Master Services Agreement

Last Updated 04-October-2023

This Agreement governs your purchase of a license to and use of our services. The parties agree as follows:

BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING A SERVICE ORDER THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND YOUR AFFILIATES TO THESE TERMS AND CONDITIONS. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICE.

CERTAIN SERVICES SUBSCRIBED HEREUNDER MAY REQUIRE ADDITIONAL OR SUPPLEMENTAL TERMS AS INDICATED IN THE RELEVANT SERVICE ORDER. YOU ACKNOWLEDGE THAT TO THE EXTENT APPLICABLE, YOUR ACCESS AND USE OF SUCH SERVICES IS CONTINGENT UPON YOUR ACCEPTANCE OF THOSE SUPPLEMENTAL TERMS.  

The parties agree as follows:

1. DEFINITIONS

1.1“Affiliate” means any entity that, directly or indirectly, controls, is controlled by or is under common control with such entity (but only for so long as such control exists), where “control” means the ownership of more than 50% of the outstanding shares or securities representing the right to vote in the election of directors or other managing authority of such entity.


1.2 “Agreement” means this Master Services Agreement collectively with all Service Orders you enter into with us.


1.3 “Authorized User” means your employee, your Affiliate’s employee, or a Permitted Third Party for whom you create or issue a unique user name and password under your account. 


1.4 “Client Software” means software components (if any depending on Service purchased) to be installed on your, your Affiliates’, or your Authorized Users’ computer systems or mobile devices as part of the Services. 


1.5 “Documentation” means our user documentation, in all forms, relating to the Service (e.g., user manuals, on-line help files, etc.).


1.6 “Order Term” means the term specified in a Service Order.


1.7 “Permitted Third Party” means either (a) a student of your educational institution or a parent or legal guardian of such student or (b) an employee or contractor of an entity under contract with you or your Affiliates who needs to access the Service to perform its obligations to you or your Affiliates and who is not our competitor.


1.8 “Professional Services” means the professional services specified in a Service Order, potentially including but not limited to implementation services, consulting, and training services.


1.9 “Regulated Data” means personal data, personal information, non-public personal information, personally identifiable information, health information, cardholder data, or any similarly regulated data (e.g., “Sensitive Personal Data,” “Protected Health Information,” etc.) as defined under relevant privacy or data protection laws, regulations or industry standards, including applicable state law, the US Children’s Online Privacy Protection Act (“COPPA”), Family Educational Rights and Privacy Act (“FERPA”), California Education Code, California Consumer Privacy Act (“CCPA”), European Union General Data Protection Regulation (Regulation (EU) 2016/679, as amended), Gramm-Leach-Bliley Act, Health Insurance Portability and Accountability Act of 1996, and Payment Card Industry (PCI) Data Security Standard (DSS), in each foregoing case, as amended and including all regulations promulgated in connection thereto. Without limitation, “Regulated Data” includes: student records, personal financial and financial account information, credit card numbers, sexual orientation, personal medical or health information, personal information of children under 13, personal education records, and social security, national identity, national insurance, and similar personal identifiers.
“Residuals” means any information of general applicability to the Service or any other information in intangible form retained in the memory of persons we employ or retain who have performed Professional Services or Technical Support Services on your behalf, including without limitation, any ideas, concepts, know-how, and techniques contained therein or derived therefrom.
“Service” (or “Services”) means the service(s) identified in the Service Order, as we may modify such service(s) from time to time in our discretion, including our proprietary software platform  and associated systems (including integrated data sources and communications channels) used to deliver such service(s) and any associated Client Software provided by us to you.


1.10 “Service Order” (also referred to as “Order Form”) means an ordering document entered into between you and us specifying the services to be provided thereunder, including any addenda and supplements thereto. A Service Order may also set forth additional terms and conditions and Scope Limitations (as defined in Section 3.1 below) applicable to the Service subscribed thereunder. A Statement of Work or online registration or sign-up page that makes references to and incorporates these Terms may also constitute a Service Order. 


1.11 “Subscriber Data” means any data uploaded into the Service by you or an Authorized User or data otherwise provided by you or your Authorized Users for processing by the Service in accordance with this Agreement, as well as derivative data created therefrom. For the avoidance of doubt, Subscriber Data does not include Usage Data.


1.13 “Subscription Fees” means the fees for the Service specified in the Service Order. 

1.14 “Technical Support Services” means our then-current technical support services offering for the Services, as may be further described in a Service Order.


1.15 “Updates” means maintenance releases, error corrections, additions, changes, modifications, extensions, new versions and new release of software or firmware, excluding new products, services, features or functionalities we elect to sell separately.


1.16 “Usage Data” means data generated by the use of the Services, such as performance metrics, log data, or usage analytics or insights.


1.17 “We” or “Us” or “Our” means SchoolStatus, LLC, a Mississippi corporation, or its Affiliate if so specified in a Service Order or invoice.


1.18 “You” or “Your” means the customer named on the Service Order, the person indicating acceptance of this Agreement, or if the person indicating acceptance of this Agreement is acting on behalf of a company or other legal entity, such company or legal entity.

2. BETA VERSIONS


2.1 Beta Versions. From time to time, we may make available for you to try, at your sole discretion, certain functionality related to the Service, which is clearly designated as beta, pilot, limited release, non-production, or by a similar description (each, a “Beta Version”). Beta Versions are intended for evaluation purposes and not for production use, are not supported, and may be subject to additional terms. We may discontinue Beta Versions at any time in our sole discretion and may never make them generally available. We have no liability for any harm or damage arising out of or in connection with a Beta Version.


2.2 Inapplicable Provisions. NOTWITHSTANDING SECTION 9 (WARRANTIES AND DISCLAIMER), AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, BETA VERSIONS AND FREE TRIALS OF THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY. SECTION 10 (INTELLECTUAL PROPERTY INFRINGEMENT INDEMNIFICATION) DOES NOT APPLY TO, AND SECTION 12.2 (CAP ON LIABILITY) DOES NOT LIMIT YOUR TOTAL LIABILITY WITH RESPECT TO FREE TRIALS OF THE SERVICE.  

