TERMS AND CONDITIONS
1. DEFINITIONS. The following definitions shall apply to these Terms:
1.1 “Access Protocols” means the passwords, access codes, technical specifications, connectivity standards or protocols, or other relevant procedures, as may be necessary to allow Customer or any Authorized Users to access the Pathway Platform.
1.2 “Affiliate(s)” means any legal entity that directly or indirectly is controlled by, controls or is under common control with another person or entity, provided that “control” means ownership as to more than 50% of another legal entity or the power to direct decisions of another legal entity, including the power to direct management and policies of another legal entity, whether by reason of ownership, by contract, or otherwise.
1.3 “Administrative User” means each of Customer’s employees, agents, and independent contractors who receives access to the Pathway Platform.
1.4 “Authorized User” means each Administrative User and Student who is authorized by Customer to access the Pathway Platform pursuant to Customer’s rights under this Agreement.
1.5 “Customer Content” means any data (including, without limitation, Student Records), content and information provided or submitted by, or on behalf of, Customer or its Authorized Users to or for use with, or in connection with the use or enjoyment of, the Services.
1.6 “Customer Materials” means, collectively, (i) Customer Content and (ii) other information, materials, software, information, instructions, data, or other materials provided by or on behalf of Customer or its Authorized Users in connection with Pathway’s performance hereunder or under any Order Form.
1.7 “Data Protection Laws” means any applicable Laws, regulations, orders, or judgments issued by a governmental authority that govern the privacy, security, confidentiality, protection, processing or transfer of the Personal Data or that govern the rights of Authorized Users, Students, or other data subjects with regard to that Personal Data.
1.8 “De-identified Data” means data created and derived from Pathway’s provision of its services under this Agreement that is anonymized and/or aggregated and which does not identify Customer, Student, or any other individual.
1.9 “Directory Information” means information contained in a Student Record that (i) meets the definition of “Directory Information” in the Family Education Rights and Privacy Act (“FERPA”) regulations, 34 CFR § 99.3, and (ii) was collected in compliance with the notice and opt out conditions in 34 CFR § 99.37(a).
1.10 “Documentation” means the user’s manuals, if any, in either physical or electronic form, or other documentation provided to Customer with respect to the Pathway Platform.
1.11 “Governmental Authority” means any federal, national, provincial or state or local government, or any political subdivision of any of them, or any agency, court or body exercising executive, legislative, judicial, regulatory or administrative functions.
1.12 “Intellectual Property Rights” means any and all intellectual property rights worldwide arising under statutory law, common law or by contract and whether or not perfected, including without limitation, all: (i) trade dress, trademark, and service mark rights; (ii) patents, patent applications and patent rights; (iii) rights associated with works or authorship including copyrights, copyright applications, copyright registrations, mask works rights, mask work applications, mask work registrations; (iv) rights relating to trade secrets and confidential information; (v) any rights analogous to those set forth in this section and any other proprietary rights relating to intellectual property; and (vi) divisionals, continuations, renewals, reissues and extension of the foregoing (as and to the extent applicable) now existing, hereafter filed, used or acquired, and whether registered or unregistered.
1.13 “Law(s)” means with respect to any party, in each case to the extent applicable to such party, its property, any of the Platform Services or in connection with this Agreement, any federal, national, provincial, state, county, municipal or local law, ordinance, statute, rule, regulation, code, policy, notice, treaty, judgment, executive order, decree, injunction, permit, issuance or other determination or finding of any Governmental Authority which is legally enforceable by a governmental entity, including those promulgated by the U.S. Department of Education.
1.14 “Order Form” means a written ordering document that incorporates this Agreement, that is executed by both parties and sets forth the term, fees, and billing terms. Each Order Form will incorporate this Agreement by reference. The parties may add Order Forms from time to time during the term of the Agreement.
1.15 “Pathway Platform” means Pathway’s proprietary software-as-a-service student information system designed to manage student records and facilitate administrative workflows.
1.16 “Personal Data” means any information relating to an identified or identifiable natural person, and all information that is “personal data,” “personal information,” or “personally identifiable information,” under applicable Data Protection Laws.
1.17 “Platform Services” means the provision of access to the Pathway Platform to Customer and its Authorized Users.
1.18 “Processing” (including “Process”, “Processes”, “Processed”, and other variants of the term) means any operation or set of operations that is performed upon Personal Data, whether or not by automatic means, such as collection, collation, recording, organization, storage, adaptation or alteration, retrieval, consultation, analysis, interpretation, compilation, aggregation, use, disclosure by transmission, dissemination, viewing, copying, deleting, or otherwise making available, alignment or combination, blocking or erasure, or destruction.
1.19 “Professional Services” means professional services provided by Pathway to Customer as described in any Order Form (as may be further elaborated in any statement of work), includin g services relating to the Pathway Services and support, implementation, training, and onboarding thereof.
1.20 “Services” means any services provided by Pathway to Customer under this Agreement, including Professional Services and Platform Services.
