Terms Of Use Agreement

Last Revised on October 2016

This Agreement is made and entered into as of _________________ ("Effective Date"), by and between Cengage Learning, Inc.("Cengage") and _________________ ("Subscriber").  This Agreement sets forth the terms pursuant to wh1ch Subscriber will be permitted to use certain of Cengage's web-based services. The parties agree as follows:

1. DEFINITIONS

1.1 “Admin Usersmean Subscriber's employees (i.e. faculty, instructors, and/or administrators) accessing the Cengage Service in connection with the provision of Subscriber's educational services and operations to Student Users. 

1.2 "Documentation" means Cengage-provided user documentation, in all forms, relating to the Cengage Service (e.g., user manuals, on-line help files). 

1.3 "Cengage Service" means Cengage's online portfolio learning platform solution, as may be modified from time to time. 

1.4 "Student Users" means individual students who are enrolled in Subscriber's educational program(s) and who are provisioned with accounts to use Cengage Service in connection with this Agreement. 

1.5 "Users" means, collectively, Admin Users and Student Users. 

2.     USE OF THE CLIENT SERVICES

2.1  Use of the Cengage Service.  Subject to all the terms and conditions of this Agreement, Cengage hereby grants to Subscriber permission during the Term to allow Admin Users to access and use the Cengage Service solely in connection with Subscriber's educational operations and the provision of coursework to Student Users, it being understood that Student Users' use of the Cengage Service is subject to such Student Users' acceptance of Cengage's standard Terms of Service, available online at http://www.Pathbrite.com/terms-of-service/ (the  "Terms").     Use by all Users is subject to Cengage's Privacy Policy, available online at and http://Cengage.com/legal/#privacy..

 2.2   Admin Users.  Admin Users may have access to additional features of the Cengage Service designed to facilitate administering the Cengage Services for Student Users. Each Admin User will be required to have an account and password, and Subscriber will be solely responsible for all activity on the Cengage Service occurring under an Admin User's account, including with respect to User Content, as described below. 

2.3 User Content.   Subscriber understands that the Cengage Service enables Users to post, upload, or otherwise provide or make available a variety of content and materials ("User Content"),  and Subscriber hereby grants, on behalf of itself and its Admin Users, a nonexclusive license during the Term to store, reproduce, distribute, display, and perform and modify (as reasonably necessary for the purpose of encoding, formatting, or otherwise enabling such content to be accessed through the Cengage Service) User Content provided by Admin Users for the purpose of providing the Cengage Service to Users as provided herein, it being understood that Student Users grant a similar license to Cengage pursuant to the Terms.   Subscriber is solely responsible for all User Content. Cengage reserves the right to remove User Content from the Cengage Service in the event of any third party claim related to such User Content (or if Cengage reasonably determines that such a claim is likely to occur), or if Cengage reasonably determines that such User Content is offensive, inappropriate, harmful, or likely to lead to liability. 

2.4  Use of the DocumentationSubject to all the terms and conditions of this Agreement, Cengage grants to Subscriber permission during the Term to allow Admin Users to internally use the Documentation solely in connection with use of the Cengage Service in accordance with this Agreement. 

2.5 Support and Service Levels.  Provided Subscriber is in compliance with the terms and conditions of this Agreement, including payment of all applicable Fees, Cengage will provide the support services and use commercially reasonable efforts to meet the service level commitments set forth in Exhibit B. 

2.6   Use Restrictions.   Except as otherwise explicitly provided in this Agreement or as may be expressly permitted by applicable law, Subscriber will not, and will not permit or authorize third parties to: (a) rent, lease, or otherwise permit third parties to use the Cengage Service or Documentation; (b) use the Cengage Service to provide services to third parties (e.g., as a service bureau), other than the facilitation and provision of Subscriber's educational services to Student Users; (c) upload, post, or publish any infringing User Content; nor (d) circumvent or disable any security or other technological features or measures of the Cengage Service. 

2.7   Protection against Unauthorized UseSubscriber will use reasonable efforts to prevent any unauthorized use of the Cengage Service and Documentation by Users, and promptly notify Cengage in writing of any unauthorized use that comes to Subscriber's attention, and will use reasonable efforts to assist Cengage with preventing and I or rectifying such unauthorized use. 

