Terms & Conditions

/Terms & Conditions
Terms & Conditions2018-10-05T00:08:31+00:00

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.

  1. 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.
  1. 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.
  1. 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.
  1. 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.

MASTERTRACK’S TERMS OF USE:

These are the Terms of Use (these “Terms of Use”) under which MasterTrack agrees to grant Customer access to and use of MasterTrack’s online software service offerings and related content and materials. By indicating Customer’s acceptance of these Terms of Use, by executing a Sales Order that references these Terms of Use, or by using MasterTrack’s software or services, Customer agrees to be bound by these Terms of Use. If you are entering into these Terms of Use on behalf of an entity or other organization, such as the school or school district you work for, then you represent to MasterTrack that you have the legal authority to bind the Customer to these Terms of Use. If you do not have that authority or if Customer does not agree with the terms of these Terms of Use, then you may not accept these Terms of Use and Customer may not use or access any of MasterTrack’s service offerings or other services.

Please see Section 13 for definitions of certain capitalized terms used in these Terms of Use.

1. Use of The Services

1.1. Provision of Services. Customer may access and use the Services in accordance with these Terms of Use. MasterTrack makes the Services accessible over the Internet, using the MasterTrack Web App.

1.2. Customer’s Account. On or immediately following the Contract Effective Date, MasterTrack will enable Customer’s account for the Services (“Account”) and issue Customer an Internet link to access the Account. Customer will designate one of its employees to be the point of contact with MasterTrack for the management and support of the Services (“Administrator”), who will be responsible for establishing and managing the Account, including the creation of usernames and passwords to access Customer’s Account. Customer is solely responsible for maintaining the status of its User base, and Customer will safeguard all usernames and passwords in its possession or under its control. Customer is responsible for all activities that occur under the Account and, except to the extent caused by MasterTrack’s breach of these Terms of Use, MasterTrack is not responsible for unauthorized access to Customer’s Account. Customer will contact MasterTrack immediately if Customer believes an unauthorized third party may be using Customer’s Account or if Customer’s Account information is lost or stolen.

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.

1.4. Customer’s Responsibilities. In addition to Customer’s other responsibilities specified in these Terms of Use: (i) Customer is responsible for the accuracy, quality and integrity of the Data that Customer inputs into the MasterTrack Technology, and the maintenance and use of Customer’s hardware, network, Internet connectivity and software; and (ii) Customer will (a) assign an authorized and qualified employee to serve as Customer’s Administrator, (b) use the Services only in accordance with these Terms of Use and the then-current Documentation, (c) use the Services in compliance with all applicable laws and regulations, and (d) comply with the Acceptable Use Policy referenced in Section 9 below. Customer will ensure that its Users, employees, agents and representatives comply with all of Customer’s obligations under these Terms of Use, and Customer is responsible for their acts and omissions relating to these Terms of Use as though they were those of the Customer. Customer will neither enable nor authorize any person who is under 18 years old to access the Services unless Customer has first obtained the written consent of their parents or guardians. Customer is solely responsible for obtaining and maintaining such consents, in compliance with all applicable laws.

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

2.1. License to Use the Services. Subject to the terms and conditions of these Terms of Use, MasterTrack grants Customer a non-exclusive, non-transferable, limited, license, without right to sub-license, for the Term, solely for Customer’s

internal operations in its ordinary course, within the scope of the license metrics specified in the applicable Sales Order (for example, a maximum number of teachers), (i) to access and use the MasterTrack Web App and Documentation on the MasterTrack Site in accordance with these Terms of Use, and (ii) to reproduce and internally distribute digital files or paper copies of the RTM Content to authorized teachers for whom Customer is responsible, and their pupils. MasterTrack reserves all other rights in and to the Services and the MasterTrack Technology.

2.2. Ownership and Use of Customer Data. Customer retains all of its rights in Customer’s Data. No ownership interest in Customer’s Data is transferred or conveyed to MasterTrack by virtue of these Terms of Use. Except as may otherwise be authorized in writing by Customer, MasterTrack will use Customer Data only for purposes of providing the Services.

