The term “Software” means Terra Dotta’s proprietary software identified in the Signature Page and made available to Client on a hosted basis as part of the Service, all user manuals, guides, and other documentation for the Software (“Documentation”) made available to Client, and all updates and new versions of all such items. Terra Dotta may provide or perform certain parts of the Service through third-party vendors and subcontractors, including third-party technology hosting facilities.
Terra Dotta will provide the Service to Client during the Term, subject to the terms herein and elsewhere in the Agreement. Client may use and access the Service and Software solely through one or more Terra Dotta-designated web sites (“Sites”). Client’s rights to use the Service are non-exclusive, non-transferable, and non-assignable. Client agrees to comply with all applicable federal, state, local, and foreign laws, rules, and regulations in connection with its use of the Service, and to not use the Service in support of any criminal, fraudulent, or illegal endeavors.
The Service may be used and accessed for Client’s own purposes and only by: (i) Client’s employees and authorized agents and Client’s independent contractors while doing work for Client, (ii) students enrolled at Client or in a program associated with Client, and (iii) other persons interested in enrolling at Client or in a program associated with Client, each using the Service for its intended purpose ((i), (ii), and (iii) users together, the “Authorized Users”). Independent contractors may use the Service only for the benefit of Client and not for their own or any other company’s business operations.
Client acknowledges that Terra Dotta maintains Terms of Use for the Service, located at http://www.terradotta.com/terms-of-use.html (the “Terms of Use”), and that Authorized Users will be required to accept the Terms of Use. Client will not take any steps to hinder or prevent Authorized Users from accepting the Terms of Use, or to restrict Terra Dotta’s enforcement of the Terms of Use with respect to Authorized Users. For clarity, nothing in the Terms of Use will modify the terms of the Agreement, and in the event of any conflict between the Terms of Use and the terms of the Agreement as applied to Client’s employees, authorized agents, and any independent contractors, the terms of the Agreement shall apply.
Terra Dotta will use commercially reasonable efforts to make the Service available on a 24 hours a day, 7 days a week, and 365 days a year basis, excluding downtime for maintenance purposes.
Terra Dotta regularly changes and enhances the Service and may modify the Service from time to time without notice to Client; provided, that if any modification causes a material reduction in the efficacy of the Service, Terra Dotta will notify Client as soon as practicable.
Terra Dotta may from time to time provide as part of the Service interfaces to different third party software, systems, databases, and services (collectively, “Third-Party Systems”) for the convenience of Client. Terra Dotta reserves the right to charge additional fees for providing and supporting interfaces to Third-Party Systems selected by Client. Unless otherwise agreed in writing by Terra Dotta, Client is solely responsible for obtaining any permissions and consents from third-party vendors necessary for Terra Dotta to deliver any interfaces to Third-Party Systems that are utilized by Client. Terra Dotta assumes no obligation or liability for: (i) the functionality or performance of Third-Party Services, including their content, accuracy, or reliability, or (ii) the acts and omissions (including with respect to privacy practices) of the suppliers of Third-Party Services. Client further acknowledges and agrees that Terra Dotta may, without penalty or liability, terminate, suspend, or block any Third-Party Services or any individual Authorized User’s use or access to Third-Party Services if Terra Dotta believes in good faith that such use or access will have an adverse effect on Terra Dotta, the Service, or the Software.
CLIENT RESPONSIBILITIES.
Client agrees that all user information provided to Terra Dotta by Client and Authorized Users, whether for purposes of obtaining a user name and password or otherwise, will be accurate and complete in all respects. Client further acknowledges that it is solely responsible for maintaining the confidentiality of its Authorized Users’ user names and passwords. Only one individual may access the Service at the same time using the same user name and password. Client agrees to notify Terra Dotta immediately of any actual or suspected unauthorized use of any Authorized User’s email address, user name, or password, or any other actual or suspected breach of security regarding the Service of which Client becomes aware. Client shall be fully responsible for use of the Service by Authorized Users and their compliance with the terms of the Agreement.
