This SimTutor Author Master Subscription and Professional Services Agreement (“Agreement”) is entered into by and between SimTutor, Inc., 1700 Northside Drive Suite A7, PMB 915, Atlanta GA 30318 (”SimTutor”) and the counter party who agrees to purchase Services from SimTutor subject to this Agreement (“Customer”). All capitalized terms not defined herein shall have the meanings assigned to them in Section 1. In consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
(a) “Access Key” means a unique login identifier and password or automated security code that allows a Customer Authoring User or End User to access the Service
(b) “Confidential Information” means all confidential and proprietary information of a Party (“Disclosing Party”) disclosed to the other Party (“Receiving Party”), whether orally or in writing, that is either marked or designated as confidential at the time of disclosure to the Receiving Party, or that a reasonable person should consider confidential or proprietary given the nature of the information and the circumstances under which it is disclosed. The SimTutor Property shall constitute SimTutor’s Confidential Information regardless of the means or manner by which it is disclosed. Notwithstanding the foregoing, Confidential Information shall not include any information that a Receiving Party can show: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party; (iii) was independently developed by the Receiving Party without reference to any Confidential Information of the Disclosing Party (excluding patentable subject matter which is not subject to this exclusion); or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
(c) “Content” means the information, simulated data, and resources made available by and generated through the Subscription Service.
(d) “Customer Authoring User” means Users whom Customer has designated or otherwise enabled to access and/or utilize the Subscription Services.
(e) “Customer Content” means the content and data input by Customer’s Authoring Users utilizing the Subscription Services. It includes the pointing, scoring, and performance definitions.
(f) “Customer Property” means Hosted Data.
(g) “Documentation” means all documentation and other instructional material made available by SimTutor regarding the use of the Subscription Service.
(h) “End User” means an authorized end user of the Subscription Service, such as a student, instructor or employee, who is the intended user, participant, or experiencer of the Content that Customer develops utilizing the Subscription Services;
(i) “End User Data” means where applicable any user-specific data provided by End Users, or generated by End User activity in the Subscription Service, including but not limited to first and last name, username, email address, study times and scores;
(j) “Hosted Data” means both Customer Content and End User Data.
(k) “Intellectual Property Rights” means all intellectual property rights, including all patent, trademark, service mark, copyright, moral, design, know-how, trade secret and other similar rights;
(l) “Order Form” means an ordering document for Services purchased from SimTutor that has been executed by the parties (or, in the case of an online transaction, which has been electronically accepted by Customer) to order and gain access to the Subscription Services and Professional Services described in this Agreement
(m) “Professional Services” means add-on professional services provided by SimTutor regarding information and training for development and migration of custom materials/content using the Subscription Services.
(n) “Services” means the Subscription Services and/or Professional Services.
(o) “SimTutor Property” means (i) the Subscription Service (including the Subscription Services and SimTutor Templates), (ii) all technology and Content supplied by SimTutor in connection with, or used by SimTutor or its subcontractors in providing any Service, including but not limited to SimTutor Templates and Documentation and (iii) all Intellectual Property Rights embodied in or related to any of the foregoing.
(p) “SimTutor Templates” means any templates and / or software interfaces designed and provided by SimTutor to enable customers to create their own custom content.
(q) “Subscription Service” means the online service and platform provided by SimTutor for operating and managing SimTutor Author Software, including any modifications, updates, derivative works, optional modules, custom or standard enhancements, updates, and upgrades to or of any of the foregoing.
(r) “Users” means Customer Authoring Users and End Users.
(a) Provision of Subscription Service. For the applicable term of Customer’s subscription to use the Subscription Services (“Subscription Term”) and subject to Customer’s compliance with this Agreement and any other use limitations provided to Customer at the time Customer purchases Subscription Services, SimTutor hereby grants to Customer a non-sublicensable, non-transferable, non-exclusive right to access and use the Subscription Service. Customer acknowledges that SimTutor may modify the features and functionality of the Subscription Service during the Subscription Term.
