These Terms of Service and Subscription Agreement constitute an “Agreement” by and between NACCOP-AEGIS, LLC (“Provider”), a Delaware-based business, and each “Customer” of CleryEdge, the Provider’s software service (“Service”).
PLEASE READ THIS AGREEMENT CAREFULLY. BY ACCESSING AND USING THIS SERVICE, YOU AGREE TO THE TERMS OF THIS AGREEMENT.
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF AN INSTITUTION OF HIGHER EDUCATION, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS SET FORTH HEREIN, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE ANY SERVICE.
As used in this Agreement, the following terms shall have the meanings set forth below:
1.1 “Account” refers to Provider’s Service plans and features selected by Customer at the time of subscription and accepted by Provider.
1.2 “Account User” means each employee or student affiliated with and specified by Customer to access Provider’s Service.
1.3 “AUP” refers to Provider’s Acceptable Use Policy.
1.4 “Confidential Information” means all information disclosed by or otherwise obtained from the Customer by the Provider or all information disclosed by or otherwise obtained from the Provider by the Customer, whether orally, visually, or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Customer’s Confidential Information includes non-public institutional information, student, and personnel data. Provider’s Confidential Information includes software, services, documentation, and its other intellectual property.
1.5 “Content” refers to written, recorded, and graphical content contained in, or made available through, the Service, including, without limitation, videos, audio, text, photographs, illustrations, and designs, whether provided by Provider.
1.6 “Data” refers to all data entered into the Service by Customers of the Service.
1.7 “Data Policy” refers to Provider’s standard data policy (available on request).
1.8 “Documentation” means all documentation relating to the Service, including but not limited to descriptions of the functional, operational, and design characteristics of the Service.
1.9 “Effective Date” refers to the date of commencement of the Service as listed on Customer’s Account.
1.10 “Customer” refers to the purchasing Customer.
1.11 “Customer Data” refers to data in electronic form input, uploaded, or collected through the Service by or from Customer and/or Account Users.
1.12 “Intellectual Property Rights” means all ideas, concepts, designs, drawings, packages, works of authorship, processes, methodologies, information, developments, materials, inventions, improvements, software, and all intellectual property rights worldwide arising under statutory or common law, including without limitation, all (i) patents and patent applications owned or licensable by a party hereto; (ii) rights associated with works of authorship, including copyrights, copyright applications, copyright registrations, mask work rights, mask work applications and mask work registrations; (iii) rights related to protection of trade secrets and Confidential Information; (iv) trademarks, trade names, service marks and logos; (v) any right analogous to those set forth in clauses (i) through (iv); and (vi) divisions, continuations, renewals, reissues and extensions of the foregoing (as and to the extent applicable) now existing, hereafter filed, issued or acquired.
1.14 “Service” refers to Provider’s CleryEdge software service.
1.15 “SLA” refers to Provider’s Service Level Agreement.
1.16 “Subscription Fee” means, with respect to each Service subscription, the annual subscription fee invoiced to Customer by Provider prior to the Initial Term and each applicable Renewal Term for such Service subscription, which is required to be paid in order for Customer to be permitted to access and use the Service in such Service subscription.
2.0 Use of the Service
2.1 Subscription. Subject to the terms of this Agreement (including, without limitation, the responsibilities, limitations and restrictions set forth in this Section 2.1 and payment of the Subscription Fees required hereunder), Provider shall permit Customer’s Account Users to access and use the Service during the Term, including access and use of all of the Content contained in or made available through the Service. Customer agrees that it shall use the Service solely for internal business purposes, and access and use of the Service shall be limited to Account Users.
2.2 Account Setup. Following verification of Customer payment, Customer is obligated to provide Provider with all necessary information needed to generate a new account in the Service. Following account creation, Customer is responsible for adding Account Users and configuring the Service for use. Each Account User must establish and maintain a personal, non-transferable password, which shall not be shared with, or used by, any other Account User or any other Third Party. Customer may not transfer an Account User’s right to access and use the Service to a different user. Customer shall be solely responsible for any and all activities that occur under its Account, including all acts and omissions of its Account Users. Customer shall notify Provider immediately of any unauthorized use of its Account and/or any other breach of security of the Service that it suspects or becomes aware of.