3. USE OF THE SERVICE


3.1 Use of the Service. Subject to the terms and conditions of this Agreement, we grant to you (and if agreed in a Service Order, your Affiliates) a limited, worldwide, non-exclusive, non-transferable (except as explicitly permitted in this Agreement) right during the applicable Subscription Term to use the Service solely in connection with your internal operations as a public or private educational institution. Your and your Affiliates’ rights to use the Service are subject to any limitations on use of the Service based on the version of the Service you purchase (e.g., applicable usage limits) and if and as set forth in the Service Order (collectively, the “Scope Limitations”) and your rights to use the Service are contingent upon your compliance with the Scope Limitations and this Agreement. As part of the Service, we may provide you and your Affiliates with Client Software, which you and your Affiliates may install on your computer system or other devices and use solely to upload Subscriber Data into the Service. You are solely responsible for your conduct (including by and between all users), the content of Subscriber Data, and all communications with others while using the Service. You acknowledge that we have no obligation to monitor any information on the Service, but we may remove or disable any information that you make publicly available on the Service at any time for any reason or for no reason at all. 


3.2 Use of the Documentation. Subject to the terms and conditions of this Agreement, we grant to you and your Affiliates a limited, worldwide, non-exclusive, non-transferable (except as explicitly permitted in in this Agreement) right during the term of this Agreement to reproduce, without modification, and internally use a reasonable number of copies of the Documentation solely in connection with use of the Service in accordance with this Agreement.


3.3 Use Restrictions. Except as otherwise explicitly provided in this Agreement or as may be expressly permitted by applicable law, you will not, and will not permit or authorize your Affiliates or third parties to: (a) rent, lease, or, except as explicitly set forth in this Agreement, otherwise permit third parties to use the Service or Documentation; (b) use the Service to provide services to third parties as a service bureau or in any way that violates applicable law; (c) circumvent or disable any security or other technological features or measures of the Service, or attempt to probe, scan or test the vulnerability of a network or system, or to breach security or authentication measures; (d) upload or provide for processing any information or material that is illegal, defamatory, offensive, abusive, obscene, or that violates privacy or intellectual property rights of any third party; (e) use the Service to harm, threaten, or harass another person or organization; (f) use in such a manner as to interfere with, restrict, inhibit, degrade or limit use of or access to the Services by our other  customers or represent, in  our sole judgment, an unusually large burden on the network itself; (g) send, store, or distribute any viruses, worms, Trojan horses, or other disabling code or malware component harmful to a network or system; (h) copy, reproduce, modify, translate, enhance, decompile, disassemble, reverse engineer, or create derivative works of any Client Software or provide, disclose, or make any Client Software available to any third party, except that you may make one copy of Client Software solely for backup and archival purposes; (i) alter or remove any trademark, copyright notice, or other proprietary rights notice that may appear in any part of the Documentation or any Client Software. You will take reasonable steps to ensure that your Affiliates and Permitted Third Parties comply with this Agreement. To the extent permitted by applicable law, you will be directly and fully responsible to us for their conduct and any breach of this Agreement by them. In the event this section is violated, we may take any and all actions, from the issuance of a warning to limiting, suspending, or terminating your right or any user’s right or access to use the Services and involvement of government authorities we deem necessary or appropriate.


3.4 Authorized Users Only. This Agreement restricts the use of the Service to Authorized Users, up to the Scope Limitation specified in the Service Order. An Authorized User account must not be shared among users. Additional Authorized Users may be added by paying the applicable fees to us at our then-current rate or as otherwise specified in a Service Order. The Authorized Users who are employees of Permitted Third Parties may access and use the Service solely to perform the Permitted Third Party’s contractual obligations to you subject to the use limitations set forth in this Agreement. As part of the registration process, you may be asked to identify your company and other Authorized Users who should be associated with your account. You will not misrepresent the identity or nature of the company or Authorized Users who should be associated with your account. You are responsible for maintaining the confidentiality of your login, password, and account and for all activities that occur under your login and account, including the activities of Authorized Users. 


3.5 Interactions between Users. You are solely responsible for all interactions with other users of the Services (e.g., interactions between administrators and teachers or teachers and families). You acknowledge and agree that we do not have an obligation to verify any content, data or other information provided by users on the Services. We cannot guarantee that other users of the Services will not use the information that you share with them via the Services, nor the manner of use. We are not responsible for another user’s or other third party’s misappropriation or misuse of your information. Additionally, we are not responsible for the truthfulness, accuracy, authenticity, or completeness of any of the information provided by other users or any other third party. To the extent permitted by applicable law, you hereby release us and our Affiliates from all claims, demands, or damages of every kind, known or unknown, in any way connected with (i) any relationship arising between you and other users of the Services, or (ii) any dispute between you and another user. Additionally, you agree to immediately report to us any false information provided or misconduct by any user of the Services. 


3.6 Protection against Unauthorized Use. You will, and will ensure that your Affiliates and Permitted Third Parties use reasonable efforts to prevent any unauthorized use of the Service or Documentation, and unless prohibited by law or law enforcement from doing so, you will immediately notify us in writing of any unauthorized use that comes to your attention. If there is unauthorized use by anyone who obtained access to the Service or Documentation directly or indirectly through you, your Affiliate, or a Permitted Third Party, you will take all steps reasonably necessary to terminate the unauthorized use. You will cooperate and assist with any actions taken by us to prevent or terminate unauthorized use of the Service or Documentation. We may, at our expense and no more than once every 12 months with reasonable notice, appoint our own personnel or an independent third party to verify that your use of the Service complies with the terms of this Agreement.