(b) Each Order Form for a subscription to Services will describe additional mutually agreed-upon limitations on use of the Services, including, to the extent applicable, Fees, the Subscription Term, the number of permitted Author Users, the permitted number of Modules, and the End User Access Period.
(c) Support. SimTutor will provide first line support regarding the use of the Subscription Services to Customer Author Users, as well as email support to Customer's Help Desk to assist with any End User issues that cannot be resolved internally.
(d) Beta Services. SimTutor may make Beta Services available to Customer, and Customer may choose to try such Beta Services in its sole discretion. Beta Services are intended for evaluation purposes and not for production use, are not supported unless SimTutor specifies otherwise in writing, and may be subject to additional terms that will be presented to Customer. Beta Services are provided AS-IS and are not considered “Subscription Services” under this Agreement for purposes of Section 7 (Warranties; Disclaimer) and Sections 8 (Indemnification by SimTutor); however, all restrictions, SimTutor’s reservation of rights and Customer’s obligations concerning the Subscription Service shall apply equally to Customer’s use of Beta Services. SimTutor may discontinue Beta Services at any time in its sole discretion and may never make them generally available.
(a) SimTutor will perform the Professional Services set forth in an Order Form executed by the Parties, which shall include and/or specify a description of the Professional Services to be provided to Customer and the applicable Fees and payment terms. If either Customer or SimTutor requests a change in the scope of Professional Services, any agreed-upon changes, including changes in Fees and expenses, will not be binding against either Party unless set forth in writing executed by the Parties (each, a “Change Order”).
(b) Expense Reimbursements. Customer will reimburse SimTutor for reasonable travel and other expenses incurred in connection with performing the Professional Services, provided that Customer approves such expenses before they are incurred.
(c) Cooperation. Customer acknowledges that SimTutor’s ability to timely deliver the Professional Services is dependent upon Customer’s ongoing cooperation and assistance. Accordingly, Customer will supply to SimTutor, on a timely basis, all information, materials, and assistance reasonably necessary for SimTutor to perform the Services, including the Customer Content, User lists, and any additional information, material, or assistance identified in an Order Form. SimTutor’s period of performance shall be equitably extended to account for any delays resulting from Customer’s failure to fully comply with the foregoing.
(d) Personnel. SimTutor shall be responsible for staffing decisions with respect to employees or contractors utilized in the performance of any Service under this Agreement, and shall have the right at any time to delegate, subcontract, remove or replace any of its personnel or contractors assigned to perform any Services under this Agreement. SimTutor will be responsible for the acts or omissions of its employees and contractor personnel and any delays caused by the reassignment or replacement thereof.
(a) Subscription Agreement and Professional Services. Customer acknowledges and agrees that:
● SimTutor is not responsible for acquiring, servicing, maintaining and updating any equipment, computers, software, interfaces and communication services that allow Users to access and use the Subscription Service;
● the operation and availability of the system used for accessing the Subscription Service, including the Internet, and computer networks, can be unpredictable and may from time to time interfere with or prevent access to the Subscription Service, and SimTutor is not in any way responsible for any such interference with or prevention of End User access to and/or use of the Subscription Service;
● Customer is solely responsible for Customer and Users maintaining the confidentiality of the Access Keys and to not allowing any unauthorized person to use the Access Keys;
● Content may not be exported to an LTI format or any other format that is supported by SimTutor Author unless such exportation is specifically permitted on an Order Form; and
● SimTutor will return scoring and/or performance data back to Author Users, and Customer acknowledges responsibility for maintaining, distributing, and otherwise handling score and performance data within all applicable laws and regulations upon receipt from SimTutor.
