Except to the extent any term or condition is expressly superseded by the terms and conditions of the Order Form Proposal between Forefront Math Corporation (“Forefront”) and the customer referred to in the Order Form Proposal (“Licensee”), this Software Subscription Agreement (this “Agreement”) applies to and governs each Order Form Proposal issued by Forefront and signed by Licensee. By agreeing to and signing an Order Form Proposal, Licensee agrees to be legally bound by these terms and conditions of this Agreement. If Licensee does not agree to be legally bound by the terms and conditions contained herein, Licensee shall not agree to and sign the Order Form Proposal. Forefront and Licensee are sometimes individually referred to as a “Party” or collectively as the “Parties.”
WHEREAS, Forefront is a business that offers a powerful suite of cloud-based software and tools designed to collect data, analyze data, create and manage assessments, and generate reports for use by mathematics educators and students; and
WHEREAS, Licensee is an educational institution providing mathematics education to students; and
WHEREAS, Licensee wishes to obtain a subscription license from Forefront to use the Licensed Software, and to receive associated maintenance and support and other services; and
WHEREAS, Forefront is willing to grant such subscription license to licensee to use the Licensed Software and furnish such services to Licensee, all on the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual promises and the covenants hereinafter set forth and for other good and valuable consideration, the sufficiency of which is hereby acknowledged, the Parties agree as follows:
“Agreement” means this Software Subscription Agreement and the exhibits or schedules referenced herein, all of which exhibits and schedules are incorporated herein and made a part hereof by this reference. In the event of a conflict between any term in this Agreement (excluding its exhibits or schedules) and any exhibit or schedule referenced herein, the terms of this Agreement shall control.
“Anonymized Data” means Data that Licensee, or Forefront under Licensee’s direct control, has put through a process of de-identification (as contemplated by 34 C.F.R. 99.31(b)) where any PII has been removed or obscured such that individual records cannot be linked back to an original student record system or other individual records from the same source.
“API” means any application program interfaces that may be developed by Forefront or its licensors.
“Assessment” means tasks, questions, prompts, rubrics, scoring guides, and accompanying documents, including video and images, used in conjunction with the Licensed Software to collect data and other information (paper and pencil, electronic, interview, or observations).
“Confidential Information” means any and all trade secrets of each Party as well as all of its non-public proprietary technical, commercial, and other data, specifications, software, documentation, processes, inventions, know-how, methods and other information, developed or acquired by such Party, which may or may not be patentable, or constitute the basis of patentable inventions, or be subject to copyright protection, and which such Party considers proprietary or confidential to the products, business, third-party relationship, or prospects of such Party, whether or not such information is marked as “proprietary” or “confidential”, and that all such disclosures shall be subject to the confidentiality and non-use provisions of this Agreement. For clarity, Forefront expressly acknowledges and agrees that any and all Licensee IP, including without limitation all Data, is and shall remain Confidential Information for all purposes hereunder. For further clarity, Licensee expressly acknowledges and agrees that all Forefront IP, including without limitation the Licensed Software and Documentation, are and shall remain Confidential Information for all purposes hereunder.
“Customization Services” has the meaning set forth in Section 3.3.1.
“Data” means any and all information collected by Licensee through utilization of the Licensed Software, including both Student Data and Anonymized Data.
“Documentation” means the product documentation for use of the Licensed Software, and made available by Forefront to Licensee hereunder that may be revised and updated from time to time.
“Error” means an incident that investigations conducted by either Party reveal is caused solely by the Licensed Software’s failure to perform in compliance with this Agreement and the Specifications.
“FERPA” means the Family Education and Privacy Act, as codified at 20 U.S.C. § 1232.
“Force Majeure Event” has the meaning assigned to it in Section 12.6.
“Forefront IP” means all proprietary rights (including without limitation all intellectual property rights) associated with the Licensed Software, Documentation, and Anonymized Data.
“Forefront Services” means the services to be performed by Forefront pursuant to this Agreement.
“Licensee IP” means all proprietary rights (including without limitation all intellectual property rights) associated with the Data transmitted through or stored on or output from the Licensed Software.
“Licensee Network” means any computer network used by Licensee to store Data or access the Licensed Software.