Client is responsible for any violation of the Agreement or the Terms of Use by Authorized Users. Client agrees to promptly notify Terra Dotta if Client becomes aware of any actual or suspected Authorized User’s breach of the Agreement or the Terms of Use.
Client is solely responsible for the accuracy and sufficiency of information and materials input or delivered by Client or its Authorized Users as part of the Service (the “Client Data”), and acknowledges that Terra Dotta has no responsibility or intent to review or monitor any Client Data. Client understands and agrees Terra Dotta has no liability for any Client Data lost or destroyed while Client or its Authorized Users access and/or use the Service.
Client will provide Terra Dotta with cooperation, information, resources, access to Client-owned and licensed systems, as outlined in the Agreement, and any applicable exhibit, addendum, or Statement of Work, and as reasonably requested from time to time by Terra Dotta as necessary for Terra Dotta to perform its obligations under the Agreement. Terra Dotta is not responsible or liable for any delays or failures to perform based on Client’s failure to provide any of the foregoing items.
Client understands that successful use of the Service is dependent on Client’s use of proper procedures and systems. Client shall be solely responsible for all decisions made using the Service, and acknowledges and agrees that the Service is strictly a tool to be used in conjunction with good and reasonable business judgment by competent personnel.
TERMINATION.
Either party may terminate the Agreement if the other party materially breaches the Agreement and such breach is not cured within thirty (30) days after written notice.
Either party may terminate the Agreement if: (i) the other party ceases to carry on business; (ii) the other party is insolvent or is otherwise generally not paying its debts as they become due; or (iii) the other party is the subject of any petition under any bankruptcy or other law for the protection of debtors, except an involuntary petition that is dismissed within 60 days after filing.
For the avoidance of doubt, neither party may terminate the Agreement for convenience. If Client terminates the Agreement for convenience, or if Terra Dotta terminates the Agreement due to Client’s material breach, then all fees that would have come due under the Agreement shall become due and payable to Terra Dotta upon receipt of an invoice from Terra Dotta. The parties acknowledge that Terra Dotta’s actual damages arising from such termination would be difficult to determine with accuracy and the parties agree that the payment obligation in the prior sentence is a reasonable estimate of Terra Dotta’s damages and not a penalty.
Nothing in this Section will limit Terra Dotta’s rights under the Terms of Use to terminate, suspend, or block any individual Authorized User’s use of all or part of the Service if Terra Dotta believes in good faith that such Authorized User has breached the Terms of Use.
Within 30 days following termination of the Agreement, Terra Dotta will permit Client to export Client Data using the export capabilities of the Software or will provide Additional Services at Terra Dotta’s then-current rates to transition data to Client, as indicated by Client at the time of termination. On or about thirty (30) days after termination, Terra Dotta will destroy Client Data in a manner consistent with industry best practice techniques.
FEES.
Client shall pay Terra Dotta the amounts set forth in the Agreement and in any Statement of Work in accordance with the terms set forth herein. Unless otherwise set forth in the Agreement or a Statement of Work, Service subscription fees are payable in advance and all invoices will be due within thirty (30) days after invoice date. Late payments will be subject to interest at the rate of twelve percent (12%) annually, or the maximum amount allowed by applicable law if lower, calculated from the date when payment becomes overdue until payment is made. If a payment becomes thirty (30) days or more overdue, and has not been reasonably disputed by Client, Terra Dotta reserves the right to suspend Client’s access to all or any part of the Service without liability to Terra Dotta, until payment is made in full. All payments shall be made in United States dollars and are non-refundable. Terra Dotta does not accept credit card payments. Client agrees to reimburse Terra Dotta for reasonable out-of-pocket expenses pre-approved in writing by Client.
If Client claims tax-exempt status for any purpose in connection with the Agreement, Client represents and warrants that it is a tax-exempt entity and will provide Terra Dotta upon request with a correct copy of Client’s tax-exempt certification. Otherwise, Client agrees to pay all sales, use, excise, VAT, and other taxes based on the Agreement, excluding taxes based on Terra Dotta’s net income.
