Zelus Organization Contract

Article I. Payment Terms
Section 1.01 The Organization shall make timely payment to the Provider based on the Annual Fee listed at https://zelusports.com/feeschedule/ by August 1 of each year.
Section 1.02 The Organization understands and agrees that access to the App will be terminated for all of Organization’s End Users if timely payment is not received at Provider’s sole discretion. The Organization agrees that the Provider shall have no liability to Organization for such termination of access.
Article II. Definitions
Section 2.01 “Organization” means the legal entity identified as the Organization in the first page of this Agreement.
Section 2.02 “Organization Data” means all information, data, or material which is uploaded to, transferred through, posted, processed, entered, collected by, collected on behalf of, or generated using the App by Organization. “Organization Data” includes, for example, all locations and associated weather conditions, all related documents, spreadsheets, text, and reports generated by an End User using the App.
Section 2.03 “End User” means an individual employed by Organization or volunteering on behalf of Organization whom Organization identifies to Provider as a user by providing user identification names for each user to the Provider.
Section 2.04 “Intellectual Property” means, without limitation, all patents, trademarks, trade names, copyrights, trade secrets, and confidential information, further including all ideas, inventions, original works of authorship, mask works, technical data, know how, machines, research, plans, products, processes, services, software, developments, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing material and plans, logos, artwork, trade dress, service marks, business methods, and business information, whether or not protectable by applicable patent, copyright, trade name, trademark, trade secret or other laws.
Section 2.05 “App” means the on-line tools provided by Provider for Organization’s access, including the portal available on the App Store and Google Play, algorithms and processes run on Provider’s server, and any associated software, including any new releases, modifications, updates, improvements or enhancements to the web site. The App includes all computer code, graphics, user interfaces, page headers, images, footers, links, illustrations, graphics, animations, video clip, multimedia clips, text, audiovisual content, and associated training materials.
Section 2.06 “Term” means the term of this Agreement is a 12-month period beginning July 1 and ending June 30, and the term shall automatically renew for successive additional 12-month periods upon the Organization’s payment due by August 1 of each year of the term.
Section 2.07 “Third Party Content” means any information, data, or materials, including without limitation webpages, weather data, documents, spreadsheets, text, images, audiovisual media, designs, patterns, entries, reports, and similar material – regardless of whether in visual, written, audible, or electronic form, which is owned or controlled by third parties that is displayed, included, or made available using the App. Third Party Content may be either (1) internally accessible using the App or (2) externally accessible, for example, by providing a link to such Third Party Content.
Article III. Grant of License
Section 3.01 License to Organization and End Users.
(a) For the Annual Fee set forth above and otherwise subject to the terms and conditions of this Agreement, Provider hereby grants to Organization and its End Users a limited, non-exclusive, non-transferable, non-sublicensable license to access and use, on a software-as-a-service (SaaS) basis only for the Term. Continuing access to the App is contingent upon compliance with the terms and conditions of this Agreement, including annual payment of the Annual Fee.
(b) End Users may download, print and store selected portions of the material on the App under the licenses set forth in Section 3.01(a) provided such End User:
(i) does not copy, reproduce or post any App material (other than Organization Data provided by such End User) publicly, including but not limited to through dissemination on any network computer, or broadcast or redistribution of the material (other than Organization Data provided by such End User) in any media or through any channel; and
(ii) ensures the security and confidentiality of all account logins and passwords assigned to the End User in order to limit access to the assigned End User; and
(iii) does not modify or alter the App material (other than Organization Data provided by such End User); and
(iv) does not delete, obscure or change any copyright, trademark or other proprietary notice or disclaimers contained in the App material (other than Organization Data provided by such End User).
Section 3.02 License to Provider. Organization hereby grants to Provider a perpetual, irrevocable, worldwide, royalty-free, sublicensable, transferable, non-exclusive license to use, reproduce, display, adapt, modify, create derivative works of, translate, or use the Organization Data for any purpose.
Section 3.03 Revisions. Annual Fees set forth above may be revised by Provider on an annual basis.
Section 3.04 End User Agreement. Organization understands and agrees that in order to gain access to and use the App, all End Users must create an account with the Provider and comply with the terms of this Agreement.
