Version: May 20, 2021
By accessing or using XanEdu’s Services, by electronically accepting this Agreement via XanEdu’s online services, or by mutually agreeing to an Proposal and which Proposal references this Agreement, Subscriber hereby accepts this Agreement as it relates to Subscriber’s use of the Services. If Subscriber does not agree to the terms of this Agreement (or you do not have authority to enter into this Agreement on behalf of Subscriber), then Subscriber may not purchase or use any XanEdu Services. This Agreement is effective as of the date Subscriber first accepted this Agreement via the Proposal (the “Effective Date”).
- Definitions. Capitalized terms not otherwise defined herein shall have the meanings set forth below:
1.1. “Confidential Information” means information, including Content, whether reduced to writing or not, provided by one Party to the other or observed by a Party, and which is identified as confidential or with other similar designation(s), or would otherwise reasonably be understood to be confidential under the circumstances. Confidential Information includes but is not limited to data (technical and non-technical), trade secrets, formulas, patterns, compilations (including compilations of customer information), programs (including models), devices, methods (including design methods), techniques, drawings (including equipment drawings), processes, financial information (including sales forecasts), pricing, lists of actual or potential customers or suppliers (including identifying information about those customers), operational information, planning or strategy information, research and development information, information about existing and future products, and information about personnel matters of a Party. Confidential Information also includes information disclosed by a third party on behalf of a Party that otherwise meets the foregoing definition and all information about this Agreement, including its existence.
1.2. “Content” means information, software, electronic documents, data, video files, image files, text, graphics, sounds, questions, suggestions, messages, comments, feedback, ideas, notes, drawings, articles and other materials that are protected by copyrights, patents, trademarks, trade secrets and/or other proprietary rights of their respective owners.
1.3. “Deliverable” means any physical or intangible thing, including Subscribed Materials, Distributions, and any other Content which XanEdu supplies pursuant to the Agreement.
1.4. “Distributions” means any unique combination of Content made available for distribution through the Services.
1.5. “End User” means any individuals of Subscriber, including students, teachers, administrators, or other individuals who have been authorized by Subscriber to access certain Subscriber Content on the via the XanEdu Services, or in respect of whom the XanEdu Services are used by Subscriber.
1.6. “Intellectual Property” means any and all of the following, whether protected, created or arising under the laws of the United States or any other jurisdiction in the world: patents (including, but not limited to, any applications, extensions, divisions, continuations, continuations in part, reexaminations, reissues, and renewals related thereto), copyrights, trademarks and service marks (including, but not limited to, applications, registrations, and renewals related thereto), trade dress, trade names, designs, trade secrets, know-how, and any other proprietary rights of any nature, by whatever name or term known or however designated.
1.7. “Order Form” means any executed Proposal or agreement for Services by Subscriber, which may include online or web-based orders pursuant to applicable Proposal.
1.8. “Personnel” means the employees, agents, consultants, and representatives of a Party who are fulfilling such Party’s obligations under this Agreement.
1.9. “Services” means the XanEdu Subscription products, services and activities as set forth in the Proposal, Order Form, or accompanying SOW, whether performed by XanEdu, or a third party at XanEdu’s direction. Implementation, and support and maintenance set forth in any Proposal or Order Form, and any applicable updates and provision of all required Subscribed Materials shall be considered part of the Services.
1.10. “Statement of Work” or “SOW” means a document which is executed by both Parties which (a) consents by its terms to be governed by this Agreement, and (b) details Subscriber’s specific engagement of XanEdu for Services or professional services as agreed to by the Parties.
1.11. “Subscribed Materials” means any digital products, user manuals, guides, drawings, descriptions, designs, or other documentation that XanEdu may develop as part of the Services.
1.12. “Subscriber Content” means the Content or other materials that are submitted by Subscriber or that Subscriber makes available to XanEdu during XanEdu’s performance of, or Subscriber’s use, of the Services.
1.13. “Subscription Data” means the information submitted by Subscriber under the subscription or sign up process to the Services, including Subscriber’s or End Users’ legal name, address, telephone number, email address and applicable billing information.
1.14. “Term” means the term for which XanEdu agrees to provide the Services, as set forth in the Proposal, Order Form, or any SOW. If no Term is identified in a Proposal, Order Form, or SOW, the Term shall be one (1) year.
1.15. “Use” shall mean to install (if applicable), access (including remote access), implement, produce, and/or configure the Services, Subscribed Materials and Deliverables in accordance with this Agreement, and SOW, or otherwise with XanEdu’s written consent.
- Access; Services.
2.1. Right of Use. XanEdu hereby grants Subscriber, starting on the Effective Date and continuing for so long as required for the Use of the Services, Subscribed Materials and Deliverables during the Term, the right to access and Use the Services, Subscribed Materials and Deliverables. Subscriber is responsible for all activities that occur in the accounts of its End Users, and for compliance by such Parties with this Agreement, and shall use commercially reasonable efforts to prevent unauthorized access to, or use of, the Services, Subscribed Materials and Deliverables, as well as notify XanEdu promptly of any such unauthorized use or access.
