SCHOLASTIC SUCCESS INC.
Terms & Conditions
These Terms & Conditions (these "T&C") sets forth the understanding between Scholastic Success Inc., a New York corporation ("Licensor") and the customer ("Customer") named on the order form to which these T&C is attached (the "Order Form", and collectively with the T&C, this "Agreement"). Both Licensor and Customer are sometimes referred to hereunder individually as a "party" and collectively as the "parties".
By signing the Order Form and for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Customer indicates that Customer has carefully read the Order Form and these T&C, and that Customer agrees to all of their provisions, including without limitation the following provisions:
1. Grant of License and other Rights.
1.1. License Grant. Subject to Customer’s payment of the Fees (as hereinafter defined), Licensor grants to Customer a non-exclusive, non-transferable, limited right during the Term (as defined in Section 2.1 below) to use Licensor's school management software product branded “S-Success” (the "Software") at the school location indicated in the Order Form and as directed in Licensor’s documentation for the Software and otherwise by Licensor from time to time (the "License"). Customer hereby grants Licensor the right to access and use Customer’s computer systems, in person and remotely, across all terminals/ports/work stations, in order to connect to and communicate with the Software as needed in order to provide the License to Customer.
1.2. Retained Rights. Notwithstanding anything to the contrary in this Agreement (a) Customer may not transfer the License or any other right obtained from Licensor to any individual or entity including without limitation to any of its affiliates, subsidiaries or parent entities, and (b) all rights related to the Software which are not expressly granted to Customer in these T&C shall be retained exclusively by Licensor. Customer acknowledges that use of the Software by Customer's students, teachers, administrators and other users ("End Users"), if applicable, shall be governed by Licensor's terms of use agreement governing the Software which is to be adhered to by each End User.
1.3 Changes to Software. Licensor may make updates, improvements, modifications, and otherwise changes to the Software from time to time in its sole discretion. If Licensor makes changes to the Software which will materially impact how Customer uses the Software, Licensor will inform Customer of such changes.
1.4 Customizations. Any customization work related to the Software shall be provided as determined by the parties in writing (including by email). The work product resulting from or otherwise generated as a part of all such work shall be deemed to be part of the Software and shall be owned exclusively by Licensor, and Customer shall be permitted to use such work in accordance with the provisions of the License only.
2. Term; Termination.
2.1 Term. The initial term of this Agreement shall commence on the “Start Date” set forth in the Order Form and shall continue for the period of time indicated in the Order Form (the “Initial Term”), and thereafter shall automatically renew for successive periods as indicated in the Order Form (each, a “Renewal Term”, and together with the Initial Term, the “Term”), unless Customer provides written notice of non-renewal at least (i) sixty (60) prior to the end of the then-applicable period. Licensor may increase the Fees upon the commencement of each Renewal Period with prior written notice to Customer, unless the Order Form states that the quoted Fees will apply for a specific number of renewal periods.
2.2 Suspension; Termination. Notwithstanding the foregoing, Licensor may immediately suspend Customer's use of the Software and/or terminate the License at any time if (a) Customer, an End User, or any third party acting of behalf of either of them, causes (whether through an act or omission) any harm to the Software (or, in Licensor's reasonable discretion, intends to cause any such harm) including without limitation any violation of Section 5 hereof, (b) Customer is in breach of any of its other obligations under this Agreement and has not cured such breach within thirty (30) days of receiving written notice thereof by Licensor, or (c) Customer does not agree to accept any upgraded or otherwise modified version of the Software which is required by Licensor and any new applicable terms and conditions. Upon termination of the License for any reason, Customer agrees to return to Licensor (or permit Licensor to retrieve) all copies of the Software (including all components thereof) in the possession of Customer (or any person on Customer’s behalf or acting in the interest of Customer) within ten (10) days of such termination. Customer understands that all of its data may be deleted by Licensor within ten (10) days of any termination, and that Customer is solely responsible for retrieving and maintaining all such information. In the event of the termination of this Agreement by Customer results from a material breach by Licensor which is not cured within thirty (30) days from the date on which written notice of such breach was provided to Licensor, then Licensor shall provide Customer with a pro-rated refund of any Fees pre-paid by Customer that are related to such breach. However, in the event of any other early termination (i.e., an early termination by Customer or a termination by Licensor due to a breach of this Agreement by Customer), then none of the Fees shall be refunded by Licensor.
