TERMS AND CONDITIONS
The subscriber agrees to the following terms and conditions (the "agreement") governing your use of PF’s online service, including offline components (collectively, the "service").
1. LICENSE AND CONSIDERATION
Subject to the terms and conditions set forth below and so long as Subscriber is not in breach of any of the terms of this Agreement, PF grants to Subscriber, and Subscriber agrees to accept, a non-transferable, non-exclusive subscription to use the Service, including a browser interface and data security, transmission, access and storage (the "Subscription") for educational purposes as specified in Schedule A. The License shall commence on the Effective Date upon the receipt of consideration by the Subscriber to PF as specified in Schedule A. This License shall continue until terminated.
2. SYSTEM REQUIREMENTS
The Subscriber is solely responsible for acquiring and installing any hardware or software necessary for the Subscriber to utilize the Service. This minimally includes one of the following Internet browsers: Chrome, Safari, Firefox, Internet Explorer. The Subscriber must either license the Software from PF specified on Schedule A, in which case this License shall continue until terminated, or forthwith cancel the subscription provided by PF.
3. SCOPE OF USE
The Service shall be used only by the Subscriber's administration, teachers, students, student parents and or student mentors (“Members”) for purposes related to the Subscriber's organization and the Subscriber shall not use the Service to act as a service bureau for, or to process information for, any entity other than the Subscriber. The Subscriber shall not translate, decompile, nor create nor attempt to create, by reverse engineering or otherwise, to adapt the Software in any way or use it to create a derivative work. Under no circumstances shall the Software be the Subscriber's exclusive means (whether through its own efforts or aided by others) of accomplishing any process. The Subscriber has no rights to access or view the Software source code.
4. OTHER RIGHTS AND OBLIGATIONS
4.1 Proprietary Rights
PF retains title in and to the Service, including, without limitation, all rights to patents, copyrights, trademarks, trade secrets and other intellectual property rights inherent therein and/or appurtenant thereto. The Subscriber shall not, by virtue of this Agreement or otherwise, acquire any proprietary rights whatsoever in the Service hereunder, each thereof being confidential information of PF and the sole and exclusive property of PF. Any right not expressly granted to the Subscriber by this Agreement is hereby expressly reserved by PF. PF does not own any data, information or material that the Subscriber or its Users submit to the Service in the course of using the Service ("Customer Data"). See section 4.2 for data confidentiality.
The Subscriber shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data, and PF shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data. In the event this Agreement is terminated (other than by reason of your breach), PF will make available to you a PostgreSQL database dump file of the Customer Data within 60 days of termination if you so request at the time of termination. PF reserves the right to withhold, remove and/or discard Customer Data without notice for any breach, including, without limitation, your non-payment. Upon termination for cause, your right to access or use Customer Data immediately ceases, and PF shall have no obligation to maintain or forward any Customer Data.
The Subscriber shall permit access to the Service only by its Members who have a need to know connection with the Service rights granted under this Agreement. PF shall not sell, transfer, publish, disclose, display or otherwise make available any portion of the data collected by the Service to others. PF agrees to secure and protect the Service in a manner consistent with the maintenance of the Subscriber’s rights therein, and in accordance with the terms of this Agreement, and to take appropriate action by instruction or agreement with its employees who are permitted access to the Service to satisfy its obligations hereunder. PF employees are allowed to view the Subscriber’s data include: authorized management and authorized technical support leads. Technical support leads are only authorized by the Subscriber or the Director of Support in cases where data is needed to resolve/verify an error or service related issue. The Subscriber shall cooperate with and assist PF in identifying and preventing any unauthorized use, copying or disclosure of the Service. Upon learning of compromised data, PF will immediately inform the Subscriber via email. The Subscriber is responsible for all activity occurring under the Subscriber’s User accounts and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with its use of the Service, including those related to data privacy, international communications and the transmission of technical or personal data. The Subscriber shall: (i) notify PF immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to PF immediately and use reasonable efforts to stop immediately any copying or distribution of Content that is known or suspected by the Subscriber or its Users; and (iii) not impersonate another user or provide false identity information to gain access to or use the Service. The confidentiality obligations shall not apply to information which: (a) is or becomes a part of the public domain without the fault of the disclosing party; (b) was in the receiving party's lawful possession prior to the disclosure and had not been subject to limitations on disclosure or use; (c) is entirely independently developed by the receiving party without any knowledge or reference to the confidential information of the other party; or (d) is lawfully disclosed hereafter to the receiving party, without restriction, by a third party who did not acquire the information from the disclosing party.