2.8   Intellectual Property Rights. The Cengage Service embodies and is protected by the valuable intellectual property rights of Cengage and its licensors and suppliers.  Subscriber may, but is not obligated to, provide Cengage with any feedback, suggestions, comments, or other input (including bug reports) relating to the Cengage Service (the "Feedback"), and Subscriber agrees and acknowledge that any such Feedback is provided on a non-confidential basis, and that Cengage is authorized to utilize or not utilize such Feedback in any manner without compensation or attribution.  Each party reserves to itself all rights not expressly granted in this Agreement, and nothing herein or in any statement of work shall be deemed to grant or transfer any intellectual property rights between the parties. 

3.     FEES AND PAYMENT

3.1    Fees and Payment Terms. Subscriber will pay Cengage the fees and any other amounts owing under this Agreement as specified in Exhibit A, plus any applicable sales, use, excise, or other taxes (the "Fees"). Unless otherwise specified in Exhibit A, Subscriber will pay all amounts due within thirty (30) days of receipt of the applicable invoice.  Any amount not paid within fifteen (15) days following of when due will be subject to finance charges equal to one and one-half percent (1.5%) of the unpaid balance per month or the highest rate permitted by applicable usury law, whichever is less.  Subscriber will reimburse any costs or expenses (including, but not limited to, reasonable attorneys' fees) incurred by Cengage to collect any amount that is not paid when due. Amounts due from Subscriber under this Agreement may not be withheld or offset by Subscriber against amounts due to Subscriber for any reason. All amounts payable under this Agreement are denominated in United States dollars, and Subscriber will pay all such amounts in United States dollars. 

3.2 Taxes.    Other than net income taxes imposed on Cengage, Subscriber will bear all taxes, duties, and other governmental charges (collectively, "taxes") resulting from this Agreement.  Subscriber will pay any additional taxes as are necessary to ensure that the net amounts received by Cengage after all such taxes are paid are equal to the amounts that Cengage would have been entitled to in accordance with this Agreement as if the taxes did not exist. 

3.3 Professional Services.   Cengage may offer and/or provide certain professional services to Subscriber in connection with the provision of the Cengage Services, such as training or similar services ("Professional Services").  Such services will be provided subject to mutual agreement in writing to a separate statement of work executed hereunder, describing the nature of the services and the fees to be charged for such services. 

4.     TERM AND TERMINATION

4.1 Term.  This Agreement will commence upon the Effective Date and continue for the initial term specified in Exhibit A unless this Agreement is earlier terminated as provided herein, and upon expiration, the parties may, upon mutual agreement in writing, renew the Agreement for additional successive terms (the "Term"). If the parties agree to renew, the prices in Exhibit A shall apply for the first one (1) year renewal period. 

4.2  Termination for Material Breach.    Either party may terminate this Agreement upon written notice if the other party does not cure its material breach of this Agreement within thirty (30) days of receiving written notice of the material breach from the non-breaching party. If Subscriber fails to timely pay any applicable Fees, Cengage may, without limitation to any of its other rights or remedies, suspend performance of the Cengage Service until it receives all amounts due.  All Fees are final and non-refundable provided that in the event Subscriber terminates for a material uncured breach by Cengage, Cengage will issue Subscriber a pro rata refund of any amounts paid in advance for the remainder of the then current Term. 

4.3 Post-Termination Obligations. If this Agreement is terminated for any reason, (a) Subscriber will pay to Cengage any Fees, or other amounts that have accrued prior to the effective date of the termination, and (b) any and all liabilities accrued prior to the effective date of the termination will survive.   Following any termination or expiration of this Agreement, all Users will have the opportunity to convert the account on the Cengage Service created in connection with his Agreement to a standard Cengage account. 

5.     WARRANTIES AND DISCLAIMER

5.1 Mutual Warranties. Each party represents and warrants to the other that: (a) this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such party in accordance with its terms; (b) no authorization or approval from any third party is required in connection with such party's execution, delivery, or performance of this Agreement, nor will such execution, delivery, or performance conflict with or violate any law, regulation, or third party contract or commitment, and (c) it will use the Cengage Service solely for lawful purposes. 

