS OF DATA, OR COST OF SUBSTITUTE GOODS ANDSERVICES) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE INVOLVIOSERVICES, 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 RELATINGTO THIS AGREEMENT SHALL EXCEED THE AMOUNTS PAID BY CUSTOMER HEREUNDER IN THETWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO
9.1. Notices. All notices, requestsor communications to be given under this Agreement shall be in writing andshall be deemed duly given and served when delivered in person, by UnitedStates mail, postage prepaid, or by prepaid overnight courier service to theaddresses set forth in the introductory paragraph.
9.2. Governing Law. This Agreementshall be governed by and construed in accordance with the laws of the State ofNew York (except that any conflicts-of-law principles of such state that wouldresult in the application of the law of another jurisdiction shall bedisregarded). Any legal action brought under or in connection with the subjectmatter of this Agreement shall be brought only in the State of New York. EachParty submits to the exclusive jurisdiction of the courts in the State of NewYork and agrees not to commence any legal action under or in connection withthe subject matter of this Agreement in any other court or forum.
9.3. Waiver. No waiver, alterationor modification of any of the provisions of this Agreement shall be bindingunless made in writing and signed by each of the Parties hereto. If eitherParty fails to enforce any term of this Agreement or fails to exercise anyremedy, such failure to enforce or exercise on that occasion shall not preventenforcement or exercise on any other occasion.
9.4. Force Majeure. Neither Partyshall be liable hereunder by reason of any failure or delay in the performanceof its obligations (except payment obligations) hereunder to the extent suchfailure or delay in performance is a result of an act of God, act ofgovernment, flood, fire, earthquake, civil unrest, internet delay, failure of acomputer system or network, or act of terror, but only if such unavailabilityresults notwithstanding the exercise of reasonable care and diligence to avoidor mitigate the same in anticipation of or in response to such causes.
9.5. No Agency. The Parties agreethat, in the performance of this Agreement they are and shall be independentcontractors. Nothing herein shall be construed to constitute either Party asthe agent of the other Party for any purpose whatsoever, and neither Partyshall bind or attempt to bind the other Party to any contract or theperformance of any obligation or represent to any third party that it has anyright to enter into any binding obligation on the other Party’s behalf.Notwithstanding the foregoing, Customer agrees that Involvio can, and herebygrants Involvio the right to, reference Customer as a customer of Involvio andas a user of the Involvio Service, in each case, in connection with Involvio’smarketing efforts.
9.6. Assignment. Involvio may freelyassign this Agreement. Customer may not, without the prior written consent ofInvolvio (which shall not be unreasonably withheld), assign this Agreement, inwhole or in part, either voluntarily or by operation of law, and any attempt todo so shall be a material default of this Agreement and shall be void.
9.7. Severability. If any provisionof this Agreement is held invalid by any law, rule, order, or regulation of anygovernment or by the final determination of any court of competentjurisdiction, such invalidity shall not affect the enforceability of any otherprovisions and such provisions shall be interpreted so as to best accomplishthe objectives of such invalid provisions within the limits of applicable lawor applicable court decision.
9.8. Entire Agreement. ThisAgreement constitutes the complete and exclusive statement of the agreementbetween 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 herebyrepresents and warrants that it has and shall have the full legal right andcorporate power and authority to enter into and perform all of its obligationsunder this Agreement and to comply with all terms and conditions of thisAgreement.
9.11. Counterparts: The Order Formmay be executed in counterparts, each of which shall be deemed an original, butall of which together shall constitute one and the same.