3.7 Technical Requirements. You will need Internet access and certain equipment, software, and services to be able to access and use the Services, such as a student information system and a modern web browser and operating systems. Acquiring, installing, maintaining and operating such equipment, software, services and Internet access is outside the scope of the Services. You are responsible for ensuring that such equipment is compatible with the Services and complies with all configurations and specifications provided by us, which may be amended from time to time. While we endeavor to ensure that our Services are compatible with more than one modern web browser and operating system, we neither represent nor warrant that the Services will be accessible through all web browser releases or used with all operating systems.


3.8 Reservation of Rights. We retain all right, title, and interest in and to the Service, Client Software and Documentation and all related intellectual property rights, including any modifications, updates, cards, apps, or other add-ons and including any deliverables or work product provided pursuant to any Professional Services hereunder or otherwise in connection with this Agreement, including without limitation any customizations or modifications to the Service, Client Software or Documentation. Your rights to use the Service, Documentation, and Client Software are limited to those expressly set forth in this Agreement. We reserve all other rights in and to the Service, Client Software, and Documentation. 


3.9 Residuals.  Notwithstanding anything to the contrary herein, we shall be free to use any and all Residuals resulting from the performance of Services hereunder for any purpose. Nothing in this Agreement shall be deemed to prevent us from using any Residuals in any manner, including without limitation to develop for itself or others any services, products, and/or materials.


3.10 Communication Tools and Features. The Services may, depending on the scope of your purchase, include communication tools and features that facilitate voice calling, emailing and text messaging via our Services or personal mobile phone. The voice calling feature collects, records, transcribes and stores certain voice calls and may make the content of such calls and voicemails available through the Services. The communication tools also allow for text messaging and emailing through the platform without identifying the mobile phone number of your employee. You acknowledge that it is your sole responsibility to use, and you shall use, such features and the Services in compliance with all applicable laws and regulations, including if applicable the Telephone Consumer Protection Act and its implementing regulations (“TCPA”), the CAN-SPAM Act and its implementing regulations, any relevant and applicable anti-spamming laws, any applicable federal or state law requirements related to making, sending or receiving consumer or any other messaging via phone call, texting, email, chat or any other text messaging, the Telemarketing Sales Rule,  the mobile carriers’ requirements, and all applicable laws related to caller ID. You affirm that you are solely responsible for complying with the forgoing laws, rules, and regulations, including maintaining an accurate and complete record of the status of a third party’s consent, revocations of consent, and any Do Not Call obligations, including without limitation the language consented to and the date of consent and revocation, if applicable, and all such records will be retrievable. Upon our request, you will provide proof of any such third party’s consent status. Unless You specifically subscribe to Our mass notification service, the communication tools and features otherwise provided are not a mass notification or blast messaging service. The communication tools and features are built with safe guards to prevent users from sending large volumes of communication to large groups (e.g., notifying an entire school that school is closed the next day). Circumvention of these safeguards (e.g., breaking messages into smaller groups to overcome group messaging limitations) is a violation of this Agreement. Use of the communication tools and features for non-education related purposes or for sending or receiving content which is prohibited under applicable law or attacks another because of their race, ethnicity, national origin, religious affiliation, sexual orientation, sex, gender, or gender identity, or serious disabilities or diseases are also violations of this Agreement. 


3.11 Service Availability. We perform and maintain regular database backups according to the retention policy appropriate for the particular system. We incorporate database and system maintenance operations and processes designed to address data consistency, indexing, and integrity requirements that also help improve query performance. We have implemented and will maintain commercially reasonable measures intended to avoid unplanned Service interruptions. We will use commercially reasonable efforts to notify you in advance of planned Service interruptions. In the event of an unplanned Service interruption, you may contact us for Technical Support Services, as described in this Agreement. The Service depends on the availability of the Subscriber Data from you and third-party data providers. You are responsible for making the Subscriber Data available that is necessary for us to provide the Service


3.12 Purchases from our Affiliates. Any of our Affiliates may execute a Service Order with you provided that such Service Order is governed by the terms and conditions of this Agreement. Neither we nor any of our Affiliates shall be responsible or liable for the actions or inactions of the other’s performance of this Agreement or any Service Order. We and our Affiliates that execute a Service Order shall be severally and not jointly liable for our or their respective performance under this Agreement. You shall pay us and each Affiliate that executes a Service Order separately for the Services used and purchased from us or such Affiliate. 

4. PROFESSIONAL SERVICES AND TECHNICAL SUPPORT SERVICES


4.1 Professional Services. You may contract with us to perform Professional Services. The specific details of the Professional Services to be performed will be determined on a per-project basis, and the details for each project will be described on the Service Order. Unless otherwise specified in the applicable Service Order, any unused portion of the Professional Services and training will expire and may not be carried over after 12 months from the Service Order effective date.


4.2 Changes to Professional Services. You may reasonably request in writing that revisions be made with respect to the Professional Services set forth in a Service Order. If your requested revisions materially increase the scope of the Professional Services or the effort required to perform the Professional Services under the Service Order, then we will deliver to you a written proposal reflecting our reasonable determination of the revised Professional Services, delivery schedule, and payment schedule, if any, that applies to the requested revisions. If you approve the proposal, then the parties will execute an amendment to the Service Order. Otherwise, the then-existing Service Order will remain in full force and effect, and we will have no obligation with respect to the relevant change requests. 


4.3 Technical Support Services. During an Order Term, we will provide you with the applicable Technical Support Services for the version of the Service to which you are subscribed so long as you are currently in payment of the Subscription Fees (if applicable). You are responsible for providing support to Permitted Third Parties. 


4.4 Your Responsibilities. You will provide assistance, cooperation, information, equipment, data, a suitable work environment, and resources as reasonably necessary to enable us to perform the Professional Services and Technical Support Services. You acknowledge that our ability to provide Professional Services as described in the Service Order and Technical Support Services may be affected if you do not meet your responsibilities as set forth above.


