SALES ORDER TERMS AND CONDITIONS:
MasterTrack Solutions is referred to as “MTS”. By executing this sales order (“Sales Order”), Customer is requesting and agreeing (1) to pay for the computer software content files identified in this Sales Order (the “MTS Content”). (2) to subscribe to the online services identified in this Order (the “MTS Services”), and (3) agreeing to be bound by MTS’s terms and conditions contained in this Sales Order and the MTS Services terms and conditions located at MasterTracksolutions.com. This Sales Order contains the entire agreement between Customer and MTS with respect to the MTS Content and the MTS Services.
- Use Restrictions – MTS Content: The MTS Content may contain content files licensed to MTS by a third party. The MTS Content is licensed to Customer, and not sold. MTS hereby grants Customer a non-exclusive, non-transferable license, with right to sub-license, to copy the MTS Content files, to distribute and display such copies internally within Customer, and to modify and make derivative works of the MTS Content. MTS reserves all other rights in the MTS Content. Without limiting the foregoing, Customer may not distribute or display the MTS Content to more than the number of Customer’s teachers identified in this Sales Order, nor to any person or entity that is not a pupil, teacher or administrator of Customer.
- Delivery: The MTS Content files will be delivered on the first to occur of MTS’s notifying Customer in writing that they are available for download, or Customer’s actually downloading any of the MTS Content files. Title to and all risk of loss or damage for any print resources acquired under this Sales Order will pass to Customer upon delivery of such print resources by MTS or its printer to a common carrier for shipment to Customer. MTS will pay shipping expenses, subject to reimbursement by Customer.
- Payment: Customer will pay MTS the fees specified in this Sales Order upon its signature of this Sales Order if payment is by credit card, and otherwise within 30 days of receipt of MTS’s invoice.
- No Other Agreement: Modifications of this Sales Order will not be effective unless made in a written document that both MTS and Customer have signed. Customer may choose to issue a purchase order to identify products or license rights for purchase and for its own internal purposes. However, any terms and conditions contained in any purchase order, acceptance, acknowledgment, or other document Customer submits to MTS which are inconsistent with, different from, or additional to the terms and conditions of this Sales Order and/or the MTS Terms and Conditions will be null and void, and in their place this Sales Order and the MTS Terms and Conditions will control.
1. Use of The Services
1.3. MasterTrack’s Responsibilities. During the Term, MasterTrack will use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except for planned downtime (of which MasterTrack will try to give at least 7 days’ notice), and any unavailability caused by circumstances beyond MasterTrack’s reasonable control, including Internet service provider failures or delays or denial of service attacks.
1.5. Subscription Plans. Customer’s subscription plan for the Services is specified in the applicable Sales Order. Customer may not reduce Customer’s commitment under the Service subscription plan specified in the Sales Order (e.g., the number of teachers included with Customer’s subscription) during the Service subscription term. Customer is not entitled to any refund of fees paid or relief from fees due if the Services Customer actually uses are less than the Services or subscription metrics Customer ordered, and Customer may not carry over any unused Services or subscription metrics to Customer’s next Subscription Term. If Customer wishes to reduce the volume of a Service subscription plan, then Customer must notify MasterTrack at least 30 days’ before the start of the Renewal Term for the applicable Service; the reduction will be effective at the start of the Renewal Term.
2. Proprietary Rights
2.4. Restrictions. Customer will not: (i) except to the extent, if any, permitted by applicable law or required by MasterTrack’s licensors, reverse assemble, reverse engineer, decompile or otherwise attempt to derive source code from any of the MasterTrack Technology; (ii) reproduce, modify, or prepare derivative works of any of the MasterTrack Technology or Documentation; (iii) distribute or display any of the MasterTrack Technology or Documentation other than to Customer’s Users; (iv) share, rent or lease the Services, or use the Services to operate any timesharing, service bureau or similar business, (v) create any security interest in the Services; or (vi) disclose the results of any Service or program benchmark tests without MasterTrack’s prior written consent.