3. Fees. In consideration of the License, Customer shall pay Licensor the fees set forth in the Order Form (the "Fees"). If any of the Fees are not paid to Licensor within thirty (30) days after such payment is due, if Licensor does not terminate the License then a flat late fee of $100 per week shall accrue and be paid by Customer until all Fees (plus such penalty) has been paid in full. Any pre-approved expenses of Licensor accrued in providing the License to Customer shall be fully reimbursed by Customer within thirty (30) days of receipt of an invoice thereof.
4. Proprietary Rights. As between Customer and Licensor, Customer acknowledges that the Software is and shall remain the sole and exclusive property of Licensor, including all applicable rights to patents, copyrights, trademarks, trade secrets or other proprietary or intellectual property rights related to the Software. All rights not expressly granted to Customer in this Agreement regarding the Software are reserved in full by Licensor or any third party licensor of Licensor, as applicable. Customer shall use its commercially reasonable efforts to assist Licensor in identifying and preventing any unauthorized access, use, copying or disclosure of the Software, or any portion thereof. Customer shall not remove or destroy any copyright or restricted rights notices affixed by Licensor to the Software or any portion thereof.
5. Usage Restrictions. Customer agrees that Customer shall not directly or indirectly, and shall not authorize or permit any End User or otherwise any of Customer's employees, contractors, principals, directors, agents or other individual or entity working on its behalf, directly or indirectly, to: (a) sell, resell, transfer, assign, distribute, copy, publish, transmit, distribute, create derivative works of or otherwise disseminate, exploit or make available the Software (or any portion thereof); (b) reverse engineer, decompile, modify, translate or disassemble the Software (or any portion thereof); (c) remove, conceal or obliterate any copyright or other proprietary notice or any credit-line or date-line on other mark or source identifier contained in the Software; (d) make any representation or warranty on behalf of Licensor; (e) violate any applicable local, state, national, or international law, (f) fail to take commercially reasonable precautions consistent with industry standards to safeguard the Software, as accessible from Customer's computer systems, from unauthorized access or use; (g) display the name, logo, trademark or other identifier of any person that is substantially similar to or otherwise confusing with “S-Success” in connection with the Software, or otherwise which is disparaging, scandalous or otherwise poorly reflects on Licensor or the trademark “S-Success”, (h) attempt to create a substitute or similar product or service through use of, or access to, the Software, or (i) use the Software (or any portion thereof) in any manner or for any purpose other than as expressly contemplated by this Agreement or by any accompanying documentation. Customer shall promptly notify Licensor in writing of any unauthorized use of, or access to, the Software, of which it becomes aware.
6. Representations and Warranties. Customer represents and warrants that (a) it has the authority to enter into these T&C and that the signatory to the Order Form has been duly authorized by Customer to agree to these T&C and the Order Form on Customer's behalf, and (b) the Order Form and these T&C are enforceable against Customer in accordance with their terms. Licensor represents and warrants that (i) it has the authority to enter into these T&C and that the signatory to the Order Form has been duly authorized by Licensor to agree to these T&C and the Order Form on Licensor's behalf, and (ii) the Order Form and these T&C are enforceable against Licensor in accordance with their terms.
7. Remedies. In the event that Licensor learns of a material defect in the Software, Licensor shall, at its sole option and expense, either: (a) make commercially reasonable efforts to replace the Software or any portion thereof that is affected by such material defect, or (b) refund to Customer the pro-rated Fees pre-paid by Customer which are related to such material defect. In the event that Licensor becomes aware of any actual or potential claim of infringement regarding the Software for which Customer would be entitled to indemnification hereunder, Licensor may in its sole discretion either (i) obtain for Customer the right to continue using the Software, (ii) replace or modify the portion of the Software in question so that it becomes non-infringing, or (iii) provide Customer a pro-rated refund of pre-paid Fees; provided, however, that Customer shall be required to pay for its use of the Software until it is no longer permitted to use such Software as a result of such infringement, as indicated in writing by Licensor. Notwithstanding any of the foregoing, Licensor shall not be obligated to provide the foregoing remedies or any other remedies to Customer if the defect or alleged infringement is directly or indirectly based upon (y) use of the Software by Customer (or and individual or entity acting on behalf of Customer) in a manner other than as expressly authorized under this Agreement or in accompanying documentation provided by Licensor, or (z) any modification of the Software on behalf of Customer by any individual or entity other than Licensor.
