Terms of Service

for CourseMax Service and software

THIS SERVICE AGREEMENT (this "Agreement") is between On-Course.com, Inc., doing business as CourseMax, with principal offices at 12909 Tufton Woods Ct., Reisterstown, MD 21136, ("CourseMax") and you ("Client", as further defined below). You agree to be bound by these Terms of Service by using the software or accessing or using the services. Please read these Terms of Service before installing, accessing, or otherwise using the Software or Services. Please maintain a copy for your records.

BACKGROUND

CourseMax has developed proprietary, web-based, course management application software (the "CourseMax Software") that allows educational institutions to manage their class schedules and market and sell their courses online. This software is hosted and supported by CourseMax through its own infrastructure and various third party applications.

Use of the CourseMax Software is offered as a service (the “Service”) to clients of CourseMax, who access the Service and provide and receive data through the CourseMax web site (the “Portal”), as do student customers (“Customers”). Client desires to use the Service to manage certain of its course offerings and to allow Customers to enroll in Client’s courses online and CourseMax desires to provide the Service to Client.

DEFINITIONS

“Client” means the individual or legal entity purchasing or opening an account for the CourseMax Training Center Manager services under this Agreement.

“Effective Date” means the date the service is first made available to the Client.

“Quotation” means the document titled “Quotation”, signed by Client, or, if Client purchases the service through the CourseMax web site, the payment page on CourseMax’s web site, setting forth all applicable fees for the Service.

GENERAL TERMS AND CONDITIONS

CourseMax and Client hereby agree as follows.

1.        Access and Use of the CourseMax Software. During the Term (as defined in Section 13), CourseMax shall provide the Service to Client, which includes the limited, non-exclusive, and non-transferable right for Client to (i) access and use the CourseMax Software through the Portal and make it available to its Customers, (ii) use the documentation provided by CourseMax (the “Documentation”), make copies of the Documentation and distribute the Documentation within Client’s own organization only as reasonably required for its own internal use, and (iii) include on one or more of Client’s own web sites, as selected by Client and identified to CourseMax in writing (collectively, the “Client Site”), web application code accessing the CourseMax Web Services,. “CourseMax Web Services” means the SOAP-based XML services provided by CourseMax for use by Client as a mechanism for providing its customers views of Client’s course catalog, class schedule, and also providing a mechanism to register and pay for courses.  Client will permit access to the the CourseMax Web Services only from the Client Site or as otherwise agreed by the parties in writing. Client will use, and permit Users to use, the CourseMax Software, Documentation and Portal only as contemplated by, and specified in, this Agreement. “Users” shall include Client’s employees, agents and Customers.

2.        Support.

2.1.   Support Services. During the Term, CourseMax shall provide technical support to Client, by telephone and e-mail, during CourseMax’s standard business hours, to address Service failures and other technical support issues, as well as any administrative issues and questions with respect to the Service. Such support shall be provided in accordance with the CourseMax Support Service Level Agreement, the current version of which is attached hereto as Exhibit A. Client acknowledges and agrees that it is solely responsible for the technical support of its Users.

2.2.   Maintenance Windows. CourseMax may take down the Service to conduct routine maintenance checks during established maintenance windows, as set forth on the CourseMax Maintenance Schedule. If CourseMax schedules maintenance during its standard business hours and CourseMax anticipates that the Service will be down for more than two (2) minutes during such time, CourseMax shall advise Client prior to any such scheduled maintenance. CourseMax may change its maintenance window(s) at any time during the Term, upon reasonable prior written notice to Client.

3.        Data Hosting and Retention. All data provided either by or on behalf of Client or its Customers under this Agreement, or created from such data, (“Data”), will reside on third party equipment operated by CourseMax or by its service provider. Such Data will be included in CourseMax’s standard data backup. The parties acknowledge and agree that the Service provided under this Agreement is not intended and does not include either disaster recovery or business continuation services for Client’s operations.

