Definitions. In this Agreement, the following terms shall have the meanings set forth below:
1.1 ”Client Materials” shall mean any data, information or material provided or submitted by Client (including, without limitation, Administrators) under this Agreement, including the Client’s trademarks and designs.
1.2 “Administrators” shall mean the persons appointed by Client, who shall have access to an administration account on the Services and who have been supplied user identification and passwords by Client or by Gravyty at Client’s request.
1.3. “Confidential Information” shall mean all confidential and proprietary information of a party (“Disclosing Party”) disclosed to the other party (“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, or that is specified below. For the avoidance of doubt, Confidential Information of Client shall be deemed to include, without limitation, any and all Client Materials and subject to the exclusions in the last sentence of this paragraph, any other information or materials disclosed, made accessible or otherwise provided to Gravyty by or on behalf of Client in connection with the Services or this Agreement, including information relating to any Client business, affairs, department, school, other unit, faculty, student, alumni, or third party with respect to which Client has an obligation of confidentiality. With respect to Gravyty, Confidential Information shall be deemed to include, without limitation, any and all confidential technology, business and technology processes and requirements, pricing terms, non-public product information, and financial information of Gravyty. 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 or use of or reference to any Confidential Information of the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
1.4 “Data Protection Legislation” shall mean the General Data Protection Regulation (GDPR) (EU) 2016/679 and/or the UK Data Protection Act 2018 as well as all other applicable legislation.
1.5 “Gravyty Technology” shall mean all of Gravyty’s proprietary technology (including the software, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) used by Gravyty in providing the Services.
1.6 “Educational Information” shall mean information that is collected and used as part of student education records in accordance with the Family Educational Rights and Privacy Act, 20 U.S.C. 1232g as amended (“FERPA”). Educational Information excludes information on Users that is collected from the User after the User has graduated or no longer attends or enrolled in Client’s educational programs.
1.7 “Intellectual Property” shall mean all statutory and non-statutory intellectual property rights, including copyrights, patents, trademarks, service marks, registrations thereof and applications therefor; proprietary rights in information and data, including trade secrets and know how; and moral rights and other personal rights in inventions and original works.
1.8 “Services” means the Gratavid Services package ordered by Client.
1.9 “User” shall mean the user of the Services including the Administrators and any other employee of the Client.
Commencement and Term.
2.1 Term. This Agreement shall commence on the date at the date payment is effected and shall continue for the period set forth on the payment order (the “Initial Term”) and, upon expiration of the Initial Term, shall be automatically renewed for successive renewal terms of one (1) year each time (each such successive renewal term, a “Renewal Term,” and collectively with the Initial Term, the “Contract Period”) until terminated: (a) in accordance with the terms of this Agreement; or (b) with three months’ written notice by either party prior to the end of any Contract Period.
Services Generally.
3.1 Services. Gravyty shall supply the Services (incorporating the Gravyty Technology) to the Client from the Services Start Date, all in accordance with the terms of this Agreement.
Clients’ Obligations.
4.1 The Services will be launched following Services Start Date. The Client shall ensure that is its Administrators provide, Gravyty in a timely manner and at no charge, such information, data and access as reasonably required by Gravyty in order to launch the Services.
4.2 Client will need certain software, and Internet access to be able to access the Services. Acquiring, installing, maintaining and operating software and Internet access is solely the Client’s responsibility. Gravyty neither represents nor warrants that the Services will be accessible through all web browser releases.
4.3 Client shall ensure that the Administrator keep their password and account information secure and confidential.
4.4 Client shall not, and shall ensure that the Administrator shall not:
4.4.1 Except to the extent permitted by any applicable law or expressly permitted under this Agreement attempt to: (i) copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Services; (ii) reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Services; or (iii) remove any copyright, trademark, or patent notice included in the Services;
4.4.2 Access all or any part of the Services in order to build a product or service which competes with the Services or to copy any features, functions or graphics of the Services;
4.4.3 Use the Services to store or transmit: (i) infringing, libelous, defamatory, abusive, harassing, obscene, profane, vulgar, false, or otherwise unlawful or tortious material; (ii) material in violation of third-party rights; (iii) engage in or encourage any conduct that could constitute a criminal offense or give rise to civil liability for Gravyty, or (iv) viruses, harmful code or data, trojan horses, worms, time bombs, cancelbots, or any other programs with the intent or effect of damaging, destroying, disrupting or otherwise impairing Gravyty’s, or any other person’s or entity’s, network, computer system, or other equipment;
4.4.4 Interfere with or disrupt the integrity or performance of the Services or third-party data contained in the Services; attempt to gain unauthorized access to the Services or their related systems or networks; or
4.4.5 Export, directly or indirectly, any of the Services in breach of any applicable laws or regulations, including United States export laws and regulations, to any country for which the government or any agency thereof at the time of export requires an export license or other governmental approval without first obtaining such license or approval.