1.21 “Student” means any individual student currently or previously enrolled in Customer’s educational institution.
1.22 “Student Records” means any Personal Data about a Student, including the Student’s educational records, financial records, scholarship information, and health records.
1.23 “Updates” means upgrades, updates, bug fixes, or improvements to the Pathway Platform that Pathway generally releases to all users of the Pathway Platform during the term of this Agreement.
1.24 “Usage Data” means any data collected by or on behalf of Pathway relating to usage of the Pathway Platform, including e.g., device and connection information; crash and error information; browser and operating system information; clickstream data; user conduct, engagement, intent, and interaction information; traffic logs; haptic, and positional data; and tracking information.
2. PROVISION OF SERVICES; INTELLECTUAL PROPERTY RIGHTS AND RESTRICTIONS.
2.1 Pathway Platform. Subject to the terms and conditions of this Agreement, and Customer’s payment of the fees set forth in the Order Form (“Fees”), Pathway grants to Customer during the term of this Agreement a limited non-exclusive, non-transferable, non-sub-licensable license to access the Pathway Platform, solely for Customer’s internal business purposes and solely in accordance with the Documentation, and subject to any restrictions set forth in the Order Form. Customer may permit any Authorized Users to access and use the features and functions of the Services as contemplated by this Agreement and is responsible for Authorized Users’ acts and omissions as if they were the acts and omissions of Customer. Customer acknowledges that each Authorized User’s use of the Services will be subject to these Terms.
2.2 Documentation. Subject to the terms and conditions of this Agreement, Pathway grants to Customer during the term of this Agreement a non-exclusive, non-transferable license to download, copy and reproduce the Documentation solely for use in connection with the Pathway Platform authorized by this Agreement.
2.3 Updates. From time to time, Pathway may (at Pathway’s option) release and implement Updates. Pathway shall use commercially reasonable efforts to provide prior notice to Customer if such Update is material to Customer’s licensed use of the Pathway Platform, except to the extent such Update concerns safety or the security of the Pathway Platform and any data stored thereon, then Pathway has the right to implement such Update immediately.
2.4 Provisioning of Pathway Platform Only. Customer is responsible for meeting, and ensuring its Authorized Users meet, the then-current hardware, operating system, browser and other technical requirements necessary to properly use and access the Pathway Platform. The Platform Services do not include, and Pathway shall not provide for, any Customer-side hardware or software, programming, training, hardware or software not set forth in this Agreement. Customer is responsible for having access to the internet and computer systems required to access and use the Platform Services.
2.5 Responsibility for Access to Pathway Platform. Customer shall be responsible for all access, including tracking and terminating, to the Pathway Platform and/or Platform Services by any Authorized User or any other individual using Customer’s Access Protocols, including improper, malicious, or harmful access. Customer shall implement Customer’s own security measures in order to safeguard Customer’s Access Protocols and to prevent disclosure of the same to any third party. Customer is not entitled to resell, transfer, assign, or sub-license Customer’s rights under this Agreement to any third party. Customer shall use the Pathway Platform solely for Customer’s own business purposes. Pathway may audit Customer to ensure Customer compliance with this clause upon reasonable notice and during normal business hours. Customer shall cooperate with such audit.
2.6 Ownership and Proprietary Rights. The Pathway Platform, Documentation, and any and all Updates, improvements, modifications, bug fixes, and version releases thereto, all Usage Data, and all Intellectual Property Rights therein, and all other generally applicable technologies developed in the course of performing under this Agreement are and remain the exclusive property of Pathway. Pathway also would own all improvements, insights, analytics, etc. that Pathway creates through the exercise of the licenses set out in Section 3 below. 2.7 Restrictions. Customer’s and its Authorized Users’ use of the Pathway Platform is limited to the scope of the license granted under this Section 2. Customer is not permitted to otherwise use the Pathway Platform in any way. The Pathway Platform and its structure, organization, source code, and Documentation constitute proprietary information and valuable trade secrets of Pathway. Customer shall not, and shall not permit any Authorized User or other third party to: (a) use or access the Pathway Platform or Documentation other than in accordance with the terms of this Agreement; (b) modify, adapt, alter, translate, or create derivative works from the Pathway Platform or Documentation; (c) sub-license, distribute, sell, use for service bureau use, lease, rent, loan, or otherwise transfer the Pathway Platform, access to the Pathway Platform, or Documentation to any third party; (d) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Pathway Platform; (e) disseminate performance-related information relating to the Pathway Platform; (f) otherwise use, reproduce, display or copy the Pathway Platform or the Documentation; (g) use the Pathway Platform to store or Process any Personal Data regarding natural persons who reside in the European Economic Area or California without having first entered into a data processing agreement with Pathway; or (h) violate FERPA.
2.8 No Assignment; No Other Rights. Pathway retains all rights, title and interests in and to the Pathway Platform, the Platform Services, along with any improvements, Updates, or derivative works thereof. Nothing in this Agreement assigns or transfers any rights in the Pathway Platform or the Platform Services to Customer. Pathway grants and Customer obtains only the rights expressly granted under this Agreement. Any rights not expressly granted to Customer hereunder are expressly reserved by Pathway.