“Licensed Software” means Forefront’s powerful suite of cloud-based software and tools designed to collect data, analyze data, create and manage assessments, and generate reports for use by Licensee and its authorized employees, contractors or agents as set forth in the Specifications, including, without limitation, any applicable API(s) and any and all Updates and Upgrades thereto that are made commercially available by Forefront.
“Licensed School(s)” means the school or schools at which the Licensee will use the Licensed Software.
“Permitted Purposes” means (i) in the case of Licensee, the sole purposes of performing Licensee’s obligations or exercising Licensee’s rights under this Agreement, and (ii) in the case of Forefront, the sole purposes of performing Forefront’s obligations under this Agreement, including but not limited to its obligations pertaining to providing, maintaining, and supporting the Licensed Software, or exercising Forefront’s rights under this Agreement.
“PII” is defined within the definition of “Student Data.”
“Specifications” means the information describing the capabilities, functionality, and performance requirements of the Licensed Software, all of which shall be posted on the Forefront Math website (www.forefrontmath.com).
“Statement of Work” means a statement of work for Customization Services that: (a) describes the services to be performed and/or the work product to be delivered by Forefront for a given Customization Services project; (b) sets forth the compensation to be paid by Licensee for such Customization Services; (c) expressly references this Agreement; and (d) has been executed by both Forefront and Licensee.
“Student Data” means any Data protected by FERPA or the associated regulations, including, but not limited to, any “educational records,” “directory information,” or other data constituting the personally identifiable information (“PII”) of any student.
“Term” has the meaning set forth in Section 8.
“Update” means a change by or under authority of Forefront to the current version of the Licensed Software.
“Upgrade” means a new version of the Licensed Software that implements a significant change in the software system functionality and/or the software architecture and is meant to replace the prior versions of the Licensed Software.
2. GRANTS OF LICENSES.
2.1 Licensed Software. Subject to the terms and conditions set forth in this Agreement, Forefront hereby grants to Licensee, a limited, non-exclusive, non-transferable, non-assignable, and non-sublicensable subscription license during the Term for its authorized employees, contractors or agents to access and use the Licensed Software in a manner consistent with the terms and conditions of this Agreement for the Permitted Purposes and for no other purpose whatsoever.
2.2 Documentation. Subject to the terms and conditions set forth in this Agreement, Forefront hereby grants to Licensee a limited, non-exclusive, non-transferable, non-assignable, and non-sublicensable license to use the Documentation in connection with using the Licensed Software for the Permitted Purposes and for no other purpose whatsoever.
2.3 License Restrictions. Except as otherwise expressly authorized under this Agreement, Licensee shall not: (a) make copies of the Licensed Software or Documentation; (b) sublicense, assign, delegate, rent, lease, sell, time-share, or otherwise transfer, or operate a service bureau using, the Licensed Software or Documentation or any of the licenses granted hereunder or the related rights or obligations, whether as a standalone or bundled product, for any reason, and any attempt to make any such sublicense, assignment, delegation, rent, lease, sale, time-share, or other transfer by Licensee shall be void and of no effect; (c) reverse engineer, decompile, disassemble, or otherwise attempt to learn the source code, structure, or algorithms underlying the Licensed Software, or use the Licensed Software or any portion thereof except in machine-readable object code form; (d) modify, translate, or create derivative works of the Licensed Software or Documentation without the prior written consent of Forefront , which may be withheld in Forefront’s sole discretion; (e) remove any copyright, trademark, patent, or other proprietary notice that appears on the Licensed Software or Documentation or copies thereof, or (f) allow access to the Licensed Software beyond the scope of the license grant in Section 2.1.
2.4 Licenses to Forefront. Subject to the terms and conditions set forth in this Agreement, Licensee hereby grants to Forefront during the Term a fully-paid, royalty-free, non-exclusive, non-transferable, non-assignable, and non-sublicensable license to use only those aspects of the Licensee IP (as the same may be modified or enhanced from time to time) necessary to perform Forefront’s obligations and exercise its rights under this Agreement all in a manner consistent with the terms and conditions of this Agreement for the Permitted Purposes and for no other purpose. Licensee also hereby grants to Forefront a perpetual, fully-paid, royalty-free, non-exclusive, transferable, assignable and sublicensable license to use, modify, sell, distribute or create derivative works of any Anonymized Data collected for any lawful purpose whatsoever, including marketing or sale of such Anonymized Data to third parties.
