This Littera Master Subscription Agreement (“Agreement”) is made as of the ____ day of __________ 2021 (the “Effective Date”) by and between Littera Education Inc. (“Littera”) with offices located at 166 Maloney Road, Wappingers Falls, NY 12590, and the entity identified below (“Customer”), each referred to as “Party” and collectively the “Parties.”
This Agreement consists of this cover page (the “Cover Page”), the attached Littera Standard Terms and Conditions (“Standard Terms and Conditions”) and any applicable Supplemental Terms (collectively, the “Terms and Conditions”), and any Order Form executed by the Parties hereunder. Capitalized terms used, but not defined, in this Cover shall have the meaning ascribed to them in the Standard Terms and Conditions, or any applicable Supplemental Terms or Order Forms.
1.1 “Access Protocols” means the passwords, access codes, technical specifications, connectivity standards or protocols, or other relevant procedures, as may be necessary to allow Customer and Users to access the Platform Services.
1.2 “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. For purposes of this definition, “Control” means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
1.3 “Aggregated Data” means any User Generated Content, Personal Data, or Usage and Performance Data that has been combined with other customer, user-generated, and/or usage and performance data such that the remaining information does not permit the identification of Customer or any User or other individual.
1.4 “Confidential Information” means all information disclosed by a Party (“Disclosing Party”) to the other Party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information of Customer includes Customer Content and Personal Data, and, to the extent applicable, any other Customer-Supplied Materials used in connection with Littera Professional Services provided hereunder (if any); Confidential Information of Littera includes the Services, Littera Content, Usage and Performance Data, and any other Littera Property used or developed in connection with Littera Professional Services provided hereunder (if any), and the terms and conditions of this Agreement (including pricing contained in any Order Form). Confidential Information of each Party includes business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such Party. Notwithstanding the foregoing, Confidential Information does not include Aggregated Data, De-Identified Data, or any information that (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (c) is received from a Third Party without knowledge of any breach of any obligation owed to the Disclosing Party, or (d) was independently developed by the Receiving Party.
1.5 “Content” means all information, files, text, images, data, output, and other materials of any kind, including, unless otherwise indicated, Personal Data.
1.6 “Customer” means the entity identified on the Cover Page.
1.7 “Customer Content” means all Content supplied or made available to Littera by Customer, whether on its own or via a Third Party, at Customer’s direction, for use in connection with the Services, including all User Generated Content uploaded into the Platform by Users.
1.8 “De-Identified Data” means any data, including data derived from Customer’s Confidential Information or User-Generated Content, that has had all direct and indirect personal identifiers removed. This includes the removal of any names, identification numbers, and dates of birth, address, email address, and telephone number. De-Identified Data does not include any data that alone or in combination would reasonably allow a person or entity to identify a User or any other individual with reasonable certainty.
1.10 “Documentation” means the applicable Services documentation and descriptions that Littera makes publicly available at [insert URL] or upon written request, including all usage guides and policies applicable to such Services, as may be updated from time to time.
1.11 “Education Records” means “education records” as defined at 34 CFR § 99.3.
1.11 “Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
1.12 “Order Form” means a written or online ordering document, communication, form, or Statement of Work, or other documentation that references this Agreement and specifies the Littera Offering(s) to be provided hereunder that is entered into between Customer and Littera or any of their respective Affiliates, including any addenda and supplements thereto. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto.
1.13 “Littera Content” means all Content made available by Littera to Customer and/or the Users through the Services, including any Content licensed directly by Littera from Third Parties for use in the Services (which, for the avoidance of doubt shall not include any Customer Content obtained and uploaded into the Platform or used with the Services by or on behalf of Littera at the express direction of Customer, even if such Customer Content is obtained from a Third Party).
1.14 “Littera Offering” means Littera’s suite of products and services, including Littera Professional Services.
1.15 “Littera Professional Services” means professional services, such as tutoring services or consulting and design services, ordered by Customer in an Order Form and provided by Littera pursuant to these Standard Terms and Conditions, together with the Littera Professional Services Supplemental Terms.
1.16 “Personal Data” means information about a specific individual that is provided, submitted, collected or generated in connection with any of the Services that may, alone or in combination with other available information, be reasonably used to identify the individual, including any User.
1.17 “Platform” means Littera’s proprietary software, technology, databases, and application programming interfaces (APIs) that Littera uses to provide the Platform Services hereunder.