4.5 Feedback and Other Content. The Service may permit the submission of, or you, your Affiliates, and Permitted Third Parties may otherwise provide, feedback, technical support information, suggestions, enhancement requests, recommendations, and messages directly relating to the use, feature, functions or operation of the Service (“Feedback”). Except as otherwise prohibited or limited by applicable law or herein, and notwithstanding Section 7 (CONFIDENTIAL INFORMATION), and Section 8 (DATA), you grant to us a royalty-free, fully paid, non-exclusive, perpetual, irrevocable, worldwide, transferable license to display, use, copy, modify, publish, perform, translate, create derivative works from, sublicense, distribute, and otherwise exploit Feedback without restriction.

5. FEES AND PAYMENT


5.1 Fees and Payment Terms. Unless otherwise specified in a Service Order, the Subscription Fees for the initial Order Term and Professional Service fees set forth in the Service Order are invoiced upon execution of the Service Order and thereafter annually at the then-current rate for the Service or as otherwise specified in a Service Order. Fees for additional Service quantities (e.g., additional users) and Professional Services will be invoiced at the time of the increase or order, unless otherwise agreed in writing by the parties. You will pay all amounts in full within 45 days after the invoice date unless specified otherwise in the Service Order. The charges in an invoice will be considered accepted by you unless we are notified of a good faith dispute in writing within 15 days of the date of the invoice. Unless expressly provided otherwise in a Service Order, all amounts payable under this Agreement are denominated in local currency in which you are located, and you will pay all such amounts in such local currency. 


5.2 Expenses.  You shall reimburse Company for all customary travel expenses incurred by our personnel in performing Professional Services or Technical Support Services, if any, in accordance with our travel policy.


5.3 Late Payment. Except to the extent prohibited by applicable law, any amount not paid when due will be subject to finance charges equal to 1.5% of the unpaid balance per month or the highest rate permitted by applicable usury law, whichever is less, determined and compounded monthly from the date due until the date paid. Except to the extent prohibited by applicable law, you will reimburse any costs or expenses (including, but not limited to, reasonable attorneys’ fees) incurred by us to collect any amount that is not paid when due. Amounts due from you under this Agreement may not be withheld or offset by you against amounts due to you for any reason. 


5.4 Taxes. The fees stated in a Service Order do not include local, state, federal, or foreign taxes (e.g., value-added, sales, or use taxes), or fees, duties, or other governmental charges resulting from this Agreement (“Taxes”). You are responsible for paying all applicable Taxes, if any. If we determine that we have the legal obligation to pay or collect Taxes, we will add such Taxes to the applicable invoice and you will pay such Taxes, unless you provide us with a valid tax exemption certificate from the appropriate taxing authority. If a taxing authority subsequently pursues us for unpaid Taxes for which you are responsible under this Agreement and which you did not pay to us, we may invoice you and you will pay such Taxes to us or directly to the taxing authority, plus all applicable interest, penalties and fees.


5.5 Future Functionality. Your purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by us regarding future functionality or features.

 

6. TERM AND TERMINATION


6.1 Term. This Agreement shall commence on the Effective Date and shall continue unless earlier terminated as expressly provided in this Agreement. Unless otherwise specified on the Service Order, an Order Term shall commence upon the effective date of the applicable Service Order and shall continue for twelve (12) months thereafter. In the event you place additional Service Orders for the same Service, we may adjust the duration of the additional Order Terms to co-terminate with the Order Terms for that Service. 


6.2 Termination. Either party may terminate this Agreement if the other party does not cure its material breach of this Agreement within 30 days of receiving written notice of the material breach from the non-breaching party. A breach of this Agreement by your Affiliate, or a Permitted Third Party will be treated as a breach by you. Termination in accordance with this Subsection will take effect when the breaching party receives written notice of termination from the non-breaching party, which notice must not be delivered until the breaching party has failed to cure its material breach during the 30-day cure period. 


6.3 Suspension Rights. If you fail to timely pay any Subscription Fees or Professional Services Fees, we may, without limitation to any of our other rights or remedies, also elect to suspend performance of the Service, Professional Services, and Technical Support Services until we receive all amounts due, or may terminate this Agreement pursuant to this Subsection. We may terminate your license to use Free Trials at any time at our sole discretion. Further, if any user violates this Agreement or our policies, attacks other users, uses the Services to violate state or federal law, including FERPA, or sends content that is prohibited by law, we may suspend that user immediately and notify you in writing, including the offending user and content. We will reinstate that user at your discretion.


6.4 Post-Termination Obligations. If this Agreement is terminated for any reason: (a) we have no obligation to provide or perform any Service, Professional Services, or Technical Support Services after the effective date of the termination; (b) you will immediately pay to us any uncontested Subscription Fees, Professional Services Fees, and other amounts that have accrued prior to the effective date of the termination; (c) any and all liabilities accrued prior to the effective date of the termination will survive; (d) you will provide us with a written certification signed by your authorized representative certifying that all use of the Service and Documentation by you, your Affiliates, and Permitted Third Parties has been discontinued and the Client Software has been de-installed from your and your Affiliates’ computer systems; and (e) Sections and Subsections 1, 2, 3.8, 4.5, 5, 6.3, 7, 8.3, 9.3, 12, 13, 14 and 15 will survive termination. If you terminate this Agreement for our uncured material breach, as your exclusive remedy, we will provide you a pro-rata refund of all prepaid but unused Subscription Fees for the remainder of the then-current term. 

7. CONFIDENTIAL INFORMATION


7.1 Definition. “Confidential Information” means non-public business information, know-how, and trade secrets in any form, including information regarding our product plans, Beta Versions, terms of this Agreement, and any other information a reasonable person should understand to be confidential, which is disclosed by or on behalf of either party or its Affiliates to the other party or its Affiliates, directly or indirectly, in writing, orally, or by inspection of tangible objects, and whether such information is disclosed before or after the Effective Date specified on the Service Order. Confidential Information includes this Agreement and its terms. “Confidential Information” excludes information that (a) is publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing party through no action or inaction of the receiving party; (b) is already in the possession of the receiving party at the time of disclosure by the disclosing party, as shown by the receiving party’s files and records; (c) is obtained by the receiving party from a third party without a breach of the third party’s obligations of confidentiality; or (d) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information, as shown by documents and other competent evidence in the receiving party’s possession. 