Section 3.05 Security. Organization is responsible for ensuring that all End Users maintain security by safeguarding passwords. Further, because of the sensitive and confidential nature of the Organization Data stored by Provider using the App, Organization agrees to inform its End Users that they must prevent unauthorized access to the App, including maintaining security of passwords.
Section 3.06 Liability for End Users. Organization is responsible and liable for any and all acts and omissions of its End Users made in connection with this Agreement. Without limiting the foregoing, Organization agrees to be jointly and severally liable for any and all acts and omissions of its employees, consultants, and independent contractors made in connection with this Agreement.
Section 3.07 End User Access Not Transferable. Unless otherwise agreed in writing, an individual End User’s right to use the App is not transferable to another individual End User. It is a material breach of this Agreement for Organization (or its End Users) to allow unauthorized access to the App.
Article IV. Organization Responsibilities
Section 4.01 Representations and Warranties. Organization, on behalf of its employees, consultants, and independent contractors, represents and warrants that Organization:
(a) has the authority and capacity to enter into this Agreement and to carry out and perform its obligations as set forth herein;
(b) shall be solely responsible for ensuring that its access and use of the App by its End Users does not violate any laws to which Organization is subject or violate or infringe the rights of any third party, including without limitation those involving spamming, privacy, obscenity, or defamation, copyright, trademark, patent, child protective email address registry, FERPA, and export control;
(c) shall not remove any proprietary notices or labels of Provider or third parties with respect to Third Party Content;
(d) shall be solely responsible for the fairness, adequacy, accuracy, completeness, quality, integrity, reliability, truthfulness, and legality of all Organization Data and of the means of acquisition of the Organization Data;
(e) shall provide to Provider such information and data as is reasonably necessary to enable Provider to perform its obligations under this Agreement;
(f) shall use commercially reasonable efforts to prevent unauthorized access to or use of the App, and notify Provider promptly of any such unauthorized access or use;
(g) shall not use the App to store or transmit any unlawful, hateful, infringing, harmful, threatening, abusive, harassing, offensive, libelous, defamatory, slanderous, immoral, pornographic, indecent, obscene, fraudulent, discriminatory, or objectionable or unacceptable material;
(h) shall not use the App to store or transmit viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs;
(i) shall not interfere with or disrupt the integrity or performance of the App;
(j) shall not attempt to gain unauthorized access to the App or its related systems or networks, including any access to the App code;
(k) shall not, except as expressly permitted in this Agreement, permit any third party to access the App by anyone beyond those authorized End Users;
(l) shall not copy, distribute, reproduce, publish, license, create derivate works based on, transfer, rent, lease, sublicense, modify, adapt, translate, reverse engineer, decompile, or disassemble any or a portion of the App;
(m) shall not advertise or solicit funds for goods or services using the App;
(n) shall not, except for Organization’s own internal use, copy, frame, or mirror any part or content of the App.
Section 4.02 Provider Rights. Organization is solely responsible for the Organization Data as part of the App. Provider has the right to monitor the Organization Data but shall have no obligation to do so. Organization agrees that Provider shall not be liable to Organization for any action taken by Provider to remove or restrict access to such Organization Data, nor for any action taken to restrict access to any Organization Data posted in violation of any law, regulation or rights of a third party. Provider reserves the right to take all reasonable actions to remove or restrict access to any such Organization Data, including restriction, suspension or termination of Organization’s access to App and/or deletion of the Organization Data in question.
Section 4.03 Equipment. Organization shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the App, including, without limitation, smartphone, tablet, modems, hardware, server, software, operating system, networking, or web servers (collectively, “Equipment”). Organization shall be responsible for ensuring that such Equipment is compatible with the App and complies with all configurations and specifications provided by Provider, which may be amended from time to time.
Article V. Proprietary Rights and Organization Content
Section 5.01 Provider Ownership of IP in the App. Organization acknowledges that Provider shall own all right, title, and interest to the App and all Intellectual Property therein. Without limiting the foregoing, the software, workflow processes/protocols, indicator scoring guides, designs, know-how and other technologies provided by Provider as part of it allowing access to the App are the proprietary property of Provider and its licensors, and all right, title and interest in and to such items, including all associated intellectual property rights, remain only with Provider and its licensors. Provider reserves all rights unless expressly granted in this Agreement.
Section 5.02 Organization Data. All Organization Data is and will be, as among Provider, and End User, and Organization, the property of Organization or End User. The Organization Data is licensed to Provider in accordance with Section 3.01(b)(iv).
