Master Service Agreement

THIS MASTER SERVICES AGREEMENT (“MSA”) CONSTITUTES A BINDING CONTRACT ON CLIENT AND GOVERNS THE USE OF AND ACCESS TO THE SERVICES BY CLIENT, AGENTS AND END-USERS WHETHER IN CONNECTION WITH A PAID OR FREE TRIAL SUBSCRIPTION TO THE SERVICES.

BY ACCEPTING THIS MSA, BY (1) CLICKING A BOX INDICATING ACCEPTANCE, (2) EXECUTING AN ORDER FORM THAT REFERENCES THIS MSA, OR (3) USING FREE SERVICES, CLIENT AGREES TO THE TERMS OF THIS MSA. IF THE INDIVIDUAL ACCEPTING THIS MSA IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM “CLIENT” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THIS MSA AND MAY NOT USE THE SERVICES.

The purpose of this MSA is to establish the terms and conditions under which Client may purchase SmarterServices’s Services as described in an Order Form or in a Statement of Work signed by Client.

In the event of any inconsistency or conflict between the terms of the MSA and the terms of any Order Form or Statement of Work, the terms of the Order Form or Statement of Work shall control. Non-English translations of this MSA are provided for convenience only. In the event of any ambiguity or conflict between translations, the English version is authoritative and shall control.