2.3 Customer’s Identity. Customer warrants: (i) that it has accurately identified itself through its Account and will maintain the accuracy of such identification; and (ii) that it is a corporation or other business entity authorized to do business pursuant to applicable law or an individual 18 years or older.
2.4 Service Failure. In the event of any “Service Failure,” as that term is defined in the SLA, Provider will issue Customer such credits as are required by the SLA. Credits issued pursuant to the SLA apply to outstanding or future payments only and are forfeited upon termination of this Agreement. Provider is not required to issue refunds or to make payments against such credits under any circumstances, including without limitation termination of this Agreement. Credits issued pursuant to the SLA are Customer’s sole remedy for the Service Failure in question.
2.5 Additional Guidelines. Provider reserves the right to establish or modify general practices and limits concerning use of the Service, including without limitation, the maximum number of days that Customer Data shall be retained by the Service and the maximum disk space that shall be allotted on Provider servers on Customer’s behalf. Provider shall provide at least sixty (60) days’ prior notice of any such modification. Provider also reserves the right to block IP addresses originating a Denial of Service (DoS) attack or IP addresses causing excessive amounts of data to be sent to Provider servers. Provider shall notify Customer should this condition exist and inform Customer of its action. Once blocked, an IP address shall not be able to access the Service and the block may be removed once Provider is satisfied corrective action has taken place to resolve the issue.
3.0 Subscription Fees
3.1 Payment. Customer shall, on or before the commencement of the Initial Term of a Service subscription, pay to Provider the Subscription Fee for such Service subscription. Thereafter, Customer shall invoice Customer for each applicable Subscription Fee at least sixty (60) days prior to the commencement of the applicable Renewal Term. Unless Customer provides written notice of non-renewal in accordance with Section 4.1, Customer agrees to pay all Subscription Fees no later than thirty (30) days after the receipt of Provider’s applicable invoice therefore. Customer is responsible for providing complete and accurate billing and contact information to Provider and notifying Provider of any changes to such information. Except as otherwise specified herein, Customer’s payment obligations are non-cancelable and Subscription Fees paid are non-refundable.
3.2 Renewal Charges. Provider maintains the right to increase Subscription Fees and other applicable fees and charges in connection with each Renewal Term.
3.3 Taxes. Provider’s Subscription Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, accessible by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder. If Provider has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section 3.3, Provider shall invoice Customer and Customer shall pay that amount unless Customer provides Provider with a valid tax exemption certificate authorized by the appropriate taxing authority. Customer agrees to indemnify and hold Provider harmless from any encumbrance, fine, penalty or other expense which Provider may incur as a result of Customer’s failure to pay any Taxes required hereunder.
4.0 Term and Termination
4.1 Term. This Agreement commences on the date Customer submits payment, thus establishing its Account, and continues until all Service subscriptions hereunder have expired or have been terminated (the “Term”). The initial term of each Service subscription shall be for a period of one (1) year (the “Initial Term”) from the date of the receipt of payment. Thereafter, each Service subscription shall automatically renew for successive one-year or multi-year contract periods (each, a “Renewal Term”), as initiated by Customer, unless either party has provided written notice of its intent to not renew such Service subscription not less than thirty (30) days prior to the expiration of the then-current Initial or Renewal Term applicable to such Service subscription.
4.2 Termination for Breach. Provider may terminate this Agreement prior to the expiration of the Term if Customer commits a material breach of this Agreement and fails to cure such breach within thirty (30) days after written notice of such breach is given by Provider; provided that if the breach involves a failure of Customer to pay any of the fees required under this Agreement, the cure period shall be reduced to ten (10) days. Without limiting the foregoing, in the event of a breach that gives rise to the right by Provider to terminate this Agreement, Provider may elect, as an interim measure, to terminate Customer’s Service subscription and/or suspend its performance hereunder (including, without limitation, Customer’s right to access and use the Service and the Account) until the breach is cured. Provider’s exercise of its right to elect any interim measure shall be without prejudice to Provider’s right to terminate this Agreement upon written notice to Customer.