4.3 The Subscriber Indemnification of PF
The Subscriber will, at its own expense, indemnify and promptly reimburse PF for the defense of, and hold harmless PF and its officers and employees, from and against any and all claims, actions, liabilities, losses, damages, judgments, grants, costs and expenses (including attorneys' fees) resulting from or pertaining to the use or operation of the Service by the Subscriber.
4.4 No Fiduciary Duty
It is understood that the Subscriber may enter into derivative transactions with PF. Neither PF's supplying to the Subscriber the Service and/or any data relating thereto or for use therewith, nor PF's receipt from the Subscriber of any information about the Subscriber, shall cause PF to be deemed the Subscriber's fiduciary or advisor.
4.5 Disclaimer of Warranty
THE SERVICE IS PROVIDED TO THE SUBSCRIBER "AS IS." PF EXPRESSLY DISCLAIMS, AND THE SUBSCRIBER HEREBY EXPRESSLY WAIVES, ANY AND ALL REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF NON-INFRINGEMENT, WARRANTIES OF TITLE, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, OR WARRANTIES AS TO ANY RESULTS TO OBTAINED FROM ANY USE OF THE SERVICE OR INFORMATION DERIVED THEREFROM.
5. LIMITATION OF LIABILITY
PF SHALL HAVE NO LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION OR CLAIMS IN THE AGGREGATE, INCLUDING WITHOUT LIMITATION TO BREACH OF CONTRACT, BREACH OF WARRANTY, INDEMNITY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION, AND OTHER TORTS. BOTH PARTIES UNDERSTAND AND AGREE THAT THE REMEDIES, EXCLUSIONS AND LIMITATIONS HEREIN ALLOCATE THE RISKS OF PRODUCT AND SERVICE NONCONFORMITY BETWEEN THE PARTIES AS AUTHORIZED BY THE UNIFORM COMMERCIAL CODE AND/OR OTHER APPLICABLE LAWS. NOTWITHSTANDING ANY PROVISION IN THIS AGREEMENT, OR UNDER LAW TO THE CONTRARY, THE MAXIMUM LIABILITY OF PF SHALL NOT EXCEED THE AMOUNT OF MONEY PAID BY THE SUBSCRIBER TO PF.
Unless earlier terminated by PF as herein provided, this agreement shall continue in full force and effect for a period of 1 (one) year from the Effective Date, and the term shall be automatically renewed for additional successive 1 (one) year periods unless either party gives the other written notice of termination not less than 30 (thirty) days prior to the expiration of its initial or any renewal term (as the case may be). However, in addition to any other express rights of PF to terminate this Agreement set forth herein, PF shall also have the right, in its sole discretion, to terminate this Agreement 30 days after written notice is delivered to the Subscriber. The termination of this Agreement shall automatically, and without further action by PF, terminate and extinguish the License. 60 days after the termination of this Agreement, access to the Service or subsequent data will no longer be provided to the Subscriber. A written letter will certify the completion of such steps in writing to/from PF.
7.1 Entire Agreement
This Agreement, evidences the complete understanding and agreement of the Parties with respect to the subject matter hereof and supersedes and merges all previous proposals of sale, communications, representations, understandings and agreements, whether oral or written, between the Parties with respect to the subject matter hereof. This Agreement may not be modified except by a writing subscribed to by authorized representatives of both Parties.
7.2 Governing Law
This Agreement and performance hereunder shall be governed by the laws of the State of Wisconsin, without giving effect to the principles of conflict of laws of such state. PF and the Subscriber hereby agree on behalf of themselves that the sole and exclusive jurisdiction and venue for any litigation arising from or relating to this Agreement or the subject matter hereof shall be an appropriate federal or state court in the State of Wisconsin located in Milwaukee County.