7.2 Maintenance of Confidentiality. The party receiving Confidential Information hereunder agrees to take reasonable steps, at least substantially equivalent to the steps it takes to protect its own proprietary information, but not less than reasonable care, to prevent the unauthorized duplication or disclosure of the Confidential Information to third parties without the disclosing party’s prior written consent. The receiving party may disclose the disclosing party’s Confidential Information to the receiving party’s employees or agents who reasonably need to have access to such information to perform the receiving party’s obligations under this Agreement, and who will treat such Confidential Information under the terms of this Agreement. Provided that such Permitted Third Party is bound by obligations of confidentiality and nonuse no less restrictive than the terms of this Agreement, you may disclose our Confidential Information to a Permitted Third Party solely to the extent required for such Permitted Third Party to be able to access and use the Service pursuant to this Agreement. Also, we may disclose this Agreement to actual and potential investors and funding sources and their representatives, in each case who contractually agree to hold it in confidence in the same or a similar manner. The receiving party may disclose the disclosing party’s Confidential Information if required by law, including but not limited to public records laws, so long as the receiving party gives the disclosing party written notice of the requirement prior to the disclosure (where permitted) and reasonable assistance at the disclosing party’s expense, in limiting disclosure or obtaining an order protecting the information from public disclosure. 


7.3 Return of Materials and Effect of Termination. Upon written request of the disclosing party, or in any event upon any termination or expiration of this Agreement, the receiving party will return to the disclosing party or destroy all materials, in any medium, to the extent containing or reflecting any of the disclosing party’s Confidential Information. Following expiration or termination of this Agreement, upon request from you, we will purge your Subscriber Data and your Service environment from our systems. The obligations in this Section 7 survive for three years following expiration or termination of this Agreement, except that Confidential Information that constitutes a trade secret of the disclosing party will continue to be subject to the terms of this Section 7 for as long as such information remains a trade secret under applicable law.


7.4 Injunctive Relief. The receiving party acknowledges that the remedy at law for any breach or threatened breach of this Section 7 shall be inadequate and that the disclosing party shall be entitled to seek injunctive relief against any such breach or threatened breach, without posting any bond or showing of irreparable harm, in addition to any other remedy available to it.


7.5 Survival.  In the event this Agreement is terminated for any reason, this Section 7 will survive; trade secrets will remain confidential in perpetuity.

8. DATA 


8.1 Data Security. We shall abide by all applicable federal, state and/or local laws and regulations regarding the use and dissemination of Subscriber Data by us, including FERPA. We are deemed a “school official,” as defined by FERPA, to the extent of our access to Subscriber Data that constitutes “student records” as defined by FERPA. We implement and maintain physical, electronic, and managerial procedures intended to protect against the loss, misuse, unauthorized access, alteration, or disclosure of Subscriber Data. These measures include encryption of Subscriber Data and authentication credentials both at rest and during transmission to the Service. We will notify you of any unauthorized access to, or use of, Subscriber Data that comes to our attention. We shall also comply at all relevant times with our then-current information security policies at www.schoolstatus.com/legal/security. We will limit access to Subscriber Data to those individuals and entities with a legitimate interest in the information as it relates to the provision of Services or our exercise of our obligations or rights hereunder, and we will use commercially reasonable efforts contractually require all such individuals and entities to maintain administrative, physical, and technical safeguards at least as stringent as those required herein. 


8.2 Data Breach. In the event of an incident affecting the confidentiality or integrity of Subscriber Data (a “Breach”), each party agrees to immediately notify the other, provide regular updates as additional information is available, and make every reasonable effort to mitigate damages resulting therefrom. Notwithstanding anything to the contrary herein, in the event of a Breach caused by our negligent acts or omissions, including but not limited to our breach of the data security requirements set forth herein, we will be solely financially responsible for such Breach subject to the terms hereof. Such costs may include legal expenses, as well as costs incurred in any notification you elect to send to affected individuals, including but not limited to mailing, call center, and credit/identity monitoring for a period not to exceed 12 months. Unless otherwise required by law, we will not transmit any notification to your constituents in relation to a Breach without your prior approval (which shall not be unreasonably withheld). 


8.3 Data Transmission. You acknowledge that use of the Service involves transmission of Subscriber Data and other communications over the Internet and other networks, and that such transmissions could potentially be accessed by unauthorized parties. You must protect your Authorized User login names and passwords from access or use by unauthorized parties, and are solely responsible for any failure to do so. You must promptly notify us of any suspected security breach at [email protected].


8.4 Data Content. You are solely responsible for the availability, accuracy, appropriateness, or legality of Subscriber Data or any other information you may provide using the Service. You acknowledge that we may not be able to independently determine, and we do not monitor, whether any Subscriber Data constitutes Regulated Data. If you provide or make Regulated Data available to us, the additional terms in our data processing addendum will apply, which are found at www.schoolstatus.com/legal/dpa/  and may be updated by us from time to time. Where Regulated Data is required to provide the Services, you agree to ensure only the minimally necessary amount of such Regulated Data is provided to us to enable us to provide the Services. You further represent and warrant that you will comply, and will ensure that Authorized Users comply with, with all applicable laws, regulations, self-regulatory guidelines, and your privacy policies with respect to the collection, transfer, and use of any Regulated Data in connection with the Service, to transfer such Regulated Data to us for our use as described in this Agreement. 