2.2. Services Scope. XanEdu will provide Subscriber with the number of credentials with respect to Services equal to the number of End Users, as may be classified as students, teachers or administrators licensed by Subscriber under the applicable Proposal or Order Form. During the Term XanEdu shall perform the Services in accordance with the terms and conditions of this Agreement and any specifications set forth in the Proposal or any SOW. XanEdu shall provide appropriate Subscribed Materials and all Deliverables to enable Subscriber to Use and maintain such Deliverables as intended.
2.3. Subscription Data. Subscriber agrees to maintain and promptly update the Subscription Data and any other information provided to XanEdu to keep it accurate. Without limiting any other provision of this Agreement, if Subscriber or any End Users provide any information that is untrue, inaccurate, or incomplete, or XanEdu has reasonable grounds to suspect that such is the case, XanEdu reserves the right to suspend or terminate Subscriber’s account or subscription and refuse any and all current or future use by Subscriber or any End Users of the Services (or any portion thereof). Subscriber shall confirm all information presented on the Services to determine whether the Subscription Data is current and accurate, and, if not, to correct or update the Subscription Data including any billing information. Subscriber agrees not to register or subscribe for more than one account, create an account on behalf of someone else, or create a false or misleading identity on the Services. Subscriber remains entirely responsible for maintaining the confidentiality of all passwords and End User account information. Subscriber shall promptly notify XanEdu immediately in the event of any known or suspected unauthorized use of any account, or any known or suspected breach of security, including loss, theft, or unauthorized disclosure of Subscriber’s or anyone else’s password. In the event of a breach of security relating to Subscription Data, Subscriber will remain liable for any unauthorized use of such Subscription Data.
2.4. Support. XanEdu will provide commercially reasonable support to help Subscriber use and maintain Services as set forth in the SOW. XanEdu shall also use commercially reasonable efforts to provide service desk support during XanEdu’s normal business hours, subject to XanEdu-recognized holidays. XanEdu will provide commercially reasonable support to help Subscriber maintain and use the Services at least with an availability of 98% over a one-year period, subject to: (i) planned downtime for which XanEdu shall use commercially reasonable efforts to provide Subscriber 24 hours’ notice; and (ii) unavailability caused by circumstances beyond XanEdu’s reasonable control, including, without limitation, acts of God, acts of government, pandemic, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems or internet service provider failures or delays.
2.5. Professional Services/SOWs. Each duly executed SOW shall become a part of this Agreement and shall be subject to all the terms and conditions set forth in this Agreement. Any terms or conditions appearing in any SOW or any transaction document (e.g., a purchase order or invoice), other than those typically appearing in such a document (e.g., description of services, price, schedule, location, and specifications) which are additional or conflicting to those set forth in this Agreement shall not apply in the event such terms conflict with the terms of this Agreement; provided, however, that conflicting terms explicitly identified as controlling in a fully executed SOW shall control for the purposes of that SOW only. XanEdu retains all right, title and interest in and to the XanEdu Services and if applicable, all Deliverables resulting from performance of Services, including all know how, methodologies, designs and improvements to the Services, but excluding any Subscriber Content incorporated into any such Deliverable; provided that XanEdu grants Subscriber the rights to use any Deliverables or work product that are the result of any Services in connection with Subscriber’s authorized Use of the Services, as further set forth in Section 2.1.
2.6. Usage Limits. The Services and Content are subject to usage limits, including, for example, the quantities specified in any Proposal or resulting Order Form. Unless otherwise specified, (a) a quantity in an Order Form refers to either the number of Distributions or the number of End Users permitted, and the Service may not be used for more than the number of End Users or the number of Distributions so indicated, (b) an End User’s password may not be shared with any other individual, and (c) an End User identification may be reassigned to a new individual replacing one who no longer requires ongoing use of the Services or Content. If Subscriber exceeds a contractual usage limit, or is unable or unwilling to abide by a contractual usage limit, Subscriber will execute an Order Form for additional quantities of the applicable Services or Content promptly upon request, and/or pay any invoice for excess usage pursuant to then applicable pricing, unless specified otherwise in any applicable Order Form.
2.7. Subscriber Requirements. Except as otherwise provided in the Proposal, Subscriber must provide, at its own expense, the facilities, computers and devices, network, and other equipment required for Use of the Services. Subscriber must, also obtain any consents, authorizations and approvals necessary to enable XanEdu to access such facilities, network, and equipment to perform its obligations for Subscriber under this Agreement. Moreover, Subscriber is responsible for obtaining, and keeping updated, any third-party materials that may be required to operate and/or use the features and functionality of the Services, including but not limited to data and database access.
2.8. Security. Subscriber acknowledges that Services may include security technology to ensure that the Services may only be used in accordance with the applicable license rights. Subscriber shall take all reasonable security measures to prevent unauthorized access to the Services. Subscriber agrees to: (1) accept all responsibility for all activities that occur under End User name(s) or password(s) used by Subscriber; and (2) immediately notify XanEdu of any unauthorized use of any password or account assigned to Subscriber, or any other breach of security or confidentiality thereof. In such event, XanEdu shall have the right, without limitation of any other rights under this Agreement, to terminate any such account or this Agreement in its entirety.
