1. Payment of 100% of the first year subscription within 30 days of the Contract Start Date and at least 30 days before each annual renewal date (if applicable) based Contract End Date. Transeo will determine student membership and make any adjustments in student count / annual price if applicable annually.
2. Any amount due from Customer to Transeo under the Terms of this Agreement and not received within 10 days after the due date (the Delinquency Date) thereof shall automatically (and without notice) incur a one time late charge of 5% of the Delinquent Amount. Customer accounts with Delinquency Amounts are subject to service suspension or service termination at the Service Provider’s discretion.
1. License. Transeo (“Service Provider”) grants to Customer a nonexclusive, nontransferable license, during the term of this Agreement, to allow users authorized by Customer (“Customer Users”) to access and use the Transeo Platform on its behalf solely for Customer’s use and solely for the benefit of Customer. This license is subject to Customer and its Customer Users compliance with the terms and conditions set forth in this Agreement.
2. Term. This Agreement will be effective for an initial term of one (1) year commencing on the Effective Date of Initial Term and expiring on Expiration of Initial Term. This Agreement will thereafter renew automatically for the Number of Years of Automatic Renewal Beyond Initial Year, with each such one-year increment expiring on the anniversary of the expiration date of the Initial Term, unless terminated by either Party on not less than sixty (60) days notice prior to the end of the then-current term.
3. Hosting, Implementation, Training, Support, Other Services and Obligations. Service Provider shall host an Internet website on its servers and shall procure and maintain its servers as is necessary for the Transeo Platform to substantially perform according to functional specifications promulgated by Service Provider from time to time. Service Provider shall provide Customer with a basic level of implementation and training support during the Initial Term. Service Provider believes strongly in the delivery of a true Train-the-Trainer model where Service Provider prepares the Customer to train and support the majority of Customer Users. Implementation timelines and dates will be mutually agreed upon by Customer and Service Provider. Service Provider shall provide a support center to answer questions regarding the Transeo Platform. The Support Center may be accessed via email / online ticketing system and will respond to inquiries within 24 hours, excluding all federal holidays and weekends. Upon Customer’s request, Service Provider may provide certain Professional Services beyond the initial basic level of implementation and training support. All such Professional Services shall be performed subject to the terms and conditions of a mutually agreed upon Statement of Work and for such additional fees as may be agreed between Service Provider and Customer.
4. Customer Data Protection and Verification. Customer shall protect Customer Data from loss by maintaining back-ups of all such data and routinely updating such back-ups. Service Provider shall not be liable for any losses or damages resulting from the loss or corruption of any Customer Data. Furthermore, Service Provider makes no representations concerning, and shall not be liable for, the accuracy, completeness, authenticity, validity, or utility of any Customer Data supplied by Customer Users or any reports resulting from such inaccurate or incomplete Customer Data. Any verification of the Customer Data shall be the sole and absolute responsibility of Customer, provided, however, Customer acknowledges and agrees that Service Provider may, at Service Provider’s sole discretion, independently verify for accuracy the Customer Data. Customer shall cooperate with Service Provider’s efforts to independently verify the Customer Data.
5. Data Privacy and Security Law Compliance. Customer represents and affirms to Service Provider that it has a current demonstrable educational or administrative interest in all Customer Data that Service Provider is authorized to obtain and maintain pursuant to this Agreement, including information defined as personally identifiable information under FERPA that will be maintained by Service Provider for providing the Transeo Platform’s functionality (“Services”) and to permit comparative data analyses for the review, evaluation and improvement of the Services. The Services are institutional services and functions for which Customer would otherwise use its own employees, if not for this Agreement with Service Provider. In performing the Services, Service Provider shall be under the direct control of Customer in accordance with the terms of this Agreement with respect to Service Provider’s use and maintenance of education records, as defined in FERPA. Customer considers Service Provider a “school official” as defined in FERPA (34 CFR 99.31(a)(1)), with a legitimate educational interest in improving instruction on behalf of Customer. Customer may only use the Transeo Platform strictly in accordance with all applicable Data Privacy and Security Laws and any other restrictions and requirements set forth in this Agreement. Customer acknowledges and agrees that it has received all necessary signed and dated written consent from the students’ parents or legal guardians, or if the student user is age 18 or older, signed and dated written consent from the eligible student to provide Customer Data for the purpose of using the Transeo Platform. Customer acknowledges and agrees that some or all of the information that it discloses to Service Provider in connection herewith shall constitute “directory information” as defined in FERPA and Customer shall promptly notify Service Provider if any person elects to “opt out” of a related disclosure under FERPA. Customer shall respond to all parent/guardian and eligible student requests to inspect and review education records, data and other information, as authorized under FERPA and/or applicable state laws. Within limiting the generality of section 8(a) of this Agreement, in the event that the Customer’s use of the Transeo Platform subjects the Customer to the provisions of the Children’s Online Privacy and Protection Act (“COPPA”), the Customer acknowledges that it shall fully comply with COPPA and any rules or regulations promulgated thereunder.