8.5 Data Rights. Subscriber Data is your property. Usage Data is our property. We will not claim any ownership to Subscriber Data. You will not claim any ownership in Usage Data. You grant us a non-exclusive, worldwide, royalty-free license to use, copy, transmit, sub-license, index, store, aggregate, and display Subscriber Data as required to provide or perform the Service, Technical Support Services, account management services, and Professional Services, and to publish, display, and distribute de-identified, aggregated information derived from Subscriber Data and from your use of the Service for purposes of improving our products and services, and developing, displaying, and distributing benchmarks and similar reports, provided that any such data is not publicly identified or identifiable as originating with or associated with you, nor possible of being identified to any individual person.


8.6 Data Retention Policies. We have different data backup and retention policies depending on the Services you purchased. You may view our policies at www.schoolstatus.com/legal/dpa/ (Data Retention and Destruction), which we may update from time to time in our discretion. If any change in our policies would cause the loss of any Subscriber Data, we will notify you in advance to allow you to export Subscriber Data you may need.

9. WARRANTIES


9.1 Mutual Warranties. Each party represents and warrants to the other that:

(a) this Agreement constitutes a valid and binding agreement enforceable against such party in accordance with its terms; and

(b) no authorization or approval from any third party is required in connection with such party’s execution and delivery of the Service Order, or performance of this Agreement.
Our Warranties.
We represent, warrant and covenant that we will comply with all laws and regulations applicable to our provision of the Services.
We warrant that the Service as delivered to you will materially conform to the specifications set forth in the applicable Service Order, during the Order Term. You must notify us of a claim under this warranty within 90 days of the date on which the condition giving rise to the claim first appears. We further warrant that we will perform Professional Services in a professional and workmanlike manner in accordance with the Service Order. To the extent permitted by applicable law, your sole and exclusive remedy arising out of or in connection with a breach of warranty is limited to correction of the non-conforming Service or re-performance of the Professional Service, as applicable, or if correction or re-performance is not commercially reasonable, termination of the applicable Service Order and a refund of any prepaid unused fees for the applicable Service or Professional Services.


9.3 Your Warranties. You represent, warrant and covenant that: (a) you will comply with all laws and regulations, including those applicable to your provision of data, Third Party Services and your use of the Services, as applicable; (b) you will at all times provide us and other users with accurate and complete information; (c) Subscriber Data does not violate, infringe or misappropriate the rights of any third party; (d) nothing you or any of your Authorized Users upload to the Services will include, transmit or introduce any viruses, trojan horses, worms, spyware or other destructive or malicious code; and (e) you have obtained, and will maintain at all times, all necessary or appropriate consents, licenses, authorizations, permits or rights in or to any Subscriber Data sufficient to provide such data and content to us for our use in providing the Services and as permitted or required by this Agreement.

10. DISCLAIMERS 


10.1 General. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS SECTION, NEITHER PARTY MAKES ANY ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. WE EXPRESSLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. WE DO NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE SERVICE OR DOCUMENTATION. WE DO NOT WARRANT THAT THE SERVICE OR DOCUMENTATION IS ERROR-FREE OR THAT OPERATION OR USE OF THE SERVICE OR DOCUMENTATION WILL BE SECURE OR UNINTERRUPTED. WE EXERCISE NO CONTROL OVER AND EXPRESSLY DISCLAIM ANY LIABILITY ARISING OUT OF OR BASED UPON THE ACCURACY OF SUBSCRIBER DATA OR THE RESULTS OF USE OF THE SERVICE OR DOCUMENTATION.


10.2 No Legal Advice. Some of our Services may include providing you with access to or use of various templates or form documents, such as health forms, lunch forms, or letters. We provide these solely for your convenience and informational purposes, and our making such templates or documents available for your review does not constitute the provision of legal or any other advice. You acknowledge, understand and agree that it is solely up to you to determine the nature, timing and contents of the documents you circulate to users and other third parties using our Services. We encourage you to adjust the templates and form documents as you deem appropriate in consultation with your relevant advisors. 

11. INTELLECTUAL PROPERTY INFRINGEMENT INDEMNIFICATION


11.1 Defense of Infringement Claims. We will, at our expense, either defend you from or settle any claim, proceeding, or suit brought by a third party (“Claim”) against you alleging that your use of the Service infringes or misappropriates any patent, copyright, trade secret, trademark, or other intellectual property right. You must (a) give us prompt written notice of the Claim; (b) grant us full and complete control over the defense and settlement of the Claim; (c) provide assistance in connection with the defense and settlement of the Claim as we may reasonably request; and (d) comply with any settlement or court order made in connection with the Claim. You will not defend or settle any Claim under this Subsection 10.1 without our prior written consent. You may participate in the defense of the Claim at your own expense and with counsel of your own choosing, subject to our sole control over the defense and settlement of the Claim as provided above.


11.2 Indemnification of Infringement Claims. We will indemnify you and your Affiliates from and pay: (a) all damages, costs, and attorneys’ fees finally awarded against you and your Affiliates in any Claim under Subsection 10.1; (b) all out-of-pocket costs, including reasonable attorneys’ fees reasonably incurred by you in connection with the defense of a Claim under Subsection 10.1 (other than attorneys’ fees and costs incurred without our consent after we have accepted defense of the Claim and expenses incurred pursuant to the last sentence of Subsection 10.1); and (c) all amounts that we agree to pay to any third party to settle any Claim under Subsection 10.1.


11.3 Exclusions from Obligations. We have no obligation under this Section 10 for any infringement or misappropriation to the extent that it arises out of or is based upon (a) use of the Service in combination with other products or services; (b) any aspect of the Service configured specifically for you to comply with designs, requirements, or specifications required by or provided by or on your behalf; (c) use of the Service by you, any Affiliate, or any Permitted Third Party outside the scope of the rights granted in this Agreement; (d) failure of you, any Affiliate, or any Permitted Third Party to use the Service in accordance with instructions provided by Us; or (e) any modification of the Service not made or authorized in writing by Us.