1.18 “Platform Services” means the hosting and provisioning of the Platform through which certain Content, including, without limitation, curriculum and tutoring content, textbooks, and other digital material, can be surfaced and managed, based, in part, on Customer’s chosen settings in the Platform, as well as the general set-up, configuration, technical support and basic training (provided online) in respect of the Platform.
1.19 “Services” means the Platform Services, together with any Littera Offerings ordered by Customer and provided by Littera pursuant to an Order Form executed hereunder.
1.20 “Subscription” means the right to access and use certain of the Services for a particular period of time, as set forth in an Order Form.
1.21 “Supplemental Terms” means any additional terms that either are listed or referenced in this Agreement (e.g., on the Cover Page, in these Standard Terms and Conditions, or in an Order Form), or are presented to Customer prior to its access or use of a specific Littera Offering (e.g., Littera Professional Services). Supplemental Terms supplement these Standard Terms and Conditions, but only with a respect to the Littera Offerings they reference, and are incorporated into this Agreement by this reference (except to the extent there is a conflict between them and this Agreement, in which case the Supplemental Terms govern only with respect to the Littera Offerings to which they apply).
1.22 “Third Party” means a party other than Littera, Customer or a User.
1.23 “Usage and Performance Data” means any analytics or similar usage data collected, generated or processed by Littera in connection with Customer’s and the Users’ access to and use of the Platform Services (including technical performance data automatically generated by the Platform Services), which data does not contain any Personal Data.
1.24 “User” means any individual, including an employee of Customer or a student served by Customer, authorized by Customer to access and use the Platform Services who has agreed to Littera’s standard Terms of Service prior to access and use of the Platform.
1.25 “User Generated Content” means all Content supplied or made available by any User in connection with use of the Services, including all Content uploaded into the Platform by the Users.
Other capitalized terms used in these Standard Terms and Conditions, and not otherwise defined herein, shall have the meeting ascribed to them elsewhere in this Agreement.
2. PLATFORM SERVICES
2.1 Platform. Subject to Customer’s ongoing compliance with the terms of this Agreement, Littera grants to Customer a non-exclusive, non-sublicensable, non-transferable license during the Term, to access and use, solely for Customer’s internal business purposes, and allow Users to access and use, solely for education purposes, the Platform Services, all in accordance with the terms of this Agreement (including any limitations set forth in the applicable Order Form) and the Documentation.
2.2 Documentation. Littera hereby grants Customer a non-exclusive, non-transferable, non-sublicensable, internal use only license, during the Term to use any Documentation in connection with Customer’s use of the Services and make only those copies of the Documentation reasonably necessary to exercise Customer’s rights hereunder.
2.3 Modifications. Customer acknowledges that Littera may modify the features or functionality of, or the Content it makes available via, the Platform Services at any time, including during the Subscription Term (as defined herein). Littera shall provide Customer with commercially reasonable advance notice of any deprecation of any material feature, functionality or Content made available as part of the Platform Services.
2.4 Onboarding. On or as soon as reasonably practicable after the Effective Date, Littera will onboard Customer onto the Platform Services, including by: (a) working with Customer to obtain any Customer Content required for the onboarding and, where applicable, the integration between the Parties’ respective systems (and where agreed, Customer’s Third-Party Services (as defined herein)); and (b) providing Customer with any Access Protocols needed for Customer to allow Users to access and use the Platform Services.
2.5 Users. Customer may permit any Users to access and use the features and functions of the Platform Services, as well as the Content made available via the Platform Services (e.g., Littera Content and Customer Content, which, depending on the permissions selected by Customer in the Platform and under other arrangements approved by Customer, may include User Generated Content uploaded into the Platform by other Users and/or Customer Content obtained by Littera through integrations with Customer’s Third-Party Services), solely as permitted hereunder. User login information cannot be shared or used by more than one User at a time. Customer is solely responsible for maintaining the confidentiality of Access Protocols and Littera will not be liable for any activities undertaken by anyone using Customer’s Access Protocols. Customer will immediately notify Littera of any unauthorized use of its Access Protocols or any other breach of security relating to the Platform Services known to Customer.
2.6 Support Services. Subject to the terms and conditions of this Agreement, Littera will operate the Platform Services in accordance with the applicable Documentation and specifications for such Platform Services that it makes available to Customer and Users hereunder. In the event of any downtime, or error in any material functionality, of the Platform Services of which Littera is made aware, Littera will exercise commercially reasonable efforts to correct the underlying problem of the downtime or error as soon as practicable using remote diagnostic procedures, whenever possible. Littera will provide reasonable ongoing technical support through telephone consultations with respect to the Platform Services. Littera may from time to time in its sole discretion, without liability to Customer, suspend, revise, modify or update any part of the Platform Services; provided, however, that Littera shall notify Customer of any such event, either electronically or in writing, with reasonable promptness after determining that such event will occur.
