MLSA
MASTER LICENSE AND SERVICES AGREEMENT TERMS AND CONDITIONS
1. GENERAL
1.1. Unifyed, LLC. provides Services, including cloud, multi-tenant, self-service-based enterprise mobile and portal, content management, identity, student engagement, analytics and college and university student information and enterprise resource planning system systems.
1.2. Through its technology partners (hereinafter Partners), Unifyed provides cost-effective IT solutions and services (hereinafter Services) on areas including: identity and access management; cloud hosting, IT managed services, and monitoring; and service desk.
1.3. Services contracted with Client shall be specified in this Agreement or an applicable SOW.
1.4. Binding Agreement. In exchange for and in consideration of the mutual promises, premises, and covenants herein, and for other good and valuable legal consideration, the receipt and sufficiency of which are hereby acknowledged, Unifyed and Client hereby agree to be bound by this Agreement and the terms and conditions set forth herein.
2. DEFINITIONS
2.1. “CAMPUS CONSORTIUM”, as utilized under the terms of this Agreement, is a Partner and higher education reseller of technology services including Unifyed Services; a provider of grants for IT projects and initiatives, iSeminars and conferences led by peer institutions on technology trends and lessons learned; and an incubator of education technology startups providing funding and financial, talent acquisition, talent management, development, marketing legal, strategic management and planning and facilities services.
2.2. “BLACKBELTHELP” (“BBH”), as utilized under the terms of this Agreement, is a Partner providing a cloud-, multi-tenant-, self-services- and artificial intelligence-based customer support platform.
2.3. “OCULUSIT”, as utilized under the terms of this Agreement, is a Partner providing IT hosting, monitoring, managed and consulting Services.
2.4. “QUICKLAUNCH”, as utilized under the terms of this Agreement, is a Partner providing cloud, multi-tenant, micro-services, self-service and artificial intelligence-based single sign-on, password management, identity management, and user provisioning and de-provisioning platform.
2.5. “PROVIDER” shall mean Unifyed, LLC.
2.6. “ASSETS” shall refer to all Provider Assets, Joint Assets, Client Assets and Re-Licensed Assets.
2.7. “PROVIDER ASSET” shall mean all Content: (i) provided by Provider or a Partner to Client; (ii) which is derived from, derivative of, or based in whole or in part upon any Content provided by Provider or such Partner and (iii) developed during the Term which does not incorporate any Client Asset.
2.8. “CONTENT” shall refer to all material developed, purchased, or otherwise made available; all computer software (including source code and object code versions); white papers; studies; wire and UML diagrams; project plans; video, music, screenplays, plots, story boards, scripts, and related documents; and Enhancements of the foregoing which relate to the Services.
2.9. “END USER” shall mean any individuals, authorized by Client to access and use any Provider Assets and to receive any of the Services.
2.10. “ENHANCEMENTS” shall mean modifications, adaptations and derivative works.
2.11. “HOSTING SERVICES” means the provision of services and data storage space and application level access offered by Provider or a Partner to locate, store, manage, and maintain any Provider Asset or Client Application on servers operated and maintained by Provider or a Partner for use and access by Client and End Users affiliated with or subscribed through Client.
2.12. “JOINT ASSET” shall refer to all Content which is jointly created by the parties and which does not include any Provider Asset or Client Asset.
2.13. “CLIENT” shall have the meaning ascribed above and, in addition, shall refer to any wholly-owned subsidiaries and subdivisions of Client.
2.14. “CLIENT DATA” shall refer to Client’s End User information and/or data that resides in a Provider or Partner database that does not include any Provider Asset.
2.15. “CLIENT ASSET” shall mean any Content developed solely by Client or by Client in collaboration with any third party which does not incorporate any Provider Asset that Client contributes to Provider or a Partner pursuant to Sections 3.1.2 and Attachment A, Section I.
2.16. “CLIENT APPLICATION” shall mean the licensed copies of the software application Client desires to have Provider or a Partner perform Services upon in accordance with the applicable SOW.
2.16. “CLIENT APPLICATION” shall mean the licensed copies of the software application Client desires to have Provider or a Partner perform Services upon in accordance with the applicable SOW.
2.17. “RE-LICENSED ASSET” shall mean any Content which is owned by third parties and licensed to Provider or a Partner and re-licensed by Provider or such Partner to Client, or which is owned by third parties and licensed directly by said third parties to Client pursuant to a separate license agreement.
2.18. “THIRD-PARTY SOFTWARE” shall mean any and all Content obtained by Client from any other entity other than Provider or a Partner in which Client uses, implements, or otherwise applies to the services provided by Provider or a Partner.
2.19. “SERVICES” shall refer to the Services to be provided by Provider or a Partner as set forth in the applicable SOW.
2.20. “SERVICE LEVEL AGREEMENT” shall refer to the level of service offered to Client for a particular service or product and sets forth the priorities, responsibilities, guarantees, and warranties of Provider or a Partner. Any and all Service Level Agreements for access, storage, support, back-up, maintenance, upgrades, uptime, and/or bandwidth must be contained in the applicable SOW.
