EDUPHORIA SOFTWARE LICENSE AGREEMENT
This Agreement ("Agreement") is entered into by and between you, a Texas public school district or organization ("Customer"), and Eduphoria! Incorporated, a Texas corporation ("Eduphoria"), for the Eduphoria software that accompanies this Agreement and may include associated media, printed materials, "online" or electronic documentation, and internet-based services (collectively, the "Software"). By installing or otherwise using the Software, Customer consents to the terms of this Agreement and agrees to be bound by the terms of this Agreement.
1. Grant of License
Subject to the terms and conditions of this Agreement, Eduphoria grants Customer an enterprise, non-sublicensable, non-exclusive and non-transferable license ("License") to use the Software, in object code form only, and only in accordance with the applicable end user documentation, if any, and only in accordance with the terms and conditions of this Agreement. THE SOFTWARE IS PROVIDED "AS IS" AND IS SUBJECT TO THE WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY FOUND IN THIS AGREEMENT.
Customer is responsible for obtaining and maintaining all computer hardware, software, devices, and communications equipment needed to use the Software and for paying all third-party access charges (e.g., kiosk, ISP, telecommunications) incurred while accessing the Software.
The Software is protected by copyright and other intellectual property laws and treaties. Eduphoria or its suppliers own the title, copyright, and other intellectual property rights in the Software and/or have the right to use, sublicense or distribute the Software. Customer agrees to implement reasonable security measures to protect such copyrighted material and intellectual property rights. THE SOFTWARE IS LICENSED, NOT SOLD. Upon termination of this Agreement for any reason, Customer shall destroy and cease to use the Software. Customer agrees not to disclose, provide, or otherwise make available any of the copyrighted material or intellectual property in any form to any third party without the prior written consent of Eduphoria.
Customer shall not, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms of the software; modify, translate, or create derivative works based on the software; or copy (except for archival purposes, and in which case only one copy of the Software may be made), rent, lease, distribute, assign, or otherwise transfer rights to the Software; use the Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels on the Software. Eduphoria reserves all rights not expressly granted to Customer in this Agreement.
This Agreement applies to updates, supplements, add-on components, or Internet-based services components of the Software that Eduphoria may provide to Customer or make available to Customer after the date Customer obtains the initial copy of the Software, unless Eduphoria provides other terms along with the updates, supplements, add-on components, or Internet-based services components. Any and all improvements to the Software shall be owned by Eduphoria.
2. License Fees
In consideration for the License granted under this Agreement, unless otherwise agreed, Customer will pay Eduphoria the then-current license fee, which will be billed on a per school basis and invoiced to Customer on an annual basis. Full payment for invoices issued in any given month must be received by Eduphoria 30 days after the mailing date of the invoice, or the License may be terminated. Customer agrees to provide Eduphoria with accurate and complete billing information, including Customer's name, address, and telephone number and to update this information within 30 days of any change in such information.
The Software is licensed per school. Customer may acquire additional licenses for schools in its district at the same license fee for up to three years after the purchase of the initial License. The license fee is an annual subscription fee that covers ongoing product updates. Ongoing maintenance fees may be assessed in accordance with our then-current rates, which may be increased from time to time, but in no event will the increase be more than 10% in any given year.
3. Eduphoria's Obligations
Upon execution of this Agreement, Eduphoria will deliver the Software to Customer in a format appropriate for Customer's platform, together with accompanying documentation.
Eduphoria guarantees the Software will perform the functions it is advertised to perform, notwithstanding any warranties or limitations of liability to the contrary in this Agreement, provided that Customer has installed Software on the appropriate platform and complied with any other system, software, hardware or firmware requirements set forth by Eduphoria. Eduphoria, in its sole discretion, will exchange or repair any Software that is not performing as it is advertised to perform, subject to the Limited Warranty provisions specified in this Agreement.
4. Term and Termination
This Agreement and the License granted under this Agreement become effective on the date the Software is installed and/or activated and continues until terminated by either party pursuant to this Section 4.
Either party may terminate this Agreement by providing 30 days' written notice to the other party in advance of the termination date. Either party may also terminate this Agreement immediately, without prior notice or liability, if the other party breaches any of the terms or conditions of this Agreement. To terminate this Agreement, Customer must send written notice to Eduphoria's business office via electronic message, postal mail, or fax. If Eduphoria terminates this Agreement, Eduphoria will send written notice to Customer's primary contact via electronic message, postal mail, or fax. Eduphoria will remove access to the Software on the termination date. Upon termination, Customer will not receive any refund of license fees paid.