2.7 System Requirements. A high-speed Internet connection is required for proper use of the Platform Services. Customer is responsible for procuring and maintaining the network connections that connect its network to the Platform Services including, but not limited to, browser software that supports protocols used by Littera, and following procedures for accessing services that support such protocols. Littera assumes no responsibility for the reliability or performance of any connections as described in this Section.
2.8 Usage and Performance Data. As part of the Platform Services, Littera collects and tracks Usage and Performance Data to assist with the necessary operation and function of the Platform, to provide reporting to Customer and for internal purposes, including without limitation, to facilitate in the provision of updates, support, and invoicing, by Littera, its Affiliates, and its agents, as well as research and development. Such Usage and Performance Data will be owned by Littera and may be used for any lawful purpose, provided Littera will only disclose Usage and Performance Data to Third Parties, including its subcontractors for the purposes of facilitating the Services, for internal purposes as described in this Agreement, to perform its other obligations and exercise its rights under this Agreement, or as otherwise required by law.
3. USE OF SERVICES
3.1 Subscriptions. Littera will provide the Services in accordance with laws and government regulations applicable to Littera’s provision of the Services to its customers generally (i.e., without regard for Customer’s particular use of the Services). Services are provided on a Subscription-by-Subscription basis, with the start and end dates of the initial Subscription for each Service (the “Initial Subscription Term”) specified in the relevant Order Form. Unless otherwise provided in the applicable Order Form, (a) access to the Platform Services and any other Littera Offerings listed in the Order Form (at the levels described therein) is granted for the duration of the Initial Subscription Term and any applicable Renewal Subscription Term (as defined herein, and together with the Initial Subscription Term, the “Subscription Term”) specified in the Order Form; and (b) Customer may expand the scope of its Subscription for a particular Service (e.g., increasing the number of User licenses) during a Subscription Term by executing a separate Order Form, which shall be subject to the same pricing as the underlying Subscription pricing, prorated for the portion of the Subscription Term that remains. Customer agrees that its purchases of Subscriptions hereunder are not contingent on the delivery of any future functionality, features, or Content, or dependent on any oral or written public comments made by Littera regarding future functionality or features.
3.2 Customer Responsibilities. As between Littera and Customer, Customer will (a) be responsible for Users’ compliance with the terms of this Agreement and all applicable Documentation; (b) be responsible for the accuracy, quality and legality of the Customer Content that Customer makes available or uses in connection with the Services, the means by which Customer acquired such Customer Content, and all use of such Customer Content, by Customer, the Users and, to the extent used in accordance with the terms of this Agreement, by Littera, in connection with the Services; (c) use commercially reasonable efforts to prevent unauthorized access to or use of the Platform Services, any Littera Content or Personal Data made available in connection therewith, and notify Littera promptly of any such unauthorized access or use; and (d) use the Platform Services, Littera Content and Personal Data obtained from the Platform Services only in accordance with this Agreement, the applicable Documentation, and applicable laws. Any use of the Platform Services, Littera Content, or Personal Data obtained from the Platform Services in breach of the foregoing by Customer or Users that in Littera’s judgment threatens the security, integrity, or availability of the Platform Services or any other Littera Offering or otherwise infringes or violates of the rights of any individual, may result in Littera’s immediate suspension of Customer’s and/or any User’s access to the Platform Services, the Littera Content, Personal Data, or other Littera Offerings, however Littera will use commercially reasonable efforts under the circumstances to provide Customer with notice and an opportunity to remedy such violation or threat prior to any such suspension. Littera is not obligated to back up any portion of Customer Content uploaded into or maintained at any time in the Platform, whether uploaded by Customer, a User or Littera. To the extent Customer desires such backup copies, it is solely responsible for creating them, at its sole cost and expense.