2.21. “STATEMENT OF WORK” or “SOW” means a Services agreement between Client and Provider or a Partner, under which Provider or such Partner agrees to perform specified Services, or provide certain Assets and licenses to Client. Each and every SOW, as and when executed, shall be fully incorporated into this Agreement as an attachment hereto.
3. INTELLECTUAL PROPERTY RIGHTS
3.1. License, Title and Ownership of Assets. Except with respect to the access granted herein, Client agrees that all right, title and interest, including all rights under patent, trademark and copyright law, in and to any and all Provider Assets, shall be owned by Provider or the applicable Partner. Provider and Partners grant to Client a limited, revocable, non-reproducible, and non-redistributable license to access, modify, and use the Provider Assets and Services provided that it is in compliance with all other provisions, duties, and covenants contained in this Agreement. Client hereby agrees that it shall be bound by all license restrictions as set forth in this Agreement and in the terms and conditions links of any Provider or Partner application software.
3.1.1. Except with respect to the license granted herein, Provider and Partners agree that all right, title and interest, including all rights under patent, trademark and copyright law, in and to any and all Client Assets, shall be owned by Client provided, however, that Client: (i) hereby grants to Provider and Partners a perpetual, irrevocable, and unlimited license to access, use, and modify, distribute and sublicense any Client Asset created by Client; (ii) represents to Provider and Partners that it has the right to grant the license to the Client Asset set forth herein; and (iii) shall ensure that with respect to any Client Asset created through collaboration with a third party that such third party grants Client the right to grant the license in the Client Asset to Provider and Partners.
3.1.2. All right, title and interest, including all rights under patent, trademark and copyright law, in and to any and all Joint Assets shall be owned jointly by Provider and Client. Either Provider or Client shall have the right to use a Joint Asset for any purpose, including without limitation, to create Enhancements, grant sublicenses, distribute and otherwise exploit same, provided it does not interfere with the parties’ rights under this Agreement. Each party shall maintain copyright notices on the Joint Asset indicating the joint authorship.
3.1.3. Client may not sublicense or resell any of Provider or Partner Services without the prior written approval of Provider.
4. CLIENT RESPONSIBILITIES
4.1. Client Responsible for Equipment. Unless otherwise specified in the applicable SOW: (i) Client shall be responsible at its sole expense for purchasing and supplying all computer equipment and hardware, system software and peripheral equipment, as well as any maintenance, repair and upgrades to the foregoing, necessary to access and operate any Assets made available to or required by Client. To the extent that Provider or a Partner is supplying any hardware to Client in connection with the Services, Provider or such Partner shall retain title of such hardware (unless otherwise specified in the applicable SOW). To the extent that Provider or a Partner is providing Hosting Services for any hardware to Client in connection with the Services, Provider or such Partner shall retain title of such hardware (unless otherwise specified in the applicable SOW) and upon termination of this Agreement, the title of such hardware shall remain with Provider or such Partner.
4.2. Protection of Data and Software. Unless otherwise specified in the SOW, Client has the sole responsibility for the preparation, entry, use, maintenance and protection of any data and Content it uses in connection with all Assets. Provider or Partners shall have no duty or obligation to monitor Client’s Content or any other Content provided or distributed by others. PROVIDER AND PARTNERS SHALL HAVE NO RESPONSIBILITY FOR THE PROTECTION OF, OR FOR THE LOSS, OF ANY DATA OR OTHER CONTENT OWNED BY CLIENT OR THE CLIENT ASSET.
4.3. Right to Access. Client must procure the appropriate authorizations and rights from any and all third-parties to allow Provider and Partners to access Client’s Applications and perform the Services as set forth in the applicable SOW. By executing this Agreement, Client hereby warrants and covenants that it has the affirmative right from all third-parties to allow Provider and Partners to access Client’s Applications and perform the Services as set forth in the applicable SOW.
4.4. Client shall be responsible for providing, free of charge, to Provider or a Partner the information and materials necessary for the implementation of Services in such format as designated by Provider or such Partner from time to time including, without limitation, such information as is provided in each applicable SOW.
4.5. Client, at its own expense, shall provide such assistance as may be necessary to allow Provider or a Partner to perform its obligations hereunder, including providing Provider or such Partner with timely access to Client personnel (executive and staff), utilities and information reasonably necessary to the performance of the Provider or Partner Services. The Client shall be responsible for the accuracy, reliability and completeness of all information and data that the Client supplies to Provider or Partners for use hereunder.
4.6. Unless otherwise stated in the applicable SOW, Provider and Partners shall provide administrative access, as approved by Provider, to the Services seven (7) days per week, twenty-four (24) hours per day, provided that such access shall be limited solely to the individuals identified and authorized by Client, or such other individuals as Client may designate in writing to be added from time to time (“Client Representatives”).