4.5 Gravyty has no obligation to monitor Client’s use of the Services. However, Gravyty reserves the right (but has no obligation) at all times to monitor, review, retain and disclose any information as necessary to satisfy or cooperate with any applicable law, regulation, legal process or governmental request.
License and Restrictions.
5.1 Subject to Client’s compliance with this Agreement, Gravyty hereby grant to Client a non-transferable, non-exclusive, revocable, worldwide right for Administrators to access and use the solely for Client’s internal business purposes. All rights pertaining to the Gravyty Technology not expressly granted to Client are reserved by Gravyty and its licensors.
5.2 Subject to Client’s compliance with this Agreement, Gravyty grants Client a non-exclusive, non-transferable, limited right to display Gravyty’s trademarks, service marks, and logos (the “Marks”) to Users or prospective users solely in promotion of the Services, subject always to Gravyty’s trademark usage policies made available from time to time. All use of the Marks, and any goodwill associated therewith, will inure solely to Gravyty, and Gravyty may revoke such license at any time if it reasonably believes its Marks are being misused. Client shall not contest the validity or Gravyty’s ownership of the Marks or attempt to assert any interest in the Marks other than as expressly provided in this section.
5.3 User logins are for authorized Administrator and cannot be shared or used by more than one individual User.
5.4 Gravyty shall use commercially reasonable efforts to make the Services available to Users. When Users access the Services, Client acknowledges that they will be required to agree to Gravyty’s then current terms of use and privacy policies.
5.5 Client grants to Gravyty a worldwide, perpetual, irrevocable, transferable, sublicenseable, fully paid-up, royalty-free license to use and incorporate into the Services any suggestions, enhancements, requests, recommendations, corrections, or other feedback provided by Client or Administrators relating to the operation of the Services.
Ownership.
6.1 Gravyty Reservation. Gravyty and its licensors reserve all of their rights, title, and interest in and to the Services, Gravyty Technology, including all intellectual property rights therein. No rights are granted to Client hereunder other than as expressly set forth in this Agreement.
6.2 Client Reservation. All title and intellectual property rights in and to the Client Materials and any Confidential Information of Client shall remain (as between Client and Gravyty) owned exclusively by Client. Client grants Gravyty, a worldwide non-exclusive, royalty-free, non-transferable license to copy and modify Client Materials for the purpose of providing the Services. Gravyty may use Client Material in an anonymous and aggregated form in order to automate reporting for its clients, to inform products and services enhancements and to reveal and discover trends across Gravyty’s client base so long as it has been converted or transformed into anonymous and aggregated form such that it is stripped of any and all identifiers and is no longer specifically identifiable with respect to Client or User. Client agrees that Gravyty may disclose such aggregated and anonymous data.
Indemnification.
7.1 Gravyty will defend Client and its employees and agents against any claim, suit, action or proceeding brought by a third party alleging that Client’s receipt or use of the Services in accordance with this Agreement infringes any intellectual property right or misappropriates any trade secret of that third party (each, a “Claim Against Client”), and will pay all settlements entered into and damages awarded against Client as a result of a Claim Against Client; provided, however, that Gravyty will have no obligations under this Section 7.1 with respect to claims to the extent arising out of: (a) any instruction, information, designs, specifications or other materials provided by Client to Gravyty; (b) use of the Services in combination with any materials or equipment not supplied to Client or specified by Gravyty in writing; (c) any modifications or changes made to the Services by or on behalf of any person or entity other than Gravyty; or (d) Client’s breach of this Agreement. If the Services, or any part thereof, becomes, or in the opinion of Gravyty may become, the subject of a Claim Against Client, Gravyty may, at its option: (x) obtain a license for Client’s continued use of that Service in accordance with this Agreement; (y) replace or modify the Service so that they are no longer claimed to infringe or misappropriate; or (z) if reasonable efforts to achieve the foregoing are not available on commercially reasonable terms terminate this Agreement and provide Client a prorated refund of fees paid for the infringing Service for the unused remaining portion of the Contract Period. For clarity, any changes made by Gravyty to the Gravyty Technology pursuant to the preceding sentence shall not impact Gravyty’s warranties to the Client contained in this Agreement.