(b) Except for uses that are expressly permitted (for example, in the Documentation or in this Agreement), Customer will not, and will ensure that all Customer Authors and End Users do not:
● sell, resell, rent, lease, or otherwise distribute any portion of the Subscription Service, including Content; use the Subscription Service or the Content other than in accordance with the Documentation or in a manner that interferes with, unduly burdens, or disrupts the integrity, performance, or availability of the Subscription Service (for example, by conducting load tests or penetration tests without SimTutor’s prior written consent);
● attempt to gain unauthorized access to the Subscription Service or to SimTutor’s or its third party suppliers’ related systems or networks;
● access any portion of the Subscription Service or the Content for the purpose of building a similar or competitive product or service, or monitor the Subscription Service for any benchmarking or competitive purpose;
● introduce, disseminate, or otherwise enable any viruses, Trojan horses, spyware, worms, malware, spam, or malicious code using the Subscription Service;
● “frame” or “mirror” any user interface included in the Subscription Service;
● copy, modify, translate, or create a derivative work of any SimTutor Intellectual Property Rights;
● reverse engineer, disassemble, or decompile any software included in the SimTutor Intellectual Property Rights, except as required under applicable law;
● alter, remove or violate any copyright or other intellectual property notice appearing in connection with the Subscription Service or the Content;
● use or access the Subscription Service in violation of applicable laws.
(a) Customer. As between Customer and SimTutor, Customer retains all rights, title, and interest in Customer Property. Except as expressly set out in this Agreement, no right, title, or license of any Customer Property is granted to SimTutor or implied hereby, and for any Customer Property that is licensed to SimTutor, no title or ownership rights are transferred with such license. Customer hereby grants SimTutor a limited, non-exclusive, non-transferable (except in connection with the permitted assignment of this Agreement), and royalty-free license under Customer’s intellectual property rights to access and use the Customer Content and any other Customer Property made available to SimTutor or any of its Affiliates, solely as necessary for SimTutor to provide the Services to Customer pursuant to this Agreement. For the avoidance of doubt, Customer Property is limited to the Customer Content and does not include the Subscription Service’s generated simulations by utilizing the Subscription Service or any SimTutor Template data.
(b) SimTutor Property. As between SimTutor and Customer, SimTutor retains all rights, title, and interest in and to the SimTutor Property. Except as expressly set out in this Agreement, no right, title, or license under any SimTutor Property is granted to Customer or implied hereby. Notwithstanding anything in this Agreement to the contrary, Customer’s right to use any SimTutor Property apart from the Subscription Services or outside of any Subscription Term shall be limited solely to the rights granted to Customer under Section 5(c), and for any SimTutor Property that is licensed to Customer, no title or ownership rights are transferred with such license.
(c) Template License to Customer. SimTutor hereby grants to Customer a non-exclusive, sublicensable, and worldwide license to use the Templates during the Subscription Term solely (i) to the extent embedded or used in the Customer Content and (ii) for the exploitation of the Customer Content. For the avoidance of doubt, Customer shall be prohibited from exploiting the Templates on a standalone basis. To the extent that SimTutor modifies any Template, Customer acknowledges that any and all development and modifications shall be the sole property of SimTutor, and Customer will not assert any rights or claims to such intellectual property. In the event that Customer orders Export Options via the Order Form, Customer shall have a non-sublicensable, non-transferable license to utilize the Content for the limited purpose of education, training, and assessment within the Customer’s organization. Customer is prohibited from using the licensed Content for the purpose of developing, benchmarking, or benefiting any competitive product or purpose.
(d) Feedback. By submitting to SimTutor any unsolicited suggestions, enhancement requests, comments, feedback or other input relating to the Subscription Service, Content, or SimTutor Templates ("Feedback"), Customer grants to SimTutor a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate such Feedback into the Service in any manner. For the avoidance of doubt, Customer acknowledges that Customer’s grant of such “Feedback” does not give Customer any right or interest in SimTutor present or future Intellectual Property irrespective of whether such Feedback was utilized in its development.
(a) Confidentiality. For the term of this Agreement and for three (3) years thereafter, each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of a like kind; provided that a Receiving Party may disclose Confidential Information of the Disclosing Party to its affiliates, officers, directors, employees, subcontractors, agents or prospective financing sources or acquirers who need to know such information in connection with this Agreement and who are bound by written agreements requiring the protection of such Confidential Information.