3. CERTAIN FOREFRONT OBLIGATIONS.
3.1 Licensed Software and Documentation. Forefront shall provide access to the Licensed Software to Licensee within a reasonable time after the Effective Date and in accordance with the terms of this Agreement. Forefront shall provide to Licensee access to the Documentation.
3.2 Forefront Support and Maintenance Services. Throughout the Term, Forefront shall, at its sole cost and expense perform remote support and maintenance services as necessary to support the Licensed Software (the “Forefront Services”). Forefront shall not be liable for any delay or failure in completing the performance of Forefront Services to the extent such delay or failure is caused by Licensee, and/or any third party not in privity of contract with or otherwise under the control of Forefront.
3.3 Customization and Configuration.
3.3.1. At the request of Licensee, Forefront may customize or configure the Licensed Software to meet the specific needs of Licensee (the “Customization Services”). Such Customization Services, include, but are not limited to, customized Assessments and printable student reports. Prior to performing any Customization Services, the parties will agree to the specifications of the customization or configuration desired by Licensee and such specifications and the associated Forefront services and fees shall be agreed to in a Statement of Work signed by both parties. Each Statement of Work will form part of this Agreement and will be subject to the terms and conditions contained herein.
3.3.2. Unless otherwise agreed to in the applicable Statement of Work, any new applications, functionalities, algorithms, code, intellectual property, Confidential Information or other work product (“Customizations”) developed or conceived by Forefront during the performance of the Customization Services shall be and at all times remain the sole and exclusive property of Forefront. Licensee hereby disclaims any right, title, or interest in or to any Customizations and agrees not to take any action inconsistent with, or that would contest or impair the rights of Forefront in or to such Customizations.
4. CERTAIN LICENSEE OBLIGATIONS.
4.1 Licensed Software and Documentation. Licensee shall supervise and control the use by Licensee and its employees or agents of the Licensed Software and Documentation in accordance with Licensee’s customary security procedures intended to prevent unauthorized access or uses.
4.2 Support. Except as otherwise set forth in this Agreement, Licensee shall be responsible at its own cost and expense for providing or obtaining, as the case may be, all bandwidth, authorizations, and network infrastructure that may be necessary to access and use the Licensed Software.
4.3 FERPA. Licensee shall at all times ensure that the access and use of the Licensed Software by its employees, contractors or agents complies with FERPA and any associated regulations. Licensee warrants and represents that Licensee’s performance of its obligations under this Agreement comply with all applicable laws, including, but not limited to, FERPA. To the extent disclosure of Student Data to Forefront is necessary and that Student Data is not Anonymized Data, Licensee further warrants and represents that its relationship with Forefront will at all times comport with the requirements of 34 C.F.R 99.31(a)(1)(i)(B).
4.4 Video and Images of Students. Licensee shall at all times ensure that any extra permissions mandated by schools or districts have been obtained from parents and/or guardians of students before collecting or uploading video and/or images of students using the Licensed Software.
5. THIRD-PARTY APIS.
Licensee acknowledges that Forefront may seek to utilize third-party services in the future to improve upon the Licensed Software and provide further functionality. Licensee acknowledges that Forefront may develop APIs between the Licensed Software and any third party networks or systems. To the extent reasonably necessary, Licensee agrees not to hinder any partnership, project or agreement between Forefront and such third parties. Such APIs shall be and at all times remain the sole and exclusive property of Forefront or its licensors.
6. OWNERSHIP AND INTELLECTUAL PROPERTY.
6.1 Licensed Software; Documentation. The Licensed Software and Documentation are licensed and not sold to Licensee. As between Licensee on one hand and Forefront on the other, all right, title, and interest in and to the Licensed Software, the Documentation, and any improvements, modifications, Customizations (unless otherwise agreed to in a Statement of Work), or enhancements thereto, including all Updates and Upgrades (now or hereafter resulting from the efforts of Forefront, Licensee, or any other person, working together or alone) and all associated intellectual property rights shall at all times remain the sole and exclusive property of Forefront. Licensee hereby disclaims any right, title, or interest in or to the Licensed Software and the Documentation, and agrees not to take any action inconsistent with, or that would contest or impair the rights of Forefront in or to such Licensed Software and/or Documentation.