4.7. Provider reserves the right, upon prior written notice to Client, to access Client’s Provider or Partner Services to audit such things as performance, usage, infrastructure, etc. The date and time of the audit shall be determined mutually and in writing between Provider and Client. The audit will not affect the availability of Client’s Services. Provider, while performing any such audit, shall not have access to personally identifiable End User information.
4.8. Provider reserves the right, upon prior written notice to Client, to access Client’s Provider or Partner Services to audit such things as performance, usage, infrastructure, etc. The date and time of the audit shall be determined mutually and in writing between Provider and Client. The audit will not affect the availability of Client’s Services. Provider, while performing any such audit, shall not have access to personally identifiable End User information.
5. PROPRIETARY RIGHTS AND CONFIDENTIALITY
5.1. Alteration of Proprietary Legends. Client shall include and shall not alter or remove the copyright and any other proprietary notices or legends on all copies (in whatever form) of any Provider Asset, Joint Asset or Re-Licensed Content. Neither party shall remove the copyright or other proprietary notices from the Joint Content.
5.2. Non-Disclosure of Client’s Confidential Information. Provider and Partners shall instruct their agents, employees and consultants to treat Client’s non-public professional or business information, including data or information related to Client’s business, as confidential and not disclose such data or information to other parties except as is reasonably necessary in connection with furnishing a Provider Asset and Re-Licensed Asset to Client.
5.3. Use of Provider Trademarks. Provider hereby grants Client a non-exclusive right and license to use Provider’s trademarks, service marks, copyrights, or logos (“Provider Marks”) solely in connection with promotional materials related to Provider. Client shall submit each new form of such use of Provider Marks to Provider for approval prior to Client’s first use of such new form, and Client shall promptly make any changes in such use on an ongoing basis as requested by Provider. Client acknowledges Provider’s claim that Provider owns all right, title, and interest in or to the Provider Marks and that Client may not display or distribute any Provider Marks in any way, except as provided herein or with the prior written permission of Provider. Client shall not knowingly take any action that could be detrimental to the goodwill associated with the Provider Marks or Provider.
5.4. Marketing. Throughout the Term of this Agreement, and subject to all applicable laws and Client policies, Client may promote Provider to its End Users in a manner consistent with its promotion of other services. In addition, Provider may collect data, undertake marketing tests and surveys, rating polls, and other research regarding the products and services offered by Provider and Provider products and services as promoted by Client. The terms and conditions, privacy policies, and end user license agreement for Provider software applications can be found at www.unifyed.com
5.5. Client grants Provider a non-exclusive right and license to use the Client name and trademark (“Client Marks”) solely in connection with promotional materials related to Client, provided all such uses of Client Marks shall conform to the guidelines for use of Client trademarks. Provider acknowledges that Client owns all right, title, and interest in or to the Client Marks and that Provider may not display or distribute Client Marks in any way, except as provided herein or with the prior written permission of Client. Provider shall not knowingly take any action that could be detrimental to the goodwill associated with the Client Marks or with Client.
5.6. Survival. Sections 1, 2, 3, 5, 7, 8 and 11 shall survive any termination or expiration of this Agreement. In addition, any payment obligations which exist as of the termination or expiration of this Agreement shall remain in effect, unless termination is for breach by Provider.
6. PROVIDER SERVICES AND FEES
6.1. Services. Provider shall provide Services to Client in accordance with the applicable SOW. Client may request changes to any SOW by notifying Provider in writing and specifying the nature of the changes (an “Addendum”). Upon agreement by Provider and Client of the terms of the modification, the parties will execute an Addendum. Authorized signatories from Provider and Client will be required to execute the Addendum in order for Services to continue and/or commence.
6.2. Fees. Provider shall be paid the Fees set forth in each SOW for the Services, Assets and licenses as specified in the SOW. The Fees as it relates to the licenses set forth in the applicable SOW are relative to Provider Assets and are not attributable in any way, shape, or form to third party licenses granted in this Agreement that are passed on to Client and Client’s End Users. For information on the type of license that governs any application, content, feature, or code within any Provider application, if applicable, please refer to the terms and conditions link in the Provider application.
6.2.1. Terms for First-Time Fees. Unless otherwise set forth in the Fees section of each applicable SOW, Client shall pay all Fees in U.S. Dollars (USD) within thirty (30) days of receipt of invoice from Provider.
6.2.2. Unless otherwise provided in a SOW, after the initial year, Fees for each SOW shall be subject to a compounded annual percent increase not to exceed the U.S. Consumer Price Index (CPI) or 7%, whichever is higher. Fees are non-refundable. In the event of any dispute concerning the amount due on any invoice, Client shall pay such amount as is not disputed pending the resolution of the disputed amount.
6.2.3. Fees Payable. All checks are to be made to Unifyed, LLC. and sent to 125 South Clark Street, 17th Floor, Chicago, IL 60603.
6.2.4. Terms for Recurring Annual Fees. All recurring annual Fee payments are due on the anniversary of the Effective Date of each applicable SOW.