2.9. Subscriber Restrictions. Subscriber agrees to not: (i) rent, lease, sublicense, time-share, or otherwise distribute the Services for resale, or to host applications to provide service bureau, time-sharing, or other services to third parties other than any entity or End User that is part of Subscriber, or otherwise make available the Services to any third parties other than any entity or End User that is part of Subscriber, (ii) reverse-engineer, decompile, disassemble, modify, create derivative works of, or copy all or any part of the Services, (iii) permit any End User or other person to access or use the Services using another End User’s ID, login or password or otherwise make an End User’s ID, login or password available to any third party; (iv) bypass any privacy and/or security measures XanEdu may use to prevent or restrict access to the Services (or other accounts, computer systems or networks connected to the Services), (v) remove any intellectual property, confidentiality or proprietary notices of XanEdu and/or any third party which appear in any form on the Services or otherwise in any Subscribed Materials and/or Deliverables or XanEdu collateral or materials however reproduced, and (vi) allow the Services, as well as any Deliverables, and all parts thereof to be subject to unauthorized copying, modification, or disclosure by its End Users and other third parties.
2.10. Acceptable Use. Subscriber may use the Services only for its internal business purposes; including any permitted use by End Users, and shall not: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous material, including material harmful to children or that violates third party privacy rights or other third party rights; (iii) send or store material containing software viruses, worms, Trojan horses, or other harmful computer code, files, scripts, agents, or programs; (iv) interfere with or disrupt the integrity or performance of the Services or the Content or data contained therein; or (v) attempt to gain unauthorized access to the Service or its related systems or networks; or unless otherwise agreed upon. Subscriber further represents and warrants that: (a) Subscriber has not falsely identified itself or any End User, nor have or will Subscriber or its End Users provide any false information to gain access to the Services; (b) Subscriber’s billing information as set forth on the Order Form is correct; (c) Subscriber and its End Users will use the Services in accordance with, and will comply at all times with, this Agreement, including any modifications to this Agreement in accordance therewith; (d) Subscriber and its End Users shall at all times comply with all applicable laws, rules and regulations with respect to the use of the Services; and (e) Subscriber and its End Users will not use the Services to infringe, misappropriate or violate the rights of XanEdu or third parties. Subscriber further agrees, represents and warrants that in using the Services, Subscriber will not upload, submit or otherwise transmit to XanEdu:
a. Content that is unlawful, threatening, abusive, defamatory, obscene or which invade another person’s privacy or further the commission or concealment of a crime;
b. Content that is not lawfully Subscriber’s to transmit;
c. Content that is the subject of, or which infringe upon, any patent, trademark, trade name, trade secret, copyright, right of publicity, moral right or other intellectual property right of another person or entity;
d. Content containing software viruses or other harmful computer code; or Content that in any way interfere with or disrupt the Services or any servers or networks connected to or used with the Services;
e. In respect to any Deliverables provided to Subscriber through the Services that Subscriber or any End User did not upload, submit or otherwise transmit to XanEdu, Subscriber agrees, represent and warrant: (1) not to reverse engineer, decompile, or disassemble any of the Deliverables or use them separately from the Services provided by XanEdu; (2) not to modify, duplicate, distribute, display, perform, sublicense, republish, retransmit, reproduce, create derivative works from, transfer, sale, or otherwise use the Deliverables, except as specifically provided in this Agreement; and (3) not use the Deliverables in context or juxtaposition with any pornographic, defamatory, or unlawful uses or materials.
- Subscriber Content.
3.1. License to Subscriber Content. Subscriber hereby grants to XanEdu a royalty-free, and non-exclusive license to combine the Subscriber Content with other works and to use, transmit, distribute, reproduce, modify, edit, adapt, translate and reformat Subscriber Content in any manner, in whole or in part, to provide and distribute the Services. The forgoing license shall only continue for the period necessary for the Services and shall automatically expire upon completion of such Services, or if sooner, upon the expiration of the Agreement. XanEdu agrees to only use the Subscriber Content for providing and troubleshooting the Services and, unless specifically set forth in this Agreement, agrees not to use, transmit, distribute, reproduce, modify, edit, adapt, translate or reformat Subscriber Content in any manner, in whole or in part for any other reason.