2.5. Suggestions. If Customer provides MasterTrack with any suggested improvements to the Services (“Suggestions”), then Customer also hereby grants MasterTrack a non-exclusive, perpetual, irrevocable, paid-up, royalty-free, worldwide, transferable license, with right to sublicense, to make, have made, sell, offer for sale, use, import, reproduce, distribute, display, perform, and make derivative works of the Suggestions, regardless of whether Customer has designated the Suggestions as confidential.
2.6. Open Source. Certain items of independent, third party code may be included in the MasterTrack Technology that are subject to the GNU General Public License (“GPL”) or other open source licenses (“Open Source Software”). The Open Source Software is licensed under the terms of the license that accompanies such Open Source Software. Nothing in this Agreement limits Customer’s rights under, or grants Customer rights that supersede, the terms and conditions of any applicable end user license for such Open Source Software. In particular, nothing in this Agreement restricts Customer’s right to copy, modify, and distribute such Open Source Software that is subject to the terms of the GPL.
3. Temporary Service Suspension
3.2. Effect of Suspension. If MasterTrack suspends Customer’s right to access or use some or all of the Services, then (i) MasterTrack will not erase any of Customer’s Data as a result of Customer’s suspension; (ii) Customer remains responsible for all fees and charges regardless of the suspension, including for Services to which Customer continues to have access; and (iii) Customer will not be entitled to any compensation or credits for any period of suspension.
4. Term and Termination
4.2. Subscription to Upgraded or Additional Services. If Customer upgrades any of Customer’s Service subscriptions during a Subscription Term, then the subscription term for the upgraded Service will be coterminous with the current Subscription Term and MasterTrack will invoice Customer an amount equal to the difference between the original Service fee and the upgraded Service fee. If Customer subscribes to an additional Service, the Subscription Term for that Service will begin on the Contract Effective Date for that Service and Customer will be separately invoiced for the applicable activation and annual Service subscription fee for the additional Service.
4.9. Access to and Retention of Customer’s Data. MasterTrack will allow Customer to obtain an export file of Customer’s Data stored on the MasterTrack Technology if, within 30 days of any termination, Customer notifies MasterTrack of Customer’s request for export rights.
5. Fees; Invoicing and Payment
6. Confidential Information; Personally Identifiable Information
6.2. Exclusions. Confidential Information does not include information that the receiving party can establish: (i) has entered the public domain without the receiving party’s breach of any obligation owed to the disclosing party; (ii) has been rightfully received by the receiving party from a third party without confidentiality restrictions; (iii) is known to the receiving party without any restriction as to use or disclosure prior to first receipt by the receiving party from the disclosing party; (iv) has been independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information; or (v) aggregate Customer Data.
6.3. Disclosure Required by Law. If any applicable law, regulation or judicial or administrative order requires the receiving party to disclose any of the disclosing party’s Confidential Information or Personally Identifiable Information (a “Disclosure Order”) then, unless otherwise required by the Disclosure Order, the receiving party will promptly notify the disclosing party in writing prior to making any such disclosure, in order to facilitate the disclosing party’s efforts to protect its Confidential Information or Personally Identifiable Information. Following such notification, the receiving party will cooperate with the disclosing party, at the disclosing party’s reasonable expense, in seeking and obtaining protection for the disclosing party’s Confidential Information or Personally Identifiable Information.
6.5. Protection of Customer’s Data.
6.5.1. MasterTrack will implement and maintain commercially reasonable security methods designed to meet the following objectives: (a) ensure the security and confidentiality of Customer’s Data in MasterTrack’s custody and under MasterTrack’s control; (b) protect against anticipated threats or hazards to the security or integrity of such Data; (c) protect against unauthorized access to or use of such Data; (d) encrypt Customer’s Confidential and Personally Identifiable Data during transmission by MasterTrack and when being uploaded by Customer to the MasterTrack Technology using an https connection; and (e) ensure that MasterTrack’s return or disposal of such Data is performed in a manner consistent with MasterTrack’s obligations under items (a)-(d) above. Customer acknowledges and agrees that is commercially reasonable for MasterTrack to rely upon the security processes and measures utilized by MasterTrack’s cloud infrastructure providers.