The Subscriber may not assign, without the prior written consent of PF, the Subscriber's rights, duties or obligations under this Agreement to any person or entity, in whole or in part, whether by assignment, merger, transfer of assets, sale of stock, operation of law or otherwise, and any attempt to do so shall be deemed void. PF may assign this Agreement in event of a sale of assets or merger. This Agreement shall apply to, inure to the benefit of, and be binding upon the Parties hereto and upon their permitted successors and assigns.
Any notice provided pursuant to this Agreement, if specified to be in writing, shall be in writing and shall be deemed given (i) if by hand delivery, upon receipt thereof; (ii) if mailed, 7 days after deposit in the U.S. mails, postage prepaid, certified mail return receipt requested. All notices shall be addressed to the Parties at their addresses set forth on Schedule A.
All provisions of this Agreement relating to PF's proprietary rights, disclaimers, and limits of liability or duty, confidentiality, non-disclosure, the Subscriber's actions upon termination, payment of fees by the Subscriber, or indemnification by the Subscriber shall survive expiration or the termination of this Agreement for any reason.
7.6 The Subscriber Identification
PF, upon written consent of the Subscriber, which shall not be unreasonably withheld, may use the name of and identify the Subscriber as a client, in advertising, publicity, or similar materials distributed to prospective clients.
7.7 No Waiver
The waiver or failure of either Party to exercise any right in any respect provided for herein shall not be deemed a waiver of any further right hereunder.
If for any reason a court of competent jurisdiction finds any provision of this Agreement, or portion thereof, to be unenforceable, that provision shall be enforced to the maximum extent permissible so as to affect the intent of the Parties, and the remainder of this Agreement shall continue in full force and effect.
Unless otherwise specified herein, the rights and remedies of both Parties set forth in this Agreement are not exclusive and are in addition to any other rights and remedies available to them at law or in equity.
This Agreement may be executed in counterparts, all of which shall constitute one single agreement between the Parties hereto.
The Subscriber shall pay all applicable sales, use, transfer or other taxes and all duties, whether international, national, state or local, however designated, which are levied or imposed by reason of the transaction(s) contemplated hereby, excluding, however, income taxes that may be levied against PF. The Subscriber shall reimburse PF for the amount of any such taxes or duties paid or accrued directly by PF as a result of this transaction.
“PF” – Keystone Insights, Inc.
131 W. Seeboth St, Milwaukee, Wisconsin 53204
“The Subscriber” –
“Service” – It is understood by both PF and the Subscriber that the Subscriber will be receiving access (from the PF) to a school-specific instance of Software called “Project Foundry”. In addition, PF will provide up to two hours per month (via phone, email or instant messenger) of Project Foundry technical support as part of this agreement. Project Foundry Technical support does not accumulate and is not refunded if not used. PF is responsible for the application hosting and maintenance of Project Foundry for up to the agreed upon active user accounts (determined at time of purchase and annually adjusted), which includes student and teacher/advisor. Fluctuation in the Subscriber’s school enrollment, for whatever reason, does not dictate a rebate or reduction in cost.
In addition to the included backup storage and redundancy of the Subscriber’s data, PF will make available a PostgreSQL database dump file of the Customer Data within 30 days from the time a formal written request from the Subscriber is received by PF at a cost of $350 per request.
PAYMENT SCHEDULE –
1) Initial startup and first year hosting fees as specified in original quotation are due prior to the start of service.
2) Project Foundry Training is NOT included as part of the initial setup and hosting costs. Onsite initial training, plus travel expenses associated with that training are mandatory as specified in the original quotation. Additional onsite training and webinars training sessions also available at additional cost and must be scheduled at least two weeks in advance.
3) Annual Hosting fee (Per student user based on # of users, minimum of 55 users, at the then current per user rate) – Due annually for continued access to Project Foundry. This payment includes Hosting Fees, Technical Support and Updated Versions for the number of active student user accounts. This payment does not include additional training.