3.2. Removal of Content. If XanEdu is required by a licensor to remove Content, or receive information that Content provided may violate applicable law or third-party rights, XanEdu may so notify Subscriber and in such event Subscriber will promptly remove such Content from any Subscriber systems. If Subscriber does not take required action in accordance with the above, XanEdu shall be entitled to and may disable the applicable Content or Service until the potential violation is resolved. Subscriber shall be entirely responsible for all Subscriber Content that Subscriber and any End Users post, email, publish or otherwise transmit to the Services. XanEdu does not control the submissions or Content posted, emailed or otherwise transmitted on the Services by others and, as such, XanEdu does not guarantee the accuracy, integrity or quality of such Content or submissions. Subscribers and all End Users understand that by using the Services, Subscriber or its End Users may be exposed to Content or submissions that are offensive or objectionable. Under no circumstances will XanEdu be liable in any way for any Content or submissions, including, but not limited to, for any errors or omissions in any Content or submissions (including Subscriber Content), or for any loss or damage of any kind incurred as a result of the use of any Content or submissions posted, emailed or otherwise transmitted to or through the Services. Subscriber acknowledges that XanEdu is acting as a passive conduit for such distribution and is not undertaking any obligation or liability relating to any Content or submissions. Although XanEdu reserves the right to remove, without notice, any Content for any reason, XanEdu has no obligation to review Content prior to the Content’s posting or to delete Subscriber Content that Subscriber or any End User may find objectionable or offensive. XanEdu is not responsible for maintaining a copy of any material removed from the Services, and XanEdu is not liable for any loss Subscriber incurs in the event that Content that Subscriber or any End User posts, publishes or transmits to the Services is removed.
3.3. Analytics; Aggregation. XanEdu may utilize data obtained by Subscriber Content, End User information, and Subscriber Data (the “Aggregated Data”) in a de-identified manner, which may be aggregated with other de-identified data from a sufficient number of other customers in a manner reasonably designed to prevent XanEdu or others from using the any such Aggregated Data to analyze the particular characteristics of Subscriber’s business. Subscriber grants XanEdu a non-exclusive, worldwide, paid-up, perpetual and irrevocable right and license to: (a) extract, copy, aggregate, process and create derivative works of Aggregated Data to derive, or add to, analytics databases; (b) employ data analytics for purposes of Service solutions; and (c) prepare derivative works, use, execute, reproduce, display, perform, transfer, distribute, and sublicense the Aggregated Data and such derivative works.
4.1. Generally. Title to all Intellectual Property rights, including but not limited to patent, trademark, copyright, design, and trade secrets right in (and title to all copies of and all media bearing) the current and any future version or release of the Services, including, but not limited to, Services or any features requested and or designed mutually with Subscriber, and the program concepts contained in the Services, as well as any Deliverables, are retained by XanEdu or its applicable third party licensors. For the avoidance of doubt and without limitation, and other than the rights granted hereunder, there is no transfer of title or of any proprietary rights or of any intellectual property rights to Subscriber under this Agreement. Unless specifically stated, in writing, by XanEdu to the contrary, Subscriber has no right to use XanEdu’s name, trademarks, or any goodwill now or hereafter associated therewith, all of which is the sole property of and will inure exclusively to the benefit of XanEdu. Subscriber will not knowingly use the Services in a manner that violates any third-party intellectual property, contractual or other proprietary rights.
4.2. XanEdu Content. Subscriber acknowledges that all Content which is not Subscriber Content, is protected by copyrights, patents, trademarks, trade secrets and/or other proprietary rights, and that these rights are valid and protected in all forms, media and technologies existing now or hereafter developed. All Content is copyrighted under the United States copyright laws (and, if applicable, similar foreign laws), and XanEdu further owns all copyrights in the selection, coordination, arrangement and enhancement of such Content. All trademarks appearing on the Services are trademarks of their respective owners. XanEdu is the trade name and trademark of XanEdu Publishing Inc. d/b/a XanEdu, Inc. XanEdu’s commercial partners, suppliers, advertisers, sponsors, licensors, contractors and other third parties may also have additional proprietary rights in the Content which they make available on the Services. Subscriber may not modify, publish, transmit, distribute, perform, participate in the transfer or sale, create derivative works of, or in any way exploit, any of the Content, in whole or in part. When Content is downloaded to any Subscriber or End User’s computer, such Subscriber or End User does not obtain any ownership interest in such Content. Modification of the Content or use of the Content for any other purpose, including, but not limited to, use of any Content in printed form or on any other Web site or networked computer environment is strictly prohibited unless Subscriber or such End User receives prior written consent of XanEdu.
4.3. Ownership of Subscriber Content. Subject to the rights granted to Subscriber Content as set forth herein, including Section 3, Subscriber shall retain all ownership rights, title and interest in and to all Subscriber Content.
4.4. Subscriber Feedback. For any comments, submissions or other feedback Subscriber or its End Users, Personnel or contractors may provide to XanEdu, at its sole discretion, concerning the functionality and performance of the Services, including identification of potential errors and improvements, the Parties acknowledge that XanEdu will be free to use, disclose, reproduce, license or otherwise distribute, and exploit such information as XanEdu sees fit, without any obligation or restriction of any kind to Subscriber. There is no obligation for XanEdu to review feedback, comments or submissions made by Subscriber, and there is no obligation to keep any such information confidential.
- Fees and Payment.