1. TERM AND TERMINATION.  This MSA shall continue in effect from the Effective Date and shall continue for so long as any Order Forms remain in effect unless otherwise terminated in accordance with this MSA (“Term”).  If either Party breaches any material term or condition stated herein or fails to perform or fulfill any material obligation required by this MSA or any Order Form, the non-breaching Party may terminate this MSA and all Order Forms by giving written notice to breaching Party stating the circumstances of the breach before the effective date of termination stated in the notice.  Notwithstanding the foregoing, the notice of termination provided by the non-breaching Party will state a period of no less than thirty (30) days during which the alleged breach may be cured by the breaching Party; provided, however, only ten (10) days is required in the event of Client’s failure to pay fees due.  In addition, SmarterServices may terminate this MSA immediately, in its sole discretion, in the event of any unauthorized or unlawful usage by Client or any third party gaining access to the Products or Services, directly or indirectly, through or as a result of Client’s use of the Products or Services.  If SmarterServices sends a notice of termination to Client, Client shall immediately discontinue all use of the Product referenced in any Order Form as of the effective date for termination.
2. PAYMENT. Client shall compensate SmarterServices for the Services at the rates and amounts on the date(s) specified in each Order Form.  Payment shall be made upon submittal of SmarterServices’ invoice(s) that is (are) sent per the Order Form.  Client shall pay all invoices within thirty (30) days of invoice date, including any requests for expense reimbursements incurred.  In addition to any other rights granted to SmarterServices herein and any and all other available remedies at law or in equity, SmarterServices reserves the right, in its sole discretion, to suspend access to any Products or Services or terminate any license offered or granted to Client if Client’s account becomes delinquent (falls into arrears) by more than 10 days.  SmarterServices will be entitled to pursue any and all legal or equitable remedies to secure payment in the event that Client fails to timely pay all invoices.  SmarterServices may utilize any amounts owed to Client under this MSA or Order Form to pay or reimburse SmarterServices for amounts owed by Client.
3. LICENSE AND RESTRICTIONS. SmarterServices hereby grants to Client, during the Term set forth in the applicable Order Form, a limited, non-exclusive, non-assignable, non-sub-licensable and non-transferable license to use the Product described in the Order Form in accordance with the terms and conditions set forth in this MSA and the applicable Order Form.  Work licensed under this Agreement may be used only by Client’s end users for Client’s internal business purposes and end users’ business done with SmarterServices. All rights not expressly granted in this MSA or the applicable Order Form are reserved by SmarterServices.  In no event shall Client modify, create derivative works of, replicate, sublicense, distribute, reverse engineer, reverse compile, or otherwise seek to derive source code from the Product described in any Order Form.  Client is permitted to use the Product described in any Order Form only for educational or academic purposes, profit or not for profit. Use of the Product described in any Order Form for any other purpose (e.g., private consultant services), including but not limited to commercial uses (e.g. re-sale or bulk reproduction/distribution) or uses that violate federal, state or local law, is prohibited.  Faculty, employees, or other agents of Client who discontinue their affiliation with Client do not have the right to continue using or accessing the Product obtained under this MSA or any Order Form.   Any use of the Product not described in this MSA or the applicable Order Form is strictly prohibited.  Production of reports for Client using data from an assessment described in any Order Form by a third party is prohibited without the prior written consent of SmarterServices.  Work licensed under the agreement may not be accessible or usable, in whole or in part, until the Client’s account has been established and appropriately configured.  The client institution shall take all reasonable precautions to prevent unauthorized persons from obtaining access to or use of the licensed work and shall notify SmarterServices promptly of any such unauthorized access or use of which client institution becomes aware.
4. INTELLECTUAL PROPERTY.  SmarterServices represents and warrants that it is the owner of the Product described in any Order Form. Title to the proprietary rights embodied in the Product shall remain in and be the sole and exclusive property of SmarterServices.  Client acknowledges that the software, assessment, user interface, assessment tools, scoring methodology and reports have been created, compiled, prepared, selected and arranged by SmarterServices through the expenditure of substantial time, efforts and resources and that the Product described in any Order Form and these elements that make up the Product constitute valuable intellectual property of SmarterServices. This MSA is not a sale of the original application or any copy.  SmarterServices shall retain ownership and all rights, title and interest in and to the Product described in any Order Form and any materials provided by SmarterServices to Client under this MSA and all intellectual property rights therein, including, but not limited to, all copyrights, trade secrets, trademarks, methods, processes, know-how, patented and unpatented inventions, and all modifications and derivative works thereof (collectively, the “Intellectual Property”).Client and its end users may not: (i) decompile, disassemble, or otherwise reverse engineer or attempt to reconstruct or discover, in any way, any source code, programming, algorithms, design structure, interoperability interfaces, concepts, construction methods underlying ideas, or file formats of the licensed work, for any purpose, (ii) make any derivative work, modification or enhancement to the licensed work; (iii) use the licensed work in any manner that is inconsistent with the documentation or this agreement; (iv) sell, lend, lease, assign, transfer, pledge, permit a lien upon, or sublicense any of the rights having been granted to the client institution or its end users; or (vi) combine or integrate the licensed work with any software, hardware, products, services or materials.
5. CONFIDENTIALITY. SmarterServices and Client shall not disclose or use any Confidential Information (as hereinafter defined) of the other Party for any purpose outside the scope of this MSA, except with prior written permission.  SmarterServices and Client agree to protect the confidentiality of the Confidential Information in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind, but in no event shall SmarterServices and Client exercise less than reasonable care in protecting such Confidential Information.  For purposes of this MSA, “Confidential Information” means all information received from either Party, whether orally or in writing, including but not limited to Intellectual Property, Product pricing information including quotes, company information, student or prospective student information, or information that is designated as confidential, or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure.  Confidential Information shall not include any information that: (a) is or becomes generally known to the public without breach of any obligation owed to the other Party; (b) was known to a Party prior to its disclosure by the other Party without breach of any obligation owed; or (c) is received from a third party without breach of any obligation owed.  If a Party is compelled by law to disclose Confidential Information, it shall provide the other party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the other Party’s cost, if the other Party wishes to contest the disclosure.  If a Party discloses or uses (or threatens to disclose or use) any Confidential Information in breach of the provisions of this MSA, the other Party will be entitled to pursue any and all legal or equitable remedies available to it.
6. SECURITY.  During the Term, SmarterServices will maintain and enforce commercially reasonable security procedures with respect to its access and maintenance of its Services, deliverables and any Product described by an Order Form and provide reasonably appropriate technical and organizational safeguards against accidental or unlawful destruction, loss, alteration or unauthorized disclosure or access of any data accessible by or in the possession of SmarterServices.  In the event SmarterServices is required under applicable law to notify its users of any security breach, SmarterServices shall provide Client in advance of issuance a copy of any communication intended to be sent to Client’s Affiliates in compliance with said laws and SmarterServices agrees to incorporate, where deemed acceptable by SmarterServices in its sole discretion, Client’s reasonable modifications to such communication.  SmarterServices uses commercially reasonable efforts to restrict the collection of “non-public information” and “personally identifiable information” (as both those terms are defined under applicable federal and state privacy laws) such as social security numbers and driver’s license numbers as questions on any assessment.  This is to discourage attempts at unauthorized access to our databases.  Client shall be responsible for ensuring that no such sensitive information is input into Client’s databases or Products and shall indemnify SmarterServices to extent Client violates this provision.
   
