Master Subscription Agreement
This Master Subscription Agreement (this “Agreement”) is by and between ELS, LLC (“ELS”) and the Client set forth in the Order Form executed by the parties (“Client”), and is effective as of the Effective Date of the first Order Form between the parties.
BY (AS APPLICABLE) SIGNING AN ORDER FORM, CLICKING “ACCEPT” AND/OR ACCESSING OR USING ANY ELS SERVICE, CLIENT AGREES TO THE TERMS OF THIS AGREEMENT. CLIENT SHOULD CAREFULLY READ THE TERMS OF THIS AGREEMENT BEFORE ACCEPTING THIS AGREEMENT OR USING THE SERVICE. ELS OFFER OR ACCEPTANCE (AS APPLICABLE) TO ENTER INTO AN AGREEMENT WITH CLIENT REGARDING THE SERVICE IS EXPRESSLY LIMITED TO THIS AGREEMENT AND IS CONDITIONED ON CLIENT’S ASSENT HERETO. NO ADDITIONAL OR DIFFERENT TERMS PROPOSED OR PROVIDED BY CLIENT APPLY TO THIS AGREEMENT.
This Agreement governs Client’s acquisition and use of the Service under any Order Form, as though the provisions of this Agreement were set forth in their entirety within such Order Form, and so that each Order Form and this Agreement shall be considered one, fully integrated document and agreement.
1. Definitions. In addition to the other terms defined herein, the following terms have the meanings given below.
“Authorized User” means a Client administrator, teacher, staff, or other Client employee or contractor who is authorized by Client to use the Service.
“Client Data” means all information and data that is provided to ELS by Client’s Authorized Users as part of the Service.
“Documentation” means the documentation, usage guides, and policies for the Service provided or communicated from time to time by ELS to Client.
“Effective Date” means the Effective Date of the first Order Form executed between ELS and Client.
“Order Form” means a written or online quote, proposal, statement of work, order, or other document agreed by the parties that specifies the Service to be provided in exchange for payment.
“Service” means provision on a “software as a service” basis of proprietary software developed by ELS along with implementation, training, record review, support, and other services that ELS may provide Client, as set forth in an Order Form.
“Software” means the proprietary software developed and owned by ELS and provided to Client in connection with the Service.
2.1. ELS will use commercially reasonable efforts to (a) provide the Service to Client and Authorized Users and (b) to make the online Service available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which ELS shall give advance electronic notice), and (ii) any unavailability caused by an event outside of ELS reasonable control. Client’s right to use the Service is non-exclusive and non transferable, and is solely for Client’s own internal business purpose. The Service is also subject to the specific restrictions, usage limits, and time periods as set forth in each Order Form. For the avoidance of doubt, if Client manages or administers more than one campus, then Client’s use of the Service shall be limited to the specific campus(es) identified on the Order Form.
2.2. ELS reserves the right to change and enhance the Service from time to time.
2.3. Client agrees to: (a) use commercially reasonable efforts to prevent unauthorized access to and use of the Service, and (b) comply with all applicable federal, state, local and foreign laws, rules and regulations in connection with its use of the Service, and to not use the Service in support of any criminal, fraudulent, or illegal endeavors. ELS is not responsible for the failure of Authorized Users to maintain the confidentiality of their login information. Login information of an Authorized User may not be shared by Client or any Authorized User with any other individual.
2.4. Client will provide ELS with cooperation, information, resources, and access to Client-owned and licensed systems as outlined in the applicable Order Form and as reasonably requested from time to time by ELS. ELS is not responsible or liable for any delays or failures to perform based on Client’s failure to provide any of the foregoing items.
3. Term and Termination
3.1. The Initial Term of this Agreement shall begin on the Effective Date and shall continue in effect until all Order Forms with Client have expired in accordance with the terms of such Order Forms, or if this Agreement is terminated earlier, as provided herein.
3.2. The term of each Order Form will begin on the effective date of such Order Form and shall continue for the initial term specified in such Order Form (“Initial Service Term”), unless terminated earlier as provided herein.
3.3. Unless otherwise set forth in the applicable Order Form, upon expiration of the Initial Service Term of any Order Form, such Order Form will renew automatically for a subsequent Renewal Service Term of twelve (12) months (subject to any Fees adjustment as set forth in Section 4.7) unless either party notifies the other party of its intent to terminate at least thirty (30) days prior to the end of the then-current Service Term.
3.4. Without limiting ELS other rights and remedies, ELS reserves the right to suspend or terminate this Agreement, any related Order Forms, and Client’s access to the Service if Client’s account becomes delinquent and is uncured for a period of thirty (30) days.