6.3. Client Responsible for Costs. Unless otherwise specified in the applicable SOW, in addition to the Fees, Client shall be responsible for all freight, handling and insurance charges; and all applicable sales, property and use taxes. Any applicable taxes and charges will be computed and added to the invoicing for the charges due to Provider, and are due and payable in accordance with Section 6.2 herein and the specific terms of the applicable SOW.
6.4. Late Payment Charge. If Client fails to pay any amount due hereunder, Provider may at its sole option, without incurring any obligation or liability to Client or any third party: (a) refuse to continue to provide Services and terminate access to the Provider Assets and Re-Licensed Content; (b) furnish Services, Provider Assets and Re-Licensed Content on a “COD” basis; or (c) terminate this Agreement upon written notice to Client. Provider shall be under no obligation to furnish any Services or provide access to the Provider Assets or Re-Licensed Content during any period of time within which Client does not perform any of its other obligations hereunder. In the event of non-payment, Client agrees to pay Provider’s costs and expenses of collection, including all litigation costs, court costs and reasonable attorneys’ fees. In addition, Client shall be liable to pay Provider late payment charges at the rate of one and one-half percent (1 ½ %) per month, partial month, or the maximum permitted by law, whichever is less, on the outstanding amount due. The remedies set forth in this paragraph are not exclusive and are cumulative, and shall not preclude Provider from pursuing any other remedy available whether at law or in equity.
6.5. Modification to Provider Asset(s). At Provider’s sole discretion, Provider may at any time modify Provider Assets without notification to Client.
7. INDEMNITY AND LIMITATION OF LIABILITY
7.1. INDEMNIFICATION OF PROVIDER. Client shall indemnify, defend and hold Provider, its advisory committees, officers, employees, agents, affiliates, subsidiaries, successors and assigns, and Partners harmless from and against any and all claims, demand, actions, proceedings, judgments, settlements, liabilities, and costs, including reasonable attorneys’ fees, and including claims of third parties, arising from or in connection with any claims that any Client Asset infringes the rights of any third parties. Additionally, Client shall also indemnify Provider and Partners, to the extent stated herein above, from any claims, demand, actions, proceedings, judgments, settlements, liabilities, and costs, including reasonable attorneys’ fees for or in connection with the Services Provider or a Partner provides related to the Client Applications.
7.2. THIRD-PARTY SOFTWARE & RE-LICENSED ASSET LIMITATION OF LIABILITY. Provider shall not be liable to Client for any damage, defects, usage interruptions, vulnerabilities, and/or compliance issues with respect to any third-party software and/or re-licensed assets Client uses in conjunction with Provider’s Services. This limitation does not and will not foreclose Client from following the protocol set forth herein in requesting Provider from assisting in diagnosing and/or fixing third-party software and/or re-licensed asset problems at the rate set forth in this agreement or any Attachment hereto.
7.3. INDEMNIFICATION OF CLIENT. Provider shall indemnify Client, its board of trustees, officers, employees, agents, affiliates, subsidiaries, successors and assigns from and against any and all claims, damages, liabilities, costs, and expenses, including reasonable attorneys’ and experts’ fees, arising out of or in connection with any claims based upon alleged libel, slander, defamation, invasion of the right of privacy, violations of the right of publicity, or violation or infringement of copyright arising out of the content of the Provider Services or any Provider Asset, except for any such claims that are based on violations in connection with Re-Licensed Asset which Provider does not own or control, provided that: (a) Client promptly notifies Provider in writing of any such claims, damages, liabilities, costs, or expenses; (b) Provider shall have sole control of the settlement and defense of any action to which this indemnity relates; (c) Client cooperates in every reasonable way to facilitate such defense; and (d) if Client becomes aware of any suspected infringement by a third party of any proprietary rights of Provider, Client shall promptly notify Provider of such activities.
7.4. LIABILITY TO THIRD PARTIES BY PROVIDER. IN NO EVENT WHATSOEVER SHALL PROVIDER BE LIABLE TO CLIENT OR TO THIRD PARTIES FOR ANY DAMAGES CAUSED, IN WHOLE OR IN PART, BY THE USE OF THE SERVICES OR THE PROVIDER ASSET OR FOR ANY LOST REVENUES, LOST PROFITS, LOST SAVING OR OTHER DIRECT OR INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES INCURRED BY ANY PERSON, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR CLAIMS. IN NO EVENT SHALL THE LIABILITY OF PROVIDER EXCEED THE TOTAL AMOUNT PAID BY CLIENT TO PROVIDER HEREUNDER. IF ANY REMEDY HEREUNDER IS DETERMINED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE, ALL LIMITATIONS OF LIABILITY, DISCLAIMERS AND EXCLUSIONS OF WARRANTY AND DAMAGES SET FORTH HEREIN SHALL REMAIN IN EFFECT.