6.5.2. MasterTrack will notify Customer of unauthorized access, use or disclosure to or of Customer’s Confidential Information and Personally Identifiable Data within MasterTrack’s custody and control upon confirmation of the same; each party will reasonably cooperate with the other with respect to such unauthorized access, use or disclosure, including its containment and investigation. Upon confirmation of any vulnerability or breach of MasterTrack’s security affecting Customer Confidential and Personally Identifiable Data in MasterTrack’s custody and control, MasterTrack will modify its processes and security program as necessary to mitigate the effects of the vulnerability or breach upon such Data.
7.1. MasterTrack’s Warranties.
7.1.2. If MasterTrack fails to conform to any of the foregoing warranties and if MasterTrack does not render the MasterTrack Technology conforming within 45 days of Customer’s notifying MasterTrack of the non-conformance then, as Customer’s sole and exclusive remedy for any non-conformance, Customer may terminate the Subscription Term upon immediate notice to MasterTrack, and MasterTrack will refund Customer a pro-rata amount of any Service subscription fees prepaid to MasterTrack (excluding, for clarification, any activation and implementation fees) and applicable to the unutilized portion of the Subscription Term of the terminated Services.
7.3. Disclaimer of Implied Warranties. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 7, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW: (i) THE MasterTrack TECHNOLOGY, SERVICES, PROFESSIONAL SERVICES AND ALL INTELLECTUAL PROPERTY AND OTHER INFORMATION PROVIDED BY MasterTrack OR MasterTrack’s LICENSORS UNDER OR IN CONNECTION WITH THESE TERMS ARE PROVIDED “AS IS”; AND (ii) THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, RELATING TO ANY SOFTWARE, PRODUCTS OR SERVICES PROVIDED UNDER OR IN CONNECTION WITH THESE TERMS, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ANY IMPLIED WARRANTY OF NON-INFRINGEMENT OR IMPLIED OBLIGATION TO INDEMNIFY FOR INFRINGEMENT, OR IMPLIED WARRANTY ARISING OUT OF COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE, OR OF TITLE.
8.1.2. Indemnification by Customer. Customer will defend and indemnify MasterTrack from and against any claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or in connection with any third party claim or investigation to the extent based on Customer’s Data, or Customer’s failure to comply with applicable law. Customer will indemnify and hold MasterTrack harmless from any claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or in connection with any non-compliance with the Acceptable Use Policy for which Customer, Customer’s Users, or Customer’s Affiliates are responsible.
10.1. If the Modification Notice states that the modifications will become effective upon commencement of a Renewal Term, then Customer may terminate Customer’s subscription for convenience prior to commencement of the Renewal Term, in accordance with Section 4.4 (Termination for Convenience).
10.2. If the Modification Notice states that the modifications will become effective during the then current Subscription Term, then Customer may terminate Customer’s subscription to the affected Service at any time within the 30 day period following the date of the Modification Notice. Customer’s termination will become effective on the later to occur of (a) the date on which Customer delivers the termination notice, or (b) the date on which the applicable modifications become effective. If Customer terminates a Service subscription pursuant to this Section 10.2, then Customer will be entitled to a pro-rata refund of any pre-paid Service subscription fees for the terminated Service for the unutilized portion of the Subscription Term (for clarification, Service subscription fees do not include any activation fees or installation fees).
11. Limitations Of Liability
11.1. Exclusion of Certain Claims. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL MASTERTRACK BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL OR EXEMPLARY DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE (INCLUDING DAMAGES FOR LOSS OF DATA, GOODWILL, INVESTMENTS, USE
OF MONEY OR USE OF FACILITIES; INTERRUPTION IN USE OR AVAILABILITY OF DATA; STOPPAGE OF OTHER WORK OR IMPAIRMENT OF OTHER ASSETS), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF (i) THE PERFORMANCE OR NON-PERFORMANCE OF THESE TERMS OR OF PRODUCTS, SOFTWARE OR SERVICES PROVIDED UNDER THESE TERMS, OR (ii) ANY CLAIM, CAUSE OF ACTION, BREACH OF CONTRACT, INDEMNITY, OR ANY EXPRESS OR IMPLIED WARRANTY, UNDER THESE TERMS OR OTHERWISE, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORT.