4.        Portal; Internet Protocol (IP) Address of CourseMax. Unless otherwise specified, all aspects of the Service will be provided through the Portal. Elements of the Client Site may be used in the Portal and the Portal may include Client’s trade names, trademarks, service marks, logos, slogans and trade dress (collectively, together with all intellectual property rights relating thereto, “Client Elements”). The CourseMax name and/or logo may be placed on each page of the Portal (with appropriate copyright and trademark notices). Client acknowledges and agrees that title to and ownership of the CourseMax Intellectual Property are and will remain vested in CourseMax at all times and for all purposes. The “CourseMax Intellectual Property” includes the CourseMax Software, the Documentation, the Portal and all materials provided by or on behalf of CourseMax to Client, and all related intellectual property rights, including, but not limited to, all trademark, copyright, trade secret and patent rights. Client will not knowingly take any action inconsistent with CourseMax’s rights in and to the CourseMax Intellectual Property. At CourseMax’s reasonable request, Client will assist CourseMax in maintaining the integrity of its rights in and to the CourseMax Intellectual Property, at CourseMax’s sole cost and expense. Client will use commercially reasonable efforts to immediately notify CourseMax if Client becomes aware of any threatened or actual conflict with or challenge against any of CourseMax’s rights in and to the CourseMax Intellectual Property.

5.        Client Responsibilities.

5.1.   Customer Support; Learning Coordinator. Client shall assign a "Learning Coordinator" to be responsible for informing authorized Users about the Service, assisting authorized Users to register and to access information through the Portal and resolving all access or usage problems related to Client's systems, third party systems or third party software. The Learning Coordinator will respond promptly to any authorized User request for assistance, whether submitted directly or forwarded by CourseMax.

5.2.   User IDs. Each authorized User will require a User ID and password (collectively, "IDs") to use the Service. Client shall be solely responsible for assigning IDs to its Customers, employees and other authorized Users. It is Client’s responsibility to immediately notify CourseMax of any issues that require Service or Data access modifications.

5.3.   Data.

(a) Client shall not import, add, modify or delete Data by any method other than direct data entry through the Portal, without the prior written approval of CourseMax. CourseMax may at any time deem alternate methods of importing or extracting Data to be unacceptable and Client will cease such access to Data/systems immediately.

(b) Client is solely responsible for maintaining adequate controls over its processing and Data transmissions, for monitoring the input of such processing and transmissions and for notifying CourseMax of any non-conforming processing and/or transmissions.

(c) Client acknowledges and agrees that CourseMax is not responsible for checking, verifying or editing Data content or completeness or for detecting errors or anomalies, regardless of whether such Data is provided by Client or entered by a User. CourseMax shall have the right to rely on the completeness and accuracy of all Data, regardless of whether the Data is provided by or on behalf of Client or a User.

(d) Client shall be solely responsible for verifying the accuracy and completeness of all Data. Client must report to CourseMax any inaccuracies or other Data or Service issues promptly after Client becomes aware of such issues.

5.4.   Notices to Customers. The parties acknowledge and agree that Client is solely responsible for complying with all federal, state, and local notification requirements that may apply to Client. CourseMax shall not be responsible for reviewing any notifications or for advising Client of the completeness, adequacy, timing, or accuracy of any such notifications.

5.5.   Consents. Client shall be solely responsible for obtaining in a timely manner any consent required under federal or state laws, rules or regulations (including, without limitation, any consent required under the Family Educational Rights and Privacy Act (FERPA) (20 U.S.C. § 1232g; 34 CFR Part 99)) for the transmission of Data to CourseMax, the provision of the Service to Client and its Customers by CourseMax, and CourseMax’s provision of Data to any third parties in the performance of the Service. Client represents and warrants that it shall obtain and maintain throughout the Term, all such required consents in a timely manner.

5.6.   Client Equipment. Client shall be solely responsible for selecting, purchasing, and maintaining any equipment and computer hardware and/or software required to access the Portal and use the Service.

6.        Ownership of Information. All Data provided by Client to CourseMax shall remain the property of Client. The foregoing notwithstanding, CourseMax shall have a perpetual, fully paid-up license to use and disclose in furtherance of CourseMax’s business, any Data that: (i) either does not include personally identifiable Customer information or has been de-identified, and (ii) has not been identified by Client in writing as confidential information. In addition, the business records of CourseMax and all other records, electronic or otherwise, created or maintained by CourseMax in performance of this Agreement will be and remain CourseMax’s property, even though they may reflect or contain personally identifiable Customer information or Confidential Information (as defined in Section 13 below) of Client or other information concerning or provided by Client. All de-identified information created by CourseMax in compliance with this Agreement will belong exclusively to CourseMax.