7.2 Gravyty’s obligations under this section are conditioned on (a) Client promptly notifying Gravyty in writing of a claim for which it seeks indemnification, (b) Client permitting Gravyty sole control of the defense and settlement of such claim, and (c) Client providing reasonable cooperation on request of Gravyty at Gravyty’s sole cost and expense. Client may, subject to above, participate in and observe the proceedings at its own cost and expense.
Social Networks.
8.1 Gravyty shall not be responsible nor incur any liability to Client regarding any amendments, modifications or updates to the terms, conditions, policies and permissions of social media networks connected to the Services.
8.2 Client shall, where the User consents, enable the Services to access information from User’s social media accounts. Gravyty shall not be responsible or liable to Client for any: (a) content accessed by or on behalf of a User or from any social media network; (b) interactions or communications between Client and/or the Users and any third parties through any social media network; or (c) transactions relating to a separate agreement or arrangement between Client or the Users and any social media network.
8.3 Gravyty shall not be liable if the operator of any social media network ceases to make its network available for use with the Services on reasonable terms, with the intent not to resume making it available for use on such terms. For the avoidance of doubt Client shall not terminate nor receive credit, a refund or other compensation as a result of any unavailability of any social media network for use with the Services.
Charges.
9.1 In consideration for the provision of the Services, the Client is required to pay Gravyty the Charges.
9.2 The Charges may be increased, annually, on a year over year basis, due to the increase in the U.S. CPI as issued by the U.S. Bureau of Labor Statistics, U.S. Department of Labor (“CPI”), over the prior twelve (12) month period.
9.3 Charges do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Client is responsible for paying any Taxes associated with its purchases hereunder. If Gravyty has a legal obligation to pay or collect Taxes for which Client is responsible under this section, Gravyty will invoice Client and Client will pay that amount unless Client provides Gravyty with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Gravyty is solely responsible for taxes assessable against it based on its income, property and employees.
9.4 The Services will only be available to the Client, upon payment of the Charges due. If the payment effected by the Client fails, then Services will be immediately suspended.
Confidential Information.
10.1 Each party shall not disclose to any third party the other party’s Confidential Information and shall limit access and use to those of its employees and agents who require such access and use in connection with its rights and obligations under this Agreement. Each party shall take appropriate action with its employees and agents to satisfy its obligations hereunder and shall protect the other’s Confidential Information as it protects its own Confidential Information, but in any event with not less than a reasonable degree of care.
10.2 The obligations set forth in this Section 10 shall not apply to information (a) previously known to the receiving party prior to disclosure by the disclosing party, (b) which is or becomes publicly known through no wrongful act of the receiving party, (c) received from a third party under no confidentiality obligation with respect to the Confidential Information, or (d) required to be disclosed under administrative or court order, or in an arbitration or litigation arising out of a dispute between the parties or their successors or assigns. If a party is legally required to disclose any Confidential Information, that party shall, to the extent allowed and practicable, provide the other party prompt notice of such requirement so that the other party may seek a protective order or other appropriate remedy or waive compliance with respect to that disclosure.
10.3 Each party agrees that, in addition to any other remedies available, the other shall be entitled to injunctive relief to enforce the terms of this Section 10.
10.4 As between the parties, each party is responsible for implementing and maintaining processes designed for the following: (i) the security of non-public or personally identifiable information of the other party (“Personal Information”) on the systems under its or its third party vendors’ or subcontractors’ control; (ii) to comply with all laws applicable to it; and (iii) data security issues arising from its systems or directly resulting from its own third party vendors or subcontractors, if any, in connection with the Services. Each party will maintain commercially reasonable information security practices designed to prevent unauthorized or unlawful access to, use, disclosure or alteration of Personal Information of the other party (collectively, a “Security Incident”). In the event of a Security Incident involving the other party’s Personal Information, the affected party will promptly (a) assess the nature and scope of the Security Incident; (b) identify the Personal Information involved, if any; (c) take appropriate steps to contain, control and stop the Security Incident; and (d), in the event Personal Information was compromised and it is reasonably suspected that such compromise could result in a breach of this Section 10, promptly notify the other party of the Security Incident, subject to any request by law enforcement or other government agency to withhold such notice pending the completion of an investigation. Additionally, and without limitation of the foregoing or any other obligation of Gravyty set forth in this Agreement.
10.5 Gravyty shall store data of the Services on databases owned and maintained by Gravyty hosting partners; Gravyty shall ensure that none of its suppliers, sub-contractors or service providers shall, use such information other than as necessary to satisfy Gravyty’s obligations to Client pursuant to this Agreement, and for Gravyty’s confidential internal business purposes (such as pooling it with other information to confidentially and internally track the total number of Users of the Gravyty Platform, the number of visitors to each area or interactive object within the Gravyty Platform, and the domain names of any visitors’ internet service providers).