   
7. TEMPORARY SUSPENSION.  SmarterServices reserves the right to restrict functionalities or suspend the Services (or any part thereof), Client’s Account or Client’s and/or Agents’ or End-Users’ rights to access and use the Services and remove, disable or quarantine any Service Data or other content if (a) SmarterServices reasonably believes that Client, Agents or End-Users have violated this Agreement; or (b) SmarterServices suspects or detects any malicious software connected to Client’s Account or use of a Service by Client, Agents or End-Users. Unless legally prohibited from doing so, SmarterServices will use commercially reasonable efforts to contact Client directly via email to notify it when taking any of the foregoing actions.  SmarterServices will not be liable to Client, Agents, End-Users or any other third party for any such modification, suspension or discontinuation of Client’s rights to access and use the Services. Any suspected fraudulent, abusive, or illegal activity by Client, Agents or End-Users may be referred to law enforcement authorities at SmarterServices’ sole discretion.
8. LIMITED WARRANTY AND DISCLAIMER. SmarterServices represents and warrants that it has all rights to license the Product described in any ORDER FORM to Client. EXCEPT AS EXPRESSLY SET FORTH IN THIS MSA OR AN ORDER FORM, NEITHER SMARTERSERVICES, ITS AFFILIATES, NOR LICENSORS MAKES ANY REPRESENTATIONS OR WARRANTIES, AND HEREBY DISCLAIMS ANY AND ALL OTHER REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, WITH REGARD TO THE PRODUCTS OR SERVICES FURNISHED UNDER THIS MSA OR AN ORDER FORM INCLUDING, WITHOUT LIMITATION, (A) ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR THAT THE SERVICES OR PRODUCTS WILL MEET CLIENT’S REQUIREMENTS OR EXPECTATIONS, (B) ANY IMPLIED WARRANTY ARISING FROM THE COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE, OR ANY IMPLIED WARRANTIES PERTAINING TO TITLE, (C) ANY REPRESENTATIONS OR WARRANTIES THAT THE USE OF THE SERVICES OR PRODUCTS WILL BE ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM, OR DATA (INCLUDING CLIENT’S DATA), AND (D) ANY REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY DATA OR CONTENT INCLUDING, WITHOUT LIMITATION, THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY, OR COMPLETENESS THEREOF.
9. INDEMNIFICATION.

a. SmarterServices hereby agrees to indemnify, defend, and hold harmless Client and its officers, directors and employees from and against all direct damages, liabilities, losses, costs, expenses and fees (including reasonable attorneys’ fees and court costs) (“Losses”) for any third party claims, demands, judgments and actions (each a “Claim”) that the Products or Services (excluding Client data) directly infringes any validly issued US copyright, patent or trademark of a third party.  SmarterServices shall have no indemnity obligations hereunder to the extent of any infringement claims arising as a result of (i) the combination of the Products or Services, or any portion thereof, with any of Client’s data, services, hardware, business processes or otherwise (ii) use of the Products or Services in a manner or for a purpose not specifically described in the MSA or applicable Order Form, (iii) modification, change, amendment, customization, or adaptation of any Services or Products not made wholly by SmarterServices, or (iv) Client’s failure to implement corrections, changes, or updates provided by SmarterServices.  Should the Products or Services become the subject of any claim of infringement, SmarterServices shall, at its option, either obtain for Client the right to continue using the Products or Services, replace or modify the affected portion of the Products or Services so that the use thereof becomes non-infringing or otherwise lawful, or terminate this MSA or the applicable Order Form and refund to Client any prepaid but unused fees as of the date of termination.  The preceding shall be Client’s sole and exclusive remedy with respect to such an infringement claim. SmarterServices further agrees to indemnify, defend, and hold harmless Client and its officers, directors and employees from and against all Losses resulting from, attributable to, or arising out of the (1) breach of any obligations or duties set forth in this Agreement, or (2) violation of any law or regulation by SmarterServices.

b. Client hereby agrees to indemnify, defend, and hold harmless SmarterServices and its officers, directors and employees from and against all Losses for any Claims arising out of (i) a claim alleging that the use of Client data infringes the rights (including any intellectual property right) of, or has caused harm to, a third party, (ii) any breach of Client’s representations and warranties, or the Client’s failure to fulfill any of its agreements under this MSA or any Order Form, or (iii) any violation by Client of applicable law.

c. Each Party’s respective indemnification obligations hereunder are conditioned upon the Party seeking indemnification: (a) promptly giving written notice of the claim to the indemnifying Party; (b) giving the indemnifying Party sole control of the defense and settlement of the claim (provided that the indemnifying Party may not settle or defend any claim unless it unconditionally releases the indemnified Party of all liability); and (c) providing to indemnifying Party all available information and reasonable assistance upon request.