(b) Customer agrees to maintain the confidentiality of the proprietary aspects of the Subscription Service, including but not limited to SimTutor Templates, and not to allow any unauthorized person to use the Subscription Service; to not transfer or sublicense any of its rights hereunder; maintain all copyright notices on the Documentation and the Content; and to notify SimTutor immediately it becomes aware that any person may have unauthorized knowledge, access to or use of the Subscription Service, Content or the Documentation. Customer further agrees that it is responsible for Customer Authors and End Users to maintain the same obligations for confidentiality and proprietary aspects of the Subscription Service.
(c) Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure.
(d) Return of Confidential Information. At any time upon the request of the Disclosing Party, the Receiving Party will return, or destroy as so directed by the Disclosing Party, all Confidential Information of the Disclosing Party, including all copies thereof and notes and other materials incorporating such Confidential Information, whether in physical or electronic form; provided, however, the Receiving Party shall not be required to return or destroy electronic copies that are automatically stored in accordance with Receiving Party’s generally applicable backup policies and which are not reasonably accessible by the Receiving Party (“Backup Media”). All Backup Media shall remain subject to the confidentiality obligations set forth herein, notwithstanding the expiration or termination of this Agreement, so long as it remains undeleted.
(e) Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information or is otherwise in breach of this Section 6, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the Parties that any other available remedies are inadequate.
(f) Cookies. Whenever Customer, Users or End-Users interact with the Subscription Services, SimTutor automatically receives and records information on its server logs from the browser or device, which may include IP address, “cookie” information, and the type of browser and/or device being used to access the Subscription Services, as further described here: https://www.productboard.com/cookies/. When SimTutor collects this information, it only uses this data to (i) provide the Subscription Services or (ii) in aggregate form, and not in a manner that would identify Users or End-Users personally.
(g) Anonymized Data. SimTutor may use data concerning Customer’s use of the Subscription Services (including use by Customer Authoring Users and End Users) in an aggregated and anonymous manner (“Usage Information”), including but not limited to compiling statistical and performance information related to the use and operation of the Subscription Services. Customer agrees that SimTutor may make such information publicly available, provided that such use does not identify Customer or any User either directly or indirectly. SimTutor retains all Intellectual Property Rights in the Usage Information.
(a) Mutual Warranties. Each Party represents and warrants that it has the legal power and authority to enter into this Agreement.
(b) SimTutor Warranties. SimTutor represents and warrants that (a) the Subscription Services will operate in accordance with the Documentation in all material respects, and (b) the Professional Services will be performed in a professional and workmanlike manner.
(c) Customer Warranties. Customer represents, warrants and covenants that (i) it will not use the Subscription Services for unlawful purposes or in a manner that infringes or otherwise violates the rights of any third party; (ii) it shall comply with all applicable laws and regulations in its use of the Subscription Services, specifically including but not limited to, the Family Educational Rights and Privacy Act (20 U.S.C. § 1232g; 34 CFR Part 99) if Subscription Service is to be used in an education setting; (iii) to the extent that Subscription Service is utilized with students as End Users, SimTutor falls within the definition of “school official” exception as articulated in 34 CFR § 99.31(a)(1)(i) under FERPA; and (iv) Customer will take all necessary steps and actions to ensure that its use of the Subscription Service is consistent with the “school official” exception.
(d) Disclaimer. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BUT EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, (1) THE SUBSCRIPTION SERVICES ARE PROVIDED “AS-IS”; (2) NEITHER PARTY MAKES ANY ADDITIONAL WARRANTY, CONDITION, REPRESENTATION, UNDERTAKING OR GUARANTY OF ANY KIND TO THE OTHER PARTY, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, (3) SIMTUTOR HEREBY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, CONDITIONS, REPRESENTATIONS, UNDERTAKINGS AND GUARANTIES, INCLUDING, WITHOUT LIMITATION, ANY WITH RESPECT TO TITLE, MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, AND (4) SIMTUTOR’S LIABILITY UNDER ANY IMPLIED OR STATUTORY WARRANTY, CONDITION, REPRESENTATION, UNDERTAKING OR GUARANTY WHICH CANNOT BE LEGALLY EXCLUDED IS LIMITED IN RESPECT OF THE SERVICES TO SUPPLYING THE SERVICES AGAIN OR PAYING THE COST OF SUPPLYING THE SERVICES AGAIN.