2.9 Support Services. Subject to the terms and conditions of this Agreement, Pathway will exercise commercially reasonable efforts to (a) provide support for the use of the Pathway Platform to Customer, and (b) keep the Pathway Platform operational and available to Customer, in each case in accordance with its standard policies and procedures. Pathway will use reasonable commercial efforts to provide bug fixes or workarounds intended to correct a reproducible failure of the Pathway Platform to substantially conform to the Documentation.
3. CUSTOMER-GRANTED RIGHTS; CUSTOMER OBLIGATION.
3.1 Grant of Licenses. Customer grants to Pathway a limited, non-exclusive, transferable, royalty-free and paid up, sub-licensable license: (i) during the term of this Agreement, (A) to receive, transmit, copy, and use Customer Materials to facilitate access to the Pathway Platform and to perform and provide the Services, and (B) to use Customer’s trademarks, service marks, and logos as required to provide the Services; and (ii) during the term of this Agreement and perpetually thereafter, (A) to use Customer Content to provide and improve Pathway products and services (including without limitation the Pathway Platform) and (B) to create and/or use De-identified Data. Customer acknowledges and agrees that Pathway shall be the owner of any De-identified Data created by Pathway and may Process De-identified Data for any purposes permitted under applicable Law, including without limitation creating aggregated data sets, insights, and analytics to improve its products and services. For the avoidance of doubt, De-identified Data shall not be the Confidential Information of Customer. Customer hereby transfers and assigns, and shall throughout the term of this Agreement transfer and assign, any rights Customer might otherwise have to any De-identified Data to Pathway.
3.2 Rights in Customer Materials. Subject to the terms and conditions of this Agreement, between Customer and Pathway, Customer shall retain all rights, title and interests in and to any Customer Materials not granted to Pathway hereunder.
3.3 Customer Feedback. If Customer provides Pathway with feedback, e.g., reports of defects in the Pathway Platform, Platform Services or Documentation, or any changes or modifications proposed or suggested by Customer, any Authorized User, or any Student (collectively “Customer Feedback”), Pathway shall have the right to use such Customer Feedback without any obligation to Customer on a perpetual, transferable, sub-licensable basis.
4. FEES AND EXPENSES; PAYMENTS
4.1 Fees. In consideration for the access rights granted to Customer and the Services performed by Pathway under this Agreement, Customer will pay to Pathway the Fees in accordance with the payment schedule set forth on the Order Form. Except as otherwise provided in the Order Form, all Fees are due and payable within thirty (30) days of the date of the invoice. Pathway reserves the right to modify the Fees payable hereunder upon written notice to Customer at least thirty (30) days prior to the end of the then-current term. Pathway will be reimbursed only for expenses that are expressly provided for in an Order Form or SOW or that have been approved in advance in writing by Customer, provided Pathway has furnished such documentation for authorized expenses as Customer may reasonably request. Pathway reserves the right (in addition to any other rights or remedies Pathway may have) to discontinue the Services and suspend all Authorized Users’ and Customer’s access to the Services if any Fees are more than thirty (30) days overdue until such amounts are paid in full. Customer will maintain complete, accurate and up-to-date Customer billing and contact information at all times.
4.2 Automatic Billing. To the extent Customer elects to have all Fees automatically billed to Customer’s preferred payment method, as set forth on the Order Form, Customer acknowledges and agrees that Pathway may automatically charge Customer the applicable Fees for the continued access to and use of the Services, and Customer hereby agrees to pay such Fees which may be billed via the payment method associated with Customer’s account, as set forth on the Order Form.
4.3 Audit Rights. Customer will keep and maintain, for a period of three (3) years (or longer, as required by applicable laws, rules, and regulations), full and complete records and books of account relating to Customer’s use of the Pathway Platform. Pathway may inspect such records to verify rendered statements. Any such inspection will be conducted by Pathway or its designee during regular business hours at Customer’s offices in a manner that does not unreasonably interfere with Customer’s business activities. Such inspection shall be at Pathway’s cost and expense; provided, however, if the audit reveals overdue payments in excess of five percent (5%) of the payments owed to date, Customer shall immediately pay all such amounts and shall pay the cost of such audit(s) and for each such audit Pathway may conduct another audit during the same twelve (12) month period. Except as set forth above, such audits may be conducted no more than once in any twelve (12) month period.
4.4 Taxes. The Fees are exclusive of all applicable sales, use, value-added and other taxes, and all applicable duties, tariffs, assessments, export and import fees, or other similar charges, and Customer will be responsible for payment of all such taxes (other than taxes based on Pathway’s income), fees, duties, and charges and any related penalties and interest, arising from the payment of the fees, the provision of the Services, or the license of the Pathway Platform to Customer. Customer will make all payments of Fees to Pathway free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on payments of Fees to Pathway will be Customer’s sole responsibility, and Customer will provide Pathway with official receipts issued by the appropriate taxing authority, or such other evidence as the Pathway may reasonably request, to establish that such taxes have been paid.
