Terms

Master Subscription Terms and Conditions

Last Updated: May 21, 2019


1. Definitions

1.1Agreement” has the meaning set forth in the Order Form.

1.2Customer” has the meaning set forth in the Order Form.

1.3Customer Content” has the meaning set forth in Section 5.1.

1.4Effective Date” means the date of the last signature affixed to the Order Form.

1.5Fees” means the fees payable by Customer pursuant to the Order Form.

1.6Hosted Service” means the proprietary student performance assessment software made available by Provider as a software-as-a-service specified in the Order Form, inclusive of such limitations or optional features as may be specified in the Order Form.

1.7Initial Term” has the meaning set forth on the Order Form.

1.8Master Terms and Conditions” means these Master Terms and Conditions.

1.9Provider” or “Instructure” shall mean Instructure, Inc.

1.10Order Form” means the order form document executed by the parties which references these Master Terms and Conditions.

1.11Renewal Term” has the meaning set forth in Section 9.1.

1.12Shareable Content” means any Customer Content which has not at any time been designated by Customer as “private” within the user interface of the Hosted Service.

1.13Subscription Start Date” means the date set forth on the Order Form as the “Subscription Start Date.”

1.14Term” has the meaning set forth in Section 9.1

1.15Users” means: (a) individual educators and administrators employed by Customer that use the Hosted Service; and (b) parents and students issued limited view-only access to the Hosted Service.

2. Service

2.1Provision of Hosted Service. Subject to all terms and conditions of the Agreement, Provider shall make available the Hosted Service for Customer’s use during the Term in the manner enabled by Provider for Customer’s internal, non-commercial educational purposes. Such use must be in accordance with all applicable documentation (including any special rules displayed within the user interface of the Hosted Service which may apply to certain materials, features or functions) and any limitations set forth in the Order Form. Provider reserves the right to modify and update the features and functionality of the Hosted Service from time to time in its sole discretion. Customer agrees not to violate any applicable laws, rules, regulations or third party rights in connection with its Hosted Service use. Customer shall, at its own cost and expense, provide all equipment, telecommunications services, operating systems, and software needed to use and access the Hosted Service in accordance with all applicable technical requirements specified by Provider.

2.2Restrictions. Customer acknowledges that use of the Hosted Service is provided only for Customer’s own use and agrees not to use the Hosted Service for the benefit of any third party. Customer agrees not to, not to attempt to, nor allow any third party to: (i) copy or make derivative works of the Hosted Service, make the Hosted Service available to any third party or use the Hosted Service on a service bureau or time sharing basis, (ii) decompile, reverse engineer, or disassemble the Hosted Service or otherwise attempt to reconstruct or discover any source code, underlying ideas or algorithms of the Hosted Service; (iii) disseminate performance information relating to the Hosted Service; or (iv) use the Hosted Service to develop a competitive product offering. Customer may not use any automated means (such as robots or scripts) to access the Hosted Service except as may be enabled and authorized by Provider.

2.3Accounts. Customer may allow Users to access and use the Hosted Service hereunder by establishing and maintaining Hosted Service user accounts (“User Accounts”) for such Users, subject to their compliance with the terms and conditions of the Agreement. Customer agrees that all access information for User Accounts will be maintained as confidential, and that Customer will not knowingly allow anyone to use a User Account except for the individual for whom the User Account was created. Customer is responsible for all activities occurring under all User Accounts. Customer will not issue any User Account to any person other than teachers and school administrators employed by Customer and (solely with respect to view-only limited access User Accounts) parents and students within Customer’s school. Customer will ensure that all User Account information submitted to Provider is at all times current, accurate and complete. Customer acknowledges that Users may be required to personally agree to an online, click-to-agree terms of use prior to accessing or using the Hosted Service, provided that such terms of use shall not be inconsistent with the Agreement or (for the avoidance of doubt) be binding upon Customer.

2.4Prohibited Uses. Customer may not at any time in connection with the Hosted Service: (i) impersonate any person or entity, including but not limited to any employee, agent, or representative of Provider; (ii) interfere with or disrupt the operation of the Hosted Service, including hacking or defacing any portion of the Hosted Service, or use the communication features of the Hosted Service in a manner that affects the availability of its resources to other customers; (iii) transmit or otherwise make available in connection with the Hosted Service any spam, virus, worm, Trojan Horse, or other harmful code; (iv) frame or mirror all or any part of the Hosted Service without Provider’s express written authorization. Provider reserves the right to expel any User and terminate such User’s User Account or otherwise prevent a User’s further access to the Hosted Service for any act or omission constituting a violation of the Agreement or the law, and Provider reserves the right at all times to edit, disclose, or refuse to post, request removal of or remove any materials or other communications which are, in Provider’s sole discretion, abusive, illegal, objectionable, or disruptive.

2.5Suspension/Termination. Provider may suspend, limit or terminate Customer’s access to or use of the Hosted Service at any time if: (i) Provider determines such action is necessary to prevent harm to any system or network or to limit Provider’s liability; (ii) Customer attempts to access or use the Hosted Service in an unauthorized manner; or (iii) Customer does not timely pay all Fees. Nothing in this Section 2.5 or anything else in the Agreement imposes on Provider an obligation to supervise or monitor use of the Hosted Service.