(a) Indemnification by SimTutor. SimTutor will defend and pay Customer, its employees, directors and officers (the “Customer Indemnified Parties”) from and against any and all costs, damages and expenses (collectively, “Losses”), suffered or incurred by any Customer Indemnified Party, as a result of any claim brought by a third party (“Third Party Claim”) against a Customer Indemnified Party alleging that the Subscription Services in accordance with the terms and conditions of this Agreement infringes, violates or misappropriates any patent, copyright, trademark or trade secret right of any third party (an “Infringement Claim”). Without limiting the foregoing, in the event that any portion of the Subscription Services is likely to, in SimTutor’s sole discretion, or does become the subject of an Infringement Claim, SimTutor may, at its option and expense: (i) procure for Customer the right to continue using the allegedly infringing item, (ii) substitute a functionally equivalent non-infringing replacement for such item, or (iii) modify such item to make it non-infringing and functionally equivalent, or (iv) terminate the Agreement and any outstanding Order Forms and refund to customer prepaid unused Fees for the infringing items. SimTutor shall have no liability for any Infringement Claim to the extent arising from (1) Customer’s use or supply to SimTutor of any Customer Property; (2) use of the Subscription Services in combination with any software, hardware, network or system not supplied by SimTutor if the alleged infringement relates to such combination; (3) any modification or alteration of the Subscription Services (other than by SimTutor); or (4) Customer’s violation of applicable law or third party rights. For the avoidance of doubt, “Customer” shall include Customer Authoring Users for purposes of clauses (1) - (4) of this Section 8(a).
(b) Indemnification by Customer. Customer will defend and pay SimTutor, its employees, directors and officers (the “SimTutor Indemnified Parties”) from and against any and all Losses, suffered or incurred by any SimTutor Indemnified Party, arising from any Claim, including but not limited to claims by Customer, Users, or their future clients, patients, employers, and/or customers, against a SimTutor Indemnified Party (i) alleging that any Customer Property or Customer’s use of the Subscription Services beyond, or within, the license granted in this Agreement infringes, violates or misappropriates any patent, copyright, trademark or trade secret right of any third party; (ii) arising from Customer’s breach of Section 5; (iii) arising from Customer’s breach of any applicable law or regulation related to Customer’s use, including FERPA; (iv) arising from the nature or substance of Customer Content or the use thereof.
(c) Indemnification Conditions. The Parties’ obligations under this Section 8 are contingent upon the indemnified party (i) giving prompt written notice to the indemnifying party of any claim subject to indemnification under this Section 8, (ii) giving the indemnifying party sole control of the defense or settlement of the claim, and (iii) cooperating in the investigation and defense of such claim(s). The indemnifying party shall not settle or consent to an adverse judgment in any such claim that adversely affects the rights or interests of the indemnified party without the prior express written consent of the indemnified party, which shall not be unreasonably withheld. The rights and remedies set forth in this Section 8 are the sole obligations of the indemnifying party and exclusive remedies available to the indemnified party in the event of an applicable Third Party Claim.
(a) Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL SIMTUTOR’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND DUE FROM CUSTOMER HEREUNDER DURING THE TWELVE (12) MONTHS PRIOR TO THE DATE ON WHICH SUCH CLAIM OR CAUSE OF ACTION AROSE.
(b) Exclusion of Consequential and Related Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL SIMTUTOR HAVE ANY LIABILITY TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY LOST PROFITS, LOSS OF USE OR DATA, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY OTHER INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. NEITHER PARTY SHALL BE RESPONSIBLE OR LIABLE FOR ANY LOSS, DAMAGE OR INCONVENIENCE SUFFERED BY THE OTHER PARTY OR BY ANY THIRD PERSON, TO THE EXTENT THAT SUCH LOSS, DAMAGE OR INCONVENIENCE IS CAUSED BY THE FAILURE OF THE OTHER PARTY TO COMPLY WITH ITS OBLIGATIONS UNDER THIS AGREEMENT.