4.3 Termination of Service Subscription.
4.3.1 Either party may terminate a Service subscription prior to the expiration of its applicable term if the other party breaches any term of this Agreement or such Service subscription and, if such breach is capable of cure, such breach is not cured by the breaching party within thirty (30) days after receipt of written notice of such breach from the non-breaching party; provided that if the breach involves a failure of Customer to pay any of the Subscription Fees required under this Agreement, the cure period shall be reduced to ten (10) days.
4.3.2 Customer may terminate at the end of the one-year term unless Customer has signed a multi-year agreement, and then at the end of the multi-year agreement term. Customer may terminate the Service in writing by contacting us.
4.4 Stop Providing Service. Provider may, upon 180 days’ prior written notice to Customer, terminate provision of the Service as a hosted offering. Upon such termination Customer may request in writing and be granted a refund in an amount equal to: (i) the Subscription Fee prepaid by Customer for such Service for the term during which such termination is effective, multiplied by (ii) the number of full months remaining in the applicable paid term (determined based upon the effective date of termination of such Service), (iii) divided by twelve.
4.5 Effect of Termination. The following provisions will survive termination of this Agreement: (i) any obligation of Customer to pay for Service rendered before termination; (ii) Sections 7, 8, 10, and 12 of this Agreement; and (iii) any other provision of this Agreement that must survive termination to fulfill its essential purpose. Upon termination of this Agreement, Customer’s access and use of the Service shall automatically cease.
4.6 Survival. The following portions of this Agreement shall survive termination of this Agreement and continue in full force and effect: Sections 4.4, 5, 6, 8 and Exhibit C. Termination of this Agreement, or any of the obligations hereunder, by either party shall be in addition to any other legal or equitable remedies available to such party, except to the extent that remedies are otherwise limited hereunder.
5.0 Proprietary Rights
5.1 Content. Customer recognizes and agrees that: (i) the Content are the property of Provider and are protected by copyright, trademark, and other intellectual property laws; and (ii) Customer does not acquire any right, title, or interest in or to the Content except the limited and temporary right to use them as necessary for Customer’s use of the Service.
5.2 Intellectual Property. Customer acknowledges and agrees that (as between Customer and Provider) Provider retains all ownership right, title, and interest in and to the Service, the Documentation, and the Content, including without limitation all corrections, enhancements, improvements to, or derivative works thereof (collectively, “Derivative Works”), and in all Intellectual Property Rights therein or thereto. To the extent any Derivative Work is developed by Provider based upon ideas or suggestions submitted by Customer to Provider, Customer hereby irrevocably assigns all rights to modify or enhance the Service using such ideas or suggestions or joint contributions to Provider, together with all Intellectual Property Rights related to such Derivative Works. Nothing contained in this Agreement shall be construed to convey to Customer (or to any party claiming through Customer) any Intellectual Property Rights in or to the Applications, the Service, the Documentation and the Content, other than the rights expressly set forth in this Agreement.
5.3 Customer Data. Provider acknowledges and agrees that (as between Customer and Provider) Customer retains all ownership right, title, and interest in and to Customer Data, including all Intellectual Property Rights therein or thereto.
5.4 Third-Party. Customer acknowledges the Service may utilize third-party software and/or tools (each, a “Third-Party Tool”) under a license granted to Provider by one or more applicable Third Parties (each, a “Third-Party Licensor”), which licenses Provider the right to sublicense the use of the Third-Party Tool solely as part of the Service. Each such sublicense is nonexclusive and solely for Customer’s internal use and Customer shall not further resell, re-license, or grant any other rights to use such sublicense to any Third Party. Customer further acknowledges that each Third-Party Licensor retains all right, title, and interest to its applicable Third-Party Tool and all documentation related to such Third-Party Tool. All confidential or proprietary information of each Third-Party Licensor is Confidential Information of Provider under the terms of this Agreement and shall be protected in accordance with the terms of Section 9.0.
