Branching Minds Master Subscription Agreement

This Master Subscription Agreement (“Agreement”) is made and entered into by and between Branching Minds, Inc. (“Company”) a Delaware corporation, and you (“Customer”).  Company offers access to its system, which assists Customer in automating and improving its student intervention process (the “Application”). The Application is offered as a software-as-a-service (SaaS), which is centrally hosted by Company and accessed by the Customer remotely via the web.

1.    Services. During the term of this agreement, provided timely payment of the applicable fees, Company shall (i) provide Customer access to (A) Application and (B) certain other subscription services, including, but not limited, to roster data integration software (collectively, “SaaS Services”), and (ii) perform any professional services, including, but not limited to training and other consulting services (Professional Services), listed on any applicable Proposal(s). SaaS Services and Professional Services are referred to herein as the “Services”.  Customer authorizes Company to provide the Services and agrees to pay the associated fees as set forth in applicable Proposal(s) as the parties may agree to from time to time.

2.    SaaS Subscriptions.  Company will provide to Customer access to the Application and certain other SaaS Services listed on any Proposal(s) for the subscription term indicated therein. Company regularly updates the SaaS Services and reserves the right to add and/or substitute functionally equivalent features from time to time at its sole discretion. Company will provide Customer online access to and use of the SaaS Services via the Internet by use of a Customer -provided browser.  

3.    Term and Termination. Unless otherwise agreed upon in the applicable Proposal, this Agreement shall be effective for the period of time indicated on the applicable Proposal under “Contract Start Date” ("Initial Term") and shall automatically renew for successive one year terms ("Renewal Terms") at the fee then in effect for the Services selected by the Customer, unless terminated as set forth herein.  Either party may terminate this Agreement, for any reason, with at least ninety (60) days’ prior written notice to the other party, with such termination to be effective at the end of the Initial Term or any Renewal Term as applicable.

4.    Billing and Payment.  Fees are due to Company no later than 30 days following the Contract Start Date listed on the applicable Proposal. Interest accrues on past due balances at the lesser of a 1½% per month or the highest rate allowed by law.  If Customer fails to make timely payments of any undisputed fees, Customer shall be in material breach of the Agreement.  In the event of such payment breach, Company will be entitled to suspend any or all Services upon 10 days written notice to Customer and/or to modify the payment terms, and to request full payment before any additional performance is rendered by Company. Payment of fees is under no circumstances subject or conditioned by the delivery of future products or functionality not otherwise set forth in the Agreement. Company will submit an invoice for the subsequent term’s Services, plus the applicable annual fee increase (if any), to Customer at least sixty (60) days before the expiration of the Initial Term or any Renewal Term.  If an undisputed amount owed by Customer for the Initial Term, or any subsequent Renewal Terms becomes more than sixty (60) days past due, Customer’s access to the Application may be interrupted until payment is received.

5.    Taxes.  Unless expressly provided otherwise, the prices in the Proposal do not include taxes. Customer agrees to pay any taxes, other than those based on Company’s net income, arising out of the Agreement.  If Customer is tax-exempt, Customer agrees to send Company a copy of its tax-exempt certificate upon execution of this Agreement. Customer agrees to indemnify Company from any liability or expense incurred by Company as a result of Customer’s failure or delay in paying taxes due.

6.    License Grant.  Company grants to Customer a limited, non-transferable, non-exclusive license to access and use the Services provided by Company only as authorized in this Agreement.

7.    Customer Data.  Customer shall own all right, title and interest in and to Customer data.  However, Customer hereby grants to Company a perpetual, worldwide, royalty-free license to use all Customer data as necessary solely for the purposes of (i) providing the Services to Customer and its Authorized Users pursuant to this Agreement and (ii) solely on an aggregated and de-identified basis as part of Company’s overall statistics for marketing and analytical purposes.

8.    Customer Responsibilities

a.    Customer is solely responsible for (i) complying with this Agreement and the Branching Minds Terms of Service, (ii) submitting accurate, quality and legal data to the Application,  (iii) using  commercially reasonable efforts to prevent unauthorized access to or use of Services, (iv) notifying the Company promptly of any such unauthorized access or use, and (v) using the Services only in accordance with applicable laws and government regulations. Company may terminate the Agreement as contemplated in Section 3 if Customer fails to adhere to the foregoing acceptable use standards.

b.    Customer is solely responsible for obtaining and maintaining at its own expense all equipment needed to access the Services. 

9.    Protection of Customer Data.  Company will maintain administrative, physical, and technical safeguards (including the use of encryption and firewalls) for protection of the security, confidentiality and integrity of Customer’s data, as described in the Branching Minds Privacy Policy. Notwithstanding the foregoing, Customer acknowledges that the Internet is an open system and Company cannot and does not warrant or guarantee that third parties will not intercept Customer data.