3.3 Usage Restrictions. Customer will not, directly or indirectly, and will not permit any User or Third Party to: (a) sell, resell, license, sublicense, distribute, make available, rent or lease access to the Platform, the Services, or any Littera Content, or include the Platform, the Services, or any Littera Content in a service bureau or outsourcing offering; (b) alter or remove any trademarks or proprietary notices contained in or on the Platform, the Services or any Littera Content; (c) use the Platform or the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of Third-Party privacy rights; (d) use the Platform or the Services to store or transmit Malicious Code; (e) attempt to gain unauthorized access to the Platform, the Services, any Littera Content or any related systems or networks; (f) circumvent or otherwise interfere with any authentication or security measures of the Platform, the Services, or any Littera Content, or otherwise interfere with or disrupt the integrity or performance of the foregoing; (g) modify, copy, or create derivative works based on the Services, any Littera Content, or any part, feature, function or user interface thereof; (h) copy any Littera Content except as expressly permitted herein; (j) frame or mirror any part of the Platform Services or Littera Content, other than framing on Customer’s own intranets or otherwise for its own internal business purposes or as permitted in the Documentation; (k) except to the extent permitted by applicable law, disassemble, reverse engineer, decompile, or otherwise attempt to derive the source code, algorithms, or associated know-how of the Platform or other technology used by Littera to deliver the Platform, the Services or the Littera Content; or (l) access the Platform, the Services or the Littera Content, or otherwise use any of the foregoing for the purpose of developing, distributing or making available products or services that are similar to or compete with the Platform, the Services or the Littera Content.
4. CUSTOMER THIRD-PARTY SERVICE INTEGRATIONS. The Platform Services may integrate with services (e.g. Clever or Classlink) for which Customer has independently contracted with a Third Party (“Customer’s Third-Party Services”). If Customer elects to integrate its Littera account with one or more of Customer’s Third-Party Services, it shall provide Littera with the information reasonably required by Littera to implement the integration and ensure that it has all required permissions and authorizations to share such information with Littera for such limited purpose. Any integration with Customer’s Third-Party Services depends on the continuing availability of, and access to such Customer’s Third-Party Services and/or any Content or interfaces made available through such Customer’s Third-Party Services. If for any reason Littera cannot access or use the applicable Customer’s Third-Party Services or the required data or information interfaces, Littera may not be able to provide all of the functions of its Platform Services. No refund or credit will be provided for unavailability of any Customer’s Third-Party Services. Unless otherwise specified in this Agreement, all Content accessed through Customer’s Third-Party Services integrated hereunder shall be considered to be Customer Content for purposes of this Agreement.
5. FEES AND PAYMENT
5.1 Fees; Payment Terms. In consideration of the right to access and use the Services and any Littera Content described in the applicable Order Form, Customer shall pay Littera fees of the type and amount set forth in the Order Form (the “Fees”). Littera shall invoice Customer for such Fees on the schedule set forth in the Order Form, and the amounts set forth in such invoices shall be due from Customer within thirty (30) days of receipt. Except as otherwise specified herein or in an Order Form, (a) Fees are based on Subscriptions purchased and not actual usage; (b) payment obligations are non-cancelable and Fees paid are non-refundable; and (c) quantities purchased cannot be decreased during the relevant Subscription Term. Littera may change the amount of the Fees for any Renewal Subscription Term, provided that Littera provides Customer with written notice of such change at least ninety (90) days prior to the first day of such Renewal Subscription Term. Non-payment or late payment of Fees not otherwise disputed in good faith is a material breach of this Agreement. Customer shall pay interest on any overdue balance at the rate of 1½% per month or the maximum permitted by law, whichever is less, plus all expenses of collection. All taxes and other governmental charges (except for income taxes), if any, imposed on Customer payments hereunder shall be deemed to be in addition to the Fees charged, and borne solely by Customer.
5.2 Suspension of Services and Acceleration. If any Fees not otherwise disputed in good faith remain owing by Customer thirty (30) days or more after the payment due date, Littera may, without limiting its other rights and remedies, upon notice to Customer, (a) accelerate Customer’s payment obligations such that all outstanding unpaid Fees shall become immediately due and payable; and (b) suspend all Services until such amounts are paid in full. Littera will not exercise its rights under this Section if Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.
6. PROPRIETARY RIGHTS AND LICENSES
6.1 Ownership and Reservation of Rights. Subject to the limited rights expressly granted hereunder, Littera, its Affiliates, and its licensors reserve all of their right, title and interest in and to the Platform, the Services, the Documentation, the Littera Content and, if applicable, Deliverables provided as part of the Littera Professional Services (other than any Customer-Supplied Materials contained in such Deliverables), including all of their related intellectual property rights. As between the Parties, Customer owns all right, title and interest in and to the Customer Content, including, without limitation, any Personal Data related to Users, Personal Data otherwise uploaded into the Platform by Users, and User Generated Content. No rights are granted to a party hereunder other than as expressly set forth herein.