3.5. Either party may terminate this Agreement (and/or any Order Forms then in effect) if the other party materially breaches this Agreement (or such Order Form) and fails to cure such breach within thirty (30) days after written notice of such breach. ELS may also terminate or suspend an Authorized User’s right to use the Service if in ELS judgment such Authorized User has breached the terms of this Agreement. If ELS terminates this Agreement or an Order Form for breach, Client will be obligated to pay as liquidated damages all Fees that would have come due under the applicable Order Forms for the remainder of the applicable Initial Service Term or Renewal Service Term. The parties agree that ELS actual damages arising from such termination would be difficult to determine with accuracy and, accordingly, have agreed to the foregoing liquidated damages, which the parties acknowledge is a reasonable estimate of ELS potential losses.
3.6. Upon request by Client made within 30 days after the effective date of termination of this Agreement, ELS will make Client Data available to Client for export or download solely in the manner and to the extent provided in the Documentation. After such 30-day period, ELS will have no obligation to maintain or provide any Client Data, and as provided in the Documentation may thereafter delete or destroy all copies of Client Data in ELS systems or otherwise in the possession or control of ELS, unless legally prohibited.
4. Fees and Payment Terms
4.1. Client shall pay all fees and charges as specified on each Order Form (“Fees”).
4.2. All payment obligations are non-cancelable and all amounts paid are nonrefundable. Unless otherwise agreed on the Order Form, ELS charges and collects Fees in advance for the Service except for Fees based on usage of the Service exceeding amounts as defined on the Order Form, which overage amounts are invoiced in arrears based on such usage.
4.3. Unless otherwise set forth in the Order Form, payment terms are net thirty (30) days from the date of ELS invoice, without offsets or deductions of any kind, and payment is due in US dollars. Delinquent invoices are subject to interest of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is less, from the date due, plus all expenses of collection including reasonable legal fees and expenses. In addition, ELS has the right to modify any credit or payment terms in the event Client is delinquent on any invoices. Client will continue to be charged for Fees during any period of Service suspension due to Client’s delinquency.
4.4. The Fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and Client is responsible for payment of all such taxes, levies, or duties, excluding only taxes based on ELS income. If ELS has the legal obligation to pay or collect taxes for which Client is responsible, the appropriate amount shall be invoiced to and paid by Client unless Client provides ELS with a valid tax exemption certificate authorized by the appropriate taxing authority.
4.5. If Client believes an invoice is incorrect, Client must contact ELS in writing within fifteen (15) days after the date of the invoice as to why it believes the invoice is incorrect to be eligible to receive an adjustment or credit.
4.6. Client agrees to provide ELS with accurate billing and contact information, including Client’s legal name, street address, e-mail address, and name and telephone number of an authorized billing contact and Administrator. Client agrees to update this information within thirty (30) days of any change to it. If the contact information Client has provided is false or fraudulent, ELS reserves the right to terminate Client’s access to the Service in addition to any other legal remedies.
4.7. ELS reserves the right to modify its Fees with respect to its Service and to introduce new charges (including but not limited to archival fees to cover additional storage capacity requirements) to become effective upon each upcoming Renewal Service Term by providing Client written notice at least forty-five (45) days prior to the end of the then-current Service Term. In the event that Client does not provide notice of termination to ELS as described in Section 3.3, such Fee changes shall become effective at the commencement of the next Renewal Service Term.
5. Intellectual Property
5.1. Client agrees that ELS and its third party licensors own all right, title and interest, including copyright, patent, trade secret, and all other intellectual property rights, in the Service, the Software and the Sites, including but not limited to structure, organization, design, algorithms, templates, data models, flow charts, logic flow, screen displays, and report formats associated therewith. ELS reserves all rights to the Service and Software not specifically granted herein.
5.2. Client will not: (i) reverse engineer, decompile or disassemble the Software or the Service, and will not otherwise attempt to reconstruct or discover the source code or underlying algorithms for the Software; (ii) provide, lease, lend, rent, sell or use for timesharing, service bureau or hosting purposes or otherwise use or allow others to use the Service or Software for the benefit of third parties; or (iii) copy, modify, translate, distribute, disclose, sublicense, create derivative works from, transfer, display, or unbundle any of the Software or Service or (iv) access the Software or Service to build a competitive product or service.
5.3. As between Client and ELS, Client shall retain ownership of the Client Data. Client hereby grants to ELS, during the term hereof, an irrevocable, royalty-free right and license to use for the purposes specified in this Agreement all Client Data and other materials, software, and data provided by Client to ELS in connection with this Agreement.
5.4. Client hereby grants to ELS a perpetual, irrevocable, worldwide, royalty-free right and license to use any suggestion, enhancement request, recommendation, correction or other feedback provided by Client or any Authorized User relating to the Service.
5.5. Client shall not use the Service for purposes of monitoring the Service’s availability, performance, or functionality, or for any other benchmarking or competitive purposes.