INTELLECTUAL PROPERTY.
Client agrees that Terra Dotta and its third party licensors own all right, title, and interest, including copyright, patent, trade secret, and all other intellectual property rights, (i) in the Service, the Software, and the Sites, including but not limited to structure, organization, design, algorithms, templates, data models, flow charts, logic flow, screen displays, and report formats associated therewith; and (ii) in and to any suggestions, ideas, enhancement requests, recommendations, or other feedback provided by Client or Authorized Users relating to the Service, Software, or the Sites (without additional consideration beyond initial access to the Sites). Terra Dotta reserves all rights to the Service and Software not specifically granted herein. All Client Data shall remain the exclusive property of its owner.
Client will not: (i) reverse engineer, decompile or disassemble the Software, and will not otherwise attempt to reconstruct or discover the source code or underlying algorithms for the Software; (ii) provide, lease, lend, rent, sell, or use for timesharing, service bureau, or hosting purposes or otherwise use or allow others to use the Service or Software for the benefit of third parties; or (iii) copy, modify, translate, distribute, disclose, sublicense, create derivative works from, transfer, display, or unbundle any of the Software or Service.
Client hereby grants to Terra Dotta, during the Term, an irrevocable, royalty-free right and license to use for the purposes specified in the Agreement all Client Data and other materials, software, and data provided by Client to Terra Dotta in connection with the Agreement.
If any third-party action, suit, or proceeding is brought against Client which alleges that the Service infringes any third party copyright or patent in force in the United States, or misappropriates a third party trade secret enforceable in the United States, or if an injunction or order is obtained against the use of the Service due to infringement allegations, or if the Service is likely to become the subject of such an injunction or order, Terra Dotta shall defend, indemnify and hold Client harmless from any judgments, damages, costs, or expenses (including reasonable attorney’s fees). Terra Dotta has the right at its sole option and expense to: (i) modify or replace the Service to be non-infringing while preserving substantially similar functionality of the original Service; (ii) obtain the right to continue providing the Service; or (iii) if (i) and (ii) are commercially impracticable, terminate the infringing Service and refund to Client the fees paid to Terra Dotta for the Service in advance, pro-rated to reflect prior usage of the Service, provided that (i) Client notifies Terra Dotta promptly in writing of the claim, (ii) Terra Dotta has sole control of the defense and all related settlement negotiations, and (iii) Client provides Terra Dotta with all commercially reasonable assistance, information and authority to perform the above at Terra Dotta’s expense. The foregoing indemnity shall not apply if the alleged infringement is attributable to: (i) the combination of the Service with any products not provided by Terra Dotta (including Third-Party Services) if the alleged infringement would not exist but for such combination, (ii) if the Service is modified or altered by any person or entity other than Terra Dotta, (iii) if the Service is used outside the scope of the Agreement, or (iv) written specifications or requirements provided by Client to Terra Dotta. THIS SECTION STATES TERRA DOTTA’S SOLE LIABILITY TO CLIENT WITH RESPECT TO INFRINGEMENT OF ANY INTELLECTUAL PROPERTY AND PROPRIETARY RIGHTS.
Except to the extent Client is legally prohibited from indemnifying Terra Dotta, Client, at its expense, shall defend or at its option settle any third-party action, suit, or proceeding brought against Terra Dotta which alleges that any Client Data infringes any third party copyright or patent in force in the United States, or misappropriates a third party trade secret enforceable in the United States, or otherwise violates any third party rights, and shall pay damages awarded against Terra Dotta and any settlement amount agreed by Client, provided that (i) Terra Dotta notifies Client promptly in writing of the claim, (ii) Client has sole control of the defense and all related settlement negotiations, and (iii) Terra Dotta provides Client with all commercially reasonable assistance, information, and authority to perform the above at Client’s expense.
CONFIDENTIALITY.