4.5 Interest. Any amounts not paid when due will bear interest at the rate of one and one half percent (1.5%) per month, or the maximum legal rate if less, from the due date until paid.
5. CUSTOMER WARRANTIES AND COVENANTS
5.1 Customer Warranties. Customer is solely responsible for any and all obligations with respect to the accuracy, quality and legality of Customer Content. Customer will obtain all third party licenses, consents and permissions needed for Pathway to use the Customer Materials to provide the Services. Without limiting the foregoing, Customer will be solely responsible for obtaining from third parties all necessary rights for Pathway to use the Customer Content submitted by or on behalf of Customer for the purposes set forth in this Agreement. Customer represents and warrants that (i) (a) prior to using the Services in connection with any Student or other individual end user, Customer shall have obtained the consent of such Student or end user for Customer and/or Pathway to contact such Student or end user via the Services in such form as required to comply with applicable law; (b) Customer’s use of the Services will comply with all applicable requirements of the U.S. Department of Education; and (ii) any Customer Materials will not (a) infringe any copyright, trademark, or patent; (b) misappropriate any trade secret; (c) be deceptive, defamatory, obscene, pornographic or unlawful; (d) contain any viruses, worms or other malicious computer programming codes intended to damage Pathway’s system or data; and (e) otherwise violate the rights of a third party. While Pathway periodically backs up Customer Content, Pathway makes no guarantees with respect to the timing or efficiency of any such backups. Customer agrees that any use of the Pathway Platform contrary to or in violation of the representations and warranties of Customer in this Section 5 constitutes unauthorized and improper use of the Pathway Platform. Customer represents and warrants to Pathway that Customer has the legal right to convey the licenses granted to Pathway in this Agreement so that the use by Pathway of any Customer Materials in connection with this Agreement does not violate the Intellectual Property Rights or other rights of a third party, or any Laws.
5.2 Authorization. Customer represents, warrants and covenants that it has, and shall throughout the term of this Agreement have a valid legal basis for Pathway’s Processing of Personal Data and, including, to the extent required by Data Protection Laws, an authorization from each Authorized User and each Student. Without limiting the foregoing, Customer represents and warrants that, for all Student Records, Customer has obtained the appropriate consent from the applicable Students (and with respect to Directory Information contained therein, has complied with FERPA’s public notice and opt out conditions) to make such disclosure and grant the rights to Pathway hereunder. Upon Pathway’s reasonable request, Customer shall provide information sufficient to demonstrate the foregoing to Pathway’s reasonable satisfaction. Customer further represents, warrants and covenants that Pathway’s Processing of Personal Data as contemplated by this Agreement and/or as instructed by Customer shall not cause Pathway to be in violation of any Data Protection Laws.
5.3 Regulatory Approvals. Customer is solely responsible for obtaining all regulatory approvals, if any, for using the Pathway Platform for any of Customer’s business purposes or in the provision of education services, providing Customer Content through the Pathway Platform and authorizing Pathway to Process Customer Content as contemplated by this Agreement, in accordance with all applicable Laws. Pathway shall provide reasonable assistance to respond to or to assist Customer in responding to any regulatory body inquiry or request for information regarding the Pathway Platform.
5.4 Customer Acknowledgement. Customer acknowledges that Customer controls the relationship with Customer’s Authorized Users and Students for purposes of this Agreement, and for all aspects of the provision of education services. Customer, and not Pathway, is solely responsible for the Customer Materials or other information or data that is chooses to share with its Students. Customer will ensure that Customer’s operations and business terms with its Authorized Users and Students comply with all Laws applicable to the Processing of the Customer Content, and Customer will make legally adequate disclosures of its privacy practices to the extent required by Data Protection Laws. Customer hereby agrees to and shall hold Pathway harmless from and against any damages, claims, losses, settlements, attorney’s fees, and other expenses related to the Processing of any Customer Content.
5.5 Customer Security. Customer and its Authorized Users will have access to the Customer Content and will be responsible for all changes to and/or deletions of Customer Content and the security of all passwords and other Access Protocols required in order the access the Pathway Platform. Customer will have the ability to export Customer Content out of the Pathway Platform. Customer will have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Content. Customer shall implement and maintain appropriate technical, physical, organizational and administrative security measures, procedures, practices and other safeguards to protect against unauthorized access to the Pathway Platform. Customer shall promptly inform Pathway of any actual or suspected security incident involving the Pathway Platform. Customer shall reasonably cooperate with any of Pathway’s investigations into Platform Service outages, security problems, and suspected breaches of the Agreement. NEITHER PATHWAY NOR ANY OF ITS EMPLOYEES, AGENTS, REPRESENTATIVES, SERVICE SUPPLIERS OR LICENSORS WILL BE LIABLE FOR UNAUTHORIZED ACCESS (I.E., HACKING) INTO THE PATHWAY PLATFORM OR THE PLATFORM SERVICES THROUGH CUSTOMER’S EQUIPMENT, OR USING CUSTOMER’S OR ANY AUTHORIZED USER’S ACCESS CREDENTIALS, OR FOR UNAUTHORIZED ACCESS TO DATA FILES, PROGRAMS, PROCEDURES OR INFORMATION THEREON, UNLESS AND ONLY TO THE EXTENT THAT THIS DISCLAIMER IS PROHIBITED BY APPLICABLE LAW.