10.6 Gravyty declares that it is fully compliant with all applicable data protection requirements under the Data Protection Legislation. In addition, Gravyty further declares that it will use commercially reasonable administrative, technical, and physical safeguards to prevent the unauthorized access, use or disclosure of data in violation of any applicable laws, including FERPA. Client acknowledges, however, that Gravyty cannot guarantee the security of such information given the nature of the Internet. Client also acknowledges that by issuing user identifiers and passwords for its authorized end-users, Client controls, defines and manages access to the data that will be used by Client and its Users within the Gravyty Platform. Client is responsible for (i) compliance with all foreign and domestic privacy laws and regulations that may be applicable to Client’s use of the Services, (ii) securing all necessary prior consents for the collection, storage, and use of data, that also includes Educational Information as part of the Services, and (iii) creation of, and compliance with, applicable policies regarding access and use by Users of any data. Moreover, Gravyty confirms to the extent applicable for the provision of the Services hereunder, it shall implement and maintain certification of the relevant Payment Card Industry (“PCI”) compliance standards. Gravyty acknowledges that Client may be subject to certain requirements under applicable data protection laws and agrees to assist Client with ensuring its compliance under applicable data protection law requirements. Specifically, Gravyty can assist Client with requests to access or delete personal information of a User. Gravyty will promptly notify Client in the event Gravyty receives a request from a User. Unless otherwise prohibited by law, Gravyty shall promptly notify Client of any request for the disclosure of any Educational Information by a governmental or regulatory body or law enforcement authority
Warranties: Disclaimers.
11.1 EXCEPT AS OTHERWISE EXPRESSLY STATED IN THIS AGREEMENT: GRAVYTY PROVIDES THE SERVICES TO CLIENT “AS IS” AND DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS, STATUTORY, IMPLIED OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE AND WARRANTIES ARISING FROM THE COURSE OF DEALING OR COURSE OF PERFORMANCE. GRAVYTY DOES NOT WARRANT THAT THE SERVICES WILL OPERATE UNINTERRUPTED OR ERROR-FREE. GRAVYTY’S LICENSORS EXPLICITLY DISCLAIM ANY AND ALL WARRANTIES WITH RESPECT TO THE SERVICE. IN ADDITION, GRAVYTY HEREBY DISCLAIMS ANY AND ALL LIABILITY PERTAINING TO (I) THE TRANSMISSION OF INFORMATION OVER THE INTERNET, OR (II)ANY IMPAIRMENT OR DISTRIBUTION OF CLIENT’S CONNECTION TO THE INTERNET OR ACCESS TO THE SERVICE (III) ANY CONTENT POSTED BY USERS.
Limitations on Liability.
12.1 TO THE FULLEST EXTENT ALLOWED BY LAW, NEITHER CLIENT NOR GRAVYTY (AND ITS LICENSORS, WHERE APPLICABLE) SHALL IN ANY EVENT BE HELD LIABLE OR OTHERWISE WHETHER, BASED UPON CONTRACT, INDEMNITY NEGLIGENCE, OR STRICT LIABILITY, FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE OR EXEMPLARY DAMAGES (EVEN IF A PARTY HAS BEEN ADVISED OF OR COULD HAVE REASONABLY BEEN FORESEEN THE POSSIBILITY OF SUCH DAMAGES), SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE, PROFITS OR BUSINESS COSTS OF DELAY, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION. SOME STATES AND JURISDICTIONS DO NOT ALLOW FOR THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO THE AGREEMENT.
12.2 THE MAXIMUM LIABILITY OF GRAVYTY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT SHALL NOT EXCEED ALL AMOUNTS PAID OR PAYABLE TO GRAVYTY UNDER THIS AGREEMENT FOR THE CONTRACT PERIOD IN WHICH THE EVENT GIVING RISE TO SUCH LIABILITY OCCURRED. NOTWITHSTANDING THE ABOVE, NOTHING IN THIS AGREEMENT SHALL LIMIT OR EXCLUDE EITHER PARTY’S LIABILITY FOR: (I) DEATH OR PERSONAL INJURY CAUSED BY ITS NEGLIGENCE; (II) FRAUD OR FRAUDULENT MISREPRESENTATION; AND (III) ANY OTHER LIABILITY WHICH CANNOT BE LIMITED OR EXCLUDED BY APPLICABLE LAW.