6.2 Access to and Use of Littera Content. Subject to the terms and conditions of this Agreement, including any different or additional license terms and restrictions in applicable Order Forms or Supplemental Terms, with respect to any Littera Content that Littera licenses from a Third Party and makes available to Customer and its Users under special terms, during the Term, Littera grants to Customer a nonexclusive, non-transferable (except as permitted under Section 12.9) license, without the right to sublicense, to view, download, reproduce, and disclose to Users Littera Content solely for Customer’s internal business purposes and Users’ educational purposes.
6.4 License by Customer to Use Feedback. Customer grants to Littera and its Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Littera Offerings any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer or Users relating to the operation or use of the Littera Offerings.
7. CONFIDENTIALITY; PRIVACY; DATA SECURITY
7.1 Protection of Confidential Information. As between the Parties, each Party retains all ownership rights in and to its Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own Confidential Information of like kind (but not less than reasonable care) to (a) not use any Confidential Information of the Disclosing Party for any purpose other than as permitted by this Agreement; and (b) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access to fulfill its obligations or exercise its rights under this Agreement and who are bound by confidentiality obligations that provide the Disclosing Party no less protection than afforded it hereunder. Neither Party will disclose the terms of this Agreement to any Third Party other than its Affiliates, legal counsel and accountants without the other Party’s prior written consent, provided that a Party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this Section 7. Notwithstanding the foregoing, Littera may disclose the terms of this Agreement to a subcontractor to the extent necessary to perform Littera’s obligations hereunder, under terms of confidentiality materially as protective as set forth herein.
7.2 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
(b) FERPA. Where Customer is located in the United States and to the extent Littera collects, through the provision of any Services, any student personal information that is part of an Education Record (as defined at 34 CFR § 99.3), the Parties agree that Littera is acting as a “school official” with “legitimate educational interests” in Customer’s students’ Education Records under the Family Educational Rights and Privacy Act (“FERPA”). Littera agrees that it shall not redisclose any student personal information that is part of an Education Record except in accordance with FERPA. Education Records shall be under the direct control of Customer. Littera agrees to reasonably cooperate with Customer to appropriately respond to access and correction requests by Customer in accordance with applicable state and federal law.
(c) Post-Termination Retention of Personal Data. Upon any termination or expiration of this Agreement, Littera will return or destroy any Personal Data in its possession in accordance with the requirements of Section 11.4; provided, however, Littera may retain copies of Personal Data as necessary for it to comply with applicable law.
7.4 Data Security. Littera agrees that it will store and process Customer’s Confidential Information, including Personal Data, in accordance with customary industry standards. Littera shall implement and maintain commercially reasonable administrative, technical and physical security measures designed to protect Customer’s Confidential Information from unauthorized access, disclosure and use. Littera will conduct periodic risk assessments and remediate identified material security vulnerabilities in a commercially reasonable manner. Littera will have a written data breach response plan and will take commercially reasonable steps to notify Customer if it becomes aware of a data breach known to involve, or likely involving, Customer’s Confidential Information. Littera will cooperate with Customer to comply with any applicable data breach notification laws with respect to any affected Personal Data.
8. REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS
8.1 Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.
8.2 Customer Warranties. Customer represents and warrants that (a) its use of the Services, the Littera Content, the Personal Data, and, if applicable, any Deliverables provided as part of Littera Professional Services will comply with all applicable laws; and (b) the Customer Content uploaded into the Platform by Customer or Users shall not (i) infringe any copyright, trademark, or patent right; (ii) misappropriate any trade secret; (iii) be deceptive, libelous, obscene, pornographic or unlawful; (iv) contain any Malicious Code; or (v) otherwise violate any privacy or other right of any Third Party.
8.3 Littera Warranties. Littera represents and warrants that during an applicable Subscription Term: (a) this Agreement and the Documentation will accurately describe the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Content and any Personal Data collected or processed hereunder; (b) Littera will not materially decrease the overall security of the Platform Services or any other hosted services; (c) the Services will perform materially in accordance with the applicable Documentation; (d) Littera will not materially decrease the overall functionality of the Services; and (e) to the extent Littera provides any Littera Professional Services hereunder, it shall provide such services in a professional and workmanlike manner in accordance with the standards and practices that are generally accepted in the industry and exercised by other persons engaged in performing similar services. For any breach of a warranty above, Customer’s exclusive remedies are those described in the “Termination” and “Refund or Payment upon Termination” sections below.