2.3. MasterTrack’s Intellectual Property and Ownership Rights. As between Customer and MasterTrack, MasterTrack and MasterTrack’s licensors retain and own all right, title and interest and all Intellectual Property Rights in and to the MasterTrack Technology MasterTrack’s Confidential Information, the Services, and all enhancements or improvements to, or derivative works of the foregoing (collectively, “MasterTrack Intellectual Property”). Nothing in these Terms of Use transfers or conveys to Customer any ownership interest in or to the MasterTrack Intellectual Property.

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.

2.7. Federal Government End Use Provisions. MasterTrack provides the Services, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in these Terms of Use. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency requires rights not conveyed under these terms, then such rights must be separately negotiated and will be reflected in a mutually agreed written addendum to these Terms of Use.

3. Temporary Service Suspension

3.1. Generally. MasterTrack may suspend Customer’s right to access or use any portion of the Services immediately upon notice to Customer if MasterTrack determines (i) Customer’s use of or registration for the Services: (a) poses a security risk to the Services or any third party, (b) may adversely impact the Services, or the networks or Data of any other MasterTrack customer or MasterTrack service provider, (c) may subject MasterTrack or any third party to liability, or (d) may be unlawful; (ii) that Customer or any of Customer’s Users is in breach of these Terms of Use, including if Customer is delinquent in its payment obligations for more than 15 days; or (iii) Customer has ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition of Customer’s assets, or becomes the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding.

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

4.1. Initial Term. The initial period of these Terms of Use (the “Initial Term”) begins on the Contract Effective Date and continues for the period specified in the applicable Sales Order.

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.

4.3. Termination for Convenience. Either party may terminate these Terms of Use or Customer’s subscription to any Service effective upon expiration of the then current Subscription Term, by providing the other party prior written notice of termination of at least the following length: if Customer is the terminating party, at least 30 days; and if MasterTrack is the terminating party, at least 90 days.

4.4. Termination for Breach. Either party may immediately terminate these Terms of Use or any affected Services by notice to the other: (i) if the other party materially breaches any of its obligations under these Terms of Use and, if the breach is capable of cure, fails to cure the breach within 30 days of receipt of notice of breach; or (ii) subject to applicable law, upon the other party’s ceasing to operate in the ordinary course, making an assignment for the benefit of creditors or similar disposition of its assets, or becoming the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding. Customer’s failure to pay any fees and expenses within 15 days of their due date will be a material breach by Customer.

4.5. Immediate Termination by MasterTrack for Cause. In addition to MasterTrack’s other rights specified in these Terms of Use, MasterTrack may immediately terminate these Terms of Use by notice to Customer if: (i) Customer is unable to resolve any issue leading to suspension of Customer’s Services to MasterTrack’s reasonable satisfaction within 30 days after notice of suspension; (ii) MasterTrack determine that Customer, any User or any person using Customer’s Account has violated these Terms of Use or the Acceptable Use Policy and the violation represents: (a) a threat to the security, integrity or availability of the Services, any Data, any MasterTrack Intellectual Property or any data or technology owned by third parties, (b) a violation of applicable law; or (iii) MasterTrack must do so in order to comply with the law or requests of governmental entities.

4.6. General Effects of Termination. Upon any termination of these Terms of Use: (i) all of Customer’s rights under these Terms of Use immediately terminate (with the exception of those that expressly survive termination); (ii) Customer remains liable for all fees, charges and any other obligations Customer has incurred through the actual date of termination; (iii) Customer will immediately return, or if instructed by MasterTrack, destroy all of MasterTrack’s Confidential Information in the possession of Customer or under Customer’s control; and (iv) subject to MasterTrack’s data retention obligations and Customer’s data access rights specified in Section 4.10 below, MasterTrack will destroy or overwrite Customer’s Data within a reasonable period of time, subject to conformance with MasterTrack’s backup and data retention policies. The following Sections will survive any termination of these Terms of Use: 2, 4.7-4.10, 5.2-5.4, 6, 8, 9, and 11-14.

4.7. Consequences of Termination by Customer For Breach. If Customer terminates these Terms of Use or any Service in accordance with the termination for breach provisions in Section 4.5 above, then MasterTrack will refund Customer a pro-rata amount of any prepaid Service subscription fees (excluding, for clarification, any activation and implementation fees) applicable to the unutilized portion of the Subscription Term of the terminated Services.