2.6Support. Customer will designate one of its employees per building site as Provider’s primary system administrator for such building site (“Primary System Administrator”). Provided that Customer timely pays all Fees due hereunder, Provider shall use commercially reasonable efforts to answer questions from Customer regarding the use of the Hosted Service via e-mail and telephone in accordance with Provider’s support policies. Provider’s current support policies are set forth in Appendix A attached hereto, and may be changed from time to time on thirty (30) days prior notice from Provider.

2.7Item Bank Vendors. If the Order Form includes purchase of access to and use of third party item banks, Customer hereby agrees to the additional terms and conditions set forth in Appendix B applicable to such item banks with respect to such access and use (any such applicable third party terms, “Item Bank Terms”). In the event of any conflict between the Item Bank Terms and any other terms of the Agreement, the Item Bank Terms shall govern, solely with respect to Customer’s use of and access to the applicable item bank. For the avoidance of doubt, the termination provisions in Section 8 below shall not limit any additional or different termination rights and obligations under the Item Bank Terms, if applicable.

3. Professional Development Services

3.1Performance. Provider will perform the professional development service offerings specified on the Order Form, if any (the “Professional Development”), in a manner substantially in accordance with its published descriptions for such Professional Development. The parties will agree upon a mutually-convenient time to schedule each session of Professional Development. All Professional Development sessions must be scheduled for performance within twelve (12) months after the Effective Date, and Provider will not have any obligation to perform any Professional Development that is not scheduled to be performed within such twelve (12) month period. All Professional Development will be deemed accepted upon completion of performance.

3.2Webinars. For Professional Development that is designated as “virtual” in the applicable published descriptions, Provider will provide such Professional Development remotely via webinar. Customer will be responsible for providing its own computers, web browser software, and internet connections sufficient to facilitate the receipt of such webinar.

3.3On-Site. For Professional Development that is designated as “onsite” in their applicable published descriptions, Provider will provide such Professional Development on-site at Customer’s facility. No more than thirty (30) attendees of Customer may participate in each Professional Development session. Customer will be responsible for providing access to a suitable meeting site at its facility (including without limitation audiovisual equipment and network access).

3.4Reschedules. Customer shall be entitled to reschedule a Professional Development session to another date mutually agreeable to Provider and Customer that is within twelve (12) months of the Effective Date without penalty by delivering to Provider written notice of such request no less than seven (7) days prior to the previously scheduled date for such session. Customer shall be required to pay to Provider a reschedule fee of $500 for an onsite session and $250 for a virtual session that is rescheduled less than seven (7) days prior to the previously schedule date for such session.

3.5Rush Fee. Provider reserves the right to charge a “rush fee” for any Professional Development session requested to be delivered within seven (7) days from the request date. If applicable, the rush fee will be mutually agreed on by the parties prior to delivery of Professional Development session.

4. Data

4.1FERPA. The Family Educational Rights and Privacy Act (“FERPA”), 20 U.S.C. § 1232g and 34 C.F.R. Part 99, is a federal law that affords parents and students over the age of 18 the right to consent to the disclosure of student personally identifiable information (“student PII”) from education records. Provider and Customer desire to protect Customer student PII consistent with FERPA and other applicable privacy laws in carrying out all of their respective obligations under the Agreement.

(a)The Customer hereby acknowledges and agrees that Provider is a “school official” (as defined by FERPA and in accordance with the Customer’s internal policies and procedures) and has a “legitimate educational interest” (as defined by the Customer and in accordance with the Customer’s internal policies and procedures) to receive student PII without parental consent.

(b) In accordance with the “school official” exception at 34 C.F.R. §99.31(a)(1)(i)(B), Provider shall use student PII only for the purpose of providing the services specified herein, which may include sharing student PII with third parties that help Provider provide such services, and shall not redisclose student PII except as authorized or required by law. (c) Nothing in the Agreement shall be construed to limit Provider’s use or retention during and after expiration or termination of the Agreement of education records or information from education records from which all personally identifiable information has been removed such that a student’s identity may not reasonably be ascertained.

4.2User Communications. Generally, any communication that Customer posts to the Hosted Service is non-confidential. If the Customer communicates with Provider or other users of the Hosted Service by using electronic messages ("Communications"), those messages are not fully private or confidential. Customer is responsible for Customer’s own Communications and is responsible for the consequences of Customer posting information or other Communications. Customer acknowledges that: (i) Customer has no expectation of privacy in any Communications, except as provided herein; and (ii) no confidential, fiduciary, contractually implied or other relationship is created between Provider and Customer by reason of Customer transmitting a Communication to any portion of the Hosted Service.

4.3Data Usage. Provider may use the information it obtains relating to Customer and its Users, including Customer’s IP address, name, mailing address, email address and usage of the Hosted Service, for its internal business purposes and for purposes of communicating with Customers and its Users regarding Provider products and services. Provider will not disclose, sell, or otherwise distribute Customer’s information to third parties. Provider’s policy is to refrain from supplying such data to third parties. However, Provider reserves the right to: (i) use and disclose such data to generate and distribute demographic reports (including reports on usage patterns of Users) and marketing statistics, provided that Provider will not reveal the identity of any Customer or User; and (ii) disclose any data or other information in its possession regarding Customer, Users and usage of the Hosted Service as required by any law, rule or regulation or pursuant to governmental request. Nothing herein shall be construed as requiring Provider to notify Customer in the event any information is used or disclosed pursuant to this Section 4.3.