7.        Access

7.1.   Access Requirements. Access to the Service will be available only through the Portal to authorized Users with valid IDs who use Microsoft’s Internet Explorer browser version 6 or later. Access to and use of the Service by other browser software may impair its functionality. Access to and use of the Service is also subject to availability of the Internet and other communications technology, and the servers and software that CourseMax uses to provide the Service. CourseMax will use commercially reasonable efforts to have the technology within CourseMax's control available to authorized Users seven (7) days a week, twenty-four (24) hours a day, other than during scheduled maintenance windows. Client is responsible for ensuring that all authorized Users are able to access the Service through Client's firewall or other security systems.

7.2.   Monitoring Access. Client will be responsible for assigning IDs and monitoring access to the Service by its employees, third party consultants to Client and anyone accessing the Service on Client’s behalf or utilizing Client’s information systems, IDs or other access codes, including all Users. Client will permit only authorized Users to access or use the Service and neither Client nor any authorized User will have the right to grant any other third party a right of access or use to the Service or to assign any of its rights under this Agreement. Client is solely responsible for compliance of Client's employees with the terms and conditions of this Agreement, monitoring, controlling access to and maintaining the strict confidentiality of the IDs assigned to authorized Users, instructing authorized Users not to allow another person to use their IDs, and promptly informing CourseMax in writing of any need to change or deactivate an ID due to security concerns or a change in status of an authorized User (e.g., he or she ceases to be a Client employee). CourseMax is not liable for any harm related to theft of any IDs, disclosure of any IDs or Client's authorization of another person or entity to access and use the Service using any IDs. Client shall notify CourseMax immediately of any use of any IDs that is not in accordance with the terms of this Agreement and any breach of confidentiality and of any issues that require Service or Data access modifications.

7.3.   Unauthorized Access. Client shall be allowed to access only its Data. Client will not attempt to gain or allow access to any data, files or programs to which it is not entitled under this Agreement and, if such access is obtained, as soon as Client learns of such access Client will destroy such materials or return them to CourseMax and, to the extent Client is unable to do so, will safeguard the same as CourseMax’s Confidential Information in accordance with Section 14 below.

7.4.   Disabling Access. CourseMax may, in its sole discretion, disable access to the Service or applicable portions thereof and notify Client within twenty‑four (24) hours of the reason for disabling access, in the event CourseMax determines that Client, anyone affiliated with Client or using IDs or other access codes assigned by Client (i) is not an authorized User, (ii) is attempting or has attempted to interfere with or disrupt the Service or other users of the CourseMax Software, including by uploading any virus, worm, disabling device, or other unauthorized device, (iii) is attempting or has attempted to copy the CourseMax Software or gain access to portions of the Service which it is not authorized to access, or (iv) is attempting or has attempted to access any portion of any other system maintained by CourseMax for any other client.

8.          Payment Terms.

8.1.   Fees. The Quotation sets forth all fees and payments due under this Agreement.

8.2.   Payment Terms. Client agrees to pay all invoiced amounts within thirty (30) days of the invoice date. Any invoice outstanding beyond thirty (30) days after the invoice date shall be subject to a late fee equal to 1.5% per month or the maximum legal rate and may result in suspension of Client access to the Service. Invoices unpaid beyond forty-five (45) days from the invoice date shall be deemed to be a material breach by Client and may result in termination of this Agreement. Client is responsible for the payment of all taxes based on amounts paid by its Customers and for all taxes based on fees for Client's use of services provided under this Agreement (other than taxes based on CourseMax's net income). If CourseMax is required to pay any such taxes directly, Client shall reimburse CourseMax upon receipt of CourseMax's notice thereof.