8.4 Disclaimers. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR THE LIMITED WARRANTIES EXPRESSLY SET FORTH IN THIS SECTION 8 AND ANY APPLICABLE SUPPLEMENTAL TERMS, THE SERVICES, LITTERA CONTENT AND, IF APPLICABLE, ANY DELIVERABLES PROVIDED IN CONNECTION WITH LITTERA PROFESSIONAL SERVICES ARE PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND, AND LITTERA AND ITS LICENSOR(S) DISCLAIM ALL OTHER WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY OR COMPLETENESS, NONINTERFERENCE, SYSTEM INTEGRATION, AND NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, LITTERA DOES NOT WARRANT THAT THE PLATFORM, THE SERVICES, THE LITTERA CONTENT, OR ANY DELIVERABLES PROVIDED IN CONNECTION WITH ANY LITTERA PROFESSIONAL SERVICES WILL MEET CUSTOMER’S NEEDS, OR THAT CUSTOMER’S USE OR OPERATION OF OR ACCESS TO THE SAME WILL BE UNINTERRUPTED, ERROR FREE, FAULT-TOLERANT, FAIL-SAFE OR THAT ALL NONCONFORMITIES CAN OR WILL BE CORRECTED.
9. MUTUAL INDEMNIFICATION
9.1 Indemnification by Littera. Littera agrees, at its expense, to defend Customer against any claim, demand, suit or proceeding made or brought against Customer by a Third Party (a) alleging that the Services, any Littera Content (except for Littera Content that is licensed from Third Parties and made available pursuant to separate terms under the Order Form, in which case such Content would be subject to any indemnity provided therein)or, if Littera provides Littera Professional Services hereunder, any Deliverables provided in connection therewith (other than any Customer-Supplied Materials contained therein), or use thereof as permitted hereunder, infringes or misappropriates such Third Party’s intellectual property rights, or (b) based on bodily injury or death or injury to tangible or real property caused by the gross negligence or willful misconduct by Littera or Littera personnel in connection with performance of Littera Professional Services on Customer’s premises (if any). Littera will indemnify Customer from any damages, attorney fees and costs finally awarded against Customer as a result of, or for amounts paid by Customer under a settlement approved by Littera in writing of, any such claim, provided Customer (i) promptly gives Littera written notice of the claim; (ii) gives Littera sole control of the defense and settlement of the claim (except that Littera may not settle the claim unless it unconditionally releases Customer of all liability); and (iii) gives Littera all reasonable assistance requested by Littera in connection with the defense or settlement of the claim, at Littera’s expense. If Littera receives information about an infringement or misappropriation claim related to any Services, Littera Content or any Deliverables provided in connection with any Littera Professional Services, Littera may in its discretion and at no cost to Customer (a) modify the affected Services, Littera Content or Deliverables so that they are no longer claimed to infringe or misappropriate, without breaching Littera’s warranties hereunder; (b) obtain a license for Customer’s continued use of the affected Services, Littera Content or Deliverables in accordance with this Agreement; or (c) terminate Customer’s Subscription(s) for the affected Services upon thirty (30) days’ prior written notice and refund Customer any prepaid Fees covering the remainder of the Term(s) of the terminated Subscriptions. Notwithstanding anything to contrary contained herein, the above defense and indemnification obligations do not apply if the Third-Party claim arises from (1) the use or combination of the Services, Littera Content, or Deliverables provided in connection with any Littera Professional Services, or any part thereof with software, hardware, data, or processes not provided by Littera, if such Services, Littera Content, or Deliverables, or use thereof would not infringe without such combination; (2) Services or Littera Content made available under an Order Form for which there is no charge; (3) any Customer Content uploaded into the Platform by Customer or the Users, Customer’s Third-Party Services (or Content made available through such Customer’s Third-Party Services), or (4) Customer’s breach of its obligations, representations or warranties under this Agreement.