8. DISCLAIMER OF WARRANTIES. CUSTOMER'S USE OF THE SOFTWARE IS “AS IS”, “AS AVAILABLE”, AND AT CUSTOMER'S SOLE RISK. LICENSOR SHALL HAVE NO LIABILITY, OBLIGATION OR RESPONSIBILITY TO CUSTOMER OR ANY OTHER PERSON FOR ANY LOSS, DAMAGE, OR ADVERSE CONSEQUENCE ALLEGED TO HAVE HAPPENED OR WHICH HAS HAPPENED, DIRECTLY OR INDIRECTLY, THROUGH CUSTOMER'S USE OR AN END USER'S USE OF THE SOFTWARE. LICENSOR SPECIFICALLY DISCLAIMS ANY WARRANTies THAT THE SOFTWARE OR ANY COMPONENT THEREOF WILL MEET CUSTOMER'S AND/OR AN END USER'S REQUIREMENTS OR THAT CUSTOMER’S AND/OR an END USER'S USE OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE. CUSTOMER ACKNOWLEDGES THAT CUSTOMER IS SOLELY RESPONSIBLE FOR ENSURING THE ACCURACY AND INTEGRITY OF all DATA (INCLUDING any personal DATA OF ITS END USERS) WHICH IS SUBMITTED TO LICENSOR BY MEANS OF THE SOFTWARE OR OTHERWISE, and that Licensor has the right to use all such information on behalf of customer. LICENSOR DOES NOT MAKE ANY REPRESENTATION OR WARRANTY AS TO THE ACCURACY, CORRECTNESS, COMPLETENESS OR USEFULNESS OF THE SOFTWARE OR ABOUT ANY CONTENT OR INFORMATION MADE ACCESSIBLE BY OR THROUGH THE SOFTWARE, AND LICENSOR IS NOT RESPONSIBLE FOR ANY ERRORS OR OMISSIONS CONTAINED IN THE SOFTWARE OR GENERALLY FOR THE ACCURACY, RELIABILITY, OR QUALITY OF THE SOFTWARE. LICENSOR IS NOT RESPONSIBLE FOR ANY TECHNICAL PROBLEMS WITH OR MALFUNCTIONS OF ANY TELEPHONE LINES, COMPUTER SYSTEMS, SERVERS, PROVIDERS, HARDWARE/SOFTWARE, LOST OR UNAVAILABLE NETWORK CONNECTIONS OR FAILED, INCOMPLETE, GARBLED OR DELAYED COMPUTER TRANSMISSIONS OR ANY COMBINATION THEREOF, AND LICENSOR DOES NOT GUARANTEE CONTINUOUS, UNINTERRUPTED OR SECURE ACCESS TO THE SOFTWARE. OTHER THAN FOR THE EXPRESS WARRANTIES MADE IN THIS AGREEMENT, LICENSOR MAKES NO WARRANTIES IN CONNECTION WITH THE SOFTWARE, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, OR ANY WARRANTIES REGARDING THE SECURITY, RELIABILITY, ACCURACY, TIMELINESS, OR PERFORMANCE OF THE SOFTWARE, AND ALL SUCH WARRANTIES ARE HEREBY DISCLAIMED. CUSTOMER AGREES THAT CUSTOMER IS SOLELY RESPONSIBLE FOR ALL DAMAGES TO ITS COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE INSTALLATION OR USE OF THE SOFTWARE INCLUDING ANY THIRD PARTY SOFTWARE INCORPORATED IN OR USED WITH THE SOFTWARE.
9. LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL LICENSOR OR ANY OF ITS SHAREHOLDERS, DIRECTORS, OFFICERS, LICENSORS, AGENTS, EMPLOYEES, CONSULTANTS OR REPRESENTATIVES (COLLECTIVELY, THE "LICENSOR PARTIES") BE LIABLE FOR LOST PROFITS OR FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST BUSINESS, LOST SAVINGS, LOST BUSINESS INFORMATION AND OTHER DATA, OR LOST OR ANTICIPATED PROFITS) ARISING OUT OF OR RELATED TO THE USE OF OR THE INABILITY TO USE THE SOFTWARE OR ANY OTHER CAUSE, AND WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), MISREPRESENTATION, STRICT LIABILITY, OR OTHERWISE, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, THE ENTIRE LIABILITY OF THE LICENSOR PARTIES, AND CUSTOMER’S EXCLUSIVE REMEDY FOR ANY DAMAGES RESULTING FROM CUSTOMER’S AND/OR AN END USER'S USE OF THE SOFTWARE, IN ANY CIRCUMSTANCE IS LIMITED TO THE LESSER OF (I) THE AGGREGATE FEES RECEIVED BY LICENSOR FROM CUSTOMER WHICH ARE APPLICABLE TO THE SIX (6) MONTHS PERIOD IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY, OR (II) FIVE THOUSAND DOLLARS ($5,000). THIS LIMITATION OF LIABILITY PROVISION IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE, NOTWITHSTANDING A FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY, AND TO THE FULLEST EXTENT PERMITTED BY LAW. SOME OF THE ABOVE LIMITATIONS IN SECTION 8 HEREOF OR IN THIS SECTION 9 MAY NOT APPLY TO CUSTOMER, AS SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES.