8.3.   Changes to Fees or Service. Notwithstanding any provision herein to the contrary, CourseMax may change the Service and the fees for the Service at any time. CourseMax shall notify Client of such change at least sixty (60) days before it is scheduled to go into effect (the “Change Date”), in the event such change would (i) materially increase the cost of the Service to Client, or (ii) materially adversely change the Service received by Client. Such change shall be binding on Client, unless Client gives CourseMax written notice of termination at least thirty (30) days prior to the Change Date, which shall be Client’s sole remedy for any such adverse change in the Service or its cost. Client may withdraw its termination notice at any time prior to the Change Date. Unless otherwise agreed by the parties in writing, if Client gives notice of termination under this Section 9.3 and fails to withdraw such notice prior to the Change Date, this Agreement shall terminate on the Change Date.

9.     Company Representations and Warranties.

9.1.                        Warranties. CourseMax represents and warrants that the Service will be performed in a timely, professional, and workmanlike manner in accordance with applicable commercial standards.

9.2.                        Disclaimer of Warranties. CLIENT ACKNOWLEDGES THAT (A) CLIENT IS SOLELY RESPONSIBLE FOR COMPLYING WITH ANY FEDERAL, STATE, OR LOCAL NOTIFICATION, CONSENT OR OTHER REQUIREMENTS THAT MAY APPLY TO CLIENT; (B) COURSEMAX IS IN NO MANNER RESPONSIBLE FOR ANY ACTION OR INACTION OF ANY THIRD PARTY, INCLUDING, BUT NOT LIMITED TO, HARDWARE, SOFTWARE, OR TELECOMMUNICATIONS VENDORS OR INTERNET SERVICE PROVIDERS; (C) ANY “AUTHORIZATION” BY COURSEMAX OF ANY SUCH THIRD PARTY DOES NOT CONSTITUTE A REPRESENTATION OR WARRANTY WITH RESPECT TO SUCH THIRD PARTY OR ITS PRODUCTS OR SERVICES; AND (D) COURSEMAX HAS NOT REPRESENTED OR WARRANTED THAT THE SERVICE WILL BE UNINTERRUPTED, SECURE, ERROR FREE OR WITHOUT DELAY. THE PARTIES ACKNOWLEDGE THAT NO EXPRESS WARRANTIES HAVE BEEN MADE BY EITHER PARTY EXCEPT FOR THE LIMITED WARRANTIES MADE IN THIS AGREEMENT. EXCEPT AS EXPRESSLY SET FORTH HEREIN, COURSEMAX AND ITS AFFILIATES AND THEIR OFFICERS, EMPLOYEES, DIRECTORS, AGENTS, SUPPLIERS, THIRD-PARTY SERVICE PROVIDERS, LICENSORS AND THE LIKE DO NOT MAKE ANY WARRANTY (A) AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE COURSEMAX SOFTWARE OR THE SERVICE; (B) THAT THE SERVICE WILL BE UNINTERRUPTED, SECURE, ERROR FREE OR WITHOUT DELAY; (C) THAT DATA WILL BE ACCURATELY TRANSMITTED; OR (D) OF ANY OTHER KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.

10.     Indemnification.

10.1.                        Indemnification by CourseMax. CourseMax shall indemnify, defend and hold Client harmless from and against any claim that the CourseMax Software infringes a U.S. copyright, trademark or trade secret (an “Infringement Claim”). CourseMax shall defend Client against any Infringement Claim and pay all damage or loss and amounts that a court finally awards or that CourseMax agrees to in settlement of such claim. Client shall: (i) immediately notify CourseMax in writing of any Infringement Claim; and (ii) allow CourseMax to control, and fully cooperate with CourseMax in, the defense of such claim and all related negotiations. CourseMax shall not be required to indemnify Client for any settlement that Client enters into without CourseMax’s prior written consent. If the operation or use of the CourseMax Software becomes, or in CourseMax’s opinion is likely to become, the subject of any claim of infringement of any third party’s intellectual property rights, then CourseMax may, at CourseMax’s sole discretion and expense, either (a) procure the right for Client to continue to use the CourseMax Software or (b) replace or modify the CourseMax Software so that it becomes non-infringing while retaining substantially comparable functionality. If the foregoing is not possible on terms that are commercially reasonable in CourseMax’s judgment, then CourseMax may terminate this Agreement upon written notice to Client. CourseMax shall have no obligation to defend, indemnify or hold Client harmless against an Infringement Claim to the extent that such claim is based on Client’s access or use of the CourseMax Software in violation of the terms of this Agreement. This Section 10.1 states CourseMax’s entire obligation to Client regarding Infringement Claims.