(a) Term of Agreement. This Agreement commences on the Effective Date and shall remain in effect until terminated in accordance with Section 10(c).
(b) Term of Subscriptions. Customer’s access to the purchased Subscription Services shall commence on the start date specified in the relevant Order Form and continue for the Subscription Term specified on such Order Form. At the expiration of each Subscription Term, the Subscription Term for all purchased Subscription Services will automatically renew for the same period as the renewing Subscription Term, unless either Party elects to not renew by notifying the other Party in writing at least 30 days before such renewal. Except as otherwise specified in a written notice sent to Customer at least 60 days prior to a renewal, SimTutor’s per-unit pricing for any renewal Subscription Term shall not increase by more than five percent (5%) over the renewing Subscription Term. Any introductory or temporary discount offered in a previous Subscription Term does not apply for a renewal Subscription Term.
(c) Termination. Either Party may terminate this Agreement and/or any Order Form by providing written notice to the other Party in the event the other Party materially breaches any of its duties, obligations or responsibilities under this Agreement and fails to: (i) cure such breach within thirty (30) days after receipt by the breaching Party of written notice specifying the breach, or (ii) if the breaching Party is incapable of curing such breach within thirty (30) days, provide the other Party with an acceptable plan for curing such breach within ten (10) days after receipt of such notice and thereafter curing such breach in accordance with such plan. In addition, a Party may terminate this Agreement by providing written notice to the other Party if there are no Order Forms in effect for more than thirty (30) days, continuously.
(d) Suspension Rights. SimTutor reserves the right to monitor the use of the Subscription Services for security and operational purposes. SimTutor may immediately suspend individual Users’ access to the Subscriptions Services if (i) a User is engaged in, or SimTutor reasonably believes is engaged in, unauthorized conduct arising as a result of a violation of the terms of any relevant agreement with SimTutor, applicable law or third party right; or (ii) any third party has, or SimTutor in good faith suspects has, gained unauthorized access to any portion of the Subscription Services using any user or other credential issued by SimTutor to Customer or its Users.
(e) Effect of Termination. Expiration or termination of one Order Form shall not affect any other Order Forms. In the event of termination of this Agreement, upon Customer’s written request made within thirty (30) days after the effective date of termination, Customer shall be entitled to a copy of Customer Property for up to thirty (30) days from the date such written request is received, or to the extent provided for in the Order Form, Customer shall be entitled to Export the licensed Content for a period up to thirty (30) days from the date such written request is received. After such thirty (30) day period, SimTutor shall have no obligation to maintain or provide any Customer Property and may thereafter, unless legally prohibited, delete all Customer Property in its possession.
(f) Surviving Provisions. The following provisions shall survive the termination or expiration of this Agreement for any reason and shall remain in effect after any such termination or expiration: Sections 4, 5, 6, 7, 8, 9, 10, and 11. Termination or expiration of this Agreement shall not affect any obligation accrued or arising prior to such termination or expiration.
(a) Relationship. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
(b) Entire Understanding. This Agreement (including the DPA and CCPA Addendum (if applicable) and all Exhibits and Order Forms, which are incorporated herein by reference) constitutes the entire agreement between the Parties as to its subject matter, and supersedes all prior proposals, marketing materials, negotiations and other written or oral communications between the Parties with respect to the subject matter of this Agreement. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any Order Form, the terms of such Order Form shall prevail. Notwithstanding any language to the contrary therein, all terms and conditions stated in any Customer purchase order or in any other ordering documentation (excluding Order Forms) are hereby rejected. Such terms will not be deemed incorporated into or form any part of this Agreement, and all such terms or conditions are null and void.