11.4 Infringement Remedies. In the defense or settlement of any infringement Claim, we may, at our sole option and expense: (a) procure for you a license to continue using the Service; (b) replace or modify the allegedly infringing technology to avoid the infringement; or (c) if the foregoing are not commercially feasible in our sole judgment, then terminate your license and access to the Service and refund any prepaid, unused Service fees as of the date of termination. To the extent permitted by applicable law, this Section 10 states our sole and exclusive liability, and your sole and exclusive remedy, for the actual or alleged infringement or misappropriation of any third-party intellectual property right by the Service.

12. INDEMNIFICATION


12.1 Defense. To the extent permitted by applicable law, you will defend us and our Affiliates from any actual or threatened third-party Claim arising out of or based upon (a) use of the Service by you, your Affiliates, or Permitted Third Parties that is not in accordance with the terms of this Agreement; and (b) the Subscriber Data or other materials or information provided by you or on your behalf under this Agreement. We will give you prompt written notice of the Claim and provide assistance in connection with the defense and settlement of the Claim as you may reasonably request. We may participate in the defense of any Claim at our own expense and with counsel of our own choosing.


12.2 Indemnification. To the extent permitted by applicable law, you will indemnify us from and pay: (a) all damages, costs, and attorneys’ fees finally awarded against us in any Claim under Subsection 11.1; (b) all out-of-pocket costs, including reasonable attorneys’ fees reasonably incurred by us in connection with the defense of a Claim under Subsection 11.1 (other than attorneys’ fees and costs incurred without your consent after you have accepted defense of the Claim); and (c) all amounts that you agree to pay to any third party to settle any Claim under Subsection 11.1.

13. LIMITATIONS OF LIABILITY


13.1 Disclaimer of Indirect Damages. TO THE EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY WILL, UNDER ANY CIRCUMSTANCES, BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES, OR FOR LOSS OF DATA OR USE THEREOF, OR FOR LOST PROFITS OR LOSS OF BUSINESS ARISING OUT OF OR RELATED TO THIS AGREEMENT, EVEN IF THE PARTY IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.


13.2 Cap on Liability. TO THE EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES WILL EITHER PARTY’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNTS PAID BY YOU UNDER THIS AGREEMENT DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE DATE OF THE EVENT GIVING RISE TO THE CLAIM. HOWEVER, THE ABOVE LIMITATIONS WILL NOT LIMIT YOUR OBLIGATION TO PAY ANY FEES UNDER THIS AGREEMENT OR ANY SERVICE ORDER, OR LIMIT YOUR LIABILITY FOR YOUR VIOLATION OF THE SERVICE USE RESTRICTIONS PROVIDED IN THIS AGREEMENT OR FOR YOUR INFRINGEMENT OR MISAPPROPRIATION OF OUR INTELLECTUAL PROPERTY RIGHTS. 


13.3 Independent Allocations of Risk. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES (TO THE EXTENT PERMITTED BY APPLICABLE LAW) IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY US TO YOU AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.

14. THIRD PARTY SERVICES. 


14.1 Integration; Permissions. The Services may contain features or capabilities designed to interoperate with products, services, or technologies provided by you or your third-party contractors or providers (“Third Party Services”). Third Party Services include student information systems that you may operate or separately purchase from third parties. If you integrate or direct us to integrate the Services with any Third Party Services, you acknowledge that such Third Party Services might access or use Subscriber Data and you permit the Third Party Services to access or use Subscriber Data. We may also act on your behalf in order to access, retrieve, and/or download certain data files or documents from third parties necessary to provide the Service(s). Data to be shared or collected under this Agreement shall include at least the following elements: Student Name, Student ID, Student Dates of Birth, Student Enrollment and Demographic History, Student Graduation Data, Student Testing History, including results, Teacher or Instructor Identifiable Information and Demographic Information, User account information, Student Grades, Student Attendance, Student Discipline, Student Demographics (Race, Sex, Age, Home Address Parental Contacts, Poverty Data), and other demographics or data elements mutually agreed upon and/or specified in a Service Order). 


14.2 Disclaimer.  You are solely responsible for the use of such Third Party Services and the impact such use may have on the Services (adverse or otherwise) and any data loss or other losses that may occur as a result of using any such Third Party Services. You shall ensure that your use of any integration or interoperability between the Services and Third Party Services complies with the terms of use for those Third Party Services. To the extent permitted by applicable law, we make no warranty or guarantee with regards to any such interoperation, any Third Party Services, or the continued availability of such features, and may cease providing such features for any reason without incurring fault or liability, for example and without limitation if, the provider of the Third Party Services ceases to make the Third Party Services available for interoperation with the Services. Any cessation of such features will not entitle Customer to any refund of Services Fees or other compensation.

15. GENERAL


15.1 Insurance. We will during the Term maintain (a) comprehensive general liability and property insurance with limits not less than Two Million Dollars ($2,000,000.00); and (b) cyber insurance with limits not less than Three Million Dollars ($3,000,000.00).


15.2 Access by Competitors. You may not access the Service if you are our direct competitor, except with our prior written consent. In addition, you may not access the Service for purposes of monitoring its availability, performance, or functionality, or for any other benchmarking or competitive purpose. 


15.3 U.S. Government Use. If the Service is licensed under a United States government contract, you acknowledge that the Service is a “commercial item” as defined in 48 CFR 2.101, consisting of “commercial computer software” and “commercial computer software documentation,” as such terms are defined in FAR Section 2.101 and Section 252.227-7014 of the Defense Federal Acquisition Regulation Supplement (48 CFR 252.227-7014) and used in 48 CFR 12.212 or 48 CFR 227.7202-1, as applicable. You also acknowledge that the Service is “commercial computer software” as defined in 48 CFR 252.227-7014(a)(1). United States government agencies and entities and others acquiring under a United States government contract will have only those rights, and will be subject to all restrictions, set forth in this Agreement.