Upon termination, Customer will immediately cease all use of the Software and any documentation and return, remove, or destroy all copies of the Software and any documentation. Eduphoria may, but is not obligated to, delete archived data. Except for the License granted herein, and except as otherwise expressly provided herein, all sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, warranty disclaimers, and limitations of liability. Termination is not an exclusive remedy, and all other remedies will be available whether or not the license is terminated.
5. Training and Support
Training is not included in this Agreement, however, training days may be purchased as part of a separate agreement, pursuant to the terms of such separate agreement.
Subject to the terms hereof, Eduphoria will provide Customer with email support services and telephone support services for the Software for the duration of this Agreement. Telephone support services will extend from 8:00am Central Time to 5:00pm Central Time Monday through Friday as commercially reasonable. Email support services will be provided in a timely and commercially reasonable manner during this same time frame. While additional email support will often be provided outside of this time frame, no guarantee can be provided for response time. Emergency situations will be given priority, but no specific response time can be guaranteed.
6. Limited Warranty
Eduphoria warrants that for a period of 90 days from the date of shipment or from the date of download that: (i) the media upon which the Software is furnished will be free of defects in material and workmanship under normal use; and (ii) the Software substantially conforms to its published specifications. Except for the foregoing, the Software is provided AS IS. This limited warranty extends only to Customer as the original licensee. Customer's exclusive remedy, and the entire liability of Eduphoria and its suppliers under this limited warranty, will be, at Eduphoria's option, either repair or replacement of the Software or refund of the license fee paid for the Software. In no event does Eduphoria warrant that the Software is error free or that Customer will be able to operate the Software without problems or interruptions.
This warranty does not apply if the Software: (i) has been altered, except by Eduphoria; (ii) has not been installed, operated, repaired, or maintained in accordance with instructions supplied by Eduphoria; (iii) has been subjected to abnormal physical or electrical stress, misuse, negligence, or accident; or (iv) is used in ultra-hazardous or unlawful activities.
7. Restrictions and Policies
Customer will not use, permit use of, or cause to be used the Software in any way for hacking, spying, disseminating or transmitting data to any person who does not have specific permission to access the data. Customer agrees not to transmit through the Software any unlawful, harassing, libelous, abusive, threatening, harmful, vulgar, obscene or otherwise objectionable material of any kind. Customer will only use the Software for lawful purposes, in compliance with all applicable laws including, without limitation, intellectual property, defamation, and other relevant laws. Unlawful activities may include (without limitation) storing, distributing or transmitting any copyrighted or trademarked material; storing, distributing or transmitting any unlawful material; unauthorized use, storage, distribution or transmission of personally identifiable data; attempting to compromise the security of any account in the Software; or make direct or indirect threats of physical harm.
8. Customer Data
Eduphoria warrants that it will take all commercially reasonable steps to maintain the confidentiality of student and staff data received from Customer. Eduphoria agrees to maintain such confidential data in accordance with the relevant laws and any local policies that are communicated to Eduphoria. Eduphoria acts as an agent and representative of Customer in the translation, import, and/or analysis of data, however, such agency is limited solely to the translation, import, and/or analysis of data exchanged through the use of the Software. Access to personally identifiable data will not be allowed for anyone other than the Eduphoria staff directly responsible for the support, translation, import, and/or analysis of the data. Data will be provided by Eduphoria only to persons or entities authorized by Customer.
Eduphoria shall not:
(a) Disclose Confidential Student Educational Records (as defined in subsection d) to any person or entity except:
(i) Those that need to know the Confidential Student Educational Records for the purposes this Agreement and agree to be bound by the provisions of this Section; or
(ii) In compliance with a lawfully issued subpoena or court order.
(b) Use the Confidential Student Educational Records for any purpose other than the purposes this Agreement contemplates.
(c) Return of Confidential Student Educational Records
Upon the written request by Customer, within thirty (30) calendar days, Eduphoria must return to Customer or destroy all Confidential Student Educational records. If Eduphoria destroys the Confidential Student Educational Records, Eduphoria must certify that it has done so in writing and deliver that certificate to within thirty (30) calendar days of Licensee's initial written request for Eduphoria to return or destroy all Confidential Student Records.