10.2.                        Indemnification by Client. Client agrees to indemnify, hold harmless, and defend CourseMax and its officers, directors, employees, agents, affiliates, subsidiaries, successors, users, and assigns from and against any and all damages or losses incurred in connection with any claim or cause of action by any person or entity who is not a party to this Agreement based upon, arising from, or related to (i) the improper use of or access to the CourseMax Software or the Service; (ii) the inaccuracy, incompleteness, or inadequacy of any Data or any information provided to CourseMax by Client, whether through the Portal or otherwise; (iii) the ineligibility of any Customer, or any other person, for any course, product, or service offered by Client; (iv) the failure of CourseMax to comply with any applicable law or regulation, including without limitation the Family Educational Rights and Privacy Act (FERPA), where such failure to comply is rendered impossible or commercially unreasonable by the acts or omissions of Client; (v) any failure of Client to comply with FERPA, or any other applicable federal or state law or regulation; (vi) any allegation that the Client Elements provided by Client to CourseMax hereunder infringe any patent, copyright, trademark, trade secret, or other intellectual property right of a third party; or (vii) the design of Client’s course offerings, the administration of Client’s course offerings or any decisions or determinations related to the Client’s course offerings.

11.     Limitation of Liability. IN NO EVENT SHALL: (i) EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR INDIRECT DAMAGES (INCLUDING LOST PROFITS OR SAVINGS), EVEN IF SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (ii) EITHER PARTY’S LIABILITY HEREUNDER EXCEED AN AMOUNT EQUAL TO THE AMOUNT CLIENT PAID COURSEMAX DURING THE TWELVE MONTHS PRIOR TO THE DATE ON WHICH THE CLAIM OR CAUSE OF ACTION AROSE. THE FOREGOING LIMITATIONS SHALL NOT APPLY TO ANY BREACH OF EITHER PARTY’S CONFIDENTIALITY OBLIGATIONS UNDER THIS AGREEMENT OR WHERE SUCH DAMAGES ARE AWARDED TO A THIRD PARTY AND SUCH THIRD PARTY’S CLAIM IS COVERED BY AN OBLIGATION OF INDEMNITY UNDER THIS AGREEMENT.

Further, except as otherwise explicitly provided herein, neither (i) CourseMax, (ii) any vendor providing equipment, software, or services to CourseMax ("Vendor"), nor (iii) any director, officer, employee, affiliate, or agent of CourseMax or any Vendor, will be liable for any loss, damage, cost, or expense whatsoever, direct or indirect, regardless of the cause, that may arise out of, or be in any way related to, the use of the CourseMax Software or the Service, including, but not limited to: (a) the suspension or termination of, or the inability to use, all or any part of the CourseMax Software or the Service; (b) the erroneous transmission of any data or the transmission of any erroneous data; (c) any failure or delay suffered or allegedly suffered by any party in receiving or sending any information, however caused; (d) the delivery or transmission of any virus, worm, or other disruptive device; or (e) any other cause in connection with the furnishing of services or notices by CourseMax or the performance, maintenance, or use of, or inability to use, all or any part of the CourseMax Software or the Service. The foregoing will apply regardless of whether a claim arises in contract, tort, negligence, strict liability, or otherwise.

12.     Term and Termination.

12.1.                        Term. The term of this Agreement (the "Term") will begin on the Effective Date, continue for one (1) year and, unless earlier terminated pursuant to this Section 12 or Section 8.3, BE AUTOMATICALLY RENEWABLE FOR CONSECUTIVE ONE (1) YEAR TERMS, UNLESS EITHER PARTY GIVES NOTICE OF TERMINATION AT LEAST SIXTY (60) DAYS PRIOR TO THE END OF THE THEN-CURRENT TERM.