8. LIMITED WARRANTY AND EXCLUSIVE REMEDY
8.1. Limited Warranty. Provider warrants that it shall perform all services in a professional and workmanlike manner. Provider further warrants that any Provider Asset shall substantially conform to the specifications set forth in each SOW.
8.2. Exclusive Remedy. Client’s sole remedy for defects in a Provider Asset shall be the repair or replacement of the Provider Asset, at the election of Provider. Client shall have no other remedies against Provider except for repair or replacement of the Provider Asset, as set forth herein.
8.3. Provider warrants that it will perform Services in a professional manner consistent with the standards for its industry.
8.4. Each party warrants, represents, and covenants to the other party that it: (i) has the power and authority to enter into this Agreement and to perform fully its obligations hereunder; and (ii) shall not knowingly use the rights granted to it hereunder for any unlawful purpose. To the best of each Party’s knowledge, the enforcement and enjoyment by either Party of its rights and benefits hereunder do not and will not violate, and are not and will not be subject to restraint or curtailment under, the terms of any contract or agreement by which the other Party is bound.
8.5. The Parties agree to notify each other in writing immediately in the event any of the warranties and representations contained in herein are no longer true.
8.6. PROVIDER MAKES NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, WITH RESPECT TO ANY ASSET PROVIDED OR MADE AVAILABLE TO CLIENT, OR WITH RESPECT TO ANY STANDARD ENDORSED BY PROVIDER, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR THAT ANY SERVICE OR ASSET DOES NOT INFRINGE THE PROPRIETARY RIGHTS OF THIRD PARTIES, INCLUDING PATENTS, COPYRIGHTS AND TRADE SECRETS. CLIENT AGREES THAT ALL ASSETS AND SERVICES SHALL BE ACCEPTED BY CLIENT “AS IS”.
9. TERM AND TERMINATION
9.1.1. Initial Term. This Agreement shall continue for an initial term of five (5) years beginning on the Effective Date (“Term”), unless earlier terminated as set forth below. Each SOW shall state separately the Term for that particular SOW as each SOW Term may be different that this Agreement or another SOW
9.1.2. This Agreement shall renew for additional five (5) year terms (“Renewal Term”), unless Client notifies Provider in writing at least ninety (90) days prior to the expiration of the Term or the Renewal Term (if applicable) of its election not to renew. Each SOW shall renew according to the terms stated in the SOW.
9.2. Termination. This Agreement shall terminate as follows:
9.2.1. Upon the election of either party to not renew this Agreement;
9.2.2. Provider may terminate this Agreement immediately in the event Client fails to pay any Fees when due;
9.2.3. In the event either party commits a material breach of a term or condition of this Agreement, including but not limited a material breach of the Attachment A, Section III – the Confidentiality Agreement, said party has a commercially reasonable time to cure said breach; in the event that a breach cannot be completely cured within a time period set forth in this section or another section herein, said party is not in breach provided that curing the default begins within the time prescribed under this or any other section; for purposes of this section, beginning to cure a breach includes, but is not limited to, phone calls, responses to the other party that address the issue, contacting a third-party to diagnose or fix an issue, the creation of an internal ticket or order to resolve the breach.
9.2.4. In the event either party becomes insolvent or otherwise becomes unable to pay its debts when due, makes an assignment for the benefit of its credits, or declares bankruptcy;
9.2.5. Provider shall have the right, upon sixty (60) days prior written notice, to dissolve Provider.
10. Rights on Termination.
10.1. In the event that this Agreement is terminated by Client under sections 9.2.1 and 9.2.4, whereby Client becomes insolvent, or by Provider under sections 9.2.1, 9.2.2, 9.2.3, whereby Client commits a material breach, or by Client without due cause, within thirty (30) days of termination of this Agreement: (i) Client shall be responsible for paying applicable Fees for the remainder of the Term; (ii) Provider shall terminate Client’s access to the Services and use of the Provider Assets, applicable Re-Licensed Assets and licenses; (iii) Client shall return the Provider Assets and Provider confidential information, and certify in writing its return of same and that it has not retained any copies thereof.
10.2. In the event that this Agreement is terminated by Provider under sections 9.2.4 and 9.2.5; or 9.2.1 by Client upon expiration of the Initial or Renewal Term, Provider shall terminate the Services and Client’s access to any applicable Provider Asset and Re-Licensed Asset; and, at Client’s written request, shall copy, to a transportable file media storage device, any Client Data that Provider may have in a Provider database as of the time of termination, and provide same to Client within 90 days thereof.
10.3. Termination Charges. In the event that Provider provides a discount to any of the Services to be provided to Client pursuant to a SOW, and in the event that Client terminates this Agreement under sections 9.2.1 and 9.2.4, whereby Client becomes insolvent, or by Provider under sections 9.2.1, 9.2.2, 9.2.3, whereby Client commits a material breach, or by Client without due cause, the amount of discount received by Client in Fees credited to Client in the Fees section of the applicable SOW shall become due and payable within thirty (30) days of the termination event.