6.2 Licensee IP. As between Licensee on one hand and Forefront on the other, all right, title, and interest in and to the Licensee IP and any improvements, modifications, or enhancements thereto (now or hereafter resulting from the efforts of Licensee, Forefront, or any other person, working together or alone) and all associated intellectual property rights, shall at all times remain the sole and exclusive property of Licensee. Forefront hereby disclaims any right, title, or interest in or to the Licensee IP, and agrees not to take any action inconsistent with, or that would contest or impair the rights of Licensee in or to such Licensee IP.
6.3 Data. Forefront may not receive, access, or use any Data except in accordance with the terms of this Agreement, it being understood and agreed that Forefront shall have a fully-paid, royalty-free, non-exclusive license to use the Data solely for the purpose of performing its obligations under this Agreement. Notwithstanding the foregoing, Forefront shall have the right to use and distribute Anonymized Data in accordance with the perpetual license granted by Licensee to Forefront in Section 2.4. All Data (excluding Anonymized Data) shall be treated as Confidential Information. Any and all such Data (excluding Anonymized Data) shall, as between the Parties, be the exclusive property of Licensee.
6.4 Anonymized Data. Licensee acknowledges and agrees that Forefront shall have the right to aggregate, de-identify, and anonymize Student Data, including but not limiting to, contracting with third-party organizations to aggregate, de-identify, anonymize, and analyze such Student Data, and use such Anonymized Data for its or their own research and development purposes, including, but not limited to, creating various reports of nationally aggregated anonymized Student Data. Licensee hereby unconditionally and irrevocably grants to Forefront an assignment of all of Licensee’s right, title, and interest that Licensee may have in and to the Anonymized Data and any related research, including any and all data, documents, materials, works, and other content that results from such research or analysis of the Anonymized Data, and all intellectual property rights relating thereto.
6.5 Reservation of Rights. Except for the rights expressly granted by each Party to the other under this Agreement, no rights of ownership, license, or other privilege shall be deemed to have been conferred between the Parties unless explicitly agreed to in a document (other than this Agreement) signed by both Parties.
7. FEES; PAYMENTS.
7.1 Fee. Licensee shall pay Forefront a fee for the Term equal to the amount agreed upon in the proposal titled “Terms and Conditions” (the “Annual Subscription Fee”) and shall be paid in accordance with the procedures outlined in the Terms and Conditions.
7.2 Additional Fees. Except as explicitly otherwise stated herein, the Annual Subscription Fee set forth in Section 7.1 hereof is all-inclusive and shall constitute payment in full for all rights and licenses granted to Licensee hereunder and the performance by Forefront of all of Forefront’s obligations and Forefront Services pursuant to this Agreement.
7.3 Means of Payment. All payments required to be made under Section 7.1 shall be made either electronically or by check representing immediately-available funds sent to Forefront at the address set forth herein.
7.4 Expenses. Except as explicitly otherwise set forth in this Agreement or as the Parties may otherwise agree, each Party shall bear and retain responsibility for all expenses incurred in connection with the performance of its respective obligations under this Agreement.
7.5 Disputed Payment/Late Payment. In the event of a good faith dispute regarding any fees, the entire undisputed portion shall be paid, and no disputed fees shall be due or payable or subject to the recovery of prejudgment interest or the terms or conditions hereof unless and until such dispute has been resolved to the satisfaction of Licensee and Forefront. Notwithstanding any other rights, in the event of late payment of any undisputed fees, the Party entitled to payment shall be entitled to interest on the amount owing at a rate of one percent (1%) per month or the highest rate allowed by applicable law, whichever is less, compounded on a daily basis from the due date of payment until the date of actual payment.
7.6. Annual Subscription Fee Increase. Should this Agreement renew for a successive Term pursuant to Section 8, Forefront may increase the Annual Subscription Fee by up to ten percent (10%) of the amount charged to Licensee during the then expiring Term, provided that Forefront gives Licensee notice of such increase at least sixty (60) days prior to the expiration of the then current Term.