(d) Definition of Confidential Student Educational Records
"Confidential Student Educational Records" means those records, files, documents, and other materials which (a) contain information directly related to a student; and (b) are maintained by an educational agency. See FERPA, 20 U.S.C.A. 1232g and accompanying regulations.
9. Limitation of Liability
EDUPHORIA'S TOTAL LIABILITY, IF ANY, WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT (INCLUDING, BUT NOT LIMITED TO, LIABILITY ARISING OUT OF CONTRACT, TORT, STRICT LIABILITY, BREACH OF WARRANTY OR OTHERWISE), WILL BE LIMITED TO THE LICENSE FEES PAID BY CUSTOMER TO EDUPHORIA FOR THE PRECEEDING TWELVE (12) MONTHS FROM THE TIME OF THE EVENT RESULTING IN THE ALLEGED LIABILITY OCCURS. EDUPHORIA, ITS LICENSORS, OFFICERS, DIRECTORS, AGENTS, AND EMPLOYEES WILL NOT BE LIABLE IN ANY EVENT FOR LOSS OF PROFITS OR REVENUE OR INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES INCURRED BY CUSTOMER OR BY ANY THIRD PARTY. NOTWITHSTANDING ANY DISCLAIMERS TO THE CONTRARY IN THIS AGREEMENT, EDUPHORIA WARRANTS THAT IT HAS GOOD TITLE OR LICENSE TO THE SOFTWARE PROVIDED TO CUSTOMER. EDUPHORIA FURTHER WARRANTS THAT IT HAS THE RIGHT TO LICENSE AND DOES HEREBY LICENSE THE USE OF THE SOFTWARE TO CUSTOMER.
Customer acknowledges that the Software and documentation, and all information relating to the business and operations of Eduphoria that Customer learns or has learned during the term of this Agreement is the valuable, confidential, and proprietary information of Eduphoria (collectively, "Confidential Information"). During the term of this Agreement, and at all times afterward, Customer and its employees, contractors, consultants, and agents will: (i) safeguard the Confidential Information with the same degree of care that it uses to protect its own confidential information; (ii) maintain the confidentiality of the Confidential Information; (iii) not use the Confidential Information except as permitted under this Agreement; and (iv) not disseminate, disclose, sell, publish, or otherwise make available the information to any third party without the prior written consent of Eduphoria.
The confidential restrictions in this Section 10 do not apply to any information that: (i) is already lawfully in Customer's possession (unless received pursuant to a nondisclosure agreement); (ii) is or becomes generally available to the public through no fault of Customer; (iii) is disclosed to Customer by a third party who may transfer or disclose such information without restriction; (iv) is required to be disclosed by Customer as a matter of law (provided Customer will use all reasonable efforts to provide Eduphoria with prior notice of such disclosure and to obtain a protective order therefore); (v) is disclosed by Customer with Eduphoria's approval; and (vi) is independently developed by Customer without any use of Confidential Information.
Customer acknowledges that any breach of this Section 10 by Customer will irreparably harm Eduphoria. Accordingly, in the event of a breach, Eduphoria is entitled to promptly seek injunctive relief in addition to any other remedies that Eduphoria may have at law or in equity.
The failure of either party to exercise in any respect any right provided for herein will not be deemed a waiver of any further rights hereunder. 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. Eduphoria may assign, transfer or sublicense this Agreement without Customer's consent. This Agreement may not be assigned, transferred or licensed by Customer except with Eduphoria's prior written consent. This Agreement will be governed by and construed in accordance with the laws of the state of Texas without regard to the conflict of laws provisions thereof. Mandatory and exclusive venue for any action will be Collin County, Texas. 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 modifications must be in a writing signed by both parties, 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 Eduphoria in any respect whatsoever. 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 email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
Neither this Agreement, nor any term or provision hereof, nor any inclusion by reference shall be construed as being for the benefit of any party not a signatory hereto.
Nothing in this Agreement will be construed to waive, modify or amend any legal defense available to Customer, or any past or present Trustee, officer, agent, or employee, including but not limited to governmental or individual immunity from suit as provided by law.
This Agreement may be executed in any number of counterparts, each of which shall be deemed an original and constitute one and the same instrument.
The persons executing this Agreement on behalf of Customer and Eduphoria represent that they are duly authorized by their respective governing bodies to execute this Agreement.