5.1. Fees and Payment. The purchase of Services shall include performance of the applicable Services during the Term as set forth in the Proposal. In the event such Services are not included in the Proposal, Services Fees shall be set forth in an applicable SOW. For direct payments, Subscriber authorizes XanEdu to charge Subscribers credit card or accept payment from the designated payment processing service, such as PayPal, in the amount indicated on the applicable Order Form. Fees shall be governed by the specific Proposal to which Subscriber is responding and the applicable Term. Except as otherwise specified herein or in an Order Form, (i) fees are payable at time of purchase based on services purchased and not actual usage, and (ii) payment obligations are non-cancelable and fees paid are non-refundable. Such charges shall be made in advance, immediately, monthly or in accordance with any different billing frequency stated in the applicable Order Form. XanEdu may instead, at its option, decide to invoice Subscriber as set forth in a relevant Order Form. Unless otherwise agreed upon, invoiced charges are due net-30 days from the invoice date. Subscriber is responsible for providing complete and accurate billing and contact information to XanEdu and notifying XanEdu of any changes to such information. All payments shall be made in U.S. dollars in accordance with instructions provided by XanEdu.
5.2. Taxes. Except as otherwise provided in the Proposal or an SOW, the agreed upon fees include all sales, use, value added and withholding taxes and any other taxes or duties. Subscriber shall be responsible for making all payments to the applicable taxing authorities in a timely manner. XanEdu shall be solely liable for any and all taxes based on or measured on XanEdu’s income.
- Term and Termination.
6.1. Term of Agreement. This Agreement shall commence on the Effective Date and, unless terminated earlier in accordance with this Agreement, shall remain in effect for the Term. Notwithstanding the forgoing, the Term of this Agreement shall automatically extend to be coterminous with any existing SOW which extends past the termination of this Agreement. End User subscriptions purchased by Subscriber during the Term, unless specified otherwise, shall commence on the start date specified in the applicable Order Form and continue for the subscription Term.
6.2. Renewal of Term. Unless provided otherwise in the applicable Proposal, provided that Subscriber is not then in material breach of this Agreement, this Agreement shall renew automatically for additional one (1) year term(s) (each a “Renewal Term”) at XanEdu’s then current fees and policies, unless either Party notifies the other Party in writing at least sixty (60) days prior to the expiration of its desire to terminate the Agreement.
6.3. Termination Automatically. This Agreement and all SOWs shall automatically terminate upon (i) the death or institution of a dissolution proceeding of the other Party, (ii) the institution of any proceeding, voluntary or involuntary, in bankruptcy, insolvency, or liquidation by or against such other Party, other than an involuntary proceeding which is dismissed within sixty (60) days of filing, or (iii) any assignment of such other Party’s assets for the benefit of creditors, placement of the assets of such other Party in the hands of a trustee or receiver, unless the trust or receivership is dissolved within sixty (60) days thereafter.
6.4. Suspension of Services. XanEdu may, in its sole discretion and without prior notice or liability, suspend access to the Services immediately, including, but not limited to, (i) restricting the time the Service is available, (ii) restricting the amount of Use permitted, and (iii) suspending, restricting or terminating any End User’s right to use the Services upon Subscriber’s failure to pay properly amounts then payable by Subscriber under this Agreement.
6.5. Termination for Cause. Each Party shall be entitled to terminate this Agreement and all SOWs on written notice in the event of any material breach by the other Party (including any failure by Subscriber to make payments when due if such payments are not being contested in good faith), provided however, that, if such breach is capable of being cured, the terminating Party must provide the other Party with the opportunity to cure the breach within the fifteen (15) days following receipt of written notice of such breach.
6.6. Effect of Termination. Upon termination of this Agreement for any reason, or upon expiration without renewal of any Term, (i) XanEdu shall promptly return or destroy, at Subscriber’s direction, any Subscriber Content (plus all login information, if applicable); and (ii) Subscriber shall cease use of all Services, Subscribed Materials and Deliverables, and shall promptly return or destroy, at XanEdu’s direction any Subscribed Materials or Deliverables which are owned by XanEdu. Subscriber’s shall promptly pay to XanEdu all undisputed fees and other amounts due and owing under this Agreement upon such termination. Notwithstanding anything to the contrary contained herein, any provisions which, by their nature, are intended to survive any expiration or termination of this Agreement shall so survive, including Section 7. XanEdu shall not be liable to Subscriber, any End User or any third-party for any termination or cancellation of access to, or use of, Services by Subscriber or End Users, except for a refund of any fees or charges prepaid by Subscriber with respect to any pre-paid Services. Subscriber acknowledges that Subscriber’s only right with respect to any dissatisfaction with any modification or discontinuation of service made pursuant to this provision or this Agreement, or any policies or practices by XanEdu in providing the Services, including without limitation any change in Content or any change in the amount or type of fees or charges associated with the Services, is to cancel or terminate Subscriber’s subscription or registered End User accounts, as applicable.
