K12 DATA® SERVICE AGREEMENT
BY CHECKING THE “ACCEPT" BOX (OR ACCEPTING THE EXCHANGE OF DATA IN DOING BUSINESS WITH K12 DATA BY ANY VERBAL OR WRITTEN MEANS) YOU AND ANY ENTITY THAT YOU REPRESENT (“CUSTOMER”) ARE UNCONDITIONALLY CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS SERVICE AGREEMENT (“AGREEMENT”). CUSTOMER’S CONTINUED USE OF ANY SERVICES PROVIDED BY K12 DATA SHALL ALSO CONSTITUTE ASSENT TO THE TERMS OF THIS AGREEMENT. IF CUSTOMER DOES NOT UNCONDITIONALLY AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, CLICK THE "CANCEL" BUTTON AND THE DOWNLOAD AND/OR ACCESS PROCESS WILL NOT CONTINUE. IF THESE TERMS ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS. IF YOU ARE EXECUTING THIS AGREEMENT ON BEHALF OF AN ORGANIZATION, YOU REPRESENT THAT YOU HAVE AUTHORITY TO DO SO. ALL SALES ARE FINAL.
1. SERVICES AND SUPPORT
1.1 Subject to the terms and conditions of this Agreement, will provide Customer with access through the internet and via download to the K12 Data File Service and Contacts as described at, and selected by Customer through, http://dms.k12-data.com/index.php/login (the “Website”) (collectively, “Services”). Hard bounces as defined by: http://whatis.techtarget.com/definition/hard-bounce that exceeds 3% will be credited to the user’s account (this only applies to the first email deployment of the leased file within 20 days of receipt). The Services are subject to modification from time to time at K12 Data’s sole discretion, for any purpose deemed appropriate by K12 Data. K12 Data will use reasonable efforts to give Customer prior written notice of any material modification.
1.2 K12 Data reserves the right to suspend Customer’s access to the Services: (i) for scheduled or emergency maintenance, or (ii) if Customer breaches this Agreement, including failure to pay any amounts due to K12 Data.
1.3 Subject to the terms hereof, K12 Data will provide reasonable support to Customer for the Services as described at http://dms.k12-data.com/index.php/login. Customer will designate an employee who will be responsible for all matters relating to this Agreement (“Primary Contact”). Customer may change the individual designated as Primary Contact at any time by providing written notice to K12 Data. Customer will cooperate with K12 Data in connection with the performance of this Agreement by making available such personnel and information as may be reasonably required, and taking such other actions as K12 Data may reasonably request. Customer will also cooperate with K12 Data in establishing a procedure for verifying that only designated employees of Customer have access to the K12 Data Services. Customer will be responsible for maintaining the security of Customer’s account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account with or without Customer’s knowledge or consent.
2. RESTRICTIONS AND RESPONSIBILITIES
2.1 Subject to Customer’s compliance with all of the terms and conditions of this Agreement, K12 Data hereby grants Customer a limited, personal, non-sub licensable, non-transferable, nonexclusive license to internally use the K12 Data File Service and Contacts downloaded by Customer only in accordance with any accompanying documentation. K12 Data seeds its files with specific Email & Mailing Addresses that are Unique to Each Shared File thus making use of said seed/s for external purposes will constitute a breach of this agreement and the following penalties: Sharing of data with any entity outside of the contracted lessee will result in an additional data lease charge at the current contracted CPM/Data Rate. The term of the license is 12 months from delivery or acceptance of the data file. Upon expiration of the data lease the file must be purged from the user's database. Use of the data beyond the 12-month leasing period will incur the following charges: An automatic One-Year License Renewal at the previous contract's CPM/Data Rate. It is not the responsibility of K12 Data to manage the customer's use.