11.3. General. Customer agrees that these exclusions and limitations apply even if the remedies are insufficient to cover all of the losses or damages of Customer, its Affiliates’ or users’ or fail of their essential purpose and that without these limitations the fee for the Services would be significantly higher. Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some or all of the above exclusions or limitations may not apply and the parties may have additional rights.
12. Purchase Through Channel Partners
12.1. Applicability. This section 12 only applies to Customers purchasing Services through an authorized Channel Partner. If you are uncertain as to the applicability of this section to your purchase of Services, please contact MasterTrack for further information.
12.3. Subscriptions Through a Channel Partner. If Customer ordered the Services through a Channel Partner, then sections 4.1-4.4 are inapplicable, and the Subscription Term will begin on the Contract Effective Date and, subject to the remainder of section 4, it will expire, renew and terminate in accordance with the terms of the Channel Partner Sale Agreement.
12.4. Purchases Through a Channel Partner. If Customer ordered the Services through a Channel Partner, then the provisions of section 5 do not apply to Customer, and Customer’s billing and payment rights and obligations are governed by the Channel Partner Sale Agreement. However, if the Channel Partner from whom Customer purchased the Services fails to pay MasterTrack any amounts due in connection with Customer’s use of the Services, then MasterTrack may suspend Customer’s Account, with or without notice to Customer. Customer agrees that Customer’s remedy in the event of such suspension is solely against the Channel Partner and that MasterTrack is not liable to Customer in any manner for such suspension.
12.5. Frontline Support. If the Channel Partner through whom Customer ordered the Services is a “Premium” status Channel Partner (and as a result is obligated under its contract with MasterTrack to provide Frontline Support to Customer), then Customer’s rights to receive Frontline Support are governed by the Channel Partner Sale Agreement. If the Channel Partner fails to provide Frontline Support, then Customer agrees that Customer’s remedy in the event of such failure is solely against the Channel Partner and that MasterTrack is not liable to Customer in any manner for such failure. In the event of any such failure, MasterTrack may elect to provide Frontline Support to Customer in MasterTrack’s sole discretion, on a reasonable efforts basis, and without liability to Customer, at such rates as may be agreed in writing between Customer and MasterTrack.
13.2. Export Compliance. Each party will comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Services. Without limiting the foregoing, Customer represents that neither Customer nor any of its Users are named on any U.S. government list of persons or entities prohibited from receiving exports.
13.3. Links. MasterTrack is not responsible for nor does MasterTrack in any way endorse any websites to which the
MasterTrack website or Services provides links.
13.5. Data Analysis. MasterTrack may use Customer’s Data for MasterTrack’s internal analytical purposes, including to improve and enhance the Services and the MasterTrack Technology. MasterTrack may make information derived from its analysis of the Services and Data publically available, provided that the publicized information does not include any Customer Data that has not been aggregated and anonymized. For the purposes of this Agreement, aggregated and anonymized Customer Data means Customer Data that (i) has been aggregated with other Data, and (ii) does not contain information that identifies Customer, its Users or pupils. For the sake of clarity, aggregated and anonymized Customer Data is not Confidential Information of Customer. Customer hereby grants MasterTrack the following perpetual, non-exclusive, irrevocable, paid-up, royalty free, worldwide licenses: (a) the license, with right to sub-license to MasterTrack’s service providers, to reproduce, internally distribute, internally display, create derivative works of, and use Customer Data for the analytical purposes described above and to generate aggregated and anonymized Customer Data; and (b) the license, with right to sub-license, to make, have made, sell, offer for sale, use, import, reproduce, distribute, display, perform, and make derivative works of aggregated and anonymized Customer Data.
13.6. Dispute Resolution.
13.7. Force Majeure. MasterTrack will not be responsible for failure or delay of performance if caused by reason of any circumstances beyond MasterTrack’s reasonable control, including any act of God, labor disputes or other industrial disturbances, systemic electrical, telecommunications, or other utility failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, or acts of terrorism or war, provided, however, that MasterTrack will use all commercially reasonable efforts to avoid or remove such causes of non-performance and MasterTrack will proceed whenever such causes are removed or cease.