7.1. Generally. Neither Party (the “Recipient”) shall use or disclose the Confidential Information of the other Party (the “Disclosing Party”) except as expressly required or permitted herein. The Recipient shall not disclose any of such Confidential Information to any of such Party’s employees, subcontractors, and licensors except as is reasonably required in connection with the exercise of such Party’s rights and obligations under this Agreement, provided that such employees, subcontractors and licensors are subject to binding use and disclosure restrictions at least as protective as those set forth herein, executed in writing by such employees, subcontractors, or licensors. However, the Recipient may disclose Confidential Information of the Disclosing Party: (i) pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the Disclosing Party gives reasonable notice to the other Party to contest such order or requirement; and (ii) on a confidential basis to its legal or financial advisors.
7.2. Exclusions. For purposes of this Agreement, the term “Confidential Information” does not include any data or information which: (i) the Recipient can establish was already known by the Recipient at the time of disclosure hereunder by the Disclosing Party; (ii) is or becomes generally known to the public other than as a result of a disclosure by the Recipient; (iii) is received by the Recipient from a third party, without restriction on disclosure, and without breaching any obligation of confidentiality about which the Recipient knew or should have known; or (iv) is independently developed by the Recipient without use or reliance on, directly or indirectly, of Confidential Information received from Disclosing Party, as demonstrated from the written records of the Recipient
- Warranty and Disclaimers.
8.1. Mutual Representations and Warranties. Each Party represents and warrants to the other Party that: (i) it is duly organized, validly existing, and in good standing as a corporation or other entity under the jurisdiction of its incorporation or other organization; (ii) it has the full right, power, and authority to enter into, and to perform its obligations and grant the rights to access it grants or is required to grant under, this Agreement; and (iii) the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such Party which therefore constitutes a legal, valid, and binding obligation of such Party, enforceable against such Party in accordance with its terms.
8.2. Additional XanEdu Warranties. XanEdu warrants and represents that (i) while performing any Services under the Proposal or any SOW its performance relating to the Services shall comply with the terms of this Agreement, the Proposal and any SOW, including satisfying any specifications set forth therein regarding XanEdu’s Personnel or otherwise, and (ii) it will perform the Services in a professional, competent, and workmanlike manner in accordance with industry standards and reflecting its commercially reasonable knowledge, skill, and judgment,
8.3. Additional Subscriber Warranties. Subscriber further represents, warrants, and covenants to XanEdu that Subscriber owns or otherwise has and will have the necessary rights and consents in and relating to the Subscriber Content so that, as received by XanEdu and used in accordance with this Agreement, they do not and will not violate any Applicable Law, including intellectual property rights of any third party.
8.4. Warranty Disclaimer; Limitations. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT, THE SERVICES, CONTENT, DOCUMENTATION, AND DELIVERABLES ARE PROVIDED “AS IS” AND XANEDU HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. PARTICULARLY XANEDU SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, XANEDU MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES, OR ANY RESULTS OF THE USE THEREOF, WILL MEET SUBSCRIBER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR-FREE. THE DISCLAIMERS OF WARRANTY, LIMITATIONS OF LIABILITY, AND OTHER PROVISIONS STATED HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES AND APPLY REGARDLESS OF WHETHER ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
8.5. Third Party Disclaimer. ALL THIRD-PARTY SOFTWARE, CONTENT, AND MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY SUCH THIRD-PARTY SOFTWARE AND MATERIALS IS STRICTLY BETWEEN SUBSCRIBER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY SOFTWARE OR MATERIALS, AND XANEDU HEREBY EXPRESSLY DISCLAIMS AND EXCLUDES ANY AND ALL OTHER REPRESENTATIONS AND WARRANTIES WHATSOEVER TO SUBSCRIBER OR ANY THIRD PARTY RELATING TO THE COMPLETENESS OR ACCURACY OF DATA PROVIDED HEREUNDER.
8.6. Limitation of Liability. IN NO EVENT WILL XANEDU OR ANY OF ITS LICENSORS, VENDORS, SERVICE PROVIDERS, OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (i) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT, OR LOSS OF DATA OR DIMINUTION IN VALUE, OR (ii) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF XANEDU AND ITS PERSONNEL, LICENSORS, VENDORS, SERVICE PROVIDERS, AND SUPPLIERS UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, EXCEED THE AMOUNT PAID TO XANEDU UNDER THIS AGREEMENT DURING THE TWELVE-MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO LIABILITY. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
8.7. Print and Ship Orders. ALL PRINTED DOCUMENTATION OR DELIVERABLES PRODUCED FOR SUBSCRIBER WILL BE DEEMED ACCEPTED UPON TWO (2) DAYS UPON SUBSCRIBER’S RECEIPT. XANEDU DOES NOT GUARANTEE THE SHIPMENT, AND DELIVERY SERVICES OFFERED WITH THE SERVICES. IN PARTICULAR, XANEDU DOES NOT GUARANTEE THE TIMELY DELIVERY OF TIME-SENSITIVE PRINTED PRODUCTS SUCH AS LEGALLY REQUIRED FILINGS. Subject to the limitations listed above, and as Subscriber’s sole remedy, XanEdu will provide a refund of shipping costs paid or will re-perform printing services and shipping services if any printed products are lost, damaged, not delivered, mis-delivered or delivered late, to the extent not otherwise caused by any third-party shipper.
