This Software Services Agreement provides the terms and conditions of purchase between Metamorphix, Inc., a Delaware Incorporation (“Metamorphix”), and the purchasing entity listed in the incorporated document, Purchase Agreement (“Client”).
Definitions. As used in this Software Services Agreement:
All Purchase Agreements and Statements of Work shall be deemed part of and subject to this Software Services Agreement. Any preprinted or other terms contained on Client’s purchase order or ordering documentation shall not apply to this Agreement and are rejected explicitly by Metamorphix. The term “Agreement” means this Software Services Agreement, together with all Purchase Agreement(s), Statement(s) of Work, and any other document appended to or referenced by the Purchase Agreement.
Each party confirms that the individual signing this Software Services Agreement has the authority to bind it to this Agreement. To place orders subject to this Software Services Agreement, at least one Purchase Agreement must be incorporated into this Software Services Agreement. This Software Services Agreement constitutes the complete and exclusive statement of the agreement between the parties concerning the Subscription Software applications identified on the applicable Purchase Agreements and the Professional Services and other services identified on the applicable Purchase Agreements or Statements of Work (collectively, “Services”), and any other software, products or services provided by Metamorphix according to this Agreement.
For the avoidance of doubt, this Software Services Agreement supersedes all prior oral or written communications, proposals, RFPs, contracts, and agreements (including all prior license and similar agreements) regarding the Subscription Software and Services, and by entering into this Agreement, the parties terminate all such agreements.
In the event of a conflict between the provisions of this document and any Statement of Work or Purchase Agreement, the provisions of the Statement of Work and Purchase Agreement shall govern.
In consideration of the preceding and the covenants, the parties agree to the following:
Subscription Software. Subject to the terms and conditions of this Agreement, Metamorphix grants Client, during the term, a non-exclusive, non-transferable right to access and use the Subscription Software. Included for the Term are the technical manuals, instructions, training materials, and other documentation that accompany the Subscription Software, as amended from time to time (collectively, the “Documentation”) solely for internal use by its then-current employees, contractors, agents, representatives, and where applicable, by any agency listed in the Purchase Agreement (each, an “Agency”) and its employees, contractors, agents, and representatives, and other end users authorized to use the Subscription Software on Client’s behalf (collectively, “Authorized Users”) in the ordinary course of Client’s, or such Agency’s, business. Metamorphix further grants Client the right, during the term, to make a reasonable number of copies of any applicable Documentation solely for Client’s internal business purposes.
Services. Metamorphix agrees to make a commercially reasonable effort to provide the Services consistent with the applicable Purchase Agreements or Statements of Work and any then-current Metamorphix policies.
Restrictions. Client shall not, and Client shall require all Authorized Users to not, directly or indirectly:
Without limiting the previous, Client may not sublicense, outsource, or otherwise grant access to the Subscription Software to any third party without Metamorphix’s prior written consent, including any third-party host of the Subscription Software for Client. Metamorphix has the right (but not the obligation) to monitor Client’s and its Authorized Users’ use of the Subscription Software to confirm their compliance with the terms of this Agreement.
Proprietary Rights. All rights, title, and interest to the Subscription Software, Work Product, and Documentation are expressly reserved and retained by Metamorphix or its suppliers, including any service, program, or other application that is designed to integrate and be used with the Subscription Software, whether owned by Metamorphix or not, and all improvements, modifications, derivative works, and intellectual property rights in any of the preceding. Nothing in this Agreement conveys title to, or ownership of, the Subscription Software, Work Product, or Documentation to Client.
The Metamorphix name, logo, solution (product) name(s), and any other marks, logos, and trade dress may be trademarks of Metamorphix, and no right or license is granted by this Agreement to their use. Except for the rights and licenses expressly granted in this Agreement, Metamorphix grants no other rights or licenses, whether by implication, estoppel, or otherwise. Unless expressly authorized by law or in writing by Metamorphix, Client shall not make any public reference, statement, or reproduction of proprietary and marketing materials indicating the use of the Subscription Software or relationship between Client and Metamorphix.
Authorized Users. The total number of Authorized Users is limited to the numerical or category limitations, if any, stated in the applicable Purchase Agreement(s). Client agrees that, depending on the specific Subscription Software provided by Metamorphix to Client or the category of Authorized User, Authorized Users may have