2.2 Customer will not, and will not permit any third party to: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the K12 Data File Service and Contacts or any software, documentation or data related to the K12 Data File Service and Contacts (provided that reverse engineering is prohibited only to the extent such prohibition is not contrary to applicable law); modify, translate, or create derivative works based on the Services; use the Services for timesharing or service bureau purposes or for any purpose other than its own internal use; or use the Services other than in accordance with this Agreement and in compliance with all applicable laws and regulations (including but not limited to any privacy laws, and laws and regulations concerning the transmission of unsolicited advertisements, do-not-call lists, telemarketing, sweepstakes, direct mail commerce, advertising, intellectual property, consumer and child protection, obscenity, and defamation); run or use any processes that run or are activated while Customer is not logged on to the Services or that “crawl,” “scrape,” or “spider” the Services; or use the Services in any manner that (1) is harmful, fraudulent, deceptive, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, or otherwise objectionable (including without limitation, accessing any computer, computer system, network, software, or data without authorization, breaching the security of another user or system, and/or attempting to circumvent any user authentication or security process), (2) impersonates any person or entity, including without limitation any employee or representative of K12 Data, or (3) contains a virus, Trojan horse, worm, time bomb, unsolicited bulk, commercial, or “spam” message, or other harmful computer code, file, or program (including without limitation, password guessing programs, decoders, password gatherers, keystroke loggers, cracking tools, packet sniffers, and/or encryption circumvention programs). Notwithstanding anything to the contrary, K12 Data reserves the right to suspend or limit Customer’s access to the Services if K12 Data determines (in its sole discretion) that Customer’s use of the Services is likely to (i) damage the Services or interfere with K12 Data’s ability to provide the Services, or (ii) place an unreasonable load on the Services.
2.3 Customer hereby agrees to indemnify and hold harmless K12 Data against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Services.
3.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s technology or business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Without limiting the foregoing, the Ed Lights File Service and Contacts and all data and information provided by K12 Data through the Services is K12 Data Proprietary Information.
3.2 The Receiving Party agrees: (i) not to divulge to any third person any Proprietary Information of the Disclosing Party, (i) to give access to such Proprietary information solely to those employees with a need to have access thereto for purposes of this Agreement, and (iii) to take the same security precautions to protect against disclosure or unauthorized use of such Proprietary information that the party takes with its own proprietary information, but in no event will a party apply less than reasonable precautions to protect such Proprietary Information. The Disclosing Party agrees that the foregoing will not apply with respect to any information that the Receiving Party can document (a) except for contact information included in the Services, is or becomes generally available to the public without any action by, or involvement of, the Receiving Party, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party. Nothing in this Agreement will prevent the Receiving Party from disclosing Proprietary Information pursuant to any judicial or governmental order, provided that the Receiving Party gives the Disclosing Party reasonable prior notice of such disclosure to contest such order. In any event, K12 Data may collect data with respect to and report on the aggregate response rate and other aggregate measures of the Services’ performance and Customer’s usage of the Services; provided that K12 Data will not identify Customer as the source of any such data without Customer’s prior written consent.
3.3 Customer acknowledges that K12 Data™ does not wish to receive any Proprietary Information from Customer that is not necessary for K12 Data to perform its obligations under this Agreement (including, without limitation, any information protected under applicable privacy laws and regulations), and, unless the parties specifically agree otherwise, K12 Data may reasonably presume that any unrelated information received from Customer is not confidential or Proprietary Information.
3.4 Both parties will have the right to disclose the existence but not the terms and conditions of this Agreement, unless such disclosure is approved in writing by both Parties prior to such disclosure, or is included in a filing required to be made by a party with a governmental authority (provided such party will use reasonable efforts to obtain confidential treatment or a protective order) or is made on a confidential basis as reasonably necessary to potential investors or acquirers.
4. INTELLECTUAL PROPERTY RIGHTS
4.1 Except as expressly set forth herein, K12 Data alone (and its licensors, where applicable) will retain all intellectual property rights relating to the Services (and any technology used by K12 Data™ in connection with the provision of the Services) and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or any third party relating to the Services, which are hereby assigned to K12 Data. Customer will not copy, distribute, reproduce or use any of the foregoing except as expressly permitted under this Agreement. This Agreement is not a sale and does not convey to Customer any rights of ownership in or related to the Services, or, except as expressly provided herein, any intellectual property rights.
5. PAYMENT OF FEES
5.1 If not otherwise specified in writing by K12 Data, Customer will pay K12 Data the applicable fees as set forth at K12 Data.com/K12 Data-product-pricing (the “Standard Pricing”) for features and functionalities of the Services selected and/or used by Customer (the “Fees”) without any right of set-off or deduction. To the extent applicable, Customer will pay K12 Data for additional services, such as integration fees or other consulting fees. If not otherwise specified in writing by K12 Data, all payments will be made in accordance with the payment schedule and the method of payment set forth in the Standard Pricing. All Fees paid hereunder (including any prepaid amounts) are non-refundable, including without limitation if this Agreement is terminated in accordance with Section 6 below.