Termination.
13.1 Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving written notice to the other party if the other party: takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction; or threatens to or actually suspends or ceases to carry on all or a substantial part of its business.
13.2 Without affecting any other right or remedy available to it, Gravyty may terminate this Agreement with immediate effect by giving written notice to Client if Client fails or has not effected payment of the Charges due.
13.3 On termination of this Agreement for whatever reason:
13.3.1 Client shall immediately pay to Gravyty all outstanding amounts owed to Gravyty pursuant to this Agreement. At Gravyty’s request, and within a reasonable time of such request, Client shall return or, at Gravyty’s option, destroy the confidential information of Gravyty (including erasure from Client’s computer systems) within its possession or control and confirm in writing to Gravyty when it has complied with this section;
13.3.2 subject to compliance by Client of its obligations under this section, and if Client so requests within 30 days of termination of this Agreement, Gravyty shall within a reasonable time of such request return or, at Client’s option, destroy the Client Materials (including erasure from Gravyty’s computer systems) within its possession or control and confirm in writing to Client when it has complied with this section; and
13.3.3 any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.
13.4 The termination of this Agreement shall not affect any of the parties’ rights and remedies that have accrued as at the date of termination.
General.
14.1 Compliance with Laws. Each party shall comply with all applicable laws with respect to its performance under this Agreement.
14.2 Use of Client Name. Subject to Section 6.2 above, Gravyty shall not use the name “Client Name” (alone or as part of another name, and in any language) or any logo, seal, insignia or other word, name, symbol, image or device that identifies Client, or any Client school, unit, division, center or affiliate (“Client Names”) for any promotional purpose or any other purpose in connection with the Services and/or this Agreement, except with the prior written approval of, and in accordance with restrictions required by, Client, in each instance. Gravyty shall not register any of the Client Names in any jurisdiction as a trademark, service mark, domain name, trade name, business or company name or otherwise. Without limiting the foregoing, Gravyty shall cease any continued use of Client Names authorized under this Agreement on the termination or expiration of this Agreement. Without limiting the foregoing, and unless otherwise given Client’s prior written approval, for purposes of providing a reference for Gravyty, Gravyty shall not in any manner suggest that Gravyty or its services have been endorsed by Client.
14.3 Notices. All notices and other communications under this Agreement will be in writing and delivered by certified mail, with return receipt requested. Notices to Client will be delivered to Client’s mailing address on record with Gravyty. Notices to Gravyty will be delivered to the following address: 2815 Elliott Ave., Suite 100, Seattle, WA 98121. A notice will be deemed given upon expiration of forty-eight (48) hours (if sent by mail or post).
14.4 Entire Agreement. This Agreement constitutes the entire agreement between the parties and supersedes all prior oral or written agreements or communications, with regard to the subject matter described herein. This Agreement may only be modified in writing, signed by both parties.
14.5 Assignment. Client may not assign, transfer or delegate any or all of its rights and obligations under this Agreement, without Gravyty’s prior written consent. Any attempted assignment, transfer or delegation in violation of this section is void.
14.6 Waiver and Severability. Waiver by a party of any default by the other shall not be deemed a waiver of any other default. If any term or condition of this Agreement is determined to be invalid or unenforceable in whole or in part for any reason, this Agreement shall be reformed to be valid and enforceable consistent with all the intention of the parties as expressed herein to the greatest extent permitted by law.
14.7 Force Majeure. Neither party shall be in default to the extent that failure to perform any obligation under this Agreement is caused solely by supervening conditions beyond its control, including acts of God, fire, natural disaster, war, terrorism, riot or other civil disturbance, outages of electrical, telecommunications or computer server hosting services, cyber-attack, failure of a utility or telecoms service, acts of government or labor strikes or lockouts (“Force Majeure”), provided that such party shall use its best efforts to overcome any such Force Majeure.
14.8 Relationship of the Parties. The relationship of the parties shall be that of independent contractors. Nothing herein shall be construed to create any agency, partnership, joint venture or similar relationship or to subject the parties to any implied duties or obligations respecting the conduct of their affairs which are not expressly stated herein. Neither party shall have any right or authority to assume or create any obligation or responsibility, either express or implied, on behalf of or in the name of the other party, or to bind the other party in any matter or thing whatsoever.
14.9 Governing Law: Jurisdiction and Venue. This Agreement shall be governed by the laws of the State of Delaware, without regard to its principles of conflicts of laws. Client hereby expressly consents to the personal jurisdiction of the state and federal courts located in the State of Delaware for any action or proceeding arising from or relating to the Agreement.