10. Indemnification. Customer shall defend, indemnify and hold Licensor and each of the other Licensor Parties harmless from all claims, demands, actions, suits and judgments (“Claims”) and from all resulting costs, losses, liability, expenses and damages (actual and consequential, direct and indirect) of every kind and nature, including without limitation reasonable attorneys’ fees and disbursements (“Costs”), suffered or incurred by Licensor or any such other of the Licensor Parties which arises from or is related to any breach by Customer or any End User of any representation, warranty or covenant set forth in this Agreement or the failure to fulfill any obligation under this Agreement, (b) the negligence or misconduct of Customer or any End User, or (c) the violation of any law or regulation by Customer or any End User. Licensor shall defend, indemnify and hold Customer harmless from all Claims and from all resulting Costs, suffered or incurred by Customer which arise from (i) any breach by Licensor of any obligation or covenant set forth in this Agreement by Licensor not caused by the misuse of the Software by Customer or any End User, (ii) the negligence or misconduct of Licensor, or (iii) the violation of any law or regulation by Licensor. The indemnified party hereunder shall give the indemnifying party prompt written notice of any Claim covered by this Section 10, and the indemnifying party shall have the right and duty to assume the control of the defense thereof and be given a reasonable opportunity to defend and/or settle the Claim at its own expense and with counsel of its own selection. The indemnified party shall cooperate with and provide reasonable assistance to the indemnifying party, and no settlement or other resolution may be made by the indemnifying party without the prior written consent of the indemnified party, which consent shall not be unreasonably withheld. The indemnification obligations of Licensor set forth in this Section 10 and the remedies recited in Section 7 hereof represent Customer's only remedies for a violation by Licensor of a third party’s intellectual property rights.
11. Security. Licensor takes steps consistent with commercially reasonable industry standards to secure personally identifiable information ("PII") collected from Customer or directly from End Users from loss, misuse, unauthorized access and destruction. However, Customer acknowledges that despite Licensor's efforts to protect PII used in connection with the Software (which is received from Customer or End Users) or otherwise, Licensor cannot and does not guarantee and that such PII will not be lost, disclosed or accessed by accidental circumstances or unauthorized acts.
12. Confidentiality. Each party acknowledges that during the course of the Term, confidential information concerning its business, procedures, plans, and other information that is confidential or proprietary to such party (“Confidential Information”) may be disclosed to the other party for the sole purpose of enabling the other party to fulfill its obligations hereunder. Except as provided for in this Agreement or required by law, during the Term and thereafter each party shall not make any disclosure of the Confidential Information of the other party to anyone other than its employees, consultants, or other third parties working on its behalf who have a need to know in connection with this Agreement and who have signed confidentiality agreements containing terms no less restrictive than the terms set forth in this Section 12. Notwithstanding the foregoing, Confidential Information may be disclosed by the receiving party if such disclosure is required by law, but in such event the receiving party shall notify disclosing party in writing promptly upon receipt of notice of such requirement, so that the disclosing party may determine whether to take appropriate action to protect the Confidential Information. Confidential Information shall not include information that the receiving party can demonstrate (a) has been approved for release by written authorization of the disclosing party, (b) is, as of the time of its disclosure, or thereafter becomes part of the public domain through a source other than the receiving party, (c) is independently developed by the receiving party without use of the Confidential Information, or (d) was known to the receiving party as of the time of its disclosure or properly comes into the possession of the receiving party from a third party which is not under any obligation to maintain the confidentiality of such information.