11. MISCELLANEOUS
11.1. Force Majeure. The parties will not incur liability to each other for failing to perform any obligation under this Agreement if such failure results from a force majeure or any force beyond their reasonable control.
11.2. Governing Law. This Agreement shall be deemed accepted by Client in the United States and will be governed by and construed in accordance with the laws of the state of Illinois, USA. The prohibition on or unenforceability of any provision in any jurisdiction shall not affect the validity or enforceability of such provision in any other jurisdiction.
11.3. Compliance with Laws. Provider represents that it will comply with any and all applicable municipal, state, and federal laws, rules and regulations applicable to the performance its obligations under this Agreement.
11.4. No Waiver. The failure to enforce any breach of any covenant or condition of this Agreement by either party shall not constitute a waiver of said covenant or condition and shall not hinder or otherwise prevent the subsequent enforcement of said covenant or condition.
11.5. Binding Agreement. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and assigns, but neither Party shall have the right to assign or otherwise transfer its rights under this Agreement without receiving the express prior written consent of the other Party. Any attempt to assign the rights, duties or obligations under this Agreement by Client without such consent shall be a breach of this Agreement and shall be null and void. Provider may, however, assign this Agreement to an affiliate or in the event of a sale of all or substantially all of its assets, provided all the terms and conditions contained in this Agreement continue in full force and effect.
11.6. Severable Provisions. If any of the provisions in this Agreement shall for any reason be declared or held invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision thereof and this Agreement shall be construed as if such invalid, illegal, or unenforceable provision had never been contained herein.
11.7. Notices. Notices under this Agreement shall be in writing and shall, for all purposes, be sent by registered or certified mail, return receipt requested, postage prepaid, properly addressed to the parties at the addresses set forth below, or at such other address for either party as may be specified by such party for purposes of this Agreement:Unifyed, LLC.
55 E Monroe St.
Suite 3460
Chicago, IL 60603
Client Legal Notices Address and Point of Contact as per Master License and Services Agreement
11.8. Entire Agreement. This Agreement, including all attachments hereto constitutes the entire agreement between the parties hereto and supersedes all previous letters, understandings, or verbal agreements which relate to the services to be provided by Provider to Client. No modification of this Agreement shall be binding on the parties hereto unless such modification is in writing and duly signed by each party.
11.9. Use of Subcontractors. Client will not permit any third party to access the Assets under this Agreement without written authorization from Provider. Client’s failure to comply with this clause shall be a breach of this Agreement.
11.10. Non-Solicitation of Employees. During the term of this Agreement and for a period of two (2) years after its termination, Client shall not solicit for hire or hire as an employee, consultant or otherwise any of Provider’s personnel who have performed any Service without Provider’s express written consent.
11.11. Construction/Joint Drafting. This Agreement is a negotiated document and shall be deemed to have been drafted jointly by Parties, and no rule of construction or interpretation will apply against any particular party based on the contention that the Agreement was drafted by the other party
11.12. Incorporation by Reference. The SOW(s) attached hereto and any iteration(s) and/or additional SOW(s) properly executed as specified herein are hereby incorporated by reference.
11.13. Personally Identifiable Information. Neither party shall be required to provide any personally identifiable information regarding specific users which could violate any privacy or other legal rights of users or third parties, including but not limited to the Family Educational Rights and Privacy Act (FERPA).
11.14. ACKNOWLEDGEMENT. CLIENT ACKNOWLEDGES IT HAS READ THIS AGREEMENT, INCLUDING ALL ATTACHMENTS, AND THAT IT UNDERSTANDS SAME AND AGREES TO BE BOUND THEREBY.
ATTACHMENT A
SECTION I: COMMUNITY DEVELOPMENT CENTER (CDC) LICENSE
This CDC License (“License”) is entered into by and between Unifyed and Client.
WHEREAS, Unifyed and Client have entered into a Master License and Services Agreement (“MLSA”) dated the same date as this License; and,
WHEREAS, the Client wishes to License certain content provided by Provider which is derived from, derivative of, or based in whole or in part upon any proprietary computer software/programming provided by Provider;
Now therefore, in exchange for and in consideration of the mutual promises, premises, and covenants herein, and for other good and valuable legal consideration, the receipt and sufficiency of which are hereby acknowledged, by execution of the MLSA, Provider and Client hereby agree to be bound by this Agreement and the terms and conditions set forth herein.
1. Definitions:
1.1. Unifyed, LLC. provides Services, including cloud, multi-tenant, self-service-based enterprise mobile and portal, content management, identity, student engagement, analytics and college and university student information and enterprise resource planning system systems.
1.2. Through its technology partners (hereinafter Partners), Unifyed provides cost-effective IT solutions and services (hereinafter Services) on areas including: identity and access management; cloud hosting, IT managed services, and monitoring; and service desk.
1.3. Services contracted with Client shall be specified in this Agreement or an applicable SOW.
1.4. Binding Agreement. In exchange for and in consideration of the mutual promises, premises, and covenants herein, and for other good and valuable legal consideration, the receipt and sufficiency of which are hereby acknowledged, Unifyed and Client hereby agree to be bound by this Agreement and the terms and conditions set forth herein.