7.0 Limitation of Liability
8.1 Limited Warranty. Provider warrants that (i) Provider solely possesses all rights and title to the Intellectual Property utilized in the provision of the Service, excluding any open source computer code or other technology in the public domain; (ii) Provider will not share any records processed and stored by the Customer within Provider’s system with any other person or entity; and (iii) Provider will use commercially reasonable efforts or better, and adhere to or exceed higher education standards in fulfilling its obligations under this Agreement. Provider does not warrant that the Services are or will be error free. Provider further does not warrant that its electronic files containing information pertaining to Customer and/or Customer’s students are not susceptible to intrusion, attack, or computer virus infection, but given the confidential nature of much of this data, Provider will use commercially reasonable efforts to safeguard the security of this data. EXCEPT FOR THE LIMITED WARRANTY DESCRIBED IN THIS SECTION AND TO THE EXTENT ALLOWED BY APPLICABLE LAW, Provider MAKES NO OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, AND EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY OR ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. For any breach of the warranties set forth in this paragraph, Customer’s immediate remedy shall be correction of the errors that cause the breach. Nothing in this paragraph shall be construed to limit the remedies available to either party under law, equity, or this Agreement.
9.1 Protection of Confidential Information. The Receiving Party agrees that it shall (i) hold the Disclosing Party’s Confidential Information in strict confidence and shall use the same degree of care in protecting the confidentiality of the Disclosing Party’s Confidential Information that it uses to protect its own Confidential Information, but in no event less than reasonable care, (ii) not use the Confidential Information of the Disclosing Party for any purpose not permitted by this Agreement; (iii) not copy or reproduce any part of the Disclosing Party’s Confidential Information except as expressly permitted by this Agreement, (iv) limit access to the Confidential Information of the Disclosing Party to those of its employees who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.
9.2 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party shall reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
9.3 Remedies. Recipient acknowledges that the Disclosing Party would have no adequate remedy at law should the Receiving Party breach its obligations relating to Confidential Information and agrees that the Disclosing Party shall be entitled to enforce its rights by obtaining appropriate equitable relief, including without limitation a temporary restraining order and an injunction.
10.0 Online Policies
10.2 AUP. Customer agrees to comply with the AUP. In the event Customer’s material breaches AUP, including without limitation any copyright infringement, Provider shall provide Customer with written notice of the purported breach and Customer shall have thirty (30) days to cure said purported breach. In the event that Customer fails to cure said purported breach within thirty (30) days of its receipt of such written notice from Provider, Provider may suspend or terminate Customer’s access to the Service, in addition to such other remedies as Provider may have at law or pursuant to this Agreement. Neither this Agreement nor the AUP requires that Provider take any action against Customer for violating the AUP, but Provider is free to seek any remedies it sees fit.
11.0 Data Management
11.1 Access, Use, and Legal Compulsion. Unless it receives Customer’s prior consent, Provider: (i) will not access or use Customer Data other than as necessary to facilitate the Service; and (ii) will not give any third party access to Customer Data, except for those third parties designated by Customer. Notwithstanding the foregoing, Provider may disclose Customer Data as required by applicable law or by proper legal or governmental authority. Provider will give Customer prompt notice of any such legal or governmental demand and reasonably cooperate with Customer in any effort to seek a protective order or otherwise to contest such required disclosure, at Customer’s expense.
11.2 Customer’s Rights. Customer possesses and retains all right, title, and interest in and to Customer/Account User Data, and Provider’s use and possession thereof shall be subject to the terms of this Agreement and applicable law.
11.3 Retention and Deletion. Provider will retain all Customer/Account Data until erased pursuant to the Data Policy.
11.4 Injunction. Provider agrees that violation of the provisions of this Section 11 might cause Customer irreparable injury, for which monetary damages would not provide adequate compensation, and that in addition to any other remedy, Customer will be entitled to injunctive relief against such breach or threatened breach, without proving actual damage or posting a bond or other security.
11.5 Data Policy. The Data Policy includes additional details with which Provider, Customer, and Account Users shall comply.
12.1 Anti-Corruption. Customer has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Provider’s employees or agents in connection with this Agreement. If Customer learns of any violation of the above restriction, Customer shall immediately notify Provider.
12.2 Assignment and Successors. Neither party may assign this Agreement or any of its rights or obligations hereunder without the other’s express written consent, except that either party may assign this Agreement to the surviving party in a merger or sale of that party into another entity. Except to the extent forbidden in the previous sentence, this Agreement will be binding upon and inure to the benefit of the respective successors and assignees of the parties.
12.3 Authority. Customer represents and warrants that: (i) it has full right, title and authority to enter into this Agreement; and (ii) this Agreement constitutes a legal, valid and binding obligation of Customer, enforceable against it in accordance with its terms.