5. Content

5.1License. In using the Hosted Service, Customer may upload content, information, and materials, including assessments and other educational content (collectively "Customer Content"). By uploading Customer Content, Customer automatically grants Provider a sublicensable, non-exclusive, royalty free, fully paid up, irrevocable, perpetual, worldwide right and license in all Customer Content uploaded to the Hosted Service for purposes necessary for the operation, maintenance and continued enhancement of the Hosted Service, both commercial and/or non-commercial, including but not limited to the right to distribute, publish, mix and create derivative works of any Shareable Content. Customer otherwise retains the non-exclusive right to use, distribute and publish, for any purpose, any such Customer Content.

5.2Shareable Content. Except as set forth in Section 5.3 below, Customer agrees that by submitting Customer Content that is Shareable Content, other users of the Hosted Service are hereby granted a non-exclusive, royalty-free, irrevocable, perpetual, worldwide right and license to: (i) reproduce and modify Shareable Content without attribution; (ii) distribute Shareable Content within the Hosted Service for non-commercial purposes; and (iii) use Shareable Content in educational settings, including but not limited to classrooms.

5.3Private Content. The parties agree and acknowledge that Provider may from time to time add features to the Hosted Service that allow certain Customer Content to be marked as “private” by the Customer, such as Customer Content that is intended for use only by the Customer’s own employees and not for broader distribution to the other users of the Hosted Service. In such cases, notwithstanding the breadth of the license rights granted above, (a) Provider agrees that it shall exercise its license rights with respect to such private-marked Customer Content only to provide access to such Customer Content to User Accounts controlled by the Customer; and (b) Customer grants no rights to such private-marked Customer Content to other users of the Hosted Service.

5.4Content Restrictions. Customer is responsible for all Customer Content uploaded to the Hosted Service through User Accounts, whether in text, image, video, or other form. Customer specifically agrees to comply with all United States and international copyright laws and not to upload any copyrighted materials not constituting original works of authorship of Customer unless Customer has previously obtained the full right and license to upload and distribute the same and grant the licenses therein granted by Customer hereunder, nor to assist any other individual or entity in doing the same. More particularly, Customer agrees not to perform or attempt to perform any or all of the following, and not to assist others in doing so: (i) post or upload Customer Content that, standing alone or when used by any person or entity within the scope authorized hereunder, infringes on any other intellectual property rights of others, on the privacy or publicity rights of others, or is otherwise illegal under any cause of action; (ii) post or upload Customer Content that is obscene, defamatory, threatening, harassing, abusive, hateful, or embarrassing to another user or any other person or entity; (iii) post or upload Customer Content that is pornographic, indecent, sexually-explicit, or racially derogatory; (iv) post advertisements or solicitations of business; (v) post chain letters or pyramid schemes; and/or (vi) delete any materials posted by any other person or entity.

5.5Third Party Content. Through use of the Hosted Service, Customer may also be provided access to assessments, materials, information, and content provided by other users of the Hosted Service (the "Third Party Content"). In connection with such Third Party Content, Customer agrees that use of such content is limited to the term of the Agreement, and further that Customer will not do any of the following, nor assist others in doing so: (i) use the Third Party Content for any commercial purpose; (ii) view or use the Third Party Content outside of the Hosted Service, except as reasonably necessary in a classroom setting; or (iii) reproduce, post, or display the Third Party content outside of the Hosted Service, including posting on third party hosted services, blogs, social networking sites, or in print form for any commercial or non-commercial, if such is outside a classroom setting.

6. Copyrights

6.1Copyright Compliance and DMCA Notice. Provider respects the intellectual property rights of others and expects its Customers to do the same. If you believe any Customer Content infringes your copyrights, you should send written notice of the alleged copyright infringement to our designated copyright agent at this address:

Instructure, Inc.
Attn: Legal
6330 South 3000 East, #700
Salt Lake City, Utah 84101

or

By email: legal@instructure.com

Such notice must meet the requirements of the Digital Millennium Copyright Act (17 U.S.C. §512(c)(2)) by providing the following information:

(a)A description of the copyrighted work that you claim has been infringed;

(b)A description of where the allegedly infringing material is located on the Website;

(c)Your name, address, daytime telephone number and email address;

(d)A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law;

(e)A statement by you, made under penalty of perjury, affirming that the above information in your notice is accurate, and that you are the owner of the copyright at issue or are authorized to act on the copyright owner's behalf; and

(f)An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright at issue.

6.2Counter-Notice. If you believe that your Customer Content was removed or disabled but is not infringing another’s intellectual property rights; or that you have the authorization (from the copyright owner, the copyright owner’s agent, or pursuant to the law) to post and use the questioned Customer Content; you may send a counter-notice to the above-designated Copyright Agent containing the following information:

(a)Your physical or electronic signature;

(b)Identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled;

(c)A statement that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content; and

(d)Your name, address, telephone number and email address, a statement that you consent to the jurisdiction of the federal and state courts in Collin County, Texas, and a statement that you will accept service of process from the person who provided notification of the alleged infringement.