2. License and Intellectual Property:
2.1. Grant of License in Provider Asset. In consideration of Client’s compliance with the terms and conditions set forth herein, Provider hereby grants to Client, and Client hereby accepts, a non-exclusive license to use the Provider Asset for the Term of the MLSA. Client may create Enhancements to the Provider Asset for its internal use only and in connection with the Services. Client shall be permitted to upload, download, use and exchange Enhancements created by Client or by other Clients of the Provider Asset. Client shall also be permitted to share the source code associated with Enhancements, collaborate on the development of Enhancements, and otherwise share ideas regarding the Provider Asset with other Clients of the Provider Asset. Client also agrees to upload all Enhancements created by Client to the CDC within thirty (30) days of production release by Client. Client shall not disclose or distribute to any third party any of the Assets except through the CDC.
2.2. Grant of License in Client Asset. Client hereby (i) agrees to upload to the CDC all Client Assets created by Client within thirty (30) days of production release by Client of the Client Asset; (ii) grants an irrevocable, perpetual and unlimited license to Provider to access, use, and modify any Client Asset created by Client, subject to the requirement to maintain Client’s copyright notice thereof; and (iii) shall not disclose or distribute to any third party or any Client, except through the CDC, Client Asset.
2.3. Restricted Use of Provider Asset. Client shall not (i) transfer, lease, license, sublicense, sell, assign or otherwise dispose of the Provider Asset or any Enhancements; (ii) other than in connection with Client’s use of the Provider asset as permitted by this License for its internal use, adapt, modify, decompile, disassemble, reverse engineer the Provider Asset, or translate or create any derivative works based on the Provider Asset; and (iii) make any copies of the Provider Asset.
3. Termination:
3.1. Term. This Agreement shall continue in force and effect for so long as the MLSA is in effect and not terminated. Upon termination of the MLSA, Client’s CDC license granted hereunder shall terminate.
ATTACHMENT A
SECTION II: LICENSE OF RE-LICENSED ASSET
This License of Re-Licensed Asset (“License”) is entered into by and between Unifyed and Client.
WHEREAS, Unifyed and Client have entered into a Master License and Services Agreement (“MLSA”) dated the same date as this License; and,
WHEREAS, the Client wishes to License certain content provided by Provider which is derived from, derivative of, or based in whole or in part upon any proprietary computer software/programming provided by Provider;
Now therefore, in exchange for and in consideration of the mutual promises, premises, and covenants herein, and for other good and valuable legal consideration, the receipt and sufficiency of which are hereby acknowledged, by execution of the MLSA, Provider and Client hereby agree to be bound by this Agreement and the terms and conditions set forth herein.
1. Definitions:
1.1. Definitions. All capitalized terms not otherwise defined herein shall have the meaning set forth in the MLSA
2. License and Intellectual Property:
2.1. Grant of License in Re-Licensed Asset. In consideration of Client’s compliance with the terms and conditions set forth herein, Client shall be entitled to access and use the Re-Licensed Asset for the term of the MLSA, as set forth in the SOW and subject to any third-party licenses as shall be specified by Provider in the SOW
2.2. Restricted Use of Provider Asset. Client shall not (i) transfer, lease, license, sublicense, sell, assign or otherwise dispose of the Re-Licensed Asset; (ii) adapt, modify, decompile, disassemble, reverse engineer the Re-Licensed Asset, or translate or create any derivative works based on the Re-Licensed Asset; and (iii) make any copies of the Re-Licensed Asset.
3. Termination:
3.1. Term. This Agreement shall continue in force and effect for so long as the MLSA is in effect and not terminated. Upon termination of the MLSA, this License and all licenses granted hereunder shall terminate.
ATTACHMENT A
SECTION III: CONFIDENTIALITY AGREEMENT
This CONFIDENTIALITY AGREEMENT (the “Agreement”) is entered into by and between Unifyed and Client.
WHEREAS, Recipient has requested information from Disclosing Party in connection with consideration of a possible transaction or relationship between Recipient and Disclosing Party.
WHEREAS, in the course of consideration of the possible transaction or relationship, Disclosing Party may disclose to Recipient confidential, important, and/or proprietary trade secret information concerning Disclosing Party and his/its activities.
THEREFORE, the parties agree to enter into a confidential relationship with respect to the disclosure by Disclosing Party to Recipient of certain information.
- Definitions. For purposes of this Agreement, “Confidential Information” shall include all information or material that has or could have commercial value or other utility in the business or prospective business of Disclosing Party. Confidential Information also includes all information of which unauthorized disclosure could be detrimental to the interests of Disclosing Party whether or not such information is identified as Confidential Information by Disclosing Party. By example and without limitation, Confidential Information includes, but is not limited to, the following: plans, software, clients, marketing plans, network login and passwords, business plans, financial information, and other information disclosed or submitted, orally, in writing, or by any other media, to Recipient by Owner. For purposes of this Agreement, the term “Recipient” shall include Recipient, the company he or she represents, and all affiliates, subsidiaries, and related companies of Recipient. For purposes of this Agreement, the term “Representative” shall include Recipient’s directors, officers, employees, and financial, legal, and other advisors.