5.6 FERPA; PRIVACY; DATA SECURITY. (a) FERPA. Customer designates Pathway as a “school official” with a legitimate educational interest in any student Personal Data as those terms are defined in FERPA. Pathway agrees that it shall collect, retain, use, or disclose any student Personal Data it receives from Customer as is permitted by FERPA; provided that Customer agrees that it is solely responsible for its compliance with FERPA. b) Data Processing Agreement. Before providing to Pathway or enabling Pathway to Process any Personal Data that is subject to the California Consumer Privacy Act (“CCPA”), Customer will enter into a data processing addendum (“DPA”) with Pathway in the form provided by Pathway. If Customer has not entered into such DPA, Customer represents, warrants and covenants that no Personal Data Processed by Pathway under this Agreement is subject to the CCPA. Any Personal Data that is subject to the CCPA shall be governed by the DPA and shall not be Confidential Information. In the event of a conflict between any provision of the DPA and this Agreement, the provision providing the higher level of privacy or data protection shall govern. (c) Data Security. During the Term, Pathway will maintain commercially reasonable safeguards and procedures designed to prevent the unauthorized use or disclosure of Personal Data (“Data Safeguards”). During the Term, Pathway will maintain commercially reasonable physical, administrative and technical security measures designed to maintain the availability, integrity and confidentiality of Personal Data.
6. PROFESSIONAL SERVICES. Where the parties have agreed to Pathway’s provision of Professional Services, the details of such Professional Services will be set out in an Order Form or in a mutually executed statement of work (“SOW”). The Order Form or SOW, as applicable, will include: (a) a description of the Professional Services; (b) the schedule for the performance of the Professional Services; and (c) any additional Professional Services Fees applicable for the performance of the Professional Services. Each Order Form or SOW, as applicable, will incorporate the terms and conditions of this Agreement.
7. PATHWAY WARRANTIES AND DISCLAIMERS
7.1 Express Limited Warranty. Pathway represents and warrants only that it will provide the Services and perform its other obligations under this Agreement in a professional and workmanlike manner substantially consistent with general industry standards. Provided that Customer notifies Pathway in writing of the breach within thirty (30) days following performance of the defective Services, specifying the breach in reasonable detail, Pathway will, as Customer’s sole and exclusive remedy, for any breach of the foregoing, re-perform the Services which gave rise to the breach or, at Pathway’s option, refund the Fees paid by Customer for the Services which gave rise to the breach.
7.2 THE LIMITED WARRANTY SET FORTH IN SECTION 7.1 IS MADE FOR THE BENEFIT OF CUSTOMER ONLY. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 7.1, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES AND DOCUMENTATION ARE PROVIDED “AS IS,” AND PATHWAY DOES NOT MAKE ANY GUARANTEES ABOUT THE ACCURACY, CURRENCY, SUITABILITY, RELIABILITY, OR QUALITY OF ANY CONTENT OR STUDENT RECORDS UPLOADED TO THE SERVICES AND DOES NOT ASSUME RESPONSIBILITY FOR INACCURATE, INCOMPLETE, OR MISLEADING CONTENT OR STUDENT RECORD. PATHWAY MAKES NO FURTHER (AND HEREBY DISCLAIMS ALL) OTHER WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER PATHWAY, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF SATISFACTORY QUALITY, COURSE OF DEALING, TRADE USAGE OR PRACTICE, SYSTEM INTEGRATION, DATA ACCURACY, MERCHANTABILITY, TITLE, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. PATHWAY DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE PATHWAY PLATFORM WILL BE UNINTERRUPTED OR ERROR-FREE. IN NO EVENT SHALL PATHWAY BE LIABLE FOR ANY DECISION MADE OR ACTION TAKEN BY CUSTOMER OR ANYONE ELSE IN RELIANCE ON ANY INFORMATION OBTAINED FROM OR DERIVED FROM THE SERVICES. 7.3 THE PATHWAY PLATFORM IS INTENDED FOR DATA COLLECTION AND MANAGEMENT PURPOSES ONLY. UNAPPROVED OR NEW APPLICATIONS OR USES OF THE PATHWAY PLATFORM IS STRICTLY PROHIBITED AND PATHWAY DISCLAIMS ALL LIABILITY FOR ANY SUCH UNAUTHORIZED USES.