Section 5.03 Feedback. Provider has and will have a perpetual, irrevocable, worldwide, royalty-free, sub-licensable, transferable, non-exclusive license to use or incorporate into the App, without any obligation to compensate Organization in any way, any comments, suggestions, enhancement requests, recommendations or other feedback provided by Organization, its End Users, and any other Organization employees or agents relating to the App.
Section 5.04 Disclaimer of Third Party Content. Provider makes no representations or warranties, and expressly disclaims all implied warranties and conditions with respect to all Third Party Content, and will not be liable to Organization or any End User for any damage, cost, loss, expense or liability suffered or incurred by Organization as a result of its use or inability to use any Third Party Content.
Section 5.05 Access to Third Party Content. The App features and functionalities that interoperate with Third Party Content are entirely dependent upon the continuing availability of such Third Party Content and any Intellectual Property related thereto. If a third party ceases to make available any such Third Party Content on which any aspect of the App depends, then Provider may alter or cease providing such features or functionality without prior notice to Organization or any End User. Similarly, Provider will alter or cease providing features or functionality if required to do so by applicable laws. In addition, Third Party Content that may be accessed from, displayed on, or linked to from the App are not available in all languages or in all countries or regions. Provider makes no representation that the App or such Third Party Content is appropriate or available for use in any particular location. To the extent that any End User chooses to use or access the App and/or Third Party Content, each End User does so as his/her own initiative and shall be solely responsible for compliance with any applicable laws, including but not limited to applicable local laws. Provider reserves the right to change, suspend, remove, or disable access to any Third Party Content at any time without notice. In no event will Provider be liable for the removal of or disabling of access to any such Third Party Content. Provider may also impose limits on the use of or access to certain Third Party Content, in any case and without notice or liability.
Article VI. Confidential Information
Section 6.01 Confidentiality
(a) Organization understands and acknowledges that Organization Data is not confidential as between Organization and Provider. Organization represents and warrants that it is legally authorized to enter the Organization Data using the App and that Organization has gained any and all necessary releases and authorizations pertaining to the Organization Data, including but not limited to parental releases for student information or images and compliance with the Family Educational Rights and Privacy Act (FERPA). Organization acknowledges that by entering data using the App, no confidential, fiduciary, contractually implied or other relationship is created between Organization and Provider.
(b) In accordance with the license granted in Section 3.02 for all Organization Data used for reporting, research, academic, or educational purposes, including any academic publications, Provider shall remove any personally identifying information in the Organization Data.
(c) Organization understands and agrees that Provider may store the Organization Data indefinitely and may also disclose the same to third parties, without notice to Organization or the End User if required by law or in the good faith belief that such disclosure is reasonably necessary to (a) enforce or comply with this Agreement or (b) respond to claims that the Organization Data violates the rights of any third party.
Article VII. Disclaimer of Warranties
Section 7.01 No Warranty. Notwithstanding anything else contained in this Agreement, Provider does not represent or warrant that:
(a) the features or functionality contained in the App (including the App) will meet the requirements of Organization or any of its End Users;
(b) any particular results can or will be achieved from the use of the App;
(c) any educational, training, evaluation, or professional development programs contained in the App are suitable for any purpose;
(d) the operation or availability of the App will be uninterrupted or error-free; or
(e) any requirements of any civil or governmental authority to which Organization is subject shall be met.
Section 7.02 No Warranty. The App (and any third party content) is provided “as is” and “as available” without warranties of any kind, either express or implied, including but not limited to warranties of title or implied warranties of merchantability, fitness for a particular purpose or use, or warranties of non-infringement. To the fullest extent permissible by law, Provider makes no warranties and shall not be liable for the user of the App, including without limitation any interruption or error in the app under any circumstances.