 If a counter-notice is received, Provider may send a copy of the counter-notice to the original complaining party informing that person that Provider may replace the removed content or cease disabling it in 10 business days, unless the copyright owner files an action seeking a court order against the content provider, member or user. If such an action is not filed, Provider may replace or restore access to the removed content within 10 to 14 business days or more after receipt of the counter-notice, at Provider’s sole discretion.

7. Economic Terms

7.1Fees. Customer shall pay Provider the Fees as set forth in the Order Form. Order Form pricing reflects Customer’s current student enrollment. If the Agreement is longer than 12 months, Customer agrees to pay for any increase in student enrollment for subsequent years.

7.2Payment Terms. Payment for the Initial Term is due on the Effective Date, unless otherwise specified in the Order Form. Payment applicable to each Renewal Term is due prior to the start of such Renewal Term. All payments will be made in U.S. dollars and without any deductions for any reason. Any amounts due to Provider under the Agreement not received by the date due will be subject to a late fee of 1.5% per month, or the maximum charge permitted by law, whichever is less. All payment obligations are non-cancelable and all amounts paid are nonrefundable. Provider shall be entitled to withhold performance and discontinue service until all amounts due are paid in full. Customer is responsible for paying any and all withholding, sales, value added or other taxes, duties or charges applicable to the Agreement, other than taxes based on Provider’s net income.

8. Ownership

As between the parties, Provider owns and retains all right, title and interest (including all intellectual property rights) in and to the Hosted Service and any software, technology, materials and information created, authored, made, conceived or reduced to practice by Provider. Customer is not required to provide any ideas, feedback or suggestions regarding any of Provider’s products or services (“Feedback”) to Provider. To the extent Customer does provide any Feedback to Provider, Customer hereby grants to Provider a non-exclusive, perpetual, irrevocable, royalty-free, worldwide right and license (with the right to grant sublicenses) to use, make, sell and otherwise exploit in any manner such Feedback without payment of any compensation to Customer.

9. Term and Termination

9.1Term. The Agreement shall be effective as of the Effective Date, and shall continue in full force and effect for the Initial Term as well as any renewal for successive periods (a “Renewal Term”, such Renewal Term and the Initial Term, collectively the “Term”). The Fees due hereunder may be adjusted by Provider for each Renewal Term in accordance with Provider’s then-standard pricing.

9.2Termination. Either party may terminate the Agreement effective immediately if the other party is in material breach of any obligation, representation or warranty hereunder and fails to cure such material breach (if capable of cure) within thirty (30) days (or ten (10) days for breach of Section 6) after receiving written notice thereof from the other party. In addition, either party may terminate the Agreement upon written notice in the event the other party becomes insolvent, files for any form of bankruptcy, has bankruptcy proceedings filed against it that are not dismissed in such party’s favor within sixty (60) days, makes any assignment for the benefit of creditors, or dissolves or ceases to conduct business.

9.3Effect of Termination. All provisions herein shall terminate upon expiration or termination of the Agreement, except that Sections 1, 2.2, 2.4, 4.1(c), 4.2, 4.3, 5.1, 5.2, 5.4, 5.5, 6, 7 (to the extent Customer has unpaid Fees remaining after expiration or termination), 9.3, 11, 12, 13, and 14 shall survive.

10. Representations and Warranties

Each party represents and warrants to the other party that it has the power and authority to enter into the Agreement and that its entry into and performance of the Agreement shall not conflict with any other agreement, order or judgment to which it is bound.

11. Disclaimer

EXCEPT AS EXPRESSLY SET FORTH HEREIN, PROVIDER MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SUBJECT MATTER OF THE AGREEMENT, AND EXPRESSLY DISCLAIMS THE WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, QUIET ENJOYMENT, FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR PERFORMANCE. PROVIDER AND ITS LICENSORS, PARTNERS AND SERVICE PROVIDERS DO NOT WARRANT THAT THE HOSTED SERVICE OR THE FUNCTIONALITY PROVIDED BY THE HOSTED SERVICE WILL BE CORRECT, UNINTERRUPTED OR ERROR-FREE OR THAT DEFECTS WILL BE CORRECTED. PROVIDER DOES NOT WARRANT THE RESULTS OF USE OF THE HOSTED SERVICE.

12. Confidentiality

The Hosted Service and any materials and information provided by Provider to Customer hereunder, whether orally, in writing, or by inspection of tangible objects, including without limitation technical data, research, product plans, or know-how constitute and contain proprietary and confidential information of Provider (“Confidential Information”). Customer may not disclose Confidential Information to any person other than its employees and contractors with a need to know such information who have agreed in writing to be bound by confidentiality restrictions at least as protective of the Confidential Information as the Agreement. Customer may not use the Confidential Information for any purpose other than to exercise its rights under the Agreement. Customer shall take reasonable measures to protect the secrecy of and to avoid the unauthorized use and disclosure of the Confidential Information. Customer shall immediately notify Provider in the event it becomes aware of any unauthorized or suspected unauthorized use or disclosure of Confidential Information. Provider may seek injunctive or other equitable relief from any court of competent jurisdiction for any threatened or actual breach of this Section 12, in addition to other remedies, as the inadequacy of monetary damages and irreparable harm are acknowledged.