6. Interactive Areas. The Transeo Platform provides spaces for digital interaction among Customer Users that are visible to other Customer Users (“Interactive Areas”). Service Provider takes no responsibility and assumes no liability for any content posted, stored or uploaded by Customer Users or any third party, nor is Service Provider liable for any mistakes, defamation, slander, libel, omissions, falsehoods, obscenity, pornography or profanity Customer Users may encounter in Interactive Areas. At its sole discretion, Service Provider reserves the right, and has absolute discretion, to remove, screen, or edit without notice any content posted or stored within the Transeo Platform at any time and for any reason provided such actions do not violate applicable laws. Service Provider does not endorse any sites on the Internet that are linked through the Transeo Platform.
7. Customer’s Obligations. Customer Users agree to Service Provider’s Terms of Service every time they log into and as specified on the Transeo website. Customer is responsible for any and all activities that occur under the Customer User’s accounts. In addition, Customer and Customer Users:
8. Mutual Obligations. Each party shall not use for its own benefit or knowingly disclose to, or use for the benefit of, any other person, any confidential information of the other party without the other party’s prior written consent. Service Provider agrees not to disclose any confidential, individual specific Customer Data to any third party without the prior consent of Customer and such other consents as may be required by applicable law, and further agrees that the Customer Data shall be used only for the purposes contemplated by this Agreement; provided, however; that Service Provider may disclose the Customer Data to its subcontractors or agents, if any, so long as such subcontractors or agents agree to be bound by the terms of this Agreement.
9. Proprietary Rights and Feedback. Service Provider represents and warrants that it has full right, title and interest in and to the Transeo Platform and that it has the requisite power and authority to grant the license to Customer on the terms and conditions set forth in this Agreement. Nothing in this Agreement shall be deemed to grant to Customer any rights in the Transeo Platform or any of Service Provider’s intellectual property or proprietary rights, other than the limited license set forth in sections 1 and 10. To the fullest extent permitted by law, Service Provider shall indemnify, defend and hold Customer, its officers, agents, employees, affiliates, subsidiaries, assigns and successors in interest harmless from and against any claims, liabilities, losses, suits, and damages asserted by any third party that the Transeo Platform infringes or misappropriates any patent, copyright, trade secret or trademark of a third party. All intellectual property pertaining to the Transeo Platform and Service Provider including trademarks and copyrights, are and shall remain the sole property of Service Provider and its affiliated companies. To the extent that Service Provider receives from Customer or any of its Customer Users any suggestions, ideas, improvements, modifications, feedback, error identifications or other information related to the Transeo Platform or its services (“Feedback”), Service Provider may use, disclose and exploit such Feedback without restriction, including to improve the Transeo Platform and its services and to develop, market, offer, sell and provide other products and services.
10. License Restrictions. Client shall not sublicense, sell, resell, lease, assign, transfer, pledge or otherwise encumber or dispose of any of Client’s rights or obligations under this Agreement. Except as specifically provided to the contrary herein, the License does not extend to, and no right is granted for use or access of by, any third party or other individual or entity not a party to this Agreement, except for proper agents of Customer. Information regarding Customer Data or proprietary confidential information acquired by Service Provider from Customer shall be confidential and shall not, without the Customer’s prior consent, be used or disclosed to others by Service Provider except upon an assignment covered by section 15. Aggregated data not relating to individual employees of Customer acquired by Service Provider in the course of performing this Agreement will be the sole property of Service Provider.
11. Injunctive Relief. In addition to any other rights and remedies available to Service Provider, if Customer or any of its Customer Users breaches any of its obligations under this Agreement, (i) Service Provider shall be entitled to an injunction or similar equitable relief ordering the cessation of such breach upon request of a court of competent jurisdiction without having to post any bond or prove anything other than the fact of such breach, and (ii) the Customer and its Customer Users waive all defenses, including that such breach will not cause irreparable harm.
