These Terms and Conditions (the “Terms for Subscription”), together with the applicable Sales Order and Underlying Agreement entered into between Keystone Insights, Inc. DBA Foundry (“FOUNDRY”, “Company”, “us”, “our”, and “we”), and Subscriber (“you”, your”) designated in the applicable Sales Order constitute the “Agreement” between the Parties for the use of FOUNDRY’s software, products and/or services (collectively, the “Solution”) and the Agreement shall govern the transactions set forth in the applicable Sales Order. In the event these Terms for Subscription conflict with the applicable Sales Order the Sales Order shall control. The Agreement shall take precedence over any other terms contained in a purchase order or other document issued by the Subscriber (regardless of whether such documents are accepted by FOUNDRY, which acceptance shall be for administrative convenience only).
BY ACCEPTING THIS AGREEMENT, BY CLICKING A BOX INDICATING YOUR ACCEPTANCE; BY EXECUTING A SALES ORDER THAT REFERENCES THIS AGREEMENT; OR, BY USING SUCH PRODUCTS, YOU AGREE TO THE TERMS OF THIS AGREEMENT.
“Active User”means a user account that has been logged into the system at least one time during the Subscription Term.
“Authorized User”means the Subscriber’s administration, teachers, students, student parents and or student mentors.
“Cancelled Engagement” means a scheduled Professional Development engagement, including training, that is cancelled, suspended, rescheduled or otherwise delayed by Subscriber.
“Customer Data” means any data, information or material that the Subscriber or its Authorized Users submit to the Solution in the course of using the Solution.
“Data Extraction Period”means the thirty (30) days following termination that the Subscriber will maintain access to the Solution to extract their data from the Solution.
“Effective Date”means the date specified as for commencement of services in the Sales Order.
“Professional Development Fees” means the Professional Development Services fees specified on a Sales Order.
“Subscriber” means the Subscriber listed in the Sales Order plus all Authorized Users where applicable.
“Subscription” means a subscription to use the Solution, including data security, transmission, access and storage.
“Subscription Term” means the term during which the Subscriber is entitled to access the Solution and obligated to pay fees for the Solution (as set forth in Section 5).
“Subscribed User Count” means the maximum number of Active Users the Subscriber has paid Annual Subscription fees for.
2 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, FOUNDRY grants to Subscriber, and Subscriber agrees to accept, a non-transferable, non-exclusive SubscriptionLicense. The Subscription License shall commence on the Effective Date and shall continue for the Subscription Term.
3 SCOPE OF USE
The Solution shall be used only by Authorized Users for purposes related to the Subscriber's organization and the Subscriber shall not use the Solution 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 Solution in any way or use it to create a derivative work. Under no circumstances shall the Solution 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 Solution source code.
4 Professional Development Services
4.1 Professional Development Services and Fees.
FOUNDRY may provide the Subscriber such Professional Development Services as specified in the Sales Order. Subscriber shall: (i) pay FOUNDRY the Professional Development Fees(as set forth in Section 6); and (ii) reimburse FOUNDRY for travel and other out-of-pocket expenses incurred by FOUNDRY in connection with Professional Development Services, but only to the extent that such travel was approved by Customer and such expenses are consistent with the FOUNDRY Travel Expense Policy. Any change to the scope of Professional Development Services and/or Professional Development Fees set forth in a Sales Order shall be subject to the mutual agreement of the Parties and shall be documented by a written Sales Order amendment executed by both Parties.
4.2 Subscriber Cancellation.
In the event of a Cancelled Engagement FOUNDRY may invoice Customer (i) for the non-refundable out-of-pocket expenses incurred in anticipation of performing the Cancelled Engagement, and (ii) for a Cancelled Engagement occurring within ten Business Days of the engagement’s scheduled start date and not attributable to a Force Majeure Event, for the reasonable costs of personnel assigned to the Cancelled Engagement, but only to the extent that such personnel have not been redeployed to other engagements and only for a period not to exceed two weeks.
4.3 Expiration of Prepaid Professional Development Services.
Prepaid Professional Development Services (including training) must be used by Subscriber within twelve (12) months of the date of the Effective Date, unless further extended by written mutual agreement of the Parties; and unless such delay is attributable to the fault of FOUNDRY or to a Force Majeure Event, unused Professional Development Services shall expire thereafter without further obligation by FOUNDRY.
5 Subscription Term
5.1 Subscription Expiration.
The Subscription Term shall expire on June 30th of each year unless otherwise stipulated in the Sales Order.