13. Indemnification

13.1By Provider. Subject to Section 13.3 below, Provider agrees to, at its own expense, defend and/or settle any claim made by a third party against Customer or its directors, officers or employees (the “Customer Indemnitees”) to the extent resulting directly or indirectly from any breach by Provider (or any of its employees or agents) of any representation or warranty herein, and Provider agrees to indemnify the Customer Indemnitees against those amounts finally awarded by a court of competent jurisdiction against the Customer Indemnitees or payable pursuant to a settlement agreed to by Provider with respect to such claims. Provider shall have no obligation or liability with respect to any claim arising out of or relating to: (x) Customer’s negligence; or (y) any unauthorized use of the Hosted Service by Customer. This Section 13.1 sets forth the entire liability of Provider and the sole and exclusive remedy of Customer in the event of any claim against the Customer Indemnitees by any third party.

13.2By Customer. Subject to Section 13.3 below, to the maximum extent permitted by applicable law, Customer agrees to, at its own expense, defend and/or settle any claim made by a third party against Provider or its directors, officers or employees (the “Provider Indemnitees”) to the extent resulting directly or indirectly from Customer’s use of or access to the Hosted Service or any breach by Customer (or any of its employees or agents) of any warranty, representation, covenant or obligation contained herein, and Customer agrees to indemnify the Provider Indemnitees against those amounts finally awarded by a court of competent jurisdiction against the Provider Indemnitees (including damages, interest, losses, costs and expenses including attorneys’ fees) or payable pursuant to a settlement agreed to by Customer with respect to such claims.

13.3Procedure. Each party’s obligations under Section 13.1 and Section 13.2 are conditioned on the indemnified party (“Indemnitee”) providing the indemnifying party (“Indemnitor”) with (i) prompt written notice of the third party claim, provided that failure to give notice promptly shall only relieve the Indemnitor of its obligation to the extent its defense is materially prejudiced by the delay, (ii) sole control over the defense of the claim and any related settlement negotiations, and (iii) reasonable cooperation, at the Indemnitor’s expense, in connection with such defense or settlement. The Indemnitor shall not, without the Indemnitee’s prior written consent, agree to any settlement of any the claim that does not include a complete release of the Indemnitee from all liability with respect thereto or that imposes any material obligation or restriction on the Indemnitee (other than payments to be made by the Indemnitor).

14. Limitation of Liability

PROVIDER SHALL NOT BE LIABLE TO CUSTOMER IN CONNECTION WITH THE AGREEMENT FOR ANY PUNITIVE, INCIDENTAL, INDIRECT, SPECIAL, RELIANCE OR CONSEQUENTIAL LOSSES OR DAMAGES, REGARDLESS OF THE THEORY OF LIABILITY OR WHETHER OR NOT PROVIDER WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. IN NO EVENT WILL PROVIDER’S LIABILITY IN CONNECTION WITH THE AGREEMENT, REGARDLESS OF THE THEORY OF LIABILITY, EXCEED THE AMOUNTS PAID OR PAYABLE BY CUSTOMER DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE OF THE CLAIM. THE FOREGOING LIMITATIONS AND EXCLUSIONS WILL APPLY EVEN IF ANY LIMITED REMEDY HEREIN FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING LIMITATIONS AND EXCLUSIONS ARE A FUNDAMENTAL BASIS OF THE BARGAIN HEREUNDER.

15. Miscellaneous

15.1Publicity. During the Term, Provider may identify Customer as a customer of the Hosted Service on Provider’s website(s) and other marketing and promotional materials (“Materials”). Customer hereby grants to Provider during the Term a non-exclusive, worldwide license to reproduce and display Customer’s name, trademarks and logo(s) on the Materials. Except as set forth in the foregoing, neither party shall make any public statement regarding the Agreement without the prior written consent of the other party. Customer will not unreasonably withhold consent to any request by Provider to include details of Customer’s use of the Hosted Service in its Materials.

15.2Relationship of the Parties. The parties are independent contractors with respect to each other. The Agreement does not constitute and shall not be construed as constituting a partnership or joint venture among the parties hereto, or an employee-employer relationship. No party shall have any right to obligate or bind any other party in any manner whatsoever, and nothing herein contained shall give, or is intended to give, any rights of any kind to any third parties.

15.3Assignment. Customer may not assign any of its rights or obligations under the Agreement without the prior written consent of the Provider, such consent not to be unreasonably withheld. Any merger, consolidation, reorganization or similar transaction of Customer (such as, by way of example, a combination of Customer with another school district) shall be deemed an attempted assignment of the Agreement for which such consent is required. Subject to the foregoing, the Agreement inures to the benefit of and shall be binding on the parties’ permitted assignees, transferees and successors.