12.2.                        Termination for Breach. Either party shall have the right to terminate this Agreement if the other party materially breaches this Agreement. The non-breaching party shall send a notice to the breaching party specifying each breach with reasonable specificity and within thirty (30) days following such notice the breaching party must either: (i) have cured each such breach, or (ii) with respect to a breach which may not reasonably be cured within such thirty (30) day period, have agreed with the non-breaching party upon a plan to cure the breach (the “Cure Plan”). If the breaching party fails to accomplish the foregoing within such thirty (30) day period, this Agreement may be terminated by the non-breaching party by written notice, effective as of the date specified in such notice. Further, if the breaching party fails to timely provide the cure in accordance with the Cure Plan, it shall be deemed a material breach of this Agreement and the non-breaching party shall have the right to terminate this Agreement upon written notice to the breaching party, effective as of the date specified in such notice. Termination of this Agreement by the non-breaching party shall not relieve the breaching party from liability for any breach of, or other obligations arising under, this Agreement occurring before such termination.

12.3.                        Termination for Insolvency, etc. Either party shall have the right to terminate this Agreement on written notice, if the other party has filed a voluntary petition in bankruptcy, made a general assignment for the benefit of its creditors, suffered or permitted the appointment of a trustee or receiver for its business assets, become subject to any proceeding under any bankruptcy or insolvency law which is either consented to by such party or is not dismissed within sixty (60) days, initiated actions to wind up or liquidate its business voluntarily or otherwise, or ceased to do business in the ordinary course.

12.4.                        Release of Source Code. If this Agreement is terminated by Client pursuant to Section 12.3, then Client has the option, in its sole discretion, of obtaining the source code for the CourseMax Software (the “Source Code”) pursuant to the terms of this Section 12.4. This option must be exercised by written notice to CourseMax prior to the effective date of such termination. Promptly after receipt of such notice, CourseMax shall deliver the Source Code to Client. Client may use the Source Code only as specifically permitted by this Agreement. CourseMax hereby grants to Client a limited, non-exclusive, non-transferable, royalty-free, license for a period of 2 (two) years after release of the Source Code to Client pursuant to this Section 12.3 to: (i) use the Source Code only for the lawful internal business purposes of Client; (ii) make a reasonable number of copies of the Source Code, including, but not limited to, backup and archival copies, as Client reasonably deems necessary for such use; and (iii) modify and maintain the Source Code for use in accordance with the provisions of this Agreement. Client acknowledges and agrees that this is a LIMITED LICENSE GRANT that does not entitle Client to sell, broker, lend, lease, trade, or otherwise benefit from the use of the CourseMax Software or its Source Code, or any modified version thereof, in any manner except pursuant to the terms of this Agreement. Any modified versions of the CourseMax Software resulting from modification of the Source Code shall be subject to all of the terms and conditions of this Agreement.

12.5.                        Suspension. CourseMax reserves the right to suspend access and use of all or part of the Service by (a) any User that CourseMax reasonably suspects of a breach of security or unauthorized access and (b) all of Client’s Users in the event of a material breach of this Agreement by Client, after notice to Client and pending cure of such breach.

13.      Confidentiality

13.1.                        Confidential Information. When used in this Agreement, the term “Confidential Information” will mean information learned by either party (the “Receiving Party”) in the course of performing or preparing to perform its obligations or exercising its rights under this Agreement, whether such information is oral or written, that (a) is proprietary to the party who disclosed it (the “Disclosing Party”), including, without limitation, the Disclosing Party’s intellectual property; or (b) either is designated as confidential information by the Disclosing Party or, under the circumstances of the disclosure, ought to be treated as confidential, and is not generally known other than by the Disclosing Party and parties subject to obligations of confidentiality, whether or not such information is owned by the Disclosing Party. The terms and conditions of this Agreement are Confidential Information of both parties. Client acknowledges that the capabilities, technical descriptions and any code relating to the CourseMax Software or any other aspect of the Service, including without limitation the Source Code, are the Confidential Information of CourseMax. Confidential Information will not include information that (a) was known by the Receiving Party at the time of receipt from the Disclosing Party and is not subject to any other non-disclosure agreement between the parties; (b) is, or hereafter becomes, generally known to the public through no fault of the Receiving Party; (c) was independently developed by the Receiving Party without reference to Confidential Information; or (d) was or becomes available to the Receiving Party on a non-confidential basis from a third party, provided that such third party is not bound by an obligation of confidentiality to the Disclosing Party with respect to such Confidential Information.