8. CONFIDENTIALITY
8.1 Confidential Information. “Confidential Information” means any nonpublic information of a party (the “Disclosing Party”), whether disclosed orally or in written or digital media, that is identified as “confidential” or with a similar legend at the time of such disclosure or that the receiving party (the “Receiving Party”) knows or should have known is the confidential or proprietary information of the Disclosing Party. The Platform Services, Documentation, and all enhancements and improvements thereto will be considered Confidential Information of Pathway.
8.2 Protection of Confidential Information. The Receiving Party agrees that it will not use or disclose to any third party any Confidential Information of the Disclosing Party, except as expressly permitted under this Agreement. The Receiving Party will limit access to the Confidential Information to Authorized Users (with respect to Customer) or to those employees who have a need to know, who have confidentiality obligations no less restrictive than those set forth herein, and who have been informed of the confidential nature of such information (with respect to Pathway). In addition, the Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care. At the Disclosing Party’s request or upon termination or expiration of this Agreement, the Receiving Party will return to the Disclosing Party or destroy (or permanently erase in the case of electronic files) all copies of the Confidential Information that the Receiving Party does not have a continuing right to use under this Agreement, and the Receiving Party will, upon request, certify to the Disclosing Party its compliance with this sentence.
8.3 Exceptions. The confidentiality obligations set forth in Section 8.2 will not apply to any information that (a) is at the time of disclosure or becomes generally available to the public through no fault of the Receiving Party; (b) is lawfully provided to the Receiving Party by a third party free of any confidentiality duties or obligations; (c) was already known to the Receiving Party at the time of disclosure free of any confidentiality duties or obligations; or (d) the Receiving Party can demonstrate, by clear and convincing evidence, was independently developed by employees and contractors of the Receiving Party who had no access to the Confidential Information. In addition, the Receiving Party may disclose Confidential Information to the extent that such disclosure is necessary for the Receiving Party to enforce its rights under this Agreement or is required by law or by the order of a court or similar judicial or administrative body, provided that (to the extent legally permissible) the Receiving Party promptly notifies the Disclosing Party in writing of such required disclosure and cooperates with the Disclosing Party if the Disclosing Party seeks an appropriate protective order.
9. INDEMNIFICATION.
9.1 Customer. Customer shall defend and indemnify Pathway, its Affiliates, and their respective officers, directors, employees, and agents (“Pathway Indemnified Parties”) from and against all claims, actions, or suits (whether by a third party or Governmental Authority), and related losses, expenses, damages, judgments, costs and other liabilities (including reasonable attorneys’ fees) (“Claims”) incurred by or assessed against any of the Pathway Indemnified Parties, arising from or relating to (i) Customer’s failure to secure the rights and/or consents from third parties as necessary for Pathway’s Processing of any Customer Content provided by Customer under this Agreement, (ii) Customer’s use of Student Records; (iii) allegations that any possession, transmission, storage, reproduction, or other use of any Customer Materials violates any Laws or rights of any third parties, or infringes or misappropriates any Intellectual Property Rights of any third party, (iv) any failure by Customer or any Authorized User to comply with applicable Laws; (v) any Excluded Claim (as defined below); or (vi) the breach of any subsection of Section 5 by Customer.
9.2 Pathway. Pathway shall defend and indemnify Customer from and against any Claims brought against Customer, its Affiliates, and their respective officers, directors, employees, and agents (“Customer Indemnified Parties”), but solely to the extent that the Claim is based upon an allegation that the permitted use of the Pathway Platform, standing alone and not in combination with any technology provided by any third party or by or on behalf of Customer, infringes or misappropriates any Intellectual Property Rights of any third party. The foregoing obligation does not apply to the extent of any Claims arising out of or relating to any: (i) access to or use of the Pathway Platform in combination with any hardware, system, software, network or other materials or service not provided by Pathway or explicitly described in the Documentation; (ii) failure to timely implement any modifications, upgrades, replacements or enhancements to the Pathway Platform made available by Pathway to Customer; or (iii) Claims for which Customer owes an indemnification obligation to Pathway (“Excluded Claims”).
9.3 Conditions to Indemnity. The foregoing obligations are expressly conditioned on the indemnified party: (i) notifying the indemnifying party promptly in writing of such action; (ii) giving the indemnifying party sole control of the defense thereof and any related settlement negotiations; and (iii) cooperating and, at the indemnifying party’s request and expense, assisting in such defense. Neither the party seeking indemnification, nor the alleged indemnifying party shall offer to settle or otherwise compromise such claim or action without the other party’s prior written consent (which shall not be unreasonably withheld).
9.4 Claims Related to Infringement of Intellectual Property Rights. If the Pathway Platform becomes, or in Pathway’s opinion is likely to become, the subject of an infringement Claim, Pathway may, at its option and expense, (A) procure for Customer the right to continue using the Pathway Platform; (B) replace or modify the Pathway Platform so that it becomes non-infringing; or (C) accept cancellation of all licenses covering the Pathway Platform that is the subject of such Claim upon written notice to Customer. THIS SECTION STATES PATHWAY’S ENTIRE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR INFRINGEMENT CLAIMS OR ACTIONS BASED ON THE PATHWAY PLATFORM.