Article VIII. Limitations of Liabilities and Remedies, and Indemnities
Section 8.01 Limitation of Liabilities. IN NO EVENT SHALL PROVIDER ITS CURRENT OR FORMER MEMBERS, OFFICERS, AGENTS, EMPLOYEES, AND AFFILIATES BE LIABLE FOR ANY SPECIAL, EXEMPLARY, INDIRECT, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT (INCLUDING FUNDAMENTAL BREACH), STRICT LIABILITY, OR IN TORT (INCLUDING NEGLIGENCE OR OTHERWISE), AND INCLUDING ECONOMIC DAMAGE OR INJURY TO PROPERTY AND LOST PROFITS, ATTORNEYS’ AND EXPERTS’ FEES, REGARDLESS OF WHETHER PROVIDER MAY BE ADVISED, MAY HAVE OTHER REASON TO KNOW, OR IN FACT MAY KNOW OF THE POSSIBILITY, INCLUDING BUT NOT LIMITED TO ALL CLAIMS ARISING OUT OF THIS AGREEMENT, ALL USE OF THE APP, OR WITH RESPECT TO THE INSTALLATION, IMPLEMENTATION, CUSTOMIZATION, USE, INABILITY TO USE, OPERATION OR SUPPORT OF THE APP. Without limiting the foregoing, Organization acknowledges that it is solely responsible and liable for any results obtained from the use of the App and that Provider has no liability in relation to what Organization chooses to do with the Organization Data obtained from the use of the App.
Section 8.02 Remedies: Aggregate Liability. In no event will the total aggregate liability of Provider to Organization for any and all claims relating to this Agreement, based upon any legal theory, including but not limited to breach of warranty, breach of contract (including fundamental breach), negligence, other tort claims or strict liability exceed the last annual fee paid prior to the first act or omission giving rise to the claim.
Section 8.03 Indemnity. To the extent permitted by applicable law, Organization will defend, indemnify, and hold harmless Provider, its current or former, curators, agents, employees, and affiliates from any and all claims, actions or demands, including, without limitation, reasonable legal fees, accounting fees, and expert fees, arising out of, related to, or in conjunction with (a) the use of the App by Organization and its End Users, directors, agents, employees and representatives, including but not limited to those based on any fraudulent, invalid, duplicate, incomplete, unauthorized, or misleading information submitted or reported, (b) any unauthorized use, access or distribution of the App caused, in whole, or in part, by Organization or its End Users; (c) any breach of any term, condition, obligation, covenant, representation, or warranty by Organization or its End Users, (d) any violation of any law or regulation by Organization or its End Users (including but not limited to any rights of privacy), (e) the infringement, misappropriation or violation by Organization or its End Users of any patent, copyright, trademark, trade secret or other proprietary or privacy right of a third party, or (f) the exercise or any rights granted to Organization under this Agreement.
Article IX. Term and Termination
Section 9.01 Term. The term of this Agreement is set forth in the second paragraph on page one of this Agreement.
Section 9.02 Provider’s Right to Terminate. Provider may, in its sole discretion, immediately terminate this Agreement, suspend Organization’s ability to access the App (in whole or in part), or suspend the delivery of the App (in whole or in part) if Organization or its End User commits a breach of the terms of this Agreement or any other agreement between Organization and Provider, and such breach has not been rectified within twenty (20) days of receipt of notice by Organization requiring that Organization remedy such breach.
Section 9.03 No Waiver. Notwithstanding termination of this Agreement for any reason, such termination will not relieve either party from any obligation or liability that has accrued under this Agreement to the date thereof, or from the performance of its obligations under this Agreement to the date thereof.
Section 9.04 Survival. All provisions of this Agreement that would reasonably be expected to survive the termination or expiration of this Agreement shall do so, including Section 3.01(b)(iv) (License to Provider), Section 4.01 (Representations and Warranties), Section 5.01 (Provider Ownership of the App), Section 5.03 (Feedback), Section 5.04 (Disclaimer of Third Party Content), Section 5.05 (Access to Third Party Content), Article VI (Confidential Information), Article VII (Disclaimer of Warranties), Article VIII (Limitation of Liabilities, Remedies, and Indemnities), Article IX (Term and Termination) and Article X (Miscellaneous).
Section 9.05 Organization Data Portability Upon Termination. Upon termination of this Agreement, Provider will make only the raw classroom observations, student surveys, professional development plans, unit of instructions, specialist organizers, and principal evaluation measures contained in the Organization Data available to Organization for export or download solely in a Microsoft Excel (.XLS) or Common Separated Values (.CSV) file format through August 31. For clarity, the Provider will not provide any customizable reports, or written components of any organizer instruments after termination. After August 31, Provider will have no obligation to maintain or provide any Organization Data to Organization. The Provider, may in its discretion, extend the time period for accessing the foregoing Organization Data for an additional fee.