15.4Force Majeure. Except for payment obligations, neither party will be responsible for any failure or delay in its performance under the Agreement due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, internet or telecommunications failures, shortages of or inability to obtain labor, energy, or supplies, war, terrorism, riot, acts of God or governmental action, acts by hackers or other malicious third parties and problems with the Internet generally, and such performance shall be excused to the extent that it is prevented or delayed by reason of any of the foregoing.

15.5Notices. All notices under the terms of the Agreement shall be given in writing and sent by internationally recognized overnight carrier with delivery confirmation or shall be delivered by hand to the addresses noted in the preamble of the Agreement. Notices shall be sent to the attention of “Legal Department.” All notices shall be presumed to have been received when they are hand delivered, or on the business day following the day of delivery by overnight carrier.

15.6Amendments. An amendment of the Agreement shall be binding upon the parties so long as it is in writing and executed by both parties. No regular practice or method of dealing between the parties shall modify, interpret, supplement or alter in any manner the express terms of the Agreement. Additionally, Provider may make modifications, deletions and/or additions to these Master Terms and Conditions (“Changes”) at any time. Changes will be effective: (i) upon the commencement of the next Renewal Term; or (ii) when you opt-in or otherwise expressly agree to the Changes or a version of the Order Form, Master Terms and Conditions, or Agreement incorporating the Changes, whichever comes first.

15.7Construction. The Agreement shall be fairly interpreted and construed in accordance with its terms and without strict interpretation or construction in favor of or against either party. Each party has had the opportunity to consult with counsel in the negotiation of the Agreement. Section headings are for reference purposes only, and should not be used in the interpretation hereof.

15.8Severability; Waiver; Counterparts. If any provision, or portion thereof, of the Agreement is determined by a court of competent jurisdiction to be invalid, illegal or unenforceable, such determination will not impair or affect the validity, legality, or enforceability of the remaining provisions of the Agreement, and each provision, or portion thereof, is hereby declared to be separate, severable, and distinct. A waiver of any provision of the Agreement will only be valid if provided in writing and will only be applicable to the specific incident and occurrence so waived. The failure by either party to insist upon the strict performance of the Agreement, or to exercise any term hereof, will not act as a waiver of any right, promise or term, which will continue in full force and effect. The Agreement may be signed in counterparts. Each of them is an original, and all of them constitute one agreement.

15.9Governing Law; Jurisdiction. The Agreement shall be governed by, and construed in accordance with, the laws of the state of Utah, without reference to conflicts of laws principles. The parties agree that the state and federal courts in Salt Lake City, Utah will have exclusive jurisdiction and venue with respect to all cases and controversies arising in connection with the Agreement, and the parties hereby agree to submit to such jurisdiction exclusively.

15.10Restricted Persons. The provision of the Hosted Service may be subject to export laws and regulations. Customer agrees to comply with any export laws and regulations of the United States or any other jurisdiction that may apply. Customer hereby represents and warrants that Customer is not, and will not be, a Restricted Person. For purposes of the Agreement, a “Restricted Person” is any person or entity, or any officer, director, or controlling shareholder of an entity, that is (1) a national of or an entity existing under the laws of Cuba, Iran, Sudan, North Korea, Syria, or any other country with which U.S. persons are prohibited from engaging in transactions, as may be determined from time to time by the U.S. Treasury Department; (2) designated as a Specially Designated National or institution of primary money laundering concern by the U.S. Treasury Department; (3) listed on the Denied Persons List or Entity List by the U.S. Commerce Department; (4) engaged in nuclear, missile, chemical or biological weapons activities to which U.S. persons may not contribute without a U.S. Government license; or (5) owned, controlled, or acting on behalf of any person or entity described under the foregoing (1) through (4).

15.11Entire Agreement. The Agreement constitutes the complete, final and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes any and all prior or contemporaneous oral or written representations, understandings, agreements or communications between them concerning the subject matter hereof. Neither party is relying upon any warranties, representations, assurances or inducements not expressly set forth herein.

Support

Provider will use commercially reasonable efforts to provide support for Support Requests from the Primary System Administrator, teachers, parents, and students in accordance with the tables below. “Support Requests” means support-related issues arising from the use of the Hosted Service. Support Requests do not include support-related issues arising from or related to enrollment, login, academic courses, or customer policy, which shall be Customer’s sole responsibility.

Support Channels

  • HelpCenter: Available 24x7 at help.masteryconnect.com.
  • In-App Support Form: Accessed from Help Page within the app.
  • Phone: Available via 801.736.0258
Types of Support Primary System Administrator Teachers Parents Students
Help Center Y Y N N
In-App Support Form Y N N N
Live Phone Support
7:00am - 5:00pm MST
Y N N N
Emergency After-Hours Support Y N N N
Support Needs By Type Customer Provides Provider Provides to Customer Primary System Administrator
Enrollment, Login, Class or Customer Policy Yes No
Questions Yes Yes
Help Center or In-App Support Form
Incidents No Yes
In-App Support Form or Live Phone
SIS Integration Yes Yes
In-App Support Form or Live Phone

Appendix B: Certica License Agreement Terms and Conditions

CERTICA FORMATIVE ASSESSMENT ITEM BANK: The CERTICA Formative Assessment Item Bank includes CERTICA Items (as defined below) that measure mathematics, ELA (reading and writing) for K-12 and science for grades 3-12 and social studies for high school courses. The CERTICA Item Bank also includes some mathematics, reading and science CERTICA Items along with reading passages that have been translated into Spanish. The majority of CERTICA Items are multiple-choice, but the CERTICA Item Bank also contains some short and extended constructed-response CERTICA Items with item-specific and generic rubrics. The CERTICA Items adhere to a generic style guide to help ensure formatting consistency when CERTICA Items are assembled on a test.