7.7 Royalty-Free License. There will be no license fee or other amount payable by Forefront to Licensee for the licenses granted under Sections 2.4, 6.3 and 6.4.
The term of this Agreement (the “Term”) shall be for one (1) year from the Effective Date, as may be extended pursuant to the immediately following sentence. Thereafter, this Agreement shall automatically renew for successive one (1) year terms unless either party provides written notice to the other of its intent to not renew at least thirty (30) days prior to the expiration of the then current Term.
9. LIMITATION OF LIABILITY.
9.1 No Liability. EXCEPT WITH RESPECT TO ANY CLAIMS ARISING FROM A BREACH OF SECTIONS 2, 6 AND/OR 10, AND EXCEPT WITH RESPECT TO ANY MATTER THAT IS THE SUBJECT OF A PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH UNDER SECTION 11, IN NO EVENT SHALL FOREFRONT OR LICENSEE BE LIABLE IN AN ACTION UNDER ANY THEORY (INCLUDING WITHOUT LIMITATION TORT, CONTRACT, WARRANTY OR OTHERWISE) FOR ANY: (a) DAMAGES OR LOSSES THAT ARE SPECIAL, INDIRECT, CONSEQUENTIAL, OR INCIDENTAL ARISING FROM OR RELATED TO A BREACH OF THIS AGREEMENT, THE FURNISHING, PERFORMANCE, OR USE BY DIRECTIVE OR ANYONE ELSE OF ANY ASPECT OF THE LICENSED SOFTWARE OR THE FOREFRONT SERVICES OR CUSTOMIZATION SERVICES PERFORMED HEREUNDER INCLUDING, WITHOUT LIMITATION, SUCH DAMAGES OR LOSSES ARISING FROM (i) LOSS OF BUSINESS, PROFIT, OR REVENUES, (ii) LOSS OF DATA, PROGRAMMING, OR CONTENT, (iii) FAILURE TO REALIZE SAVINGS OR OTHER BENEFITS, (iv) SUBSTITUTE PROCUREMENT; OR (v) DAMAGE TO EQUIPMENT, INCURRED BY EITHER PARTY, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES OR IF SUCH DAMAGES OR LOSSES ARE FORESEEABLE, OR (b) DAMAGES OR LOSSES (REGARDLESS OF THEIR NATURE) FOR ANY DELAY OR FAILURE BY A PARTY TO PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT DUE TO ANY FORCE MAJEURE EVENT. NOTWITHSTANDING ANYTHING SET FORTH IN THIS AGREEMENT TO THE CONTRARY, IN NO EVENT SHALL FOREFRONT OR LICENSEE BE LIABLE FOR ANY PUNITIVE/EXEMPLARY DAMAGES ARISING FROM OR RELATED TO A BREACH OF THIS AGREEMENT.
9.2 Maximum Liability. Except with respect to any claims arising from a breach of Sections 2, 6, 10, and/or 11 hereof or in the case of fraudulent or willful misconduct, in no event shall either Party’s total liability hereunder to the other Party for damages or losses of any kind exceed, either individually or in the aggregate, the amounts paid by Licensee to Forefront under this Agreement.
9.3 Allocation of Risk. The Parties acknowledge and agree that the limitations of liability in this Section 9 and in other provisions of this Agreement and the allocation of risk herein are an essential element of the bargain between the Parties, without which neither Party would have entered into this Agreement.