12. Limited Warranty and Service Limitations. Service Provider warrants that the Transeo Platform will perform substantially as described in this Agreement, provided that no such limited warranty shall apply in the event Customer makes any additions or alterations to the Transeo Platform. Service Provider does not warrant or represent that by using the the Transeo Platform, Customer will be in compliance with Data Privacy and Security Laws or any other federal, state or local law or regulation. Customer’s sole and exclusive remedy for breach of warranty shall be for Service Provider to either re-perform services or provide commercially reasonable efforts to remedy the breach. Service Provider does not warrant that its electronic files containing Customer Data are not susceptible to intrusion, attack, or computer virus infection, but given the confidential nature of some Customer Data, Service Provider will implement reasonable and appropriate measures for the Transeo Platform (as determined by Service Provider and consistent with the Data Privacy and Security Laws) designed to reasonably secure Customer Data against accidental or unlawful loss, access or disclosure. The Transeo Platform may be temporarily unavailable from time to time as more fully described in the Service-Level Specifications above. Service Provider will not be responsible for any damages that Customer may suffer arising out of use, or inability to use the Transeo Platform. Service Provider will not be liable for unauthorized access to or alteration, theft or destruction of Customer Data through accident, fraudulent means or devices, or any other method unless and to the extent attributable to the wrongful actions of Service Provider.
13. Disclaimer of Warranties. EXCEPT AS SET FORTH IN SECTION 12, SERVICE PROVIDER MAKES NO WARRANTIES RELATED TO THE SERVICES PROVIDED BY SERVICE PROVIDER HEREUNDER, AND HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON INFRINGEMENT. CUSTOMER ASSUMES TOTAL RESPONSIBILITY FOR THE SELECTION OF THE SERVICES TO ACHIEVE CUSTOMER’S INTENDED RESULTS, FOR ITS USE OF THE RESULTS OBTAINED FROM THE SERVICES AND FOR ITS COMPLIANCE WITH DATA PRIVACY AND SECURITY LAWS AND EMPLOYMENT LAWS. SERVICE PROVIDER DOES NOT WARRANT THAT THE SERVICES MEET CUSTOMER’S REQUIREMENTS OR WILL BE UNINTERRUPTED OR ERROR FREE.
14. Limitations of Liability. IN NO EVENT WILL SERVICE PROVIDER (INCLUDING ITS SUBSIDIARIES, ITS MEMBERS AND SUBSIDIARIES OF ITS MEMBERS, ITS SERVICE PROVIDERS AND LICENSORS, AND THE EMPLOYEES, OFFICERS, DIRECTORS AND AGENTS THEREOF) BE LIABLE FOR ANY CONSEQUENTIAL, COMPENSATORY, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY OR PUNITIVE DAMAGES UNDER THIS AGREEMENT OR IN CONNECTION WITH ANY SERVICES PROVIDED BY SERVICE PROVIDER HEREUNDER ARISING OUT OF THE USE OR INABILITY TO USE THE SERVICES, CUSTOMER DATA OR ANY CUSTOMER REPORT, EVEN IF SERVICE PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF AVAILABLE REMEDIES ARE FOUND TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE. THE TOTAL LIABILITY, IF ANY, OF SERVICE PROVIDER (INCLUDING ITS SUBSIDIARIES, ITS MEMBERS AND SUBSIDIARIES OF ITS MEMBERS, ITS SERVICE PROVIDERS AND LICENSORS, AND THE EMPLOYEES, OFFICERS, DIRECTORS AND AGENTS THEREOF) IN THE AGGREGATE OVER THE TERM OF THIS AGREEMENT FOR ALL CLAIMS, CAUSES OF ACTION OR LIABILITY WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE ARISING UNDER OR IN ANY WAY RELATED TO THIS AGREEMENT AND/OR THE SERVICES PROVIDED HEREUNDER (COLLECTIVELY, “CLAIMS’), SHALL BE LIMITED TO THE LESSER OF: (a) CUSTOMER’S DIRECT DAMAGES, ACTUALLY INCURRED; OR (b) THE FEE ACTUALLY RECEIVED BY SERVICE PROVIDER DURING THE TWELVE-MONTH PERIOD IMMEDIATELY PRECEDING THE CLAIM; PROVIDED, HOWEVER, SUCH LIMITATION WILL NOT APPLY TO INDEMNIFICATION FOR INTELLECTUAL PROPERTY INFRINGEMENT PURSUANT TO SECTION 9 OR WILLFUL MISCONDUCT BY SERVICE PROVIDER. NOTWITHSTANDING THE FOREGOING, SERVICE PROVIDER’S SOLE OBLIGATION IN THE EVENT OF AN ERROR BY SERVICE PROVIDER IN THE PERFORMANCE OF ANY SERVICES UNDER THIS AGREEMENT SHALL BE LIMITED TO REPERFORMING THE SERVICES OR PROVIDING SUPPORT SERVICES. SERVICE PROVIDER (INCLUDING ITS SUBSIDIARIES, ITS MEMBERS AND SUBSIDIARIES OF ITS MEMBERS, ITS SERVICE PROVIDERS AND LICENSORS, AND THE EMPLOYEES, OFFICERS, DIRECTORS AND AGENTS THEREOF) SHALL HAVE NO LIABILITY, EXPRESS OR IMPLIED, WHETHER ARISING UNDER CONTRACT, TORT OR OTHERWISE, FOR ANY CLAIM OR DEMAND: (i) RESULTING DIRECTLY OR INDIRECTLY FROM CUSTOMER’S INTERNAL OPERATIONS, EQUIPMENT, SYSTEMS OR SOFTWARE OWNED OR LICENSED BY CUSTOMER; OR (ii) BY THIRD PARTIES, EVEN IF SERVICE PROVIDER WAS ADVISED OF THE POSSIBILITY OF SUCH CLAIMS OR DEMANDS, EXCEPT AS EXPRESSLY PROVIDED OTHERWISE HEREIN.