The CERTICA Items in the CERTICA Item Bank are aligned to all 50 states and Washington D.C. The CERTICA Items in the CERTICA Item Bank have also been reviewed against the Common Core State Standards (CCSS) and aligned where appropriate. Some of the common core standards and item types are not covered in the Item pool. The CERTICA Items are also aligned to the CERTICA National Framework which was developed to reflect standards that are typically measured on state summative assessments for mathematics and ELA for grades K-12 and science for the following grade ranges: K-2, 3-5, 6-8 and high school.

CERTICA ITEM BANK LICENSE GRANT: Subject to the terms of this Agreement, including this Appendix A, Provider hereby grants Customer a limited, non-exclusive, non-transferable right and license to access and use the CERTICA Item Bank within the state in which the Customer is organized, authorized and resides (the “Customer Territory”) to provide non commercial access to and use of any or all of the items from the CERTICA Item Bank (or individual items, materials associated with the items such as reading passages and graphics, and scoring materials from the Item Bank (“CERTICA Items”) to students registered within the Customer’s schools/districts for the sole purpose of performing formative assessments of those students (the “CERTICA License”). The Customer is strictly prohibited from using or promoting any CERTICA Items in the CERTICA Item Bank as high stakes assessments. The results of high-stakes assessments are used for purposes other than improving instruction and student learning, such as graduation tests, college admissions tests and teacher evaluation assessments. All rights, licenses and privileges not expressly granted to the Customer under the CERTICA License will remain exclusive to Provider or its licensors. Without limiting the generality of the foregoing, the Customer acknowledges that Provider or its licensors retain all rights under copyright and all other intellectual property rights in and to the CERTICA Item Bank, all CERTICA Items included therein, all revisions, modifications, translations, or other adaptations or transformations of the CERTICA Item Bank or the CERTICA Items, including assessments, and other derivative works created there from (collectively the “Derivative Works”).

The Customer’s rights to access and use the CERTICA Item Bank, the CERTICA Items and all Derivative Works thereof are contingent upon Provider’s right and license from its third-party licensors to distribute the CERTICA Item Bank remaining in effect and shall terminate upon the earlier of (i) termination of the agreement between the Customer and Provider, or (ii) termination of Provider’s right and license to distribute the CERTICA Item Bank. In addition, Provider will have the right to terminate this CERTICA License immediately upon written notice if Customer violates any term of this CERTICA License, infringes any of Provider’s or any of its licensors’ rights with respect to any CERTICA or third party intellectual property, or otherwise uses the CERTICA Item Bank, CERTICA Items or Derivative Works in any way other than as expressly permitted under this CERTICA License. Upon termination of this CERTICA License for any reason, all Customer rights under the CERTICA License will immediately cease to exist, Customer must (a) immediately discontinue all use of the CERTICA Item Bank, CERTICA Items and Derivative Works, (b) destroy any and all copies of the CERTICA Item Bank, all CERTICA Items and Derivative Works, (c) purge all electronic versions of the CERTICA Item Bank, CERTICA Items and Derivative Works from its systems, and (d) deliver to Provider a written statement executed by an officer of Customer certifying the foregoing. Notwithstanding the above, Customer understands and agrees that Provider and its licensors will no longer support the CERTICA Item Bank with any updated CERTICA Items and/or modifications to state alignments once the CERTICA License is terminated. Customer acknowledges that use of the CERTICA Item Bank, the CERTICA Items and all Derivative Works thereof after termination of the CERTICA License is strictly prohibited and would constitute infringement of Provider or its licensor’s proprietary rights.

Pursuant to the CERTICA License, the Customer acknowledges and agrees that certain CERTICA Items in the CERTICA Item Bank may include material licensed by third parties to CERTICA (“Third Party Content”) and that CERTICA’s rights in and to such Third Party Content may expire or otherwise terminate during the term of the CERTICA License. Any rights in and to Third Party Content will at all times be limited and subject to CERTICA’s rights in and to the respective Third Party Content, notwithstanding anything to the contrary in the Customer’s agreement with Provider. Throughout the term of the CERTICA License CERTICA will have the right, at its sole discretion, to modify the CERTICA Item Bank, and to delete, and require the deletion by the Customer, of specific CERTICA Items and/or passages from the CERTICA Item Bank.

CERTICA LICENSE RESTRICTIONS: In addition to any restrictions set forth in the CERTICA License grant above, Customer agrees not to: (a) modify, change, adapt, alter, translate, or create derivative works from the CERTICA Item Bank or CERTICA Items; (b) sublicense, lease, rent, loan, or otherwise transfer its CERTICA License rights in and to the CERTICA Item Bank or CERTICA Items to any third party; or (c) otherwise use or copy the CERTICA Item Bank or any CERTICA Item except as expressly allowed under the CERTICA License terms and conditions set forth under this Appendix A; provided, however, that Customer may select CERTICA Items from the CERTICA Item Bank for use with other Provider or third party content to create formative assessments.