5.2 Subscription Renewal.
Upon expiration of the Subscription Term the Subscription shall automatically renew for consecutive 12-month terms commencing on July 1st of the current year though June 30th of the following year, unless (i) either Party provides the other Party with written notice, at least thirty (30) days prior to the expiration of the then current Subscription Term, of its intention not to renew the term of the Subscription; or (ii) Subscriber fails to pay outstanding Annual Subscription Fees when due.
The following Fees shall be payable by the Subscriber:
Initial Start Up and Annual Subscription feesas specified in the Agreement are due upon the Effective Date.
Professional Development Services feesas specified in the Agreement are due upon the earlier of Net 30 Days from the Effective Date or upon delivery. Travel expenses associated with Onsite activities shall be billed as incurred.
Annual Subscription feesare due annually for continued access to Solution. This payment does not include additional training.
6.1 Annual Audit.
On an annual basis, FOUNDRY will perform an audit to ascertain the number of Active Users of the Solution. To the extend that the actual number of Active Users exceeds the Subscribed User Count, Subscriber will be liable to FOUNDRY for the additional fees.
7 OTHER RIGHTS AND OBLIGATIONS
7.1 Proprietary Rights
FOUNDRY retains title in and to the Solution, 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 Solution hereunder, each thereof being confidential information of FOUNDRY and the sole and exclusive property of FOUNDRY. Any right not expressly granted to the Subscriber by this Agreement is hereby expressly reserved by FOUNDRY. FOUNDRY does not own any Customer Data.
7.2 Customer Data
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 FOUNDRY shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data.
7.2.2 Effect of and Obligations Upon Termination
In the event this Agreement is terminated the Subscriber shall be solely responsible for extracting Customer Data from the Solution. Upon termination (other than by reason of your breach), FOUNDRY will provide a Data Extraction Period for the Subscriber to extract Customer Data for an additional fee. FOUNDRY 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 FOUNDRY shall have no obligation to maintain or forward any Customer Data.
The Subscriber shall permit access to the Solution only by its Authorized Users who have a need to know connection with the Solution rights granted under this Agreement. FOUNDRY shall not sell, transfer, publish, disclose, display or otherwise make available any portion of the data collected by the Solution to others. FOUNDRY agrees to secure and protect the Solution 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 Solution to satisfy its obligations hereunder. FOUNDRY employees are allowed to view the Subscriber’s data include: authorized management, authorized technical support staff, and authorized engineering staff . Technical support and engineering staff 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 FOUNDRY in identifying and preventing any unauthorized use, copying or disclosure of the Solution. Upon learning of compromised data, FOUNDRY 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 Solution, including those related to data privacy, international communications and the transmission of technical or personal data. The Subscriber shall: (i) notify FOUNDRY immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to FOUNDRY 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 Solution. 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.
7.4 The Subscriber Indemnification of FOUNDRY
The Subscriber will, at its own expense, indemnify and promptly reimburse FOUNDRY for the defense of, and hold harmless FOUNDRY 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 Solution by the Subscriber.
7.5 No Fiduciary Duty
It is understood that the Subscriber may enter into derivative transactions with FOUNDRY. Neither FOUNDRY's supplying to the Subscriber the Solution and/or any data relating thereto or for use therewith, nor FOUNDRY's receipt from the Subscriber of any information about the Subscriber, shall cause FOUNDRY to be deemed the Subscriber's fiduciary or advisor.
7.6 Disclaimer of Warranty
THE SOLUTION IS PROVIDED TO THE SUBSCRIBER "AS IS." FOUNDRY 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 SOLUTION OR INFORMATION DERIVED THEREFROM.
8 LIMITATION OF LIABILITY
FOUNDRY 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 SOLUTION 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 FOUNDRY SHALL NOT EXCEED THE AMOUNT OF MONEY PAID BY THE SUBSCRIBER TO FOUNDRY IN THE PREVIOUS 12 MONTHS.
In addition to any other express rights of FOUNDRY to terminate this Agreement set forth herein, FOUNDRY shall also have the right, in its sole discretion, to terminate this Agreement thirty (30) days after written notice is delivered to the Subscriber. The termination of this Agreement shall automatically, and without further action by FOUNDRY, terminate and extinguish the Subscription.
10.1 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 sales orders, proposals, 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.
10.2 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. FOUNDRY 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 FOUNDRY, 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. FOUNDRY 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, 7days 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 the Sales Order.
All provisions of this Agreement relating to FOUNDRY'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.
10.6 The Subscriber Identification
FOUNDRY, 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.
10.7 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.
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 FOUNDRY. The Subscriber shall reimburse FOUNDRY for the amount of any such taxes or duties paid or accrued directly by FOUNDRY as a result of this transaction.