10.    Warranty and Disclaimer.  Company warrants that the services will be performed in all material respects in accordance with the services policies referenced in the Proposal.

COMPANY DOES NOT GUARANTEE THAT THE SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED, OR THAT COMPANY WILL CORRECT ALL SERVICES ERRORS. CUSTOMER ACKNOWLEDGES THAT COMPANY DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. COMPANY IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGES RESULTING FROM SUCH PROBLEMS.
 
THE WARRANTIES SET FORTH IN THIS SECTION ARE EXCLUSIVE AND EXPRESSLY IN LIEU OF ALL OTHER EXPRESS OR IMPLIED WARRANTIES. COMPANY HEREBY EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR IMPLIED WARRANTIES ARISING FROM A COURSE OF DEALING OR COURSE OF PERFORMANCE.

11.    Limitation of Liability.  WITH THE EXCEPTION OF THE PARTIES’ INDEMNIFICATION OBLIGATIONS HEREUNDER, NEITHER PARTY'S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL EXCEED THE AMOUNT PAID BY CUSTOMER HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT, PROVIDED THAT IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY. HOWEVER, THE ABOVE LIMITATIONS WILL NOT LIMIT CUSTOMER'S PAYMENT OBLIGATIONS UNDER SECTION 1 (SERVICES).

12.    Hosting Provider and Limitation of Liability

a.    The Software will be hosted by an authorized subcontractor (the "Hosting Provider") that has been engaged by Company and shall only be accessed by Customer using the Customer's computers.  The Hosting Provider shall have access to Customer data solely for the purpose of enabling Company to provide the Services and will not access or use Customer data for any other purposes.

b.    The hosting provider is an independent third party not controlled by Company. Accordingly, IN NO EVENT WILL COMPANY BE LIABLE FOR ANY DIRECT, GENERAL, SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING BUT NOT LIMITED TO LOSS OR DAMAGE TO DATA, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF INFORMATION OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE, DUE TO PROBLEMS (INCLUDING BUT NOT LIMITED TO ERRORS, MALFUNCTIONS) ASSOCIATED WITH THE FUNCTIONS OF SERVERS MAINTAINED BY THE HOSTING PROVIDER, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

13.    Confidentiality.

a.    “Confidential Information” is the confidential business information disclosed by the "Disclosing Party" to the "Receiving Party" whether orally or in writing, that is designated as confidential or that should reasonably be understood to be confidential given the nature of the information and the circumstances of disclosure.  Company and Customer are both Disclosing Parties (when disclosing its confidential information) and Receiving Parties (when receiving the other's information). Confidential Information may take the form (as examples) of the Application, information regarding this Agreement (including pricing information) and any documentation provided to Customer by Company. Confidential Information does not include any information that is generally publicly known at the time of disclosure, or that the Receiving Party legally learns independently, or independently develops without breaching this Agreement.

b.    Except to fulfill the purposes of this Agreement:

i.    The Receiving Party will not use the Disclosing Party's Confidential Information, and will maintain the confidentiality of the Disclosing Party's Confidential Information at least to the degree as the Party maintains the confidentiality of her/its own such information.

ii.    The Receiving Party may disclose Confidential Information to professionals (such as certified public accountants and attorneys) who are obligated to keep it confidential, and may disclose it when required by subpoena or otherwise by law.

c.    Remedies. Each party acknowledges that the disclosure of any Confidential Information, or any information which at law or equity ought to remain confidential, shall immediately give rise to continuing irreparable injury to the other party inadequately compensable in damages at law. Each party shall be entitled to obtain immediate injunctive and other equitable relief against the breach or threatened breach of any of the foregoing confidentiality undertakings (without the necessity to post a bond or to demonstrate the inadequacy of legal remedies), in addition to any other remedies which may be available. Customer hereby consents to the obtaining of such injunctive relief.

14.    FERPA.  Company acknowledges that personally identifiable information from an education record of a student will be disclosed to Company in connection with the Services, and that such disclosure is made by Customer to Company under the exception granted by Section 99.31(a)(l)(i)(B) of the Family Educational Rights and Privacy Act ("FERPA") whereby Company is considered to be a "school official" for purposes of FERPA. In connection therewith, Company hereby agrees to comply, at all times, with Section 99.33(a) of FERPA.