4.8. Consequences of Termination by MasterTrack For Breach or Cause. If MasterTrack terminates the Terms of Use or any Service in accordance with the termination for breach or cause provisions of Sections 4.5 or 4.6 above, then MasterTrack will not refund Customer or relieve Customer from, and Customer remains obligated to pay all fees attributable to the terminated Services, including those attributable to the unutilized portion of the terminated Subscription Term.

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

5.1. Fees. Customer agrees to pay all fees specified in each Sales Order as adjusted for any price increases pursuant to Section 5.5. Except as otherwise specified in these Terms of Use: (i) fees are quoted and payable in United States dollars; (ii) fees are based on the quantity of Services purchased and not actual usage; and (iii) payment obligations are non-cancelable and fees paid are non-refundable. MasterTrack will invoice Customer and Customer will pay for any overage fees for exceeding Customer’s particular Service subscription plan at the rate specified in the Sales Order; if no overage rate is specified in the Sales Order, then MasterTrack’s then current rates apply.

5.2. Invoicing; Payment. The billing method and payment terms for amounts due under these Terms of Use are as specified in the applicable Sales Order. Except as otherwise specified in these Terms of Use, MasterTrack bills and collects in advance for use of the Services. Invoices for Service subscription fees and other amounts are due and payable within 30 days of the date of invoice.

5.3. Taxes. Customer is responsible for any applicable sales, use, or any value added or similar taxes (collectively, “Sales Taxes”) payable with respect to provision of the Services to Customer, or arising out of or in connection with these Terms of Use, other than taxes based upon MasterTrack’s net income. Unless expressly specified otherwise in any Sales Order, all fees, rates and estimates exclude Sales Taxes.

5.4. Late Payments. MasterTrack may impose, and Customer will pay interest on overdue amounts at the rate of 1.5% per month or the maximum rate permitted by law (whichever is lower). If Customer fails to make payments as required under these Terms of Use, then MasterTrack may condition future Service subscription renewals upon payment terms shorter than those specified in these Terms of Use or the applicable Sales Order. If MasterTrack suspends Customer’s Account as a result of late payment and Customer wishes to re-activate Customer’s Account, then MasterTrack may charge Customer a re-activation fee equal to 50% of the then current applicable Service activation fee or $250 (whichever is greater).

5.5. Annual Increases. Following the Initial Term, Service fees are subject to annual increases, which will be effective beginning upon the first day of the Renewal Term. MasterTrack will notify Customer of any increase prior to its becoming effective; notice may be in a form of an invoice. Customer will have 30 days from receipt of an increase notice to terminate these Terms of Use for convenience by delivery of a termination notice to MasterTrack, and Customer’s termination will be effective upon the end of such 30-day period or the end of Customer’s current Term, whichever is greater. Customer acknowledges that the following do not constitute fee increases: (i) additional fees for any upgrade or additional Service that Customer orders; and (ii) expiration of any discount or incentive programs to which Customer was previously entitled. Once Customer’s fees are equal to MasterTrack’s standard Service pricing, the fees for the Services will not increase over the immediately preceding Service Subscription Term’s fees by more than the greater of: (i) the increase in the Consumer Price Index (as defined below) during the immediately preceding 12-month period; or (ii) 5%. As used herein, “Consumer Price Index” means the “Consumer Price Index for All Items for All Urban Consumers (CPI-U): U.S. City Average (1982-1984=100)” or any successor index, as published monthly by the Bureau of Labor Statistics of the United States Department of Labor.

6. Confidential Information; Personally Identifiable Information

6.1. Restrictions on use and Disclosure. Each party will each retain in confidence all Personally Identifiable Information, and all information that it accesses or that is transmitted to it by the other party pursuant to or in connection with these Terms of Use and that the disclosing party identifies as being proprietary or confidential or that, by the nature of the circumstances surrounding the disclosure, ought in good faith to be treated as proprietary or confidential (such other information, “Confidential Information”), and will make no use of such Personally Identifiable Information or Confidential Information except under these Terms of Use. MasterTrack’s Confidential Information includes information regarding the MasterTrack Technology, MasterTrack service offerings, the Documentation, pre-release offerings, software, marketing and business plans, pricing, financial information, and MasterTrack’s security policies and processes. Customer’s Confidential Information includes Customer’s Data.