5.2 Compliance with Laws.   Without limiting the generality of Section 5.1(c) above, (a) Subscriber represents, warrants and covenants to

Cengage that it shall, and that it is Subscriber's sole responsibility to, obtain any and all necessary consents to authorize Subscriber to release applicable Student Users' educational records (as such term is defined in the Family Educational Rights and Privacy Act ("FERPA") to Cengage for the purpose of providing the Cengage Service to Users hereunder (any such covered educational records provided to Cengage hereunder, the "Educational Records"), and (b) Cengage shall not, without the consent of the applicable Student User, use Educational Records for any purpose other than providing the Cengage Service to Users hereunder, and will use its reasonable efforts to protect the Educational Records from unauthorized use and disclosure, and will provide Subscriber with prompt written notice of any unauthorized use or disclosure of such Educational Records that comes to Cengage's attention, and will use reasonable efforts to assist Subscriber with preventing and/or rectifying such unauthorized use or disclosure. 

5.3  Disclaimer. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS SECTION 5, CENGAGE MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. CENGAGE EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE AND NON-INFRINGEMENT. CENGAGE DOES NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE CENGAGE SERVICE. CENGAGE DOES NOT WARRANT THAT THE CENGAGE SERVICE ARE ERROR-FREE OR THAT OPERATION OF THE CENGAGE SERVICE WILL BE SECURE OR UNINTERRUPTED.    CENGAGE EXERCISES NO CONTROL OVER AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED UPON THE RESULTS OF SUBSCRIBER'S OR USERS' USE OF THE CENGAGE SERVICE. 

6.     CENGAGE INDEMNIFICATION

6.1 Claims against SubscriberSubject to Section 6.2, Cengage will, at its expense, defend Subscriber from any actual or threatened claim, proceeding, or suit brought by a third party against Subscriber alleging that the Cengage technology underlying the Cengage Service infringes or misappropriates any third party intellectual property right ("Claim"), and will pay any amounts finally awarded or agreed to in settlement of such Claim, provided that (a) Subscriber gives Cengage prompt written notice of the Claim; (b) Subscriber grants Cengage sole, full, and complete control over the defense and settlement of the Claim; (c) Subscriber provides assistance in connection with the defense and settlement of the Claim as Cengage may reasonably request; and (d) Subscriber complies with any settlement or court order made in connection with the Claim (e.g., relating to the future use of any infringing Cengage Service).  Subscriber will not defend or settle any Claim without Cengage's prior written consent, which shall not be unreasonably withheld, conditioned, or delayed.  Subscriber will have the right to participate in the defense of the Claim at its own expense and with counsel of its own choosing. 

6.2 Excluded Claims.  Cengage will have no obligation under this Section 6 for any Claim to the extent that it arises out of or is based upon (a) use of the Cengage Service in combination with other products or services if such Claim would not have arisen but for such combination; (b) use of the Cengage Service by Users for purposes not intended or outside the scope of the license granted to Subscriber or the applicable User; (c) any modification of the Cengage Service not made by Cengage where such Claim would not have occurred absent such modification; or (d) any User Content (collectively "Excluded Claims"). 

6.3    Mitigation.  In the event of a Claim, Cengage reserves the right to, in its reasonable discretion (a) modify the Cengage Service such that it no longer infringes, provide that the modified Cengage Service shall provide substantially the same features and functionality as it did prior to such modification, (b) obtain a license to enable Users to continue use of the Cengage Service without infringing, or (c) terminate this Agreement and refund a prorated portion of any Fees paid in advance for that portion of the Term yet remaining. 

6.4    Limited Remedy. This Section 6 states Cengage's sole and exclusive liability, and Subscriber's sole and exclusive remedy, for the actual or alleged infringement or misappropriation of any third party intellectual property right by the Cengage Service. 

7.     SUBSCRIBER INDEMNIFICATION

7.1 Claims against Cengage.  Subscriber will defend Cengage from any actual or threatened third party claim, proceeding, or suit arising out of or based upon any Excluded Claim, or Subscriber's or its Users' use of the Cengage Service in violation of this Agreement or the applicable terms, and will pay all amounts finally awarded or agreed to in settlement of such claim, provided that (a) Cengage gives Subscriber prompt written notice of the claim; (b) Cengage grants Subscriber sole, full, and complete control over  the defense  and settlement of  the claim;  (c) Cengage provides assistance in connection with the defense and settlement of the claim as Subscriber may reasonably request; and (d) Cengage complies with any settlement or court order made in connection with the claim. Cengage will not defend or settle any claim without Subscriber's prior written consent, which will not be unreasonably withheld, conditioned, or delayed. Cengage will have the right to participate in the defense of the Claim at its own expense and with counsel of its own choosing. 