13.9. Successors and Assigns. Except as otherwise provided in this Section 13.9, neither party may assign all or any part
“Channel Partner” means an entity that MasterTrack has authorized as a “distributor” or “reseller” of MasterTrack’s Services.
“Channel Partner Sale Agreement” means the order, agreement or other document between Customer and a Channel Partner for Customer’s purchase of Services. Terms that apply to Customer’s use of the Services when purchased from a Channel Partner are specified in Section 12.
“Confidential Information” has the meaning ascribed to it in Section 6.
“Customer’s Data” means Customer’s Data, and includes Personally Identifiable Information forming part of that Data.
“Data” means any data uploaded to the MasterTrack Technology by MasterTrack customers, and resulting customer unique output that is generated by the MasterTrack Technology when processing the uploaded information.
“Documentation” means the MasterTrack Technology user guides, training manuals and other similar software documentation, as updated or revised by MasterTrack from time to time, which MasterTrack provides to Customer.
“Frontline Support” means (a) all initial phone, email or Web-based support-related communications with a Customer; (b) the collection of problem incident information; (c) the gathering of system/network status and configuration information; and (d) the performance of initial diagnostics; and (e) the supplying of initial recommendations for problem resolution. Frontline Support will be provided by the applicable Channel Partner if the Channel Partner is authorized by MasterTrack as a “Premium” level channel partner, unless otherwise specified in the applicable Sales Order.
“Intellectual Property” means all trade secrets, patents and patent applications, trade marks (whether registered or unregistered and including any goodwill acquired in such trade marks), service marks, trade names, copyrights, moral rights, database rights, design rights, rights in know-how, rights in confidential information, rights in inventions (whether patentable or not) and all other intellectual property and proprietary rights (whether registered or unregistered, any application for the foregoing, and all rights to enforce the foregoing), and all other equivalent or similar rights which may subsist anywhere in the world.
“MasterTrack,” means [ MasterTrack Solutions Inc., a Washington S Corporation and its successors and assigns.
“MasterTrack Technology” means the MasterTrack Web App, the RTM Content, and any other Services purchased by Customer as further described in Customer’s Sales Order, together with other computer software programs, networks and equipment that MasterTrack uses to make them available to its customers as an on-line software as a service offering.
“MasterTrack Site” means the MasterTrack website located at MasterTrackSolutions.com
“MasterTrack Web App” means the MasterTrack Site software located at mymastertrack.com
“Personally Identifiable Information” means personally identifiable information of an individual person that is required to be protected by applicable law.
“Renewal Term” has the meaning ascribed to it in Section 4.
“RTM Content” means any mathematics tests or similar digital files or written materials created by MasterTrack’s affiliate, ReThink Mathematics, and that MasterTrack makes available for download by Customer.
“Sales Order” means MasterTrack’s sales order form, sales proposal or other ordering document that describes the Services, fees, and any special terms for using the Services that Customer has ordered. Each Sales Order becomes effective when it has been signed by both MasterTrack and Customer or, if Customer purchases Services through a Channel Partner, upon MasterTrack’s acceptance of the Sales Order following its submission by the Channel Partner.
“Services” means the MasterTrack Technology service offerings to which Customer subscribes, as specified in the applicable Sales Order, including the MasterTrack Web App, and such other services as may be specified in the Sales Order.
“Subscription Term” has the meaning ascribed to it in Section 4.
“User” means Customer’s employees, and any other individual persons providing services to or for the benefit of Customer and who have been expressly authorized by Customer to use the Services via the MasterTrack Web App, including, by way of example, teachers, principals and school district management.
The following words are to be interpreted as designated: (i) “or” connotes any combination of all or any of the items listed; (ii) where “including” is used to refer to an example or begins a list of items, such example or list is not exclusive; (iii) “specified” requires that an express statement is contained in the relevant document; and (iv) “will” is, unless the context requires otherwise, an expression of command, not merely an expression of future intent or expectation.