6.1. “Confidential Information” means any information (including without limitation any formula, pattern, compilation, program, method, technique, or process) that is identified by either party in writing as confidential or is of such a nature that a reasonable person would understand such information to be confidential that is disclosed by one party (a disclosing party) to the other party (a receiving party) pursuant to this Agreement, so long as such information is subject to reasonable efforts by the disclosing party to preserve its confidentiality.
6.2. Confidential Information of ELS includes, but is not limited to, the Software, as well as the structure, organization, design, algorithms, methods, templates, data models, data structures, flowcharts, logic flow, and screen displays associated with the Software; the Documentation; and ELS pricing, sales and training materials and procedures.
6.3. Confidential Information does not include information that: (a) is or becomes publicly known or available without breach of this Agreement; (b) is received by a receiving party from a third party without breach of any obligation of confidentiality; (c) was previously known by the receiving party as shown by its written records; or (d) is otherwise required to be disclosed by law.
6.4. A receiving party agrees, except as expressly authorized by this Agreement, not to, directly or indirectly, use, disclose, copy, or allow a third party to access the Confidential Information. Notwithstanding the foregoing, a receiving party may disclose Confidential Information of the disclosing party as required by law or court order; in such event, such party shall use its best efforts to inform the other party prior to any such required disclosure.
6.5. Notwithstanding anything to the contrary herein, Client agrees that ELS may: (a) derive and compile from the provision of the Service certain de-identified, aggregate and/or analytical data, which shall not contain any Client-specific or any individually identifying information, and (b) use this data for ELS own purposes and without restriction, including, but not limited to, using the data in conjunction with data from other sources to improve ELS products and services and create new data models and products.
6.6. Each party acknowledges and agrees that any violation of this Section or the intellectual property rights of ELS may cause the disclosing party irreparable injury for which the disclosing party would have no adequate remedy at law, and that the disclosing party shall be entitled to seek preliminary and other injunctive relief against the receiving party for any such violation. Such injunctive relief shall be in addition to, and in no way in limitation of, all other remedies or rights that disclosing party shall have at law or in equity.
7. Data Protection and Security
7.1. ELS will use commercially reasonable administrative, technical and physical security measures to maintain the confidentiality of the Client Data.
7.2. Client is responsible for securing Client’s systems, facilities, and operating environment and Client is responsible for its Authorized Users of the Service. Client agrees to observe all security features on the Sites and Service and not to disable or circumvent any security features.
8. Warranties and Disclaimers
8.1. Each party warrants that it has full authority to enter into this Agreement and is not bound by any contractual or legal restrictions from fulfilling its obligations hereunder.
8.2. ELS warrants that the Service will substantially conform to the Documentation. In the event of a breach of this warranty by ELS that is reported by Client to ELS within sixty (60) days after delivery of the Service, as Client’s sole and exclusive remedy, ELS will, at its expense, use commercially reasonable efforts to cause the Service to conform.
8.3. Client represents and warrants that all Client Data provided to ELS in connection with Client’s use of the Site and the Service: (i) is owned by Client, or Client has the full right to provide the Client Data to ELS; (ii) does not infringe or misappropriate any copyright, trademark, trade secret or other intellectual property right; (iii) does not violate any person’s right of privacy or publicity; and (iv) does not contain any unlawful, obscene, defamatory or libelous material. ELS is not responsible for reviewing or monitoring any Client Data except as expressly agreed in an Order Form.
8.4. ELS does not warrant that the Service will operate uninterruptedly or error free. Client acknowledges that ELS has no control over the functioning of the Internet and ELS makes no representations or warranties of any kind regarding the performance of the Internet.
8.5. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, ELS AND ITS SUPPLIERS MAKE NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY; FITNESS FOR A PARTICULAR PURPOSE; WARRANTIES OF NON-INFRINGEMENT; OR ANY WARRANTIES ARISING AS A RESULT OF CLIENT USAGE IN THE TRADE OR BY COURSE OF DEALING.
9. Liability and Indemnification
9.1. Client agrees that the aggregate liability of ELS and its affiliates relating to this Agreement and the Services shall be limited to the amount of fees actually received by ELS from Client under this Agreement during the one-year period immediately preceding the first incident which gave rise to the claims. In no event shall either party be liable for any special, incidental, indirect, cover, consequential, exemplary or punitive damages; any damages based on injury to person or property or death; or any lost sales, profits or data, even if such party is told that any of such damages may occur. ELS is not responsible for any personal injury or death relating to Client’s or any Authorized User’s misuse or use of the Site or Services. Any action by either party must be brought within one (1) year after the cause of action arose.