8.     LIMITATIONS OF LIABILITY 

8.1 Disclaimer. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, NEITHER PARTY WILL, UNDER ANY CIRCUMSTANCES, BE LIABLE TO THE OTHER PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES FOR ANY BREACH OF THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR COST OF REPLACEMENT GOODS OR SERVICES, EVEN IF SUCH PARTY HAS BEEN NOTIFIED IN ADVANCE OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING. 

8.2 Liability Cap.    UNDER NO CIRCUMSTANCES WILL EITHER PARTY'S AGGREGATE TOTAL LIABILITY ARISING OUT OF A BREACH OF THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID (OR IN THE CASE OF SUBSCRIBER'S LIABILITY, PAYABLE) BYSUBSCRIBER   TO    CENGAGE    DURING    THE    12    MONTHS IMMEDIATELY PRECEDING THE FACTS UNDERLYING THE CLAIM

8.3   Independent Allocations of Risk.   EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIESOR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES.   THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY CENGAGE TO SUBSCRIBER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIESEACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT.    THE LIMITATIONS IN THIS SECTION 8 WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT. 

9.    GENERAL

9.1 Relationship. Cengage will be and act as an independent contractor (and not as the agent or representative of Subscriber) in the performance of this Agreement. 

9.2 Assignability.   Neither party may assign its right, duties, and obligations under this Agreement without the other party's prior written consent,  which consent will not be unreasonably  withheld or delayed, except that either party may assign this Agreement without the other party's consent to a successor in connection with the sale or transfer of all or substantially all of such party's business related to this Agreement, (whether by sale of stock or assets, merger, change of control, or operation of law, or otherwise). 

9.3 Subcontractors.  Cengage may utilize a subcontractor or other third party to perform its duties under this Agreement so long as Cengage remains responsible for all of its obligations under this Agreement. 

9.4 Notices.  Any notice required or permitted to be given in accordance with this Agreement will be effective if it is in writing and sent by certified or registered mail, or insured courier, return receipt requested, to the appropriate party at the address set forth on the signature page of this Agreement and with the appropriate postage affixed.   Either party may change its address for receipt of notice by notice to the other party in accordance with this Section 9.6Notices are deemed given two business days following the date of mailing or one business day following delivery to a courier

9.5 Force MajeureNeither party will be liable for, or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond its reasonable control, so long as that party uses all commercially reasonable efforts to avoid or remove the causes of non­ performance. 

9.6 Governing Law.  This Agreement will be interpretedconstruedand enforced in all respects in accordance with the local laws of the State of California, U.S.A., without reference to its choice of law rules.  Each party hereby irrevocably consents to the exclusive jurisdiction and venue of the federal, stale, and local courts in the Northern District of California in connection with any action arising out of or in connection with this Agreement. 

9.7 Waiver. The waiver by either party of any breach of any provision of this Agreement does not waive any other breach. The failure of any party to insist on strict performance of any covenant or obligation in accordance with this Agreement will not be a waiver of such party's right to demand strict compliance in the future, nor will the same be construed as a novation of this Agreement. 

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

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

9.10   Entire Agreement. This Agreement, including all exhibitsis the final and complete expression of the agreement between these parties regarding Subscriber's use of the Cengage Service.   This Agreement supersedes, and the terms of this Agreement govern, all previous oral and written communications regarding these matters, all of which are merged into this Agreement, except that this Agreement does not supersede any prior nondisclosure or comparable agreement between the parties executed prior to this Agreement being executed. No employee, agent, or other representative of Cengage has any authority to bind Cengage with respect to any statementrepresentation, warranty, or other expression unless the same is specifically set forth in this Agreement.  No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, supplement, or alter the terms of this Agreement. This Agreement may be changed only by a written agreement signed by an authorized agent of the party against whom enforcement is sought.   Cengage will not be bound by, and specifically objects to, any term, condition, or other provision that is different from or in addition to this Agreement (whether or not it would materially alter this Agreement) that is proffered by Subscriber in any receipt, acceptanceconfirmation, correspondence, or otherwiseunless Cengage specifically agrees to such provision in writing and signed by an authorized agent of Cengage. 