10.1 Confidentiality Obligations. Licensee and Forefront agree that the Confidential Information disclosed to one another shall exclusively be used only for the Permitted Purposes in strict accordance to the terms of this Agreement. Neither Licensee or its representatives nor Forefront or its representatives shall disclose (orally, in writing, by press release or by public disclosure of any kind or otherwise) to any person inside or outside the Receiving Party’s (defined below) organization (other than the Receiving Party’s representatives, in their capacity as such, and on a need-to-know basis to allow the Receiving Party to carry out the Permitted Purposes, and only to those who have assumed an obligation to the Disclosing Party (defined below) to act in accordance with the provisions of this Agreement) any Confidential Information except: (i) to comply with any then-current federal, state or local law, rule or regulation so long as prior to any such required disclosure, the Receiving Party provides the Disclosing Party with the greatest notice reasonable under the circumstances, so the Disclosing Party may seek a protective order or other appropriate remedy; (ii) to the extent necessary to comply with the valid order of an administrative agency or a court of competent jurisdiction so long as prior to any such required disclosure, the Receiving Party provides the Disclosing Party with the greatest notice reasonable under the circumstances, so the Disclosing Party may seek a protective order or other appropriate remedy; (iii) in order to enforce its rights pursuant to this Agreement in an arbitration proceeding or proceeding in a court of competent jurisdiction; or (iv) if agreed to in writing in advance by the Disclosing Party. In any event, the Receiving Party will disclose only that portion of such Confidential Information as is legally required to be furnished (or the portion of such Confidential Information authorized by the Disclosing Party in writing) and will exercise reasonable efforts to obtain the highest level of confidential treatment available under the circumstances for any Confidential Information being disclosed. The Receiving Party shall use the same degree of care to protect the secrecy and confidentiality of the Confidential Information as it uses to protect its own confidential information, and in all events at least a reasonable degree of care. The Receiving Party shall cause all of Receiving Party’s representatives who receive Confidential Information to observe the requirements applicable to Receiving Party with respect to such Confidential Information.
Notwithstanding the foregoing, the obligations created by this Section 10 shall not apply to information that: (a) was in the public domain at the time it was disclosed or has entered the public domain through no fault or wrongful act of the Party receiving the information (the “Receiving Party”) or any of its representatives; or (b) the Receiving Party can show was lawfully in its possession by virtue of being recorded in its files or being in its prior use, free of any obligation of confidentiality, at the time it was communicated to the Receiving Party by the Party disclosing the information (the “Disclosing Party”); or (c) is disclosed by the Receiving Party with the prior written approval of the Disclosing Party; or (d) is lawfully received without breach and/or violation of this Agreement by the Receiving Party from a third party without restriction on disclosure and without a breach of a nondisclosure obligation by the third party; or (e) is independently developed by the Receiving Party, without any use of, and/or reference or recourse to, the Confidential Information of the Disclosing Party, by persons who have not had any access to such Confidential Information.
10.2 Return or Destruction of Materials. Notwithstanding any other provision of this Agreement, upon expiration or termination of this Agreement, (i) the Disclosing Party’s Confidential Information that is in the possession of the Receiving Party, and/or its representatives regardless of the method of storage or retrieval, and whether such Confidential Information is an original, copy, reproduction or image, shall either be (a) delivered to the Disclosing Party in each such form as is then currently in the possession of the Receiving Party and/or such representative, as the case may be, or (b) disposed of, at the direction and written request of the Disclosing Party (so the Confidential Information is not retrievable by any means possible) and (ii) all rights granted to the Receiving Party hereunder to receive, use, or otherwise handle such Confidential Information or materials or data relating thereto shall cease and terminate immediately. Within ten (10) days of the Disclosing Party’s request, the Receiving Party shall provide the Disclosing Party with a written certification of an officer of the Receiving Party certifying that all Confidential Information in all formats, including without limitation, paper, electronic and disk form (including all copies of each), have been returned or destroyed, as the case may be.
10.3 Continuing Obligation. The terms and obligations pertaining to confidentiality in this Agreement shall remain in full force and effect after the termination or expiration of this Agreement, unless the Disclosing Party expressly agrees in writing to release all or part of its Confidential Information from the restrictions imposed by this Agreement before such period has elapsed.
11.1 By Forefront. Forefront will indemnify, defend, and hold harmless Licensee, its representatives, and each of Licensee’s assigns, heirs, successors, shareholders, and members, from and against any and all losses, claims, actions, damages, liabilities, costs and expenses (including reasonable attorneys’ fees and court costs) arising from claims by any third party that arise from claims that Licensee’s proper use of the Licensed Software violates, misappropriates, or infringes any US patent, US copyright, or trade secret of any other person. The foregoing indemnity by Forefront with respect to third party claims shall not apply to any claims that would not arise but for Licensee’s improper use of the Licensed Software, or Licensee’s use of the Licensed Software outside the scope of the Specifications, or Licensee’s modifications or requested modifications to the Licensed Software or use of the Licensed Software with any third party software not recommended by Forefront.