13.2.                        Disclosure and Use Restrictions. Except as otherwise provided in this Agreement, each party will (a) retain in confidence all Confidential Information of the Disclosing Party, using at least the same degree of care in safeguarding the Disclosing Party’s Confidential Information as it uses in safeguarding its own Confidential Information, subject to a minimum standard of reasonable diligence and protection; (b) use and disclose such Confidential Information only in the course of performing its obligations or exercising its rights pursuant to this Agreement; (c) disclose such Confidential Information within its organization only to those of its employees or subcontractors who need to know it to perform the obligations or exercise the rights of the Receiving Party; and (d) promptly following the request of the Disclosing Party or upon termination of this Agreement, return to the Disclosing Party all of the Confidential Information such party delivered or disclosed, together with all copies thereof made by the Receiving Party, except such materials as have either been destroyed or retained solely for archival purposes. It will not be a violation by either party of this Section 13.2 to disclose any information required to be disclosed by law or legal process. However, the Receiving Party will (a) promptly notify the Disclosing Party of the disclosure request, and (b) at the Disclosing Party’s request and expense, provide reasonable assistance in any effort by the Disclosing Party to prevent or limit such disclosure.

13.3.                        Injunctive Relief. Each party recognizes and acknowledges that any use or disclosure of the Confidential Information of the other party in a manner inconsistent with the provisions of this Agreement may cause the other party irreparable damage for which remedies at law may be inadequate, and each party agrees that in any request to a court of competent jurisdiction by the Disclosing Party for injunctive or other equitable relief seeking to restrain such use or disclosure, the Receiving Party will not maintain that such remedy is not appropriate under the circumstances.

14.      General.

14.1.                        Notice. Any formal notice or other significant communication given pursuant to this Agreement must be in writing and shall be deemed to have been received either (a) upon personal delivery (or refusal thereof) to the party for whom intended, (b) on the date receipt is confirmed by any courier service used for its delivery or (c) on the date of receipt appearing on the return receipt card following the deposit of the same into the United States mail (certified mail, return receipt requested), in each case addressed to such party at the address set forth above. Either party may designate a different address by notice to the other given in accordance with this Section 14.1.

14.2.                        Force Majeure. In the event either party is prevented from performing, or is unable to perform, any of its obligations under this Agreement due to any cause beyond the reasonable control of the party invoking this provision, including, without limitation, failures of computer-related equipment, hardware or software, the affected party’s performance will be excused and the time for performance will be extended for the period of delay or inability to perform due to such occurrence.

14.3.                        Continuity. If during the Term a third party acquires control of CourseMax or substantially all of its assets and such party is not an affiliate of CourseMax (i.e., controlled by, controlling, or under common control with CourseMax), then such party shall agree to honor the terms of this Agreement for the remainder of the Term. Notwithstanding the foregoing, CourseMax shall notify Client and Client shall have the option of terminating this Agreement on notice to CourseMax and the acquiring company within thirty (30) days after Client’s receipt of such notice. For purposes of this Section 14.3, “control” shall mean the ability, whether directly or indirectly, to direct the affairs of another by means of ownership, contract or otherwise.

14.4.                        Assignment. Except for an assignment to an entity controlled by, controlling, or under common control with Client, the assignment by Client of any of its rights or obligations under this Agreement requires the prior written consent of CourseMax. Any assignment attempted in violation of this Section 14.4 shall be void and without effect.

14.5.                        Severability. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be modified to the minimum extent necessary to achieve the purpose originally intended, if possible, and the remaining provisions of this Agreement shall remain in full force and effect and enforceable.

14.6.                        Survival. Sections 7 and 9 through 14 extend beyond the expiration or termination of this Agreement and shall survive and remain in effect beyond any expiration or termination.

14.7.                        Choice of Law; Jurisdiction; Limitation on Actions. This Agreement is governed by and shall be construed in accordance with the laws of the State of Maryland without regard to its conflict of laws provisions, and both parties consent to the jurisdiction and venue of the state and federal courts in the State of Maryland. In any action to enforce this Agreement the prevailing party (as specifically determined by the court) will be entitled to recover its costs, including reasonable attorneys' fees. The parties agree that any action in relation to an alleged breach of this Agreement other than a breach of confidentiality shall be commenced within two (2) years of the date of the breach, without regard to the date the breach is discovered. Any action not brought within that two (2) year time period shall be barred, without regard to any other limitations period set forth by law or statute.