15.    Indemnification.

a.    Indemnity by Company.  Company shall defend, indemnify and hold Customer harmless from and against any action, suit, or proceeding brought against Customer alleging that the Application infringes any United States patent, trademark or copyright, and Company shall indemnify and hold Customer, its officers, directors and employees, harmless against damages finally awarded against Customer, costs, expenses, and losses (including, without limitation, court costs and reasonable attorneys' fees and expenses) in connection with any such action, suit or proceeding; provided, that (i) Customer notifies Company promptly in writing of the claim in question, (ii) Company has sole control of the defense and all related settlement negotiations, and (iii) Customer provides Company with all commercially reasonable assistance, information and authority to perform the above at Company' expense. In the event that Customer's use of the Services is enjoined by a court of competent authority, Company shall, at its sole option and at its expense, either (I) procure for Customer the right to continue accessing and using of the Services or (II) modify the Services to avoid infringement without material impairment of their functionality; provided, however, that if neither of the foregoing remedies can be obtained upon commercially reasonable terms, this Agreement shall terminate, and the sole liability of Company shall be to refund to Customer the pro rata portion of the fee for the unused portion of the Term. THIS SECTION STATES COMPANY’ SOLE LIABILITY HEREUNDER WITH RESPECT TO INFRINGEMENT OF ANY INTELLECTUAL PROPERTY AND PROPRIETARY RIGHTS.

b.    Indemnity by Customer. Customer shall defend, indemnify and hold Company, its affiliates, and the respective members, managers, employees, or agents thereof, harmless from and against every liability, loss, claim, demand, proceeding, judgment, damage, expense, amount paid in settlement, costs and attorney's fees arising out of, relating to, or in any way connected with: (i) negligence, dishonest acts, willful misconduct, fraud, or unlawful conduct of Customer, its employees, subcontractors and agents in connection with the performance of its obligations pursuant to this Agreement; (ii) the use or operation of the Services by Customer, its employees, subcontractors and agents; (iii) the Customer's breach of its confidentiality obligations under this Agreement; (iv) the breach of any covenant specified in this Agreement by Customer, its employees, subcontractors and agents; (v) Customer's breach of applicable laws, rules, and regulations in the performance of its obligations under this Agreement or its use of the Services and any other services or materials provided under this Agreement; (vi) damages to property, including loss of use thereof and downtime resulting from Customer's negligence or willful misconduct in connection with the performance of its obligations pursuant to this Agreement; (vii) bodily injury, including death, resulting from Customer's use of information derived from the Services under this Agreement; and (viii) claims by any other party (including, without limitation, parents of children whose personal information is contained in the Customer's data) arising from or related to (A) the breach by Customer, its employees, subcontractors or agents of the data integrity, data security or privacy rights under this Agreement or under any applicable law including, but not limited to FERPA and NYS Education Law §2-d, or (B) the unauthorized disclosure of information under this Agreement or the treatment of such children by Customer, its employees, subcontractors and agents.

16.    General.

a.    Amendments. This Agreement can only be modified by a written agreement duly signed by persons authorized to sign an Agreement on behalf of Customer and Company.

b.    Unenforceability. If any provision of this Agreement shall be held to be invalid, illegal, or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired.

c.    Non-Assignability. Neither this Agreement nor the rights or obligations hereunder may be assigned by either party, by operation of law or otherwise, without the prior written consent of the other party, which consent shall not be unreasonably withheld, provided however that, unless prohibited by applicable law, either party may freely assign this Agreement (i) in connection with a merger, corporate reorganization, or sale of all or substantially all of its assets, stock, or securities, or change in control of the party, or (ii) to any entity which is a successor to the assets, stock, or the business of that party.

d.    Governing Laws. This Agreement will be governed and construed by the laws of the State of New York and the copyright laws of the United States, without giving effect to principles of conflicts of laws. Any and all disputes, demands or other claims involving the parties arising under, or related to, this Agreement shall be resolved in the federal or state courts located in New York County, State of New York, which shall be the sole and exclusive forums for resolution of any and all such disputes, demands or claims of any kind.

e.    Force Majeure. Except for payment of fees, non-performance by either party will  be excused to the extent that performance is rendered impossible by strike, fire, flood, governmental acts or restrictions, failure of suppliers, or any other reason where failure to perform is beyond the control and not caused by the negligence of the non-performing party.

f.    Survival. The provisions of Sections 6,7,12,13, and 15 shall survive the termination or expiration of this Agreement.

g.    No Third Party Beneficiaries. The terms and provisions of this Agreement are intended solely for the benefit of each party and their respective successors or permitted assigns, and will not confer third-party beneficiary rights upon any other person or entity.

h.    Disputes. Any and all disputes (with the exception of copyright claims) arising out of, under, or in connection with this Agreement (including without limitation, their validity, interpretation, performance, or breach) should be adjudicated exclusively in the federal or state courts located in (or having jurisdiction over) New York County, New York. Copyright claims shall be adjudicated exclusively in a federal court located in (or having jurisdiction over) New York County, New York. Customer expressly consents to the jurisdiction of such courts. Customer expressly waives any claim of forum non conveniens. Customer agrees to reimburse Company for its legal fees and expenses of instituting (or defending) a lawsuit against (or by) Customer for non-payment of amounts due to Company hereunder.