11.2 By Licensee. Licensee will indemnify, defend, and hold harmless Forefront, its representatives, and Licensee’s respective assigns, heirs, successors, and shareholders, from and against any and all losses, claims, actions, damages, liabilities, costs and expenses (including reasonable attorneys’ fees and court costs) arising from claims by any third party (a) that arise from a breach or alleged breach by Licensee of this Agreement; or (b) that result from Licensee’s collection, use, storage, or dissemination of Data; or (c) that result from Licensee’s improper use of the Licensed Software or Licensee’s use of the Licensed Software outside the scope of the Specifications or Licensee’s modifications or requested modifications to the Licensed Software or use of the Licensed Software with any third party software not recommended by Forefront; or (d) Licensee’s performance (or non-performance) of its obligations hereunder that violate FERPA or any privacy right of any student.
11.3 Infringement Injunctions. If, as the result of a third party claim or action for infringement of a patent or copyright covered by Section 11.1 above, Forefront or Licensee is enjoined from using any aspect of the Licensed Software, or if Forefront believes that any aspect of the Licensed Software is likely to become the subject of such claim of infringement in its sole discretion, Forefront shall immediately notify Licensee of such injunction or likely infringement and (at Forefront’s sole option and expense) may (i) procure the right for Licensee to continue to use such Licensed Software, or (ii) replace or modify such Licensed Software so as to make it non-infringing, each at no additional cost to Licensee.
11.4 Disclaimer of Warranty. THE PROVISIONS SET FORTH IN THIS SECTION 11 SETS FORTH FOREFRONT’S ENTIRE LIABILITY AND THE EXCLUSIVE REMEDIES OF LICENSEE OR ITS REPRESENTATIVES CONCERNING ANY THIRD PARTY INFRINGEMENT CLAIMS RELATED TO THE LICENSED SOFTWARE.
12.1 Notices. All notices and communications related to this Agreement and sent by either Party hereto to the other shall be written in English and delivered by registered mail, nationally recognized overnight courier, or by facsimile to the following addresses:
With respect to Forefront to:
Forefront Math Corporation
Attn: Terms and License
75 Waneka Parkway, Lafayette, CO 80026
Tel: (720) 818-4277
or such other addresses as may have been previously specified (in the manner set forth above) in writing by either Party to the other. No change of address shall be binding upon the other Party hereto until such other Party receives written notice thereof at the applicable address shown herein. Any notice shall be deemed to have been duly given or made upon receipt in accordance with the above.
12.2 Assignment. Neither Party shall transfer, delegate, or assign this Agreement, in whole or in part, or any of its rights or obligations hereunder to any other person, whether by written agreement, operation of law or otherwise, without the prior written consent of the other Party, which consent may be withheld for any reason or no reason whatsoever, as determined by such other Party in its sole discretion. Notwithstanding the foregoing, no consent (written or otherwise) shall be required if (a) Forefront assigns or otherwise transfers all of its rights and obligations to a successor in interest, by merger, by operation of law, or by assignment, purchase, or otherwise, of the entire business of Forefront, provided Forefront gives written notice of such contemplated assignment to Licensee. Any assignment or transfer by a Party hereto that is not in compliance with the terms and conditions set forth in this Section 12.2 shall be void and of no effect. No assignment or other transfer of any obligations under this Agreement shall relieve the assigning or transferring Party of any liability for the performance of such obligations. Subject to the foregoing, any permitted assignment or transfer of or under this Agreement shall be binding upon, and inure to the benefit of, the successors, executors, heirs, representatives, administrators and assigns of the assigning or transferring Party hereto.
12.3 Survival. Sections 2.4 (only regarding the Anonymized Data license to Forefront), 6 (OWNERSHIP AND INTELLECTUAL PROPERTY), 9 (LIMITATION OF LIABILITY), 10 (CONFIDENTIALITY), 11 (INDEMNIFICATION), 11.4 (DISCLAIMER OF WARRANTY), and 12 (MISCELLANEOUS) shall survive the expiration or earlier termination of this Agreement.