9.2. ELS will defend Client from and against all third-party claims and suits brought against Client alleging that the Service infringes or misappropriates any U.S. copyright, patent, trade secret or other intellectual property right, and will indemnify Client against all costs, fees (including, without limitation, attorneys fees), and damages finally awarded against Client as a result of, or for amounts paid by Client under a settlement approved by ELS in writing of, any such claim, provided that: (a) Client notifies ELS promptly in writing of any such claim; (b) ELS has sole control of the defense and all related settlement negotiations (except that ELS may not settle any such claim unless it unconditionally releases Client of all liability), and (c) Client provides ELS with all commercially reasonable assistance, information and authority to perform the above at ELS expense. The foregoing indemnity shall not apply if the alleged infringement is attributable to: (i) any modification to the Service or Software by Client or any person or entity other than ELS, (ii) use of the Service or Software other than in accordance with this Agreement; or (iii) any Client Data. If such a claim is made or in ELS opinion is likely to be made, ELS may at its option, modify the Service or Software so that it becomes non-infringing, procure, at ELS expense, the right for Client to continue using the Service or Software, or terminate this Agreement and pay Client a pro-rata refund of Fees paid for use of the Service or Software in advance. This Section states ELS sole liability and Client’s sole remedy with respect to any infringement of any intellectual property rights involving the Service or Software.
9.3. Client shall defend ELS and its third-party service providers from and against all third-party claims and suits brought against Client alleging that the Client Data infringes or misappropriates any U.S. copyright, patent, trade secret or other intellectual property right, or arising from Client’s breach of this Agreement or any misrepresentation made by Client pursuant to this Agreement or use of the Service in violation of applicable law, and will indemnify ELS against all costs, fees (including, without limitation, attorneys fees), and damages finally awarded against ELS as a result of, or for amounts paid by ELS under a settlement approved by Client in writing of, any such claim, provided that: (a) ELS notifies Client promptly in writing of any such claim; (b) Client has sole control of the defense and all related settlement negotiations (except that Client may not settle any such claim unless it unconditionally releases ELS of all liability), and (c) ELS provides Client with all commercially reasonable assistance, information and authority to perform the above at Client’s expense.
Neither Client nor ELS may assign or otherwise transfer this Agreement without the prior written consent of the other party, except that such consent shall not be necessary in connection with the sale of all or substantially all of such party’s business or portion of such party’s business to which this Agreement relates, so long as such acquirer is not a competitor of the other party. Any permitted assignee must agree in writing to the terms of this Agreement.
11. Other Provisions
11.1. Nothing in this Agreement shall be construed as creating a joint venture, partnership, agent or employment relationship between ELS and Client.
11.2. Any notice or other communication required or permitted in this Agreement shall be in writing and delivered to the addresses listed on the Order Forms applicable to this Agreement: (i) by email; (ii) by personal delivery; (iii) by certified mail; or (iv) by nationally recognized overnight courier, and shall be effective upon receipt.
11.3. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior proposals, negotiations, conversations, discussions and agreements between the parties concerning the subject matter hereof. Client agrees that purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written comments made by ELS regarding future functionality or features or any other promises not specifically set forth in this Agreement. This Agreement may not be modified or waived except in a written document, signed by both parties.
11.4 This Agreement shall be governed by and interpreted in accordance with the laws of the state of Pennsylvania, without giving effect to its conflict of law provisions.
11.5. Each party shall attempt in good faith to resolve any controversy, claim or dispute of whatever nature arising out of or relating to this Agreement (“Dispute”) promptly by negotiation between executives or managers who have authority to settle the Dispute. Each party shall provide the other with information and documentation reasonably requested by the other party to substantiate its position with respect to the Dispute.
11.6. Neither party shall be liable for any failure or delay in the performance of its obligations (except for payment obligations hereunder) due to causes beyond its reasonable control, including but not limited to war, sabotage, insurrection, riot or other act of civil disobedience, act of any government affecting the terms hereof, acts of terrorism, accident, fire, explosion, flood, hurricane, severe weather or other act of God, or failure of telecommunication or internet service providers.
11.7 During the term of this Agreement and in accordance with the provisions contained herein, Client shall permit ELS to use its names, trademarks and logos in marketing related activities, including but not limited to press releases, website showing and links, and marketing of collateral materials, and to reference that Client is a customer in its marketing activities. Prior to release of any press release or marketing materials, ELS shall submit to the Client for review all such materials and the intended usage of such materials.
11.8. There are no intended third-party beneficiaries of this Agreement, and nothing in this Agreement may be relied upon by, or shall benefit, any party other than ELS and Client.
11.9. If any provision of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid or unenforceable, then the invalidity or unenforceability shall not affect the other provisions of the Agreement and all provisions not affected shall remain in full force and effect. Both parties will attempt to substitute with a valid or enforceable provision, which achieves to the greatest extent possible the economic, legal and commercial objectives of the invalid or unenforceable provision.
11.10. Headings to clauses are for ease of reference only and will not affect the interpretation of this Agreement.
This agreement was updated on: 10/22/19