10. LIMITATIONS ON LIABILITY:
10.1 Types of Damages. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
10.2 Amount of Damages. THE MAXIMUM LIABILITY OF EITHER PARTY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT WILL NOT EXCEED THE FEES PAID BY CUSTOMER TO PATHWAY DURING THE TWELVE (12) MONTHS PRECEDING THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. IN NO EVENT WILL PATHWAY’S SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT. NOTHING IN THIS AGREEMENT WILL LIMIT OR EXCLUDE EITHER PARTY’S LIABILITY FOR GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT OF A PARTY OR ITS EMPLOYEES OR AGENTS OR FOR DEATH OR PERSONAL INJURY CAUSED BY SUCH CONDUCT.
10.3 Basis of the Bargain. The parties agree that the limitations of liability set forth in this Section 10 (Limitations on Liability) will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The parties acknowledge that the prices have been set and the Agreement entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the parties.
11. TERM AND TERMINATION. This Agreement will begin on the Effective Date and continue in full force and effect as long as any Order Form remains in effect, unless earlier terminated in accordance with the Agreement (the “Term”). The term of each Order Form is set forth on the applicable Order Form. Unless otherwise stated in the applicable Order Form, after the Order Initial Term (as defined in the Order Form), the term of an Order Form will automatically renew for successive terms of one (1) year unless either party gives written notice of non-renewal to the other party at least sixty (60) days prior to the expiration of the then-current term. The parties may terminate an Order Form or the Agreement as set out below.
11.1 Termination for Breach. Either party may terminate any Order Form or this Agreement for breach if (i) the other party defaults in any payment to the terminating party and such default continues without a cure for a period of thirty (30) days after the delivery of written notice thereof by the terminating party to the other party, or (ii) if the other party defaults in the performance of any other material term or condition of an Order Form or this Agreement and such default continues uncured for a period of thirty (30) days after the delivery of written notice thereof by the terminating party to the other party. In case such breach is not capable of being remedied, termination may occur upon written notification.
11.2 Termination for Convenience. At any time after the Order Initial Term, either party may terminate this Agreement for convenience on sixty (60) days’ prior written notice to the other party.
11.3 Suspension of Services. Except to the extent prohibited by Data Protection Laws, Pathway may suspend access to the Pathway Platform in case of: (i) any outstanding invoice not being paid within thirty (30) days from the invoice date; (ii) Pathway becoming aware of what it deems a credible claim that Customer’s use of the Pathway Platform violates any applicable Laws, rules or regulations or infringes upon third party rights; (iii) Customer’s interference with the normal operation of the Platform Services; (iv) Pathway deciding that suspension of access to the Pathway Platform Services is needed to protect the integrity of the Pathway Platform or the Customer Content; or (v) in any event where Pathway is entitled to terminate this Agreement for cause. In each case of suspension as per above, Pathway shall give Customer an advance twelve (12) hours’ notice, unless Pathway reasonably determines that giving a shorter or no notice is necessary to protect the interests of Pathway, of Customer, or of any third party.
11.4 Effect of Expiration or Termination; Survival. Following termination of this Agreement, Customer’s access rights to Pathway Platform shall lapse and Pathway shall no longer be required to provide access to the Pathway Platform; provided, however, Pathway agrees to provide Customer with limited continued access to the Pathway Platform for thirty (30) days solely for the purposes of exporting Customer Content. In the event of termination or suspension of access to the Pathway Platform, except as required by Law in each jurisdiction, Pathway shall have no obligation to maintain any Customer Content. If requested by Customer, upon expiration or termination, Pathway shall transfer Customer Content at a fee to be agreed upon by the parties. Further, expiration or termination of this Agreement under any of the foregoing provisions shall not affect the amounts due under this Agreement by either party that exist as of the date of expiration or termination. Notwithstanding termination or expiration of this Agreement, the following Sections shall survive: 2.6 through 2.9, 3.1(ii), 3.2, 3.3, 7.2, 8, 9.1, 10, 11.4, and 12.
11.5 Deletion of Student Personal Data. Upon the termination or expiration of this Agreement for any reason, Pathway shall take commercially reasonable steps within sixty (60) days to delete or, to the extent practicable and at the Customer’s expense, transfer to Customer any Student Records it maintains. Nothing in this Section 11.5 requires Pathway to delete or transfer any De-Identified Data.
12. MISCELLANEOUS
12.1 Controlling Law. This Agreement shall be governed by and interpreted in accordance with the laws of the State of Delaware exclusive of conflict or choice-of-law rules. The parties specifically agree that the 1980 United Nations Convention on Contracts for the International Sale of Goods, as may be amended from time to time, does not apply to this Agreement. The parties hereby consent to the personal and exclusive jurisdiction and venue of the Federal and state courts located in the State of Delaware.