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.

6.4. Independent Development. The terms of confidentiality under these Terms of Use will not limit either party’s right to independently develop or acquire products, software or services without use of or reference to the other party’s Confidential 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. Warranties.

7.1. MasterTrack’s Warranties.

7.1.1. MasterTrack warrants to Customer that: (a) the MasterTrack Technology, as provided by MasterTrack to Customer, will perform in all material respects in accordance with its applicable, then-current Documentation; and (b) MasterTrack will use commercially reasonable efforts, using then-current versions of commercially available anti-virus software, to ensure that the MasterTrack Technology as provided by MasterTrack to Customer under these Terms of Use contains no computer virus, Trojan horse, worm, or other similar malicious code.

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.

7.1.3. The warranties in this Section 7.1 will automatically abate to the extent that the MasterTrack Technology has been modified by persons other than MasterTrack’s authorized employees or representatives, or other than at MasterTrack’s express written direction. Without limiting the warranties in this Section 7.1, MasterTrack does not warrant that the MasterTrack Technology is completely free from all bugs, errors, or omissions. The warranties in these Terms of Use are for Customer’s sole benefit, and may not be extended to any other person or entity.

7.2. Customer’s Warranties. Customer represents and warrants to MasterTrack that: (i) the information Customer provides in connection with registration for the Services and any Renewal Term, including billing information, is current, accurate and complete; (ii) Customer has not provided any false information to gain access to or use of any MasterTrack Intellectual Property; (iii) Customer is not on the United States Department of Treasury, Office of Foreign Asset Control’s list of Specially Designated National and Blocked Persons and Customer is not otherwise a person to whom MasterTrack is legally prohibited to provide the Services; (iv) Customer does not conduct business for any unlawful purpose; and (v) Customer has the legal authority to enter into and perform under these Terms of Use.

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. Indemnification.

8.1. General.

8.1.1. Indemnification by MasterTrack. MasterTrack will defend Customer from and against any claims by any third party that the MasterTrack Technology, as furnished by MasterTrack under these Terms of Use, directly infringes an issued patent or other intellectual property right of such third party enforceable under the laws of the United States (collectively, an “Infringement”). Further, MasterTrack will indemnify Customer from and against all damages finally awarded against

Customer or agreed to be paid by Customer in a written settlement approved in writing by MasterTrack, that result from the Infringement. If MasterTrack believes that the MasterTrack Technology may be subject to any claim of infringement, then MasterTrack may, and if Customer’s use of the MasterTrack Technology is held to infringe and its use is enjoined, then MasterTrack will, at MasterTrack’s own expense, procure for Customer the right to continue using the MasterTrack Technology; or replace same with non-infringing technology; or modify the MasterTrack Technology so that it becomes non-infringing. If none of the foregoing is available on terms that are commercially reasonable for MasterTrack, then MasterTrack may terminate Customer’s rights to access and use the Services that require the infringing MasterTrack Technology, in which case MasterTrack will refund Customer a pro-rata amount of any Service subscription fees prepaid to MasterTrack (excluding, for clarification, any activation and implementation fees) applicable to the unutilized portion of the Subscription Term of the terminated Services. MasterTrack will have no liability for any infringement of patents, copyrights, or other intellectual property rights resulting from or based upon Customer’s Data, use of the MasterTrack Technology other than as specified in the Documentation or these Terms of Use, the use or combination of the MasterTrack Technology with any hardware, software, products, applications, data or other materials not specified or provided by MasterTrack, or to the extent the claims arise from products or services not supplied by MasterTrack.

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.

8.2. Process. The obligations of a party (“Indemnitor”) to defend or indemnify the other (“Indemnitee”) as set forth in this Section 8 apply only if: (a) the Indemnitee promptly informs the Indemnitor in writing of any claim within the scope of the Indemnitor’s defense or indemnity obligations set forth in these Terms of Use; (b) the Indemnitor is given exclusive control of the defense of such claim and all negotiations relating to the settlement thereof (except that the Indemnitor may not settle any such claim unless the settlement unconditionally releases the Indemnitee of all liability and the Indemnitee may participate in the defense of the claim at its sole cost and expense); and (c) the Indemnitee reasonably assists the Indemnitor in all necessary respects in connection with the defense of the claim at the Indemnitor’s expense.