Article X. Miscellaneous
Section 10.01 Headings. The headings of the paragraphs of this Agreement are inserted for convenience only and shall not constitute a part hereof.
Section 10.02 Polls/Feedback. Provider, may, from time to time (but no more than quarterly), conduct polls of End Users to ascertain and measure the use and enjoyment of the App by End Users. Organization agrees to encourage its End Users to cooperate with Provider by providing the information requested by Provider in order for Provider to improve and expand the App.
Section 10.03 Publicity. Organization agrees that Provider will have the right to use the name and logos of Organization in its Provider’s promotional materials (including, without limitation, on any web sites owned or controlled by Provider), and to indicate that Organization is a subscriber of the App.
Section 10.04 Trademarks. “Zelusports” is a trademark, service mark, and/or trade names of the Provider. All other company names, brand names, trademarks and logos are the property of their respective owners. Nothing contained on the App or this Agreement will be construed as granting any license or right to use any trademarks (whether by implication or otherwise), including “Zelusports” except with the express written permission of Provider or such other party that may be the owner thereof.
Section 10.05 Force Majeure. Provider shall not be liable for any delay or failure to perform its obligations under this Agreement resulting from any cause beyond its reasonable control, including but not limited to fires, explosions, earthquakes, floods, strikes, work stoppages or slow-downs or other industrial disputes, accidents, riots or civil disturbances, acts of civil or military authorities, delays by carriers, suppliers or materials shortages, and interruption or failure of telecommunication of digital transmission links or internet slowdowns or failures. Notwithstanding the foregoing, each party acknowledges and agrees that the foregoing does not operate so as to excuse it from prompt payment of any and all sums due by it to the other in accordance with terms and conditions of this Agreement.
Section 10.06 No Waiver. Neither party’s failure to enforce strict performance of any provision of this Agreement will be construed as a waiver of any provision or right.
Section 10.07 Relationship of the Parties. This Agreement does not create a partnership, joint venture, agency, franchise, and fiduciary or employment relationship between the parties.
Section 10.08 Assignment. This Agreement is binding upon and shall inure to the benefit of Provider, its successors and assigns. Provider may assign this Agreement in connection with a merger or sale of substantially all the assets of the App as a business-like unit within Provider. This Agreement shall not be transferred or assigned, in whole or in part, by Organization without the prior written consent of Provider, and any attempted transfer or assignment without such consent shall be void.
Section 10.09 Further Assurances. Provider and Organization, from time to time, shall promptly and duly execute and deliver all documents and take such action as may be reasonably necessary or desirable in order to effectively carry out the intent and purposes of this Agreement, to protect the interests of the parties and to establish, protect and perfect the rights, remedies and interests granted or intended to be granted under this Agreement.
Section 10.10 No reliance. Organization hereby acknowledges and agrees that in entering into this Agreement it has not relied on any warranty, representation or undertaking except as expressly set out in this Agreement.
Section 10.11 Injunctive Relief. Organization acknowledges that Provider will be irreparably harmed by any breach of this Agreement by the unauthorized use of the App and, further, that monetary damages may not be a sufficient remedy for such harm. Organization agrees that Provider shall be entitled, without waiving any other rights or remedies and without further demonstration of irreparable harm or the inadequacy of monetary damages, to obtain injunctive or other equitable relief in the event of any breach of this Agreement by Organization or by Organization’s unauthorized use of the App.
Section 10.12 Severability. If any term or provision of this Agreement shall be found by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable, the same shall not affect the other terms or provisions hereof or the whole of this Agreement, but such term or provision shall be deemed modified to the extent necessary in the court’s opinion to render such term or provision enforceable, and the rights and obligations of the parties shall be construed and enforced accordingly, preserving to the fullest permissible extent the intent and agreement of the parties herein set forth.
Section 10.13 No Offset. Organization will have no right to set-off or deduct any amount from any subscription fees owing to Provider under this Agreement or any training fees otherwise due to Provider.
Section 10.14 Entire Agreement. This Agreement, together with the other documents incorporated into this Agreement by reference, constitutes the entire agreement between the parties with regard to the matters dealt with in this Agreement, and supersedes all prior representation, negotiations, understandings and agreements, oral or written, between the parties, with respect thereto.