REPRESENTATIONS, WARRANTIES, INDEMNIFICATION AND LIMITATIONS OF LIABILITY.

Provider represents that it has entered into an agreement with CERTICA permitting Provider to distribute and sublicense the CERTICA Item Bank in accordance with the terms set forth in this Appendix A. In the agreement between Provider and CERTICA, CERTICA has represented that it has the right to enter into the agreement with Provider and that it has not entered into any inconsistent agreement.

NEITHER PROVIDER NOR ITS LICENSORS MAKE ANY WARRANTY WHATSOEVER, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, NON-INFRINGEMENT, OR TITLE. NEITHER PROVIDER NOR ITS LICENSORS ARE RESPONSIBLE FOR THE VALIDITY, FAIRNESS OR QUALITY OF ANY ASSESSMENTS THAT ARE ULTIMATELY PREPARED BY THE CUSTOMER USING THE CERTICA ITEM BANK. NEITHER PROVIDER NOR ITS LICENSORS WILL HAVE ANY RESPONSIBILITY WITH RESPECT TO ANY USE OF THE CERTICA ITEM BANK OR ANY CERTICA ITEMS (A) TO THE EXTENT THAT ANY CERTICA ITEMS HAVE BEEN MODIFIED WITHOUT PRIOR WRITTEN APPROVAL BY PROVIDER OR ITS LICENSORS, AS APPLICABLE, OR (B) FOR ANY PURPOSE OTHER THAN FOR FORMATIVE STUDENT ASSESSMENTS OR (C) FOR FAILURE TO USE THE CERTICA ITEMS OR CERTICA ITEM BANK IN ACCORDANCE WITH THE CERTICA LICENSE OR THE CUSTOMER’S AGREEMENT WITH PROVIDER. NEITHER PROVIDER NOR ITS LICENSORS ARE RESPONSIBLE FOR THE CONTENT, ACCURACY, COMPLETENESS OR ADEQUACY OF ANY STATE STANDARDS ACCESSIBLE THROUGH THE PROVIDER PLATFORM.

Customer agrees to indemnify, defend and hold Provider harmless from and against any liabilities, claims, actions, causes of action, demands, losses, damages, suits, proceedings, fees, expenses, fines penalties and costs (including, without limitation, reasonable attorneys’ fees, costs, and disbursements) (each a “Claim”) based on or arising from Customer’s misuse of the CERTICA Item Bank or any CERTICA Item.

If any Claim is asserted against a party to this Agreement in respect of which such party (the "Indemnified Party") proposes to demand indemnification from the other party pursuant to this Appendix A, as the case may be, the Indemnified Party will promptly notify the other party (the "Indemnifying Party") in writing. No failure of any Indemnified Party to so notify the Indemnifying Party shall relieve the Indemnifying Party from the obligation to indemnify the Indemnified Party unless and to the extent the Indemnifying Party is actually prejudiced by such failure. Such Indemnified Party will permit the Indemnifying Party to assume entire control of the defense, compromise or settlement of any such indemnified Claim through its own counsel and at its own expense; provided, however, that no such compromise or settlement shall include any non-monetary terms and conditions applicable to such Indemnified Party without the consent of the Indemnified Party (which consent shall not be unreasonably withheld, delayed or conditioned); and provided, further, that the Indemnified Party may retain its own counsel at the Indemnifying Party's expense if (i) the Indemnifying Party, within thirty (30) days after notice of any indemnified Claim, fails to assume the defense of such indemnified Claim or (ii) the representation of both the Indemnifying Party and the Indemnified Party would, in the reasonable judgment of the Parties, be inappropriate due to actual or potential conflicting interests between them. If the Indemnifying Party does not assume entire control of the defense, compromise or settlement of such indemnified Claim, the Indemnified Party may compromise or settle any such indemnified Claim upon the prior written consent of the Indemnifying Party (which consent shall not be unreasonably withheld, delayed or conditioned). Each Party agrees to cooperate fully with respect to the defense of any indemnified Claim.

CERTICA WILL HAVE NO LIABILITY UNDER THE CUSTOMER’S AGREEMENT WITH PROVIDER. IN NO EVENT SHALL PROVIDER OR CERTICA BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR OTHER INDIRECT DAMAGES. FURTHERMORE, NOTWITHSTANDING ANYTHING CONTAINED IN THE AGREEMENT TO THE CONTRARY, UNDER NO CIRCUMSTANCES SHALL PROVIDER OR CERTICA BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY DAMAGES IN EXCESS OF THE FEES PAID TO PROVIDER BY OR ON BEHALF OF THE CUSTOMER PURSUANT TO THE CERTICA LICENSE OR THE CUSTOMER’S AGREEMENT WITH PROVIDER DURING THE TWELVE-MONTH PERIOD IMMEDIATELY PRECEDING SUCH CLAIM.