8.8. Mobile Devices. In the event the Services include mobile device enabled features or access (“Mobile Solutions”), Subscriber acknowledges that there are minimum requirements for equipment and operating systems, as well as the need to use approved mobile devices to access and use the Mobile Solutions. Subscriber shall be solely responsible, and shall hold XanEdu harmless, for all uses of the Mobile Solutions or any activities that occur under Subscriber’s account, including without limitation all acts and omissions of the End User(s) and their compliance with this Agreement, any applicable cellular carrier agreements, and any applicable operating system license agreements. Subscriber may be responsible for additional fees and expenses relating to mobile device networking and access in order to Use any Mobile Solutions.
8.9. Cumulative Remedies. Except as otherwise expressly provided herein, all remedies provided for in this Agreement shall be cumulative and in addition to and not in lieu of any other remedies available to either Party at law, in equity or otherwise.
9.1. Subscriber Indemnification. Subscriber shall indemnify and hold harmless XanEdu and all employees, officers, directors, and agents of XanEdu for any and all claims, penalties, liabilities, losses, damages, settlements, and costs (including attorneys’ fees) arising directly or indirectly out of (a) any negligent or willfully wrong act or omission of Subscriber, any End User, or to any other entity to which Subscriber has provided Content in any form; (b) any breach of Confidential Information or breach of any representations or warranties under this Agreement; and (c) any third party claim or cause of action alleging that any Subscriber Content, when used in accordance with this Agreement, infringes or misappropriates such third party’s intellectual property rights.
9.2. XanEdu Indemnification. XanEdu shall indemnify and hold harmless Subscriber and all employees, officers, directors, and agents of Subscriber for any and all claims, penalties, liabilities, losses, damages, settlements, and costs (including attorneys’ fees) arising directly or indirectly out of (a) any breach of Confidential Information or breach of any representations or warranties under this Agreement, or (b) any third party claim or cause of action alleging that the Services, or Content provided by XanEdu that is not Subscriber Content, when used in accordance with this Agreement, infringes or misappropriates such third party’s intellectual property rights; provided, that with respect to (b) then upon notice to XanEdu, or upon determination by XanEdu that the Services is likely to be claimed to infringe, misappropriate, or otherwise violate any third-party intellectual property right, then XanEdu may, at its option and sole cost and expense: (i) obtain the right for Subscriber to continue to use the Content or Services materially as contemplated by this Agreement; (ii) modify or replace the Content or Services, in whole or in part, to seek to make the Content or Services (as so modified or replaced) non-infringing while providing materially equivalent features and functionality, in which case such modifications or replacements will constitute the Content or Services as defined in this Agreement; or (iii) by written notice to Subscriber, terminate the rights of Use granted to Subscriber under this Agreement and require Subscriber to immediately cease any use of the Services or Deliverables, or any specified part or feature thereof. THIS REMEDY SETS FORTH SUBSCRIBER’S SOLE REMEDIES AND XANEDU’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THIS AGREEMENT OR ANY SUBJECT MATTER HEREOF (INCLUDING THE SERVICES AND DELIVERABLES) INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHT. XanEdu shall be relieved of its indemnification obligations for any infringement claim to the extent that it arises from or is alleged to arise from the Subscriber Content or modification of the Services or Deliverables that was not provided by or performed on behalf of XanEdu or any of Subscriber’s use of the Services or Deliverables in violation of this Agreement.
9.3. Requirements. Any indemnification obligation arising under this Section 9 shall be subject to compliance with the following requirements: (a) the indemnified Party promptly provides the indemnifying Party written notification of the assertion of any claim; and (b) the indemnified Party provides reasonable support in aiding the indemnifying Party in any defense to a claim, at the indemnifying Party’s cost; and (c) the indemnifying Party has sole control over the defense or settlement of any claim
- Digital Millennium Copyright Act (“DMCA”) Policy.
10.1. Copyright Complaints. XanEdu respects intellectual property and other rights. As set forth in the following paragraphs, XanEdu has a policy of responding to notices of alleged copyright and trademark infringement that comply with applicable laws, including the Digital Millennium Copyright Act (“DMCA”) in the United States, and terminating accounts of repeat infringers in appropriate circumstances. To report a problem other than copyright or trademark infringement, please contact XanEdu’s Designated Agent at the information provided below. XanEdu may, in its sole discretion, limit, suspend, or terminate and End User’s access or account, delay or remove Content, and take technical and legal steps to keep users from using the Services, if XanEdu thinks that such End Users are creating problems or possible legal liabilities, infringing the Intellectual Property rights of third parties, or acting inconsistently with the letter or spirit of our policies (for example, and without limitation, circumventing temporary or permanent suspensions or harassing Personnel or other End Users).