“Confidential Information” means any information or data, including without limitation, any formula, pattern, compilation, program, device, method, technique, or process, that is identified by either party in writing as confidential or is of such a nature that a reasonable person would understand such data and/or information to be confidential that is disclosed by one party (a disclosing party) to the other party (a receiving party) pursuant to the Agreement, so long as such information is subject to reasonable efforts by the disclosing party to preserve its confidentiality. Confidential Information of Terra Dotta includes, but is not limited to, the terms of the Agreement; the Software, as well as the structure, organization, design, algorithms, methods, templates, data models, data structures, flow charts, logic flow, and screen displays associated with the Software; the Documentation; and Terra Dotta’s pricing, sales and training materials and procedures. Confidential Information of Client includes (i) student education records as protected by the Family Educational Rights and Privacy Act (“FERPA”), 20 U.S.C. § 1232g, and defined in 20 U.S.C. § 1232g(a)(4)(A)(i), (ii) protected health information as protected by the Health Insurance Portability and Accountability Act of 1996 (42 U.S.C. § 1320d) (“HIPAA”), and (iii) with respect to individuals that hold legal or resident status in the European Economic Area (“EEA”), or have rights afforded to them in the EEA, the processing of personal data and the free movement of such data, shall be as provided for under GDPR (as defined in the GDPR Data Processing Addendum), as each may be amended from time to time. Confidential Information does not include information that: (i) is or becomes publicly known or available without breach of the Agreement; (ii) is received by a receiving party from a third party without breach of any obligation of confidentiality; or (iii) was previously known by the receiving party as shown by its written records.
Except as required by law, a receiving party agrees, except as expressly authorized by the Agreement, not to, directly or indirectly, use, disclose, copy, or allow a third party access to the Confidential Information, except for third-party contractors and service providers working for the receiving party under terms of confidentiality substantially the same as the confidentiality terms herein. If a disclosure of Confidential Information is required by law, the required party shall use its best efforts to inform the other party prior to any such required disclosure so that the other party may seek a protective order or other remedy, and the required party shall reasonably assist the other party therewith. If the required remains legally compelled to make such disclosure, it shall only disclose that portion of the confidential information that, in the written opinion of its legal counsel, the required party is required to disclose.
Notwithstanding anything to the contrary herein, Client agrees that Terra Dotta may: (i) derive and compile from the provision of the Service certain de-identified, aggregate, and/or analytical data, which shall not contain any Client-specific or any individually identifying information, and (ii) use this data for Terra Dotta’s own purposes and without restriction, including, but not limited to, using the data in conjunction with data from other sources to improve Terra Dotta’s products and services and create new data models and products.
Each party acknowledges and agrees that any violation of this Section or the intellectual property rights of Terra Dotta may cause the disclosing party irreparable injury for which the disclosing party would have no adequate remedy at law, and that the disclosing party shall be entitled to seek preliminary and other injunctive relief against the receiving party for any such violation. Such injunctive relief shall be in addition to, and in no way in limitation of, all other remedies or rights that disclosing party shall have at law or in equity.
Upon the termination of the Agreement, the receiving party will return to the disclosing party or destroy, and certify such destruction to the disclosing party, all the Confidential Information delivered or disclosed to the receiving party, together with all copies in existence thereof at any time made by the receiving party. Notwithstanding the foregoing, the parties shall not be obligated to erase Confidential Information that is contained in an archived computer system backup that was made in accordance with a party’s security and/or disaster recovery procedures; provided, however, that any such Confidential Information contained in such archived computer system backup shall be subject to the terms and conditions of the Agreement.
DATA PROTECTION AND SECURITY.
In the course of providing the Service, Terra Dotta may have access to Client Data that contain student education records as defined under FERPA. To the extent that FERPA applies to the Service, the parties agree that, for the purposes of the Agreement, Terra Dotta is a “school official” under FERPA. Terra Dotta agrees that it shall use Client Data that may contain student education records solely as allowed by the Agreement. To the extent applicable, Client, for itself and any Authorized Users, shall be the sole data controller and responsible for complying with all applicable data protection or similar laws such as GDPR and laws that regulate the processing of personal data and special categories of data as such terms are defined in under GDPR. Client agrees to obtain all necessary consents and make all necessary disclosures before providing personal data via the Service.