15. Assignment, Successors. Except in the event of a Permitted Transfer, Service Provider may not assign this Agreement, in whole or in part, to a third party. Notwithstanding anything to the contrary in this Section, Service Provider may assign its interest in this Agreement to (a) an affiliate (i.e., a corporation 50% or more of whose capital stock is owned by the same stockholders owning 50% or more of Service Provider’s capital stock), a parent or subsidiary entity of Service Provider, or (b) to an entity to which Service Provider sells or assigns all or substantially all of its assets, stock, rights under its agreements with school district customers, or with which Service Provider may be consolidated or merged (each a “Permitted Transfer”). In the event of a Permitted Transfer, such transferee or new entity will expressly assume the Service Provider’s rights and obligations under this Agreement as of the date of the transfer. No right or license under this Agreement may be assigned or transferred by Customer, nor may any duty be delegated by Customer without Service Provider’s prior written consent. Any assignment, transfer or delegation in contradiction of this provision will be null and void. Subject to the foregoing, this Agreement will bind and inure to the benefit of the successors and assigns of Customer and Service Provider.
16. Termination. Each Party by means of a written notice shall have the right to terminate this Agreement prior to the number of days specified in the Cancellation Terms if the other Party is in material breach of this Agreement and the breaching Party fails to remedy such breach within the applicable notice period. Further, if Customer is in material breach of this Agreement beyond the applicable notice and cure period, Service Provider, in addition to its termination right, shall have the right to suspend Customer’s access to and use of the Transeo Platform, including without limitation, the right to withhold reports, without additional notice to Customer, until such breach is cured. Notwithstanding, either Party may terminate this Agreement immediately upon written notice to the other Party if such other Party violates the scope or any restriction on its license under Sections 1 and 10 above or its obligations hereunder with respect to confidential information or otherwise uses the Transeo Platform in violation of this Agreement or Data Privacy and Security Laws. Upon termination for any reason, all licenses granted hereunder to Customer will automatically terminate, and Service Provider will immediately disable and discontinue Customer’s access to and use of the Transeo Platform without additional notice to Customer. The provisions in Pricing and Payment Schedule, 4, 7, 8, 9, 12, 13, 14, 16 through 13.14 of this Agreement (together with any other provisions of this Agreement that by their sense and context are intended to survive termination) will survive any expiration or termination of this Agreement.
17. Severability. Each paragraph and provision of this Agreement is severable from the entire agreement, and, if one provision is declared invalid, the remaining provisions shall remain in effect and the invalid provision shall be reformed and amended to the extent needed to be valid.
18. Taxes. The price referred to herein does not include any local or state sales, value added, use or other applicable excise taxes, now in force or enacted in the future, any assessment of which shall be paid by Customer. Without limiting the foregoing, Customer shall promptly pay to Service Provider any amounts actually paid or required to be collected or paid by Service Provider pursuant to any statute, ordinance, rule or regulation of any legally constituted taxing authority. If Customer claims tax-exempt status or the right to remit taxes directly, the tax-exempt number must be entered on the front page of this Agreement and Client shall indemnify and hold Service Provider harmless for any loss occasioned by its failure to pay any tax when due.
19. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Illinois. Proper venue for any legal proceedings arising from or relating to this Agreement shall be Illinois.
20. Entire Agreement and Amendment. This Agreement supersedes all prior agreements and understandings between Customer and Service Provider, including any representations, expressed or implied. Customer acknowledges that this Agreement may not be changed or terminated orally. No change, termination or attempted waiver of any of the provisions of this Agreement shall be binding unless in writing and signed by the party against who the same is sought to be enforced. The parties, each acting under proper authority, have signed this Agreement and have agreed to the Effective Date of Initial Term.
21. Notices. Any notices required or permitted under this Agreement shall be in writing and shall be effective when delivered in person or sent by registered or certified mail, return receipt requested, with proper postage affixed, or by personal courier to the address set forth in this Agreement or any more recent address to which the sending party has been apprised.