MASTER SUBSCRIPTION AGREEMENT
THIS AGREEMENT (this “Agreement”) is between Top Hat. (“THM“) and the undersigned educational institution (the “Institution“), and is entered into as of the date set forth below.
For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
“Agreement Effective Date” has the meaning set forth in the Order Form.
“Fees” means the fees described in the Order Form.
“Institution Data” means all electronic data or information submitted by Institution and/or its Users to the Service.
“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
“Order Form” means the order form to which this Agreement relates, which Order Form is attached to, and incorporated by reference in the terms and conditions of, this Agreement.
“Service” means THM’s engagement and institutional engagement education systems offered from time to time.
“Student Data” means either (i) education records of students as defined by the Family Educational Rights and Privacy Act (FERPA) or (ii) any other personally identifiable information about a student.
“Student User” means a student of the Institution who accesses the Service.
“Term” has the meaning ascribed to that term in Section 11.1.
“Top Hat” means Tophatmonocle (US) Corp., a United States of America corporation, for Institutions that reside in the United States of America and Tophatmonocle Corp., a Canadian corporation, for Institutions that do not reside in the United States of America.
“User” means Student User, individual or entity that is authorized by Institution to use the Service, and who has been supplied a user account and password by Institution (or by THM at Institution’s request) for the Service.
2. Grant of License.
3. THM Responsibilities.
THM shall: (i) in addition to its confidentiality obligations hereunder, not use or modify the Institution Data or Student Data (except for the purposes of performing its obligations or exercising its rights under this Agreement) or disclose the Institution Data or Student Data to anyone other than Institution and the applicable Users(s); (ii) maintain the security and integrity of the Service and the Institution Data; (iii) comply with the applicable laws of the United States, Canada and England and Wales in providing the Services (including those of FERPA and PIPEDA) and (iv) use commercially reasonable efforts to make the Service available twenty-four (24) hours a day, seven (7) days a week, except for: (a) planned downtime (of which THM shall give prior notice via the Service; or (b) any unavailability caused by circumstances beyond THM’s reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving THM employees), computer, telecommunications, Internet service provider or hosting facility failures or delays involving hardware, software or power systems not within THM’s possession or reasonable control, and denial of service attacks.
4. Institution Responsibilities
2. Student Data. Institution represents, warrants and covenants that it has all necessary consents in respect of any Student Data that it share with THM to enable THM to provide the Service. Institution hereby grants THM a non-exclusive license for the Term (and for thirty (30) days thereafter) to use the Student Data as reasonably required to provide the Service.
5. Institution Responsibility. Institution represents to THM it is authorized to use the Institution Data and that before it provides it to THM that it has obtained any licenses, consents and authorizations necessary for THM to provide the Services. Institution shall hold THM harmless from, and indemnify it for, any final judgment of a court of competent jurisdiction to the extent arising from or related to this Agreement and attributable to the negligence of Institution or of its officers or employees when acting within the course and scope of their employment.
5. Fees & Payment.
2. Invoicing & Payment. Fees for the Service will be invoiced within five (5) days from the date hereof. Unless otherwise stated in an invoice, charges are due net thirty (30) days from the invoice date and are non-refundable
3. Taxes. Unless otherwise stated, THM’s fees do not include any direct or indirect local, state, provincial, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, goods and services, harmonized, use or withholding taxes (collectively, “Taxes”). Institution is responsible for paying all Taxes associated with its purchases hereunder, excluding taxes based on THM’s net income or property. If THM has the legal obligation to pay or collect Taxes for which Institution is responsible under this section, the appropriate amount shall be invoiced to and paid by Institution, unless Institution provides THM with a valid tax exemption certificate authorized by the appropriate taxing authority.
4. Audit Rights. THM shall have the right to use the capabilities of the Service to confirm the number of Users using the Service and Institution’s compliance with this Agreement.
5. Suspension of Service. If Institution’s account is thirty (30) days or more overdue (except with respect to charges then under reasonable and good faith dispute), in addition to any of its other rights or remedies, THM reserves the right to suspend the Service provided to Institution, without liability to Institution, until such amounts are paid in full.
6. Proprietary Rights.
1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, THM reserves all rights, title and interest in and to the Service, including all related intellectual property rights. No rights are granted to Institution hereunder other than as expressly set forth herein.
3. Suggestions. THM shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual, unrestricted license to use or incorporate into the Service any suggestions, enhancement requests, recommendations or other feedback provided by Institution or its Users relating to the operation of the Service.
1. Definition of Confidential Information. As used herein, “Confidential Information” means all confidential and proprietary information of a party (the “Disclosing Party”) disclosed to the other party (the “Receiving Party”), whether orally 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, including the terms and conditions of this Agreement, the Institution Data, Student Data, the Service, business and marketing plans, technology and technical information, product designs, and business processes. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party;(iv) is received from a third party without breach of any obligation owed to the Disclosing Party or (v) is required to be disclosed by applicable law or legal proceedings. .
2. Confidentiality. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party’s prior written permission.
3. Protection. Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind (but in no event using less than reasonable care).
4. Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with 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.
5. Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of confidentiality protections hereunder, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies may be inadequate.
6. Publicity. Neither party may issue press releases relating to this Agreement without the other party’s prior written consent. Each party may include the name and logo of the other party in lists of customers or vendors in accordance with the other party’s standard guidelines.
8. Warranties & Disclaimers.
1. Warranties. Each party represents and warrants that it has the legal power to enter into this Agreement. THM represents and warrants that the Service will not contain or transmit to Institution any Malicious Code (except for any Malicious Code contained in User or Institution-uploaded materials or otherwise originating from Institution or a User.
2. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THM MAKES NO REPRESENTATIONS AND PROVIDES NO WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED REPRESENTATIONS, WARRANTIES AND/OR CONDITIONS, INCLUDING ANY REPRESENTATIONS, WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY, TITLE, NON-INFRINGEMENT, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
1. Indemnification by THM. Subject to this Agreement, THM shall indemnify Institution against any damage (including reasonable attorneys’ fees) awarded to a third party against Institution by a court of competent jurisdiction in any proceedings made or brought against Institution by a third party alleging that the use of the Service as contemplated hereunder infringes a Canadian or United States intellectual property rights of a third party (“IP Claims”); subject to the condition that Institution (a) promptly gives written notice of each IP Claim to THM; (b) gives THM sole control of the defense and settlement of each IP Claim (provided that THM may not settle or defend any IP Claim unless it unconditionally releases Institution of all liability); and (c) provides to THM, at THM’s cost, all reasonable assistance in respect to each IP Claim.
2. Mitigation. If (a) THM becomes aware of an actual or potential IP Claim, or (b) Institution provides THM with notice of an actual or potential IP Claim, THM may (or in the case of an injunction against Institution, shall), at THM’s sole option and determination: (I) procure for Institution the right to continue to use the Service; or (II) replace or modify the Service with equivalent or better functionality so that Institution’s use is no longer infringing; or (III) if (I) or (II) are not commercially reasonable, terminate provision of the Service and refund to Institution any pre-paid Service fees for any periods after the termination of the Service, less any outstanding moneys owed by Institution to THM.
3. Exclusions. The obligations in Sections 9.1 and 9.2 do not extend to (1) any IP Claim based upon infringement or alleged infringement of any patent, trademark, copyright or other intellectual property right by the combination of the Service furnished by THM with other products, software or services not provided by THM; (2) any IP Claim related to any Institution Data, or (3) any IP Claim related to any use or exercise of any other right in respect to the Service outside the scope of the rights granted in this Agreement.
10. Limitation of Liability.
1. Limitation of Liability. IN NO EVENT SHALL THM’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS ACTUALLY PAID BY AND DUE FROM CUSTOMER HEREUNDER IN THE TWELVE MONTHS PRECEDING THE INCIDENT GIVING RISE TO LIABILITY.
2. Exclusion of Consequential and Related Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, LOST SAVINGS OR OTHER SIMILAR PECUNIARY LOSS) HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
3. Certain Damages Not Excluded. NOTWITHSTANDING THE FOREGOING, NO LIMITATION OF EITHER PARTY’S LIABILITY SET FORTH IN THIS AGREEMENT SHALL APPLY TO (I) DAMAGES ARISING FROM A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS, (II) DAMAGES ARISING FROM ANY INFRINGEMENT AND/OR MISAPPROPRIATION OF A PARTY’S INTELLECTUAL PROPERTY RIGHTS; OR (III) ANY CLAIMS FOR NON-PAYMENT.
11. Term & Termination.
1. Term of Agreement. This Agreement shall commence as of the Agreement Effective Date and shall continue in effect for the term (the “Initial Term”) set forth in the Order Form. Thereafter, the term of the Agreement shall be automatically renewed on the expiry of the Initial Term for additional one (1) year renewal terms (any such subsequent renewal terms referred to in this Agreement as a “Renewal Term”), unless either party gives written notice of non-renewal to the other party at least sixty (60) days prior to the end of the Initial Term or any Renewal Term hereof. Collectively, the Initial Term and any subsequent Renewal Terms shall constitute the “Term”
2. Termination for Cause. A party may terminate this Agreement for cause: (i) upon thirty (30) days written notice of a material breach to the other party if such breach remains uncured at the expiration of such period; or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
3. Outstanding Fees. Termination shall not relieve Institution of the obligation to pay any fees accrued or payable to THM prior to the effective date of termination.
4. Surviving Provisions. The following provisions shall survive any termination or expiration of this Agreement: Sections 5 through 12.
12. General Provisions.
1. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
3. Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
4. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
5. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, each party may assign this Agreement in its entirety, without consent of the other party, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its stock or assets. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
6. Governing Law. If the Institution resides in Canada and uses the System in Canada, this Agreement is to be construed under the laws of the Province of Ontario. Otherwise, this Agreement is to be construed under the laws of the State of New York, excluding any body of law governing conflicts of law. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is hereby excluded in its entirety from application to this Agreement. In the event of a dispute arising out of or in connection with the terms of this Agreement between Institution and THM, then Institution agrees to attempt to settle the dispute by engaging in good faith negotiations with THM in a process of mediation before commencing arbitration or litigation. The parties confirm that it is their wish that this Agreement as well as all other documents relating to this Agreement, including notices, be drawn up in English only.
7. Force Majeure. Neither party shall be responsible for its failure to perform to the extent due to unforeseen circumstances or causes beyond its control, including but not limited to acts of God, wars, terrorism, riots, embargoes, acts of civil or military authorities, fires, floods, accidents, or strikes, labour problems (other than those involving the employees of the affected party), computer, telecommunications, Internet service provider or hosting facility failures or delays involving hardware, software or power systems not within a party’s possession or reasonable control, provided that such party gives the other party prompt written notice of the failure to perform and the reason therefore and uses its reasonable efforts to limit the resulting delay in its performance.
9. Counterparts. This Agreement may be executed by facsimile and in counterparts, which taken together shall form one legal instrument.