9. ADDITIONAL TERMS OF SERVICE. The following additional terms and conditions (“Additional Terms of Use”) apply to Customer’s use of the Services: * MasterTrack’s terms and conditions – located at http://www.mastertracksolutions.com/terms-conditions/ * MasterTrack’s Privacy Policy – located at http://www.mastertracksolutions.com/privacy-policy/

10. MODIFICATIONS. MasterTrack will provide Customer notice of any modifications to these Terms of Use or to an Additional Terms of Use of Service applicable to Customer (a “Modification Notice”). If the modifications materially and adversely affect Customer and, as a result, Customer does not wish to accept such modifications, then Customer may terminate Customer’s subscription to the affected Service by providing MasterTrack notice in accordance with these Terms of Use, subject to the following:

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).

10.3. If Customer does not terminate the affected Service subscription as specified in this Section 10, then Customer will be bound by the modified terms beginning upon the date on which the Modification Notice states they become effective. References to these Terms of Use are to the agreement as modified and updated from time to time.

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.

11.2. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF MASTERTRACK EXCEED THE FEES PAID BY CUSTOMER TO MASTERTRACK UNDER THESE TERMS OF USE IN THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH A CLAIM, REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED IN CONTRACT, MISREPRESENTATION, WARRANTY, INDEMNITY, NEGLIGENCE, STRICT LIABILITY OR OTHER TORT OR OTHERWISE.

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.

12.2. Channel Partners. If Customer acquired the Services from a Channel Partner, then these Terms are not exclusive of any rights Customer obtains under the Channel Partner Sale Agreement; however, if there is any conflict between the provisions of these Terms of Use and the Channel Partner Sale Agreement, then the provisions of these Terms of Use prevail. If a Channel Partner has granted Customer any rights that MasterTrack does not also directly grant to Customer in these Terms, or that conflict with these Terms, then Customer’s sole recourse with respect to such rights is against the Channel Partner.

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. Miscellaneous

13.1. Relationship of the Parties. The parties are independent contractors. These Terms of Use do not create a partnership, franchise, joint venture, agency, or fiduciary or employment relationship. The parties are each responsible for paying their own employees, including employment related taxes and insurance.

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.

13.4. Promotional Rights. Neither party may issue any press release regarding these Terms of Use without the other party’s prior written consent. Either party may include the name and logo of the other party in lists of customers or vendors in accordance with the other party’s standard guidelines.

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.

13.6.1. Governing Law and Venue. These Terms of Use will be governed by and interpreted in accordance with the internal laws of the State of Washington and, where such laws are preempted by the laws of the United States, by the internal laws of the United States, in each case without regard to (a) conflicts of laws principles, and (b) the applicability, if any, of the United Nations Convention on Contracts for the International Sale of Goods. Any disputes, actions, claims or causes of action arising out of or in connection with these Terms of Use or the Services will be subject to the exclusive jurisdiction and venue of the state and federal courts located in Seattle, Washington USA, and each party waives any claim that a more convenient forum can be found.

13.6.2. Equitable Relief. Customer acknowledges that damages will be an inadequate remedy if Customer, Customer’s Affiliates or users violate Customer’s obligations under these Terms of Use pertaining to the protection, security or integrity of the MasterTrack Technology or MasterTrack Intellectual Property, or the data of any other customer of MasterTrack. Accordingly, MasterTrack will have the right, in addition to any other rights MasterTrack may have, to obtain in any court of competent jurisdiction, temporary, preliminary and permanent injunctive relief to restrain any breach, threatened breach, or otherwise to specifically enforce such obligations, without any obligation to post any bond or similar security.

13.6.3. Legal Actions and Expenses. Except with respect to any infringement or misappropriation of any Intellectual Property Rights, misuse or unauthorized disclosure of Confidential Information or Personally Identifiable Information, or Customer’s failure to pay fees and expenses when due and payable, neither party may bring any action arising out of or relating to these Terms of Use more than 2 years after the cause of action accrued. In any action arising out of these Terms of Use, the substantially prevailing party will be entitled to an award of reasonable attorneys’ fees plus reasonable legal expenses and costs, including collection costs and fees.