Client shall, for itself and on behalf of any Authorized Users, comply with all applicable local, state, federal and foreign laws in connection with its use of the Service, including, but not limited to, those laws related to data privacy, international communications, and the transmission of technical or personal data. Client shall immediately provide Terra Dotta with copies of all communications with any governmental, regulatory, or industry authority relating to the Service or the violation of any laws related to the Service.
Terra Dotta will use commercially reasonable administrative, technical, and physical security measures to maintain the confidentiality of Client Data. Access to Client Data by Terra Dotta will be limited to Terra Dotta personnel with a need to know.
Terra Dotta will maintain an information security program, including security policies, standards and procedures (collectively, “Information Security Policy”). All Terra Dotta personnel will undergo training on the Terra Dotta Information Security Policy. Terra Dotta will perform an independent, external security evaluation, audit, or review on a regular basis (but no less than annually).
In the event Terra Dotta becomes aware that an unauthorized person has accessed Client Data or a security breach has occurred affecting Client Data held in the Service, Terra Dotta will promptly (within one business day) notify Client of the breach and take steps to limit and mitigate such breach to the extent possible.
Unless otherwise agreed in writing by Terra Dotta, Terra Dotta is not obligated to provide access to data held in the Service regarding Authorized Users except through tools and features generally made available through the Service.
WARRANTIES AND DISCLAIMERS.
Each party warrants that it has full authority to enter into the Agreement and is not bound by any contractual or legal restrictions from fulfilling its obligations hereunder.
Terra Dotta warrants that the Service will substantially conform to the Documentation provided in connection with the Service. Client’s sole and exclusive remedy for breach of this warranty is for Terra Dotta to use commercially reasonable efforts to cause the Service to conform in accordance with the support and maintenance terms of the Agreement.
Client represents and warrants that all Client Data provided to Terra Dotta in connection with Client’s use of the Sites and the Service: (i) is owned by Client, or Client has the full right to provide Client Data to Terra Dotta; (ii) does not infringe or misappropriate any copyright, trademark, trade secret, or other intellectual property right; (iii) does not violate any person’s right of privacy or publicity; and (iv) does not contain any unlawful, obscene, defamatory, or libelous material. Client further represents and warrants that its use of Client Data on the Sites or in connection with the Service is not in breach of any confidentiality obligation that Client has to any other person or entity.
Terra Dotta does not warrant that the Service will operate uninterruptedly or error-free. To the extent that data is being transmitted over a cell phone network, the Internet or Client’s network, Client acknowledges that Terra Dotta has no control over the functioning of the Internet, or any phone, cellular, or other non-Terra Dotta network and Terra Dotta makes no representations or warranties of any kind regarding the performance of any such networks. EXCEPT AS EXPRESSLY SET FORTH IN THE AGREEMENT, TERRA DOTTA AND ITS SUPPLIERS MAKE NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY; FITNESS FOR A PARTICULAR PURPOSE; WARRANTIES OF NON-INFRINGEMENT; OR ANY WARRANTIES ARISING AS A RESULT OF CLIENT USAGE IN THE TRADE OR BY COURSE OF DEALING.
LIABILITY; INSURANCE.
Client agrees that the aggregate liability of Terra Dotta and its suppliers relating to the Agreement and the Service shall be limited to the amount of fees actually received by Terra Dotta from Client under the Agreement during the one-year period immediately preceding the event which gave rise to the claims. In no event shall either party be liable for any special, incidental, indirect, cover, consequential, exemplary, or punitive damages or any lost sales, profits, or data, even if such party is told that any of such damages may occur. Any action by either party must be brought within one (1) year after the cause of action arose.