14.8.                        Entire Agreement; Amendments; Waiver. This Agreement, including, without limitation, any Exhibits, contains the entire understanding of the parties with regard to the subject matter contained herein. The parties may amend, modify and supplement this Agreement only by mutual written agreement. The failure of either party to enforce at any time any provision of this Agreement shall not be construed to be a waiver of such provision, nor in any way to affect the validity of this Agreement or any part hereof or the right of such party thereafter to enforce each and every such provision. No waiver of any breach of this Agreement shall be held to constitute a waiver of any other or subsequent breach, nor shall any delay by either party to exercise any right under this Agreement operate as a waiver of any such right.

14.9.                     Business Relationship. This Agreement will not create any agency, employment, joint venture, partnership, representation, or fiduciary relationship between the parties. No party has the authority to nor will a party attempt to, create any obligation on behalf of another party as a result of this Agreement.

14.10.   Dispute Resolution. Except for a dispute related to claims subject to indemnification under Section 10, or as otherwise provided in this Section 14.10, neither party shall resort to legal remedies or commence any formal proceedings to resolve a dispute under this Agreement until the parties have attempted to resolve the dispute through the escalation process described in this Section 14.10. The party raising a dispute shall submit to the other party a written notice and supporting material describing all issues and circumstances related to the dispute (a “Dispute Notice”). The designated primary representative of each party shall attempt to resolve the dispute. If the parties’ primary representatives fail to resolve the dispute within fifteen (15) days from receipt of a Dispute Notice, a Senior Vice President (or higher-level officer) of each party shall attempt to resolve it. If such officers fail to resolve the dispute within thirty (30) days from the date of the Dispute Notice, either party may commence formal legal proceedings to resolve the dispute. This Section 14.10 shall not be construed to prevent a party from instituting formal proceedings earlier than indicated in this Section 14.10 to: (i) avoid the expiration of any applicable limitations period; (ii) preserve a superior creditor position; or (iii) seek injunctive relief to prevent an irreparable harm, including without limitation, harm caused by a breach of confidentiality.

 

 

 

 

EXHIBIT A

 

Support Service Level Agreement

 

CourseMax shall provide Client with the support service levels described below. CourseMax shall (a) log each issue reported to it by Client, (b) determine the scope and priority of the issue, and (c) use its best efforts to correct such issue within the target time frame specified in the chart below for issues with that priority level (“Target Time Frame”). In the event CourseMax is unable to remedy a reported issue within the applicable Target Time Frame, CourseMax shall continue its corrective efforts and shall advise Client of the status of such efforts and the expected time for the completion of such correction. Such communication shall occur at least every twenty-four (24) hours, or more frequently at Client’s reasonable request.

 

Priority Classification

Criteria

CourseMax’s Response

High

The CourseMax Software is down and not available for use by Client and its Customers.

Within two (2) business hours, CourseMax shall respond to acknowledge that it is aware of a High Priority issue and shall begin working on the resolution of the issue. CourseMax shall use its best efforts to correct each such High Priority issue or resolve it with a workaround reasonably acceptable to Client within the Target Time Frame of four (4) business hours.

 

Medium

Major function of the CourseMax Software is not available and there is no workaround that is acceptable to Client on a temporary basis.

Within four (4) business hours, CourseMax shall respond to acknowledge that it is aware of a Medium Priority issue and shall begin working on the resolution of the issue. CourseMax shall use its best efforts to resolve Medium Priority issues within the Target Time Frame of two (2) business days.

 

Low

Minor function of the CourseMax Software is not available or an important function is not available but there is a workaround that is acceptable to Client on a temporary basis.

Within one (1) business day, CourseMax shall respond to acknowledge that it is aware of a Low Priority issue and shall begin working on the resolution of the issue. CourseMax shall use its best efforts to resolve Low Priority issues within the Target Time Frame of five (5) business days.

 

Cosmetic

Problems of a cosmetic nature that have an insignificant effect on the ability of Client or its Customers to use the CourseMax Software.

 

Next scheduled release of the CourseMax Software according to CourseMax’s release schedule.