9.2 Indemnification by Customer. Customer agrees, to the extent permitted under applicable law and at its expense, to defend Littera and its Affiliates against any claim, demand, suit or proceeding made or brought against Littera by a Third Party arising from or related to (a) an allegation that any Customer Content uploaded into the Platform by Customer or Users, any Customer’s Third-Party Services (or any Content made available through such Customer’s Third-Party Services), or, if Littera provides Littera Professional Services hereunder, any Customer-Supplied Materials made available to Littera in connection therewith, or use of any of the foregoing by Customer, the Users or Littera as permitted hereunder infringes or misappropriates such Third Party’s intellectual property rights or otherwise violates any applicable law; or (b) use by Customer or the Users of the Services, the Littera Content (including any Third-Party Content provided by Littera), any Personal Data, or, if Littera provides Littera Professional Services hereunder, any Deliverables provided in connection therewith, in a manner either not authorized under this Agreement or the Documentation or in violation of applicable law, and will indemnify Littera from any damages, attorney fees and costs finally awarded against Littera as a result of, or for any amounts paid by Littera under a settlement approved by Customer in writing of, such claim, provided Littera (i) promptly gives Customer written notice of the claim; (ii) gives Customer sole control of the defense and settlement of the claim (except that Customer may not settle the claim unless it unconditionally releases Littera of all liability); and (iii) gives Customer all reasonable assistance requested by Customer in connection with the defense or settlement of the claim, at Customer’s expense. The above defense and indemnification obligations do not apply if the Third-Party claim arises from Littera’s breach of its obligations, representations or warranties under this Agreement.
9.3 Exclusive Remedy. This Section 9 states the indemnifying Party’s sole liability to, and the indemnified Party’s exclusive remedy against, the other Party for any Third-Party claim described in this section.
10. LIMITATION OF LIABILITY
10.1 Limitation of Liability. EXCEPT FOR DAMAGES ARISING FROM BREACHES OF CONFIDENTIALITY, AND THE PARTIES’ RESPECTIVE OBLIGATIONS UNDER SECTION 9, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EITHER PARTY (TOGETHER WITH ALL OF ITS AFFILIATES) ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER AND ITS AFFILIATES HEREUNDER FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE (12) MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY BUT WILL NOT LIMIT CUSTOMER’S OR ITS AFFILIATES’ PAYMENT OBLIGATIONS HEREUNDER.
10.2 Exclusion of Consequential and Related Damages. EXCEPT FOR DAMAGES ARISING FROM BREACHES OF CONFIDENTIALITY, AND THE PARTIES’ RESPECTIVE OBLIGATIONS UNDER SECTION 9, IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
11. TERM AND TERMINATION
11.1 Term; Subscription Terms. This Agreement commences on the Effective Date and shall continue in accordance with the terms hereof until all Subscription Terms have expired or have been terminated (the “Term”). Unless the Order Form specifies that there are no auto-renewals, at the end of a Service’s Initial Subscription Term, the Subscription for such Service will automatically renew for successive twelve (12)-month periods (each, a “Renewal Subscription Term”), unless one Party provides the other with written notice of its intent not to renew the Subscription at least ninety (90) days prior to the expiration of the then-current Subscription Term. Any notice of non-renewal provided hereunder shall specify the Service(s) subject to the termination.
11.2 Termination. Either Party may terminate this Agreement for cause if (a) the other Party commits any material breach of this Agreement and fails to remedy such breach or otherwise fails to provide a plan to remedy the breach that is acceptable to both Parties, within thirty (30) days after its receipt of written notice of such breach; or (b) the other Party (i) becomes insolvent or generally unable to pay its debts as they become due; (ii) files or has filed against it a petition for voluntary or involuntary bankruptcy and, in the case of involuntary bankruptcy, such petition is not dismissed within sixty (60) days; (iii) applies for or consents to the appointment of a trustee, receiver or custodian for a substantial part of its property or business; or (iv) makes or seeks to make a general assignment for the benefit of creditors.
11.3 Refund or Payment upon Termination. If Customer terminates this Agreement early in accordance with Section 11.2, Littera will refund Customer any prepaid Fees allocable to the unused portion of the Services (i.e., the period of time from the effective date of termination through what would have been the end of the Term). If Littera terminates this Agreement in accordance with Section 11.2, Customer will pay any unpaid Fees covering the remainder of the Term (including all Fees due under then-current Subscription Terms) to the extent permitted by applicable law within thirty (30) days of the effective date of termination. In no event will termination relieve Customer of its obligation to pay any Fees that accrued prior to the effective date of termination.
11.4 Effects of Termination; Survivability. Sections 1, 3.2, 3.3, 5 through 10, 11.3, 11.4, and 12 will survive any termination or expiration of this Agreement. Upon termination or expiration of this Agreement, and except as otherwise stated herein, each Party shall return or destroy any Confidential Information of the other Party, and provide written verification of such return or destruction; provided, however, either Party and its representatives may retain copies of such Confidential Information for purposes of legal or regulatory compliance.