5.2 Unpaid Fees are subject to a finance charge of five percent (5.0%) per month, or the maximum permitted by law; whichever is lower, plus all expenses of collection, including reasonable attorneys’ fees. Fees under this Agreement are exclusive of all taxes, including national, state or provincial and local use, sales, value-added, property and similar taxes, if any. Customer agrees to pay such taxes (excluding US taxes based on K12 Data's net income) unless Customer has provided K12 Data with a valid exemption certificate. In the case of any withholding requirements, Customer will pay any required withholding itself and will not reduce the amount paid to K12 Data on account thereof.
6.1 This Agreement shall continue until terminated in accordance with this Section 6.
6.2 Customer may terminate this Agreement at any time upon written notice to K12 Data. K12 Data may terminate this Agreement immediately upon written notice to Customer in the event of any material breach of this Agreement by Customer, including without limitation, failure to pay any amounts when due hereunder.
6.3 Either party may terminate this Agreement, without notice, (i) upon the institution by or against the other party of insolvency, receivership or bankruptcy proceedings (provided such proceedings are not dismissed within one hundred twenty (120) days of such institution), (ii) upon the other party's making an assignment for the benefit of creditors, or (iii) upon the other party's dissolution or ceasing to do business without a successor.
6.4 Customer’s access to the Services, and any licenses granted hereunder, shall terminate upon any termination of this Agreement. The following Sections will survive any termination of this Agreement: 2 (except for Section 2.1), 3 through 6 (except for Section 4.3), and 8 through 11.
7. WARRANTY DISCLAIMER
THE SERVICES AND K12 DATA PROPRIETARY INFORMATION AND ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED "AS-IS," WITHOUT ANY WARRANTIES OF ANY KIND. K12 DATA AND ITS LICENSORS HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
8. LIMITATION OF LIABILITY
IN NO EVENT WILL K12 DATA OR ITS LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT, ANY DELAY OR INABILITY TO USE THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT OR OTHERWISE ARISING FROM THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST SALES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF K12 DATA HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES.
THE TOTAL LIABILITY OF K12 DATA AND ITS LICENSORS, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, WILL NOT EXCEED, IN THE AGGREGATE, THE LESSER OF (i) ONE THOUSAND DOLLARS ($1,000), OR (ii) THE FEES PAID TO K12 DATA™ HEREUNDER IN THE THREE MONTH PERIOD ENDING ON THE DATE THAT A CLAIM OR DEMAND IS FIRST ASSERTED. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
9. U.S. GOVERNMENT MATTERS
Notwithstanding anything else, Customer may not provide to any person or export or re-export or allow the export or re-export of the Services or any software or anything related thereto or any direct product thereof (collectively “Controlled Subject Matter”), in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. Without limiting the foregoing Customer acknowledges and agrees that the Controlled Subject Matter will not be used or transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. Use of the Services is representation and warranty that the user is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. The Controlled Subject Matter may use or include encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations. As defined in FAR section 2.101, any software and documentation provided by K12 Data are “commercial items” and according to DFAR section 252.227â€‘7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sub licensable by Customer except with K12 Data’s prior written consent. K12 Data may transfer and assign any of its rights and obligations under this Agreement with written notice to Customer. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed or otherwise agreed to by K12 Data, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind K12 Data in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; and upon receipt, if sent by certified or registered mail (return receipt requested), postage prepaid. K12 Data will not be liable for any loss resulting from a cause over which it does not have direct control. This Agreement will be governed by the laws of the State of California, U.S.A. without regard to its conflict of laws provisions. The federal and state courts sitting in San Diego, California, U.S.A. will have proper and exclusive jurisdiction and venue with respect to any disputes arising from or related to the subject matter of this Agreement. Unless and until Customer notifies K12 Data in writing to the contrary, K12 Data is permitted to disclose that Customer is one of its customers to any third-party at its sole discretion, and to place Customer’s name and logo on its website and marketing materials for this purpose.