12.4 Governing Law and Jurisdiction. This Agreement and all matters relating to this Agreement shall be governed by and construed in accordance with the internal substantive laws of the State of Colorado, without regard to its conflict of law principles. Should any legal action, arbitration, or other legal proceeding be commenced to resolve any dispute under this Agreement:
12.4.1 the prevailing Party shall be entitled to an award of litigation expenses, interest, and reasonable attorney fees, in addition to any other remedy obtained; and
12.4.2 each Party hereby irrevocably agrees that any legal action or proceeding arising out of or relating to this Agreement shall be instituted in the Courts of the State of Colorado sitting in Denver, Colorado, or the United States District Court of Colorado; each Party (i) consents to the exclusive jurisdiction of such courts, (ii) waives any objection relating to the basis for personal or in rem jurisdiction or to venue which either Party may now or hereafter have in any such legal action or proceeding, and (iii) agrees not to claim any immunity (whether characterized as sovereign immunity or otherwise) from suit, from the jurisdiction of any such court, from attachment prior to or in aid of execution of a judgment from such court, or from execution of a judgment from such court.
12.5 No Agency; Independent Contractors. In connection with this Agreement, each Party is an independent contractor and as such will not have any authority to bind or commit the other. Furthermore, neither this Agreement, nor any terms and conditions contained herein, shall be construed as creating a partnership, joint venture or agency relationship or as granting a franchise.
12.6 Force Majeure. Neither Party shall be liable for failure to perform any of its obligations under this Agreement during any period in which either or both Parties cannot perform due to fire, earthquake, flood, or other natural disaster, epidemic, accident, explosion, casualty, strike, lockout, labor controversy, war, embargo, riot, civil disturbance, act of public enemy, act of God, or the intervention of any government authority, or any failure or delay of any cable, transponder, transportation, power, or similar cause beyond either Party’s reasonable control (each, a “Force Majeure Event”), provided that the affected Party shall give the other Party written notice of the occurrence of a Force Majeure Event as soon as practicable.
12.7 Severability; Waiver. To the extent that any term, condition or provision of this Agreement is held to be invalid, illegal or otherwise unenforceable under applicable law, rule, or regulation then such term, condition or provision shall be deemed amended only to the extent necessary to render such term, condition or provision enforceable under applicable law, rule, or regulation preserving to the fullest extent possible the intent and agreements of the Parties set forth herein; in the event that such term, condition or provision cannot be so amended as to be enforceable under applicable law, rule, or regulation, then such term, condition or provision shall be deemed excluded from this Agreement and the other terms, conditions and provisions hereof shall remain in full force and effect as if such unenforceable term, condition or provision had not been included herein. The failure of a Party to prosecute its rights with respect to a default or breach hereunder shall not constitute a waiver of the right to enforce its rights with respect to any other or later breach. No waiver of any right or remedy available to a Party under this Agreement, at law, or in equity shall be effective unless signed in a writing by the waiving Party. Unless otherwise specifically limited under this Agreement, all rights and remedies reserved to either Party shall be cumulative and shall not be in limitation of any other right or remedy which such Party may have at law or in equity.
12.8 Entire Agreement; Amendment. This Agreement (including all exhibits or schedules referred to herein) embody the entire understanding of the Parties with respect to the subject matter hereof and shall supersede all previous communications, representations, or understandings, either oral or written, between the Parties relating to the subject matter hereof. In the case of a conflict between the provisions of the main body of this Agreement and any of the exhibits or schedules, the provisions of the the main body of this Agreement shall prevail. This Agreement may not be modified except by a written agreement signed on behalf of Licensee and Forefront by their respective duly authorized representatives. Each Party acknowledges that it is entering into this Agreement solely on the basis of the agreements and representations contained in this Agreement, and for its own purposes and not for the benefit of any third party.
12.9 Headings. Captions and headings contained in this Agreement have been included for ease of reference and convenience and shall not be considered in interpreting or construing this Agreement.
12.10 Non-Exclusivity. The rights granted to either Party hereunder are non-exclusive and nothing in this Agreement shall be deemed or construed to prohibit either Party from participating in business arrangements with third parties that are similar to those described herein, provided that such Party does so without any violation of its obligations of confidentiality to the other Party hereto and without any violation of the licenses granted to such Party under this Agreement.