NOW THEREFORE, by the signatures of their authorized representatives, the parties hereto have entered into this Agreement, effective as of the later of the two signature dates below

Cengage Learning, Inc.                                                                        SUBSCRIBER:  

Signature: ______________________                                                      Signature: __________________ 

Name: _________________________                                                      Name: _____________________ 

Date: __________________________                                                      Date: ______________________ 

Address:  20 Channel Center Street                                                        Address:

                  Boston, MA 02210      

 

     EXHIBIT A

TERM AND FEES

Term: The initial term of this Agreement expires: (Date)
Fees: X students at $X/student $
Services: Implementation: LMS integration service $
Training: 1 day, Onsite training to be scheduled with Subscriber $
X - One-hour online instructor webinars - $500 each $
1 hour of online Administrator training $
TOTAL $

 

EXHIBIT B 

SUPPORT AND SERVICE LEVELS 

1.    SUPPORT. 

1.1 Contact s and HoursCengage will provide the support services described in this Exhibit B through the term of the agreement entered into by Cengage and the Subscriber. Cengage's support obligation hereunder is solely to Subscriber’s two designated support contacts, not to Users directly, and Subscriber shall be solely responsible for providing support to its UsersBasic technical support contacts and hours are as follows:

Technical Support
Support Contacts Email (support@pathbrite.com)
Phone (415-766-4505)
Support Hours EDT 9am- 8pm, Monday- Friday excluding U.S. federal holidays ("Business Hours").

1.2 Reporting Problems.  If the Cengage Service fails to operate substantially in accordance with the Documentation (a "Problem"), Subscriber's designated Support Contact will, as soon as reasonably practicable, contact Cengage via email to the address set forth below and provide a detailed description of the nature of the Problem, and all other technical data available (including any applicable error codes or messages) to enable Cengage to analyze and fix the Problem.  Cengage will use commercially reasonable efforts during Business Hours to provide workarounds and solutions for properly reported Problems. 

2.    MAINTENANCE. When needed, Cengage may disable some or all access to the Cengage Service to conduct system maintenance and updates, generally between the hours of 12:00 A.M. and 5:00A.M. Pacific Time, except in the event of an urgent security or similar need (e.g. application of security patches and the like) ("Maintenance").  Cengage uses commercially reasonable efforts to provide Subscriber with advance notice of such Maintenance. 

3.    UPTIME.  The Cengage Service will be accessible by Admin Users and Student Users 99.5% of the time, 7 days per week, and 24 hours per day ("Uptime Commitment"), as calculated over a calendar month (unexcused deviation from the Uptime Commitment, “Downtime").  Uptime Commitment shall not apply to any service interruption which results from or is caused by: 1) Maintenance; 2) failure of IT or network infrastructure not controlled by Cengage; 3) any User or other a third party not under Cengage’s control. 

4.    SERVICE CREDITS. 

4.1 Calculation.   If Cengage fails to meet its Uptime Commitment in any given month, as Subscriber's sole and exclusive remedy, and Cengage's sole and entire liability, Cengage shall provide credit Subscriber with a credit for use solely towards Professional Services or Fees payable for a subsequent renewal term ("Service Credits"), in an amount equal to a percentage of the applicable Fee attributable to the month during which Cengage failed to meet the Uptime Commitment, as follows:

#of Hours Monthly Downtime Service Credits
< 4 hours 5%
> 4 hours to 24 hours 8%
> 24 Hours 10%

For example, if the Fee is $100,000/yr., the Service Credit for 3 hours of Downtime is 5% of ($100,000 I 12), or $416.66. 

4.2 ReportingTo receive a Service Credit, Subscriber must make a request for a Service Credit to Subscriber’s designated Cengage representative or the Cengage support team.  To be eligible, the request must (i) include the dates and times of each incident of Downtime in the preceding month; and (ii) be received by Cengage within 30 days after the end of the billing cycle in which the Downtime occurred. 

4.3 IssuanceUpon receipt of a Service Credit request in compliance with the above requirements, Cengage shall have 30 days to review the request and to validate the information provided.  If Cengage determines in good faith that the Cengage Service failed to meet the Uptime Commitment as alleged in such a request, then Cengage will apply the Service Credit to Subscriber’s account for use by Subscriber as described in Section 4.1, above.  Unused Service Credits do not survive any termination or expiration, and will not be refunded or paid out following any termination or expiration.