(e) Modification; Waiver. Except for SimTutor’s modification or update of the Documentation or the Subscription Service, or any policies as necessary to comply with applicable law, rules, and/or regulations, no modification of this Agreement, and no waiver of any breach of this Agreement or right under this Agreement is legally binding against the other Party unless in writing and signed or electronically accepted by both Parties. No waiver of any breach of this Agreement will be deemed to be a waiver of any other or any subsequent breach.
(f) Governing Law; Venue. The parties hereto agree that any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity hereof or thereof, including the determination of the scope or applicability of this Agreement to arbitrate, shall be determined by final and binding arbitration in Atlanta, Georgia (except for an action for interim equitable relief otherwise permitted under this Agreement and/or unless otherwise agreed by the parties), before a sole arbitrator, in accordance with the laws of the State of Georgia for agreements made in and to be performed in that State. The arbitration shall be administered by JAMS (or its successor) pursuant to its Comprehensive Arbitration Rules and Procedures; provided, however, if the Parties mutually elect, the arbitration can be administered by JAMS pursuant to its Streamlined Arbitration Rules and Procedures instead of its Comprehensive Arbitration Rules and Procedures. The arbitrator’s decision shall be reduced to writing, signed by the arbitrator, and mailed to each of the parties and their legal counsel. All decisions of the arbitrator shall be final and binding. The arbitrator or a court of appropriate jurisdiction may issue a writ of execution to enforce the arbitrator’s judgment. Judgment may be entered upon such a decision in accordance with applicable law in any court having jurisdiction thereof. The Parties will pay their own costs (including, without limitation, attorneys’ fees) and expenses in connection with such arbitration.
(g) Assignment. Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior express written consent of the other Party; provided, however, a Party may assign this Agreement in its entirety, together with all rights and obligations hereunder, without consent of the other Party, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets related to this Agreement. Any attempt by a Party to assign its rights or obligations under this Agreement in breach of this Section 11(g) shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the Parties, their respective successors and permitted assigns.
(h) Notices. Except for non-legal notifications which can be provided via email, all notices under this Agreement to Customer shall be in writing and shall be delivered to the addresses first set forth in the Order Form(s), or for SimTutor to SimTutor, Inc., Attn: Legal Department, 1700 Northside Drive Suite A7, PMB 915, Atlanta GA 30318. Either Party may change its address for notice by giving written notice of such address change in the manner provided herein. All communications and notices to be made or given pursuant to this Agreement shall be in the English language.
(i) Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect. (i) Anti-Corruption. Customer acknowledges and agrees that it has not received or been offered any illegal bribe, kickback, payment, gift or thing of value from any SimTutor employees, agent or representative in connection with this Agreement, other than reasonable gifts and entertainment provided in the ordinary course of business. Customer will promptly notify SimTutor if it offers or receives any such improper payment or transfer in connection with this Agreement.
(j) Force Majeure. Except for performance of a payment obligation, neither Party shall be liable under this Agreement for delays, failures to perform, damages, losses or destruction, or malfunction of any equipment, or any consequence thereof, caused or occasioned by, or due to fire, earthquake, flood, water, the elements, labor disputes or shortages, utility curtailments, power failures, explosions, civil disturbances, governmental actions, epidemics, shortages of equipment or supplies, unavailability of transportation, acts or omissions of third parties, or any other cause beyond its reasonable control. In the event any of the foregoing events results in SimTutor not being able to provide the Subscription Services for a period of more than thirty (30) days, then either Party may terminate the Agreement upon written notice to the other Party.
(k) Export Control. The Subscription Service and related technical data and services (collectively, “Controlled Technology”) may be subject to the import and export laws of the United States, specifically the U.S. Export Administration Regulations (EAR), and the laws of any country where Controlled Technology is imported or re-exported. Customer agrees to comply with all applicable export and re-export control laws and regulations and will not export or re-export any Controlled Technology in contravention to U.S. law, nor to any prohibited country, entity, or person for which an export license or other governmental approval is required. All Controlled Technology is generally prohibited for export or re-export to Cuba, North Korea, Iran, Syria, Sudan, and any other country subject to relevant trade sanctions.
(l) Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
Last updated 1-Sep-2020