12.4 Children Under the Age of 13. Websites and/or online applications and services that are collecting information from children under the age of 13 are required to comply with Federal Trade Commission (FTC) Children’s Online Privacy Protection Act (COPPA). Customer shall not submit, and shall ensure that its Account Users shall not submit, any information from children under the age of 13. Provider does not knowingly collect personal information from children under 13.
12.6 Entire Agreement. This Agreement is the entire agreement between Customer and Provider regarding Customer’s use of the Service and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. The parties agree that any term or condition stated in any purchase order or in any other order documentation is void.
12.7 Force Majeure. Except with respect to any payment obligations of Customer, neither party shall be responsible for any failure or delay in performance of any obligations hereunder caused by resulting directly or indirectly from an act of force majeure or causes beyond Provider’s reasonable control, including without limitation, equipment or technical failures, electrical power failures or fluctuations, failure of environmental control systems, denial of service attacks (including distributed denial of service attacks) or any other form of adverse cyber attack or hacker activity, any failure or delays of ISP’s, any general or regional malfunction or overload of the web or the internet, failure of Third-Party software, any general slowdown or inoperability of the Internet (whether from a virus or other cause), strikes, labor disputes, terrorism, explosion, epidemic casualty, flood, riot or civil disturbance, war, sabotage, shortages of labor or materials, fire, flood, natural or man-made disasters, Acts of God, government actions, statutes, ordinances, or regulations, orders of domestic or foreign courts or tribunals, non-performance of third parties, or any event, cause, contingency, or circumstance beyond the reasonable control of a party (each, a “Force Majeure Event”). Upon the occurrence of any such event, the party shall promptly notify the other party of the nature and extent of any such condition.
12.8 Governing Law; Venue. This Agreement is deemed to be made under and shall be interpreted in accordance with the laws of the State of Delaware, excluding its conflict of laws provisions. The parties hereby submit to the jurisdiction and venue of the state and federal courts of the State of Delaware for purposes of all legal proceedings arising out of or relating to this agreement. The parties hereby irrevocably waive, to the fullest extent permitted by applicable Law, any objection which they may now or hereafter have to the laying of venue of any such proceeding brought in such a court and any claim that any such proceeding brought in such a court has been brought in an inconvenient forum. Each of Provider and Customer hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
12.9 Independent Contractor. The relationship between Provider and Customer does not extend beyond the express terms of this Agreement, and does not constitute a partnership, joint venture, or agency. Neither party has any right or authority to assume or create any obligations on behalf of or in the name of the other or to bind the other in any manner whatsoever.
12.10 Interpretation of Agreement. The Section headings contained in this Agreement are solely for the purpose of reference, are not part of the agreement of the parties, and shall not affect in any way the meaning or interpretation of this Agreement. Any reference to any federal, state, local or foreign statute or law shall be deemed to refer to all rules and regulations promulgated thereunder, unless the context requires otherwise.
12.12 No Third-Party Beneficiaries. No person or entity not a party to this Agreement shall be deemed to be a third-party beneficiary of this Agreement or any provision hereof.
12.13 Notices. Provider may send notices pursuant to this Agreement to Customer’s contact points listed in Customer’s Account in the manner set forth in Customer’s Account, and such notices will be deemed received by Customer three (3) business days after such notices are so sent by Provider. Customer may send notices pursuant to this Agreement to Provider at firstname.lastname@example.org, and such notices will be deemed received three (3) business days after such notices are so sent by Customer.
12.14 Right to Do Business. Each party warrants that it has the full right and authority to enter into, execute, and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement.
12.15 Severability. The invalidity of any portion of this Agreement shall not invalidate any other portion of this Agreement and, except for such invalid portion, and the remaining provisions of this Agreement shall remain in full force and effect.
12.16 Survival. All provisions of this Agreement relating to the obligations of Customer under this Agreement shall survive the expiration of the term or termination.
12.17 Waiver. No failure or delay by either party in enforcing any of its rights under this Agreement shall be construed as a waiver of the right to subsequently enforce any of its rights, whether relating to the same or a subsequent matter.
Please contact us, if you have questions about this Agreement. This Agreement was last modified: March 14, 2022.