12. GENERAL PROVISIONS
12.1 Entire Agreement; Order of Precedence. This Agreement, inclusive of the Cover Page, the Standard Terms and Conditions, any applicable Supplemental Terms and any Order Forms executed hereunder, together, constitute the entire agreement between Littera and Customer regarding Littera’s provision of, and Customer’s use of, the Services and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Without limiting the foregoing, this Agreement supersedes any click-wrap or browse-wrap terms that would otherwise be applicable to Customer. This Agreement may not be modified or altered except by a written instrument duly executed by both Parties. The Parties agree that any conflicting term or condition stated in a Customer purchase order or in any other Customer order documentation (excluding any Order Form) is void. In the event of a conflict among a term set forth in these Standard Terms and Conditions and a term set forth in any of the following documents: the Cover Page, an Order Form (including any Statement of Work), any Supplemental Terms or exhibit attached thereto, or the Documentation or any other policy, schedule, or other document attached hereto or thereto or incorporated herein or therein by reference, the term set forth in these Standard Terms and Conditions will control unless the conflicting term in the other document specifically references the inconsistent term of these Standard Terms and Conditions, in which case the conflicting term will control only for the limited purposes set forth in the document containing such term. Titles and headings of sections are for convenience only and shall not affect the construction of any provision of this Agreement.
12.2 Relationship of the Parties. Neither this Agreement nor the cooperation of the Parties contemplated hereunder shall be deemed or construed to create any partnership, joint venture or agency relationship between the Parties. Except as otherwise expressly permitted in this Agreement, neither Party is, nor will either Party hold itself out to be, vested with any power or right to bind the other Party contractually or act on behalf of the other Party as a broker, agent or otherwise.
12.3 Subcontractors. Littera may use one or more Third Parties to fulfill any of its obligations hereunder provided that with respect to any such obligations that are subcontracted to or provided by any Third Party, Littera expressly assumes all liability and responsibility for such Third Party’s compliance with, including, without limitation, any breach of, the terms of this Agreement.
12.4 Third-Party Beneficiaries. There are no Third-Party beneficiaries under this Agreement.
12.5 Force Majeure. Any delay in the performance of any duties or obligations of either Party (except the payment of money owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, fire, earthquake, flood, or any other event beyond the control of such Party, provided that such Party uses reasonable efforts, under the circumstances, to notify the other Party of the cause of such delay and to resume performance as soon as possible.
12.6 Waiver. No waiver by any Party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the Party so waiving. No waiver by any Party shall operate or be construed as a waiver in respect of any failure, breach, or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
12.7 Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed an original and all of which will be taken together and deemed to be one instrument.
12.8 Severability. If any term or provision of this Agreement is held to be invalid, illegal, or unenforceable by a court of competent jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
12.9 Assignment. Neither Party may assign any of its rights or obligations hereunder without the other Party’s prior written consent (not to be unreasonably withheld); provided, however, either Party may assign this Agreement in its entirety (including all Order Forms executed hereunder), without the other Party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets or business. Subject to the foregoing, this Agreement will bind and inure to the benefit of the Parties and their respective successors and permitted assigns.
12.10 Governing Law, Jurisdiction and Venue. This Agreement and any dispute arising from or relating to this Agreement are governed by the laws of the state of New York, United States, without regard to its conflict of law principles. Customer further agrees to accept service of process by mail. To the extent the Parties are permitted under this Agreement to initiate litigation in court, the Parties’ consent to exclusive personal jurisdiction and venue in the courts located in Wappingers Falls, New York. If Customer is a United States public and accredited educational institution, domiciled in a state within the United States that expressly requires a choice of law other than New York state law, then Customer’s state’s law will apply. If Customer is a United States public and accredited educational institution domiciled in a state within the United States that expressly requires venue or jurisdiction of a state other than New York, then Customer’s state’s required venue and jurisdiction will apply.
12.11 Notices. All notices, requests, consents, claims, demands, waivers, and other communications required or permitted hereunder shall be in writing and shall be deemed to have been given: (a) when delivered by hand (with written confirmation of receipt); (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (c) on the date sent by facsimile or email of a PDF document (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; or (d) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective Parties at the addresses set forth on the Cover Page (or to such other address that may be designated by a Party from time to time in accordance with this Section).