12.2 Dispute Resolution. Notwithstanding the foregoing, except with respect to enforcing claims for injunctive or equitable relief, the parties shall submit any dispute, claim or controversy arising from or related in any way to this Agreement or the interpretation, application, breach, termination or validity hereof, or any other aspect of the relationship between Pathway and Customer or their respective Affiliates, including without limitation any claim of inducement of this Agreement by fraud and a determination of the scope or applicability of this agreement to arbitrate, for resolution by binding arbitration in accordance with the Comprehensive Arbitration Rules & Procedures of JAMS. The arbitration is to be held at the JAMS location nearest to Pathway’s headquarters and conducted in the English language. The parties shall maintain the confidential nature of the arbitration proceeding and any award, including the hearing, except as may be necessary to prepare for or conduct the arbitration hearing on the merits, or except as may be necessary in connection with a court application for a preliminary remedy, a judicial challenge to an award or its enforcement, or unless otherwise required by law or judicial decision. The arbitrator has the authority to award compensatory damages only and not the authority to award any punitive, exemplary, or multiple damages, and the parties waive any right to recover any such damages. Judgment on any award in arbitration may be entered in any court of competent jurisdiction. Notwithstanding the above, each party has recourse to any court of competent jurisdiction to enforce claims for injunctive and other equitable relief.
12.3 Waiver of Jury Trial. IN THE EVENT OF ANY DISPUTE BETWEEN THE PARTIES, WHETHER IT RESULTS IN PROCEEDINGS IN ANY COURT IN ANY JURISDICTION OR IN ARBITRATION, THE PARTIES HEREBY KNOWINGLY AND VOLUNTARILY, AND HAVING HAD AN OPPORTUNITY TO CONSULT WITH COUNSEL, WAIVE ALL RIGHTS TO TRIAL BY JURY, AND AGREE THAT ANY AND ALL MATTERS SHALL BE DECIDED BY A JUDGE OR ARBITRATOR WITHOUT A JURY TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW. To the extent applicable, in the event of any lawsuit between the parties arising out of or related to this Agreement, the parties agree to prepare and to timely file in the applicable court a mutual consent to waive any statutory or other requirements for a trial by jury.
12.4 Export. Customer agrees not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from Pathway, or any products utilizing such data, in violation of the United States export laws or regulations.
12.5 Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
12.6 Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
12.7 Assignment. Neither party will assign or otherwise transfer this Agreement, or its rights and obligations herein, without obtaining the prior written consent of the other party, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void; provided, however, that either party may assign this Agreement in connection with a merger, acquisition, reorganization or sale of all or substantially all of its assets, or other operation of law, without any consent of the other party. The terms of this Agreement will be binding upon the parties and their respective successors and permitted assigns.
12.8 Subcontracting. Customer acknowledges that Pathway uses and may use the services of third party subcontractors, including but not limited to third-party datacenters, hosting services providers, technology service providers and marketing providers, and Customer consents to the corresponding subcontracting of Pathway’s obligations under this Agreement. Pathway shall be responsible for any act or omission by said third party subcontractors which, if performed or omitted by Pathway, would constitute a breach of Pathway’s obligations under this Agreement.
12.9 Compliance with Law. Customer will always comply with all international and domestic laws, ordinances, regulations, and statutes that are applicable to its purchase and use of the Services and Documentation.
12.10 Force Majeure. Any delay in the performance of any duties or obligations of either party (except the payment of Fees owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, pandemic, epidemic, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible.
12.11 Independent Contractors. Customer’s relationship to Pathway is that of an independent contractor, and neither party is an agent or partner of the other. Customer will not have, and will not represent to any third party that it has, any authority to act on behalf of Pathway.
12.12 Non-Exclusive. The parties expressly acknowledge that this Agreement does not create an exclusive relationship between the parties. Customer is free to engage others to perform services of the same or similar nature to those provided by Pathway, and Pathway is entitled to offer and provide services to others, solicit other clients and otherwise advertise the services and software offered by Pathway.
12.13 Notices. All notices required or permitted under this agreement must be delivered in writing, if to
Pathway, by emailing azaeem@pathhwaylabs.io and if to Customer by emailing the Customer Principal Contact email address listed on the Cover Page, provided, however, that with respect to any notices relating to breaches of this agreement or termination, a copy of such notice will also be sent in writing to the other party at the address listed on the Cover Page by courier, by certified or registered mail (postage prepaid and return receipt requested), or by a nationally-recognized express mail service. Each party may change its email address and/or address for receipt of notice by giving notice of such change to the other party.
12.14 Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed an original and all of which will be taken together and deemed to be one instrument.
12.15 Entire Agreement. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matters hereof and supersedes and merges all prior discussions between the parties with respect to such subject matters. No modification of or amendment to this Agreement, or any waiver of any rights under this Agreement, will be effective unless in writing and signed by an authorized signatory of Customer and the Pathway.
12.16 Precedence. In the event of a conflict the order of precedence shall be: (1) this Agreement, unless and to the extent an Order Form or SOW states that it specifically takes precedence over a contrary term in the body of the Agreement (and such statement shall apply only to the Order Form or SOW in which it appears); (2) Order Form or SOW; (3) other documents signed by the parties.