13. Force Majeure. Notwithstanding anything to the contrary in this Agreement, but without limiting any of the provisions of Section 3 above, the failure or delay of a party to act under this Agreement shall be excused if such failure or delay is a result of Force Majeure Event. For purposes of this Agreement, a “Force Majeure Event” means any event which prevents or delays the performance by a party of any of its obligations under this Agreement in whole or in part, whether by reason of any a) act of God, (b) flood, fire, earthquake, or like natural disaster, (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil disturbance or unrest, civil commotion, acts of public enemies, public agitation, or sabotage, (d) epidemics or pandemics (including without limitation circumstances arising from COVID that make performance under this Agreement commercially impracticable, even if such circumstances might be deemed to be foreseeable), (e) widespread Internet, communications or electrical outages, (vi) actions, embargoes or blockades, (f) acts or orders of government or authorities, rules and regulations, or any delay or abandonment due to any order of any court of applicable jurisdiction, (g) national or regional emergency, (h) strikes, labor stoppages, lock-outs, slowdowns or other industrial disturbances, and (i) any other cause beyond the reasonable control of Licensor. In the event of a delay due to a Force Majeure Event, the affected party shall promptly notify the other, and the parties shall consult for the purpose of taking whatever remedial action is mutually deemed appropriate; provided, that after a period of thirty (30) consecutive days of such delay, either party may terminate this Agreement upon written notice to the other party.
14. Governing Law; Jurisdiction; NO JURY TRIAL TIMELY FILING OF CLAIMS. This Agreement is governed by the laws of Halacha (as interpreted by Orthodox Judaism). Any dispute arising out of or relating to this Agreement, including without limitation regarding any breach hereunder, shall be finally resolved by binding arbitration administered by Beth Din of America in New York,, NY (the “Beth Din”), and judgment upon the award rendered by the Beth Din may be entered in any court having jurisdiction. The award of the Beth Din shall be final and binding on the parties, without a right of appeal. The award shall be accompanied by a statement of the reasons upon which the award is based, and such statement as well as all information concerning such arbitration proceedings including without limitation all evidence and materials submitted by the parties shall be deemed to be Confidential Information hereunder and shall not be made public by either party. The parties to any such proceeding shall each pay one-half of the costs and expenses of such arbitration, and each of them shall separately pay their own attorneys’ fees and expenses and other costs of the arbitration. No arbitration or claim under this Agreement shall be joined to any other arbitration or claim, and no class arbitration proceedings shall be permitted. Notwithstanding the foregoing, either party may apply to any court of competent jurisdiction for injunctive relief or enforcement of this arbitration provision, without breach of this arbitration provision. REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED THE USE OF THE SOFTWARE BY CUSTOMER OR ANY END USER, OR OTHERWISE RELATED TO THIS AGREEMENT, MUST BE FILED BY CUSTOMER PURSUANT TO THIS SECTION 14 WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE OR IS CLAIMED TO HAVE ARISEN.
15. General.
15.1 Entire Agreement; Amendments. These T&C and the Order Form constitute the entire agreement between the parties and supersede all prior negotiations, understandings and agreements between the parties concerning the subject matter hereof, whether written or oral, concerning the subject matter hereof. This Agreement may be modified only in a writing that is signed by each party's duly authorized representative; provided, however that certain understandings of the parties may be modified in writing by the parties through an exchange of emails between the parties which clearly sets forth such new terms, without the need for a physical signature.
15.2 Notices. Any and all notices to be provided by one party hereto to the other shall be in writing and shall be deemed sufficiently given when sent by electronic mail and one of the following: (a) hand delivery, (b) overnight courier, or (c) email communication with acknowledgment, to the other party at the address set forth in the Order Form or such other address as such party may designate by giving thirty (30) days prior written notice. Such notices shall be deemed to have been the following business day if sent by hand delivery, overnight courier, or facsimile transmission with acknowledgment.
15.3 No Assignment. Customer may not assign or transfer its rights and/or obligations under this Agreement in whole or in part without the prior written consent of Licensor, and any such attempted assignment or transfer shall be void ab initio.
15.4 Validity. In the event that any provision of this Agreement is found to be invalid, voidable or unenforceable, the parties agree that unless such provision materially affects the entire intent and purpose of this Agreement , such invalidity, voidability or unenforceability shall affect neither the validity of this Agreement nor the remaining portions herein, and that the provision in question shall be deemed to be replaced with a valid and enforceable provision most closely reflecting the intent and purpose of the original provision. If any provision of this Agreement is held to be invalid by a court or arbitrator having competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect.
15.5 Waivers. No failure or delay of either party in exercising any power or right hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power.
15.6 Survival. The provisions of this Agreement shall survive termination or expiration of this Agreement to the extent necessary to carry out the intentions of the parties, including without limitation Sections 1.2, 3, 4, 5, 7, 8, 9, 10, 12, 14 and 15 of these T&C.
15.7 Counterparts. This Agreement may be executed in one or more counterparts, all of which shall be considered one and the same agreement and shall become effective when one or more of the counterparts have been signed by each of the parties and delivered by the other party, it being understood that all parties need not sign the same counterpart. Facsimile versions of signatures shall be acceptable as originals