10. LIMITATION OF LIABILITY.  Notwithstanding anything else contained herein to the contrary and except in the event Client breaches Sections 4 or 5, in no event shall either Party be liable to the other for any indirect, special, punitive, exemplary, speculative, consequential, contingent, liquidated, incidental or other similar damages, including without limitation, damages for lost revenues, lost profits, lost business or business interruptions arising in any manner pursuant to or in connection with this MSA, any ORDER FORM, the Products or Services.  SmarterServices maximum liability, whether such liability is claimed as a result of breach of contract, indemnity, warranty, tort (including negligence), strict liability or otherwise, pursuant to or in connection with any and all Claims arising under this MSA or an ORDER FORM, shall not exceed the fees paid by Client pursuant to an ORDER FORM during the twelve month period immediately prior to the date of the incident giving rise to the Claim.

11. MISCELLANEOUS.

a. Independent Contractor.  SmarterServices is an independent contractor of Client and neither SmarterServices nor any of its representatives shall be considered an employee, partner, or joint venturer of Client.  SmarterServices shall have the sole obligation to supervise, manage and direct the performance of its obligations under the MSA.  SmarterServices reserves the right to determine who will be assigned to perform its obligations, and to make replacements or reassignments as it deems appropriate.  Each Party shall be solely responsible for payment of compensation to its respective personnel, and assumes fully responsibility for payment of all federal, state, local and foreign taxes or contributions imposed or required under unemployment insurance, social security, and income tax laws with respect to such personnel.  Except as expressly stated in the MSA or an Order Form, neither Party shall be an agent of the other, nor have any authority to represent the other in any matter.

b. Access to Online Services.  Client is responsible for procuring and operating all computer systems, software, and telecommunications services required to meet the minimum technical specifications necessary for Client’s end users to access and use the licensed work and Client may be unable to access or utilize some or all aspects of the licensed work unless such minimum technical specifications are met.

c. Whitelisting of emails. It is the responsibility of Client to contact the email administrator of Client to ensure that emails from any SmarterServices domains (i.e. @SmarterServices.com, @SmarterMeasure.com, @SmarterProctoring.com, @SmarterAssessments.com) are not considered spam and are delivered to their end users.

d. Data.  If the MSA is terminated for any reason, then Client shall have one month from the date of termination to request an export of all of its data in a mutually agreeable format.  This data export is provided at no cost unless the reason for the termination is Client’s failure to pay the fees due hereunder.  SmarterServices is under no obligation to retain your data for longer than thirty (30) days after the termination of the applicable Order Form; provided, however, Client acknowledges that SmarterServices reserves the right to use any stored data for purposes of aggregate analysis.

e. Assignment. Client shall not assign, subrogate or transfer any interest, obligation or right arising out of the MSA or applicable Order Form without the prior written consent from SmarterServices.  Any dissolution, consolidation, merger, transfer or reorganization of a majority of the assets or stock of Client shall constitute an attempted assignment, and shall be void from its inception.  Subject to the foregoing, the terms of this MSA shall be binding upon and inure to the benefit of permitted successors and assigns.

f. Severability.  Should any provision of this MSA or an Order Form be held by a court of competent jurisdiction to be enforceable only if modified, or if any portion of this MSA or an Order Form shall be held as unenforceable and thus stricken, that holding shall not affect the validity of the remainder of this MSA or an Order Form, as applicable, the balance of which shall continue to be binding on the Parties with any modification to become a part of and treated as though originally set forth in this MSA or an Order Form, as applicable.  The Parties further agree that any such court is expressly authorized to modify any unenforceable provision of this MSA or an Order Form instead of severing the unenforceable provision from this MSA or Order Form, as applicable, in its entirety, whether by rewriting the offending provision, deleting any or all of the offending provision, adding additional language to this MSA or Order Form, or by making any other modifications it deems warranted to carry out the intent and agreement of the Parties as embodied in this MSA or Order Form, as applicable, to the maximum extent permitted by law.  The Parties expressly agree that this MSA or Order Form, as applicable, as so modified by the court shall be binding upon and enforceable against each of them. Should one or more of the provisions of this MSA or an Order Form be held to be invalid, illegal, or unenforceable in any respect, that invalidity, illegality, or unenforceability shall not affect any other provisions of this MSA or Order Form, as applicable, and if such provision or provisions are not modified as provided above, this MSA or Order Form, as applicable, shall be construed as if such invalid, illegal, or unenforceable provisions had not been set forth in this MSA or Order Form, as applicable.