If Subscriber or any End User believes its copyright has been infringed, such Subscriber or End User should submit notice to: Chief Financial Officer, XanEdu Publishing, Inc. d/b/a XanEdu, 17177 N. Laurel Park Drive, Suite 233, Livonia, MI 48152 USA. Any such notice should include the following:
- Physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
- Identification of the copyrighted work claimed to have been infringed, or if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material.
- Contact information reasonably sufficient to permit XanEdu to contact the claimant, such as an address, telephone number, and if available, an email address where such person may be contacted.
- A statement that the claimant has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
- A statement that the information in the notification is accurate, and under penalty of perjury, that such person is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
If a notice of copyright infringement has been filed against material posted by Subscriber or any End User, such person may make a counter-notification with our Designated Agent listed above, provided that such counter-notification must be in writing and contain the following requisite information:
- The Subscriber’s or End User’s physical or electronic signature.
- Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled.
- A statement by Subscriber or End User, under penalty of perjury, that such person has a good faith belief that the material was removed or disabled as a result of mistake or misidentification.
- The name, address, and telephone number of the Subscriber or End User, and a statement consenting to the jurisdiction of Federal District Court for the judicial district in which you are located (or in the State of Delaware, U.S.A., if residing outside of the U.S.A.), and that such person will accept service of process from the person who filed the notice of copyright infringement or an agent of such person.
If XanEdu receives a valid counter-notification, XanEdu may reinstate the removed or disabled material in accordance with the DMCA.
11.1. Governmental Rights. All Services, including related software and technology, with are provided for ultimate Federal government end use solely in accordance with the following: Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under these terms, it must negotiate with XanEdu to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.
11.2. Publicity: Use of Marks. This Agreement confers no right to use any trade dress, trademark, or other designation of a Party (“Marks”) by the other Party or its affiliates. Each Party hereto agrees not to use the name or Marks of the other Party in any publicity or promotional activity, without the express written consent of the other Party. Anything in the foregoing to the contrary notwithstanding, XanEdu shall have the right to include Subscriber, and its Marks in lists of XanEdu customers which XanEdu makes available to the public via its promotional materials.
11.3. Assignment. Subscriber may not assign this Agreement or any rights or obligations hereunder, whether by operation of law or otherwise, without XanEdu’s express prior written consent, not to be unreasonably withheld. Any assignment in violation of this section shall be void. Subject to the foregoing, this Agreement shall be binding upon, and inure to the benefit of, permitted successors and assigns.
11.4. Notices. All notices or approvals required or permitted hereunder shall be in writing and shall be deemed to have been given upon: (a) receipt if sent by certified or registered mail, postage prepaid, return receipt requested; (b) delivery if sent by a courier service that confirms delivery in writing; or (c) the date sent by facsimile, with a confirmation copy sent via national overnight courier, in each case addressed as follows: (x) if to Subscriber, then to the address set forth on the signature page of this Agreement to the attention of the Representative identified in the Proposal; or (y) if to XanEdu, then to the address set forth on the Proposal. Either Party may change its address for such communications by giving notice thereof to the other Party in conformity with this Section.
11.5. Independent Parties. No Authority to Bind. The relationship of XanEdu and Subscriber is that of independent contractors. Neither Party nor their employees are agents, employees, or joint venturers of the other Party. Neither Party shall have any authority to bind the other Party to any obligation by contract or otherwise. XanEdu shall be solely responsible for hiring all Personnel necessary to perform the Services hereunder and such Personnel shall be deemed to be employees or agents of XanEdu only, and shall not for any purpose be considered employees or agents of Subscriber.
11.6. Severability. If any provision of this Agreement is, for any reason, held to be invalid, illegal or unenforceable, the other provisions of this Agreement will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
11.7. Third Party Beneficiaries. No provisions of this Agreement are intended nor shall be interpreted to provide or create any third-party beneficiary rights or any other rights of any kind in any other Party under this Agreement, except that XanEdu’s affiliates and third party vendors and suppliers shall be deemed third party beneficiaries under this Agreement for purpose of enforcing their rights in their respective Intellectual Property and confidential information.
11.8. Amendment. Any term or provision of this Agreement may be amended, and the observance of any term of this Agreement may be waived, only by a writing signed by both Parties explicitly referencing this Agreement. Notwithstanding the forgoing, this Agreement may never be amended by an SOW.
11.9. Governing Law, Venue. This Agreement and any action related thereto will be governed, controlled, interpreted, and defined by and under the laws of the State of Delaware without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. Any dispute, claim, or controversy arising out of or relating to this Agreement, including the determination of the scope or applicability of this clause, will be determined exclusively in Washtenaw County, Michigan, by binding arbitration before a single arbitrator mutually agreed to by the Parties. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures. There shall be no right to arbitrate on a class action basis or on behalf of the general public or other group of persons similarly situated. Each Party will be responsible for its own attorneys' fees and shall split the costs of arbitration. The arbitrator shall have authority to apportion costs (other than attorneys' fees) at the end of any such proceeding. Judgment on any award may be entered in any court having jurisdiction. Nothing in this clause shall preclude Parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction located in in Washtenaw County, Michigan.