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.

13.8. Notices. MasterTrack will provide Customer with notices that affect MasterTrack’s customers generally (e.g., notice of an update made to the Services) by e-mail or by posting it on the MasterTrack website or MasterTrack Web App. MasterTrack will provide Customer with any legal notices by first class mail or e-mail to the mailing or e-mail address Customer provided MasterTrack during Customer’s registration for the Services, or to a substitute, updated mailing or e-mail address that Customer has provided to MasterTrack. Customer is responsible for keeping its mailing and e-mail address current with MasterTrack. Notices that MasterTrack sends electronically will be deemed received upon dispatch, and notices that MasterTrack sends by first class mail will be deemed received within 3 days of dispatch, regardless of whether Customer actually receives the notice. Except as otherwise specified in these Terms of Use, all notices to be given to MasterTrack under these Terms of Use must be in writing and sent to MasterTrack’s headquarters at the address then-specified on the MasterTrack website.

13.9. Successors and Assigns. Except as otherwise provided in this Section 13.9, neither party may assign all or any part

of its rights, or delegate all or any of its obligations, under these Terms of Use without the other party’s prior written consent, which consent may not be unreasonably withheld. MasterTrack’s denial of any assignment or delegation of Customer’s rights or obligations under these Terms of Use to a competitor of MasterTrack will not be deemed to be unreasonably withheld. Any attempt to assign these Terms of Use without such consent will be null and void. Notwithstanding the foregoing, either party may assign these Terms of Use on notice to the other party, but without the other party’s prior written consent in the event of: (i) a merger, reorganization or consolidation of the assigning party; (ii) a sale or other transfer of all or substantially all of the assets of the assigning party; or (iii) a transfer of more than 50% of the outstanding voting equity securities of the assigning party in one transaction or a series of related transactions; provided that in the case of a purported assignment by Customer under any of items (i) through (iii), the foregoing will not apply to an assignment to a competitor of MasterTrack. Subject to the foregoing, these Terms of Use will bind and inure to the benefit of each party’s permitted successors and assigns.

13.10. Severability. If any provision of these Terms of Use is determined to be invalid or unenforceable in any relevant jurisdiction, then to the fullest extent permitted by law: (i) it will be deemed modified to the extent necessary to make it enforceable in that jurisdiction and consistent with the original intent of the parties; (ii) the affected provision will remain in full force and effect; and (iii) all other provisions of these Terms of Use will remain in full force and effect.

13.11. Waiver. No waiver of or with respect to any provision of these Terms of Use, nor consent by a party to the breach of or departure from any provision of these Terms of Use, will in any event be binding on or effective against such party unless it is in writing and signed by such party, and then the waiver will be effective only in the specific instance and for the purpose for which given

13.12. Captions and Headings. The captions and headings are inserted in these Terms of Use for convenience only, and will not be deemed to limit or describe the scope or intent of any provision of these Terms of Use.

13.13. Entire Agreement. These Terms of Use constitute and embody the entire agreement and understanding between the parties with respect to the subject matter hereof and supersedes all prior or contemporaneous written, electronic or oral communications, representations, agreements or understandings between the parties with respect thereto. Except as specified in Section 10, these Terms of Use may not be modified or amended except by a written instrument executed by both parties. The Additional Terms of Use and, upon MasterTrack’s acceptance of them, each Sales Order, are incorporated into and made a part of these Terms of Use. Customer’s standard terms of purchase (including purchase order terms), if any, are inapplicable. If there is any conflict between the content of these Terms of Use, the Additional Terms of Use and any Sales Order, then the following order of precedence applies, except to the extent expressly specified otherwise in the applicable document: (i) these Terms of Use, (ii) the Additional Terms of Use, and (iii) the Sales Order.

14. Definitions

Capitalized terms used in these Terms of Use have the following meanings:

“Contract Effective Date” means the earliest of: (i) the date MasterTrack enters Customer’s Sales Order into MasterTrack’s billing system; or (ii) the date the parties agree in writing is the effective date of these Terms of Use.

“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” means the legal entity that is accepting these Terms of Use.

“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.

“Term” means the Initial Term and any Renewal Terms of Use, as more fully described 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.