g. Vendor Relationships.  The client institution will not cause any of the vendors of SmarterServices to be a third-party beneficiary of SmarterServices’ rights under this Statement of Work with respect to (i) such Client’s and end users’ use of and/or rights related to SmarterServices, (ii) confidentiality obligations, (iii) limitations of liability, (iv) warranty disclaimers, and (v) indemnification obligations, with full rights to enforce such rights against the relevant clients and end users.

h. Entire Agreement and Interpretation. This MSA and any attachments hereto including all Order Forms constitute the full and complete understanding and agreement of the Parties hereto with respect to the subject matter hereof and supersede all prior negotiations, understandings and agreement between the Parties related to the subject matter hereof.  The MSA may be executed in any number of counterparts, each of which shall be an original, but all of which shall constitute one instruments.  Signatures by way of facsimile or electronic signature shall be treated as originals.  This MSA and any Order Form shall be interpreted fairly in accordance with its terms and without any strict construction in favor or against either of the Parties hereto.

i. Amendment.  SmarterServices may amend this MSA from time to time, in which case the new MSA will supersede prior versions. SmarterServices will notify Client not less than ten (10) days prior to the effective date of any such amendment and Client’s continued use of the Services following the effective date of any such amendment may be relied upon by SmarterService as Client’s consent to any such amendment. Failure to enforce at any time any provision of this MSA does not constitute a waiver of that provision or of any other provision of this MSA.

j. European Union General Data Protection Regulation Compliance.  SmarterServices takes seriously its duty to protect personal data it collects and/or processes for its legitimate business purposes.  In addition to SmarterServices’ general privacy and data protection policies and procedures, the European Union General Data Protection Regulation (“EU GDPR”) imposes obligations on entities, like SmarterServices, that collect and/or process personal data collected from persons while in the European Union (“EU”).  The EU GDPR applies to personal data SmarterServices collects and/or processes about/from anyone in the EU, regardless of whether they are a citizen or permanent resident or using a computing device in an EU country.  See the SmarterServices GDPR Data Protection policy for a definition and description of the practices and policies that SmarterServices has in place to ensure EU GDPR Compliance.  By signing and executing the Order Form and agreeing to this MSA, Client acknowledges and accepts all terms, procedures and requirements of SmarterServices’ EU GDPR policy.   If the Client does not accept these terms, SmarterServices reserves the right to not provide any services covered by this MSA to students of the Client institution while they are located in the EU.

k. Expedited programming. If the Client reports that there is some technical problem with an existing feature of SmarterServices, the SmarterServices will use commercially reasonable efforts to remedy the problem. Client may recommend a change or enhancement to the Product by submitting a request for improvement. If SmarterServices considers the suggestion as being appropriate and useful for all clients, then SmarterServices may incorporate such improvement in its sole discretion at no cost to the Client at its next major upgrade or such other time SmarterServices deems appropriate. If Client requests immediate incorporation of the suggested modification or SmarterServices decides not to incorporate the modification for its next major upgrade, then Client may request expedited programming by submitting a request in writing detailing exactly what changes they desire. The SmarterServices will then submit a written proposal indicating the amount of time projected for the changes to be made. The rate for making the changes is billed at $150.00 per hour. No expedited programming will be started unless the parties agree to the work in writing and executed by both parties. No work or modifications performed by SmarterServices pursuant to a request of Client shall constitute a joint venture or work for hire, and SmarterServices shall retain the sole and exclusive rights to all such work and modifications.

l.  Notice.  All notices, consents, requests, demands and other communications given or made to SmarterServices pursuant to this MSA must be given in writing by email, facsimile, by certified mail (return receipt requested), or by a reputable overnight delivery service or by personal delivery, to:

2005 Cobbs Ford Road, Suite 301B
Prattville, AL 36066
Attention:  Jason Fill
Email: jason@smarterservices.com
Facsimile:  646 365 5390

All notices provided by SmarterServices to Client may be delivered in writing by (a) nationally recognized overnight delivery service (“Courier”) or U.S. mail to the contact mailing address provided by Client on any Order Form; or (b) electronic mail to the electronic mail address provided Client.

Survival.  Sections 4 – 6 and 8-11 shall survive any termination of this MSA with respect to use of the Services by Client, Agents or End-Users. Termination of this MSA shall not limit a Party’s liability for obligations accrued as of or prior to such termination or for any breach of this MSA.

Any such notice or other communication shall be deemed to have been given and received on the day on which it was delivered or transmitted by email or fax (or, if such day is not a Business Day, on the next following Business Day) or, if mailed, on the third Business Day following the date of mailing.