15.4 Export Controls. The export of the Service may be subject to restrictions under United States and foreign laws. You shall not export the Service, in whole or in part, to any country outside the United States, whether in tangible or electronic form, via access through some telecommunications method (such as through the Internet or via a dedicated dial-up line accessible from a country outside of the United States), or by disclosing the Service to a foreign national, without our prior written consent of Company and then only in compliance with all applicable United States and foreign laws and regulations.


15.5 Relationship. We will be and act as an independent contractor (and not as the agent or representative of you) in the performance of this Agreement.


15.6 Publicity. We may only use your name, trademarks, and service marks to the extent necessary to fulfill our obligations under this Agreement or as otherwise explicitly authorized in this Agreement or a Service Order. We reserve the right to use your name and trademark as a reference for marketing and promotional purposes on our website and in other communications with our existing and prospective customers. 


15.7 Assignment and Delegation. You may not assign any of your rights or delegate any of your obligations under this Agreement (in whole or in part) without our prior written consent, except in connection with a change of control, merger, or by operation of law. Your assignment or delegation will not relieve you of your obligations under this Agreement nor release you of your liability under this Agreement. We may voluntarily, involuntarily, or by operation of law assign any of our rights or delegate any of our obligations under this Agreement without your consent. Any purported assignment or delegation in violation of this Subsection will be null and void.  Subject to this Subsection, this Agreement will bind and inure to the benefit of each party’s respective permitted successors and permitted assigns. 


15.8 Subcontractors. We may use subcontractors or other third parties in carrying out our obligations under this Agreement and any Service Order. We remain responsible for all of our obligations under this Agreement, and for the acts or omissions of our subcontractors in furtherance of their delegated obligations hereunder.


15.9 Notices. Any notice required or permitted to be given in accordance with this Agreement will be effective if it is in writing and sent by certified or registered mail, or overnight courier, return receipt requested, to the appropriate party at the address set forth in the Service Order and with the appropriate postage affixed. Either party may change its address for receipt of notice by notice to the other party in accordance with this Subsection. Notices are deemed given two business days following the date of mailing or one business day following delivery to a courier. 


15.10 Force Majeure. To the extent permitted by applicable law, neither party will be liable for, or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond its reasonable control, so long as that party uses all commercially reasonable efforts to avoid or remove the causes of non-performance.


15.11 Institutional Customers. If you are a public institution or instrumentality of the state, we acknowledge that you enter into this Agreement and any other agreements only to the extent authorized by applicable governing law. Any provisions in this Agreement or any Service Order that are not authorized or inconsistent with applicable governing law or any legally binding attorney general opinions interpreting applicable governing law, now or at any time in the future, are and shall be deemed invalid and unenforceable.


15.12 Governing Law; Venue. 

  1. If you are a public institution or instrumentality of the state, this section 15.11(a) applies. This Agreement will be interpreted, construed, and enforced in all respects in accordance with the local laws of the state in which you are located, without reference to its choice of law rules, and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods. Any disputes, actions, claims, or causes of action arising out of or in connection with this Agreement shall be exclusively heard in the courts of the county in which you are located.
  2. For all other subscribers that are not a public institution or instrumentality of the state, this section 15.11(b) applies. This Agreement will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of Mississippi, U.S.A., without reference to its choice of law rules, and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods. Any disputes, actions, claims, or causes of action arising out of or in connection with this Agreement shall be exclusively heard in the federal or state courts in Jackson, Mississippi.


15.13 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement, including your Affiliates, Permitted Third Parties, or Authorized Users.


15.14 Waiver and Modifications. Failure, neglect, or delay by a party to enforce the provisions of this Agreement or its rights or remedies at any time, will not be construed as a waiver of the party’s rights under this Agreement and will not in any way affect the validity of the whole or any part of this Agreement or prejudice the party’s right to take subsequent action. Exercise or enforcement by either party of any right or remedy under this Agreement will not preclude the enforcement by the party of any other right or remedy under this Agreement or that the party is entitled by law to enforce. We reserve the right, at our discretion, to change the terms of this Agreement on a going-forward basis at any time. Please check the terms of this Agreement periodically for changes. If a change materially modifies your rights or obligations, you will be required to accept the modified Agreement in order to continue to use the Service. Material modifications are effective upon your acceptance of the modified Agreement. Immaterial modifications are effective upon publication. Disputes arising under this Agreement will be resolved in accordance with the version of this Agreement that was in effect at the time the dispute arose.


15.15 Severability. If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect. If any material limitation or restriction on the use of the Service under this Agreement is found to be illegal, unenforceable, or invalid, your right to use the Service will immediately terminate.


15.16 Headings. Headings are used in this Agreement for reference only and will not be considered when interpreting this Agreement.


15.17 Counterparts. The Service Order may be executed in any number of identical counterparts, notwithstanding that the parties have not signed the same counterpart, with the same effect as if the parties had signed the same document. All counterparts will be construed as and constitute the same agreement. The Service Order may also be executed and delivered by facsimile or electronically and such execution and delivery will have the same force and effect of an original document with original signatures.


15.18 Interpretation. For purposes of this Agreement, (a) the words “include,” “includes” and “including” will be deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; and (c) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole. Should any provision of this Agreement require judicial interpretation, the parties agree that the court interpreting or construing the same may not apply a presumption that the terms of this Agreement will be more strictly construed against one party than against another.  


15.19 Entire Agreement. This Agreement and all exhibits contain the entire agreement of the parties with respect to the subject matter of this Agreement and supersede all previous communications, representations, understandings, and agreements, either oral or written, between the parties with respect to said subject matter, including any prior Nondisclosure Agreement between the parties or their Affiliates. If there is a conflict between the terms of this Agreement and a Service Order, the terms of this Agreement will control. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, supplement, or alter the terms of this Agreement. Neither party will be bound by, and specifically objects to, any term, condition, or other provision that is different from or in addition to this Agreement (whether or not it would materially alter this Agreement) that is proffered by the other party in any acceptance, confirmation, invoice, purchase order, receipt, correspondence, or otherwise, unless each party mutually and expressly agrees to such provision in writing.