Terra Dotta, at its own cost and expense, shall obtain and maintain in force during the Term, the following insurance coverage issued by insurance companies with an A.M. Best rating of “A” or better or the functional equivalent: (i) a policy of commercial general liability insurance to afford protection to the limit of $1,000,000 with respect to bodily injury or death and $2,000,000 of general aggregate and products liability; (ii) a policy of Technology Errors & Omissions liability insurance which includes cyber liability coverage with a minimum limit of $1,000,000; (iii) if an automobile is to be used by Terra Dotta in performing Additional Services for Client, a policy of comprehensive automobile liability insurance covering the operation of all automobiles used in connection with the performance of the Agreement with such policy to afford protection to the limit of $1,000,000 with respect to bodily injury, death, or property damage for any one accident; and (iv) a policy of Worker’s Compensation insurance covering all officers, employees or agents of Terra Dotta who are in any way engaged in or connected with the performance of services for Client and Employers Liability insurance in the amount of $500,000.
OTHER PROVISIONS.
The parties are independent contractors, and nothing in the Agreement shall be construed as creating a joint venture, partnership, agent, or employment relationship between Terra Dotta and Client.
Any notice or other communication required or permitted in the Agreement shall be in writing and delivered to the addresses listed on the Signature Page either: (i) by personal delivery; (ii) by certified mail; or (iii) by recognized express courier, and shall be effective upon receipt.
Neither Client nor Terra Dotta may assign or otherwise transfer the Agreement without the prior written consent of the other party, except that such consent shall not be necessary in connection with the sale of all or substantially all of Terra Dotta’s business or portion of Terra Dotta’s business to which the Agreement relates, so long as such acquirer is not a competitor of Client. Any permitted assignee must agree in writing to the terms of the Agreement.
The Agreement may not be modified or waived except in a written document, signed by both parties. Any additional or conflicting terms on any purchase order for any products or services covered by the Agreement shall be void and without effect unless agreed to in a separate writing signed by both parties.
Each party shall attempt in good faith to resolve any controversy, claim, or dispute of whatever nature arising out of or relating to the Agreement (“Dispute”) promptly by negotiation between executives or managers who have authority to settle the Dispute and who are at a higher level of management within each of the parties’ organizations than the parties’ normal project managers. Each party shall provide the other with all information and documentation relied upon by the party to substantiate its position with respect to the Dispute.
Neither party shall be liable for any failure or delay in the performance of its obligations (except for payment obligations hereunder) due to causes beyond its reasonable control, including but not limited to war, sabotage, insurrection, riot,, or other act of civil disobedience, act of any government affecting the terms hereof, acts of terrorism, accident, fire, explosion, flood, hurricane, severe weather, or other act of God, or failure of telecommunication or internet service providers.
Neither the Service, Software, nor any direct product thereof or technical data related thereto, shall be exported or re-exported by Client in violation of any export or import regulations of the United States or any other applicable jurisdiction, including but not limited to the United States Export Administration Regulations and end-user, end-use, and country destination restrictions issued by the United States and other governments.
There are no intended third-party beneficiaries of the Agreement, and nothing in the Agreement may be relied upon by, or shall benefit, any party other than Terra Dotta and Client.
If any provision of the Agreement is found by any court or administrative body of competent jurisdiction to be invalid or unenforceable, then the invalidity or unenforceability shall not affect the other provisions of the Agreement and all provisions not affected shall remain in full force and effect. Both parties will attempt to substitute with a valid or enforceable provision, which achieves to the greatest extent possible the economic, legal, and commercial objectives of the invalid or unenforceable provision.
Terra Dotta is an Equal Opportunity Employer. All qualified applicants will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, or protected veteran status and will not be discriminated against on the basis of disability. To the extent applicable, each party will comply with all federal, state. and local laws and ordinances applicable to the work or payment for work thereof, and will not discriminate on the grounds of race, color, religion, sex, national origin, age. or disability in the performance of work under the Agreement.