- Exclusions. Confidential Information does not include information that Recipient can demonstrate: (a) was in Recipient’s possession prior to its being furnished to Recipient under the terms of this Agreement, provided the source of that information was not known by Recipient to be bound by a confidentiality agreement with or other continual, legal or fiduciary obligation of confidentiality to Disclosing Party; (b) is now, or hereafter becomes, through no act or failure to act on the part of Recipient, generally known to the public; (c) is rightfully obtained by Recipient from a third party, without breach of any obligation to Disclosing Party; or (d) is independently developed by Recipient without use of or reference to the Confidential Information.
- Confidentiality. Recipient and its Representatives shall not disclose any of the Confidential Information in any manner whatsoever, except as provided in paragraphs 4 and 5 of this Agreement, and shall hold and maintain the Confidential Information in strictest confidence. Recipient hereby agrees, to the extent not prohibited by applicable state law, to indemnify Disclosing Party against any and all losses, damages, claims, expenses, attorneys’ fees and costs incurred or suffered by Disclosing Party as a result of a breach of this Agreement by Recipient or its Representatives.
- Permitted Disclosures. Subject to applicable disclosure laws including the Public Records Act, Recipient may disclose Disclosing Party’s Confidential Information to Recipient’s responsible Representatives with a bona fide need to know such Confidential Information, but only to the extent necessary to evaluate or carry out a proposed transaction or relationship with Disclosing Party and only if such employees are advised of the confidential nature of such Confidential Information and the terms of this Agreement and are bound by a written agreement or by a legally enforceable code of professional responsibility to protect the confidentiality of such Confidential Information. Notwithstanding the foregoing, should Recipient receive a request to disclose Disclosing Party records by virtue of a Public Records request, Recipient agrees to notify Disclosing Party in writing of the request, provide Unifyed, LLC with a list of documents it has in its possession, allow Disclosing Party a reasonable time to object to the disclosure of any documents and/or procure a Court order directing Recipient not to disclose any of documents that fall within the exemptions of Recipient’s applicable Public Records Act.
- Required Disclosures. Recipient may disclose Disclosing Party’s Confidential Information if and to the extent that such disclosure is required by court order, provided that Recipient provides Disclosing Party a reasonable opportunity to review the disclosure before it is made and to interpose its own objection to the disclosure.
- Use. Recipient and its Representatives shall use the Confidential Information solely for the purpose of evaluating a possible transaction or relationship with Disclosing Party and shall not in any way use the Confidential Information to the detriment of Disclosing Party. Nothing in this Agreement shall be construed as granting any rights to Recipient, by license or otherwise, to any of Disclosing Party’s Confidential Information.
- Return of Documents. If Recipient does not proceed with the possible transaction with Disclosing Party, Recipient shall notify Disclosing Party of that decision and shall, at that time or at any time upon the request of Disclosing Party for any reason, return to Disclosing Party any and all records, notes, and other written, printed or other tangible materials in its possession pertaining to the Confidential Information immediately on the written request of Disclosing Party. The returning of materials shall not relieve Recipient from compliance with other terms and conditions of this Agreement.
- Non-solicitation. Recipient hereby agrees to not directly solicit, engage, contract with, bid, or perform any services for any Disclosing Party employee, customer, and/or contractor for a period of Twelve (12) Months after such disclosure.
- No Additional Agreements. Neither the holding of discussions nor the exchange of material or information shall be construed as an obligation of Disclosing Party to enter into any other agreement with Recipient or prohibit Disclosing Party from providing the same or similar information to other parties and entering into agreements with other parties. Disclosing Party reserves the right, in its sole discretion, to reject any and all proposals made by Recipient or its Representatives with regard to a transaction between Recipient and Disclosing Party and to terminate discussions and negotiations with Recipient at any time. Additional agreements of the parties, if any, shall be in writing signed by Disclosing Party and Recipient.
- Irreparable Harm. Recipient understands and acknowledges that any disclosure or misappropriation of any of the Confidential Information in violation of this Agreement may cause Disclosing Party irreparable harm, the amount of which may be difficult to ascertain, and therefore agrees that Disclosing Party shall have the right to apply to a court of competent jurisdiction for specific performance and/or an order restraining and enjoining any such further disclosure or breach and for such other relief as Disclosing Party shall deem appropriate. Such right of Disclosing Party is to be in addition to the remedies otherwise available to Disclosing Party at law or in equity. Recipient expressly waives the defense that a remedy in damages will be adequate and any requirement in an action for specific performance or injunction for the posting of a bond by Disclosing Party.
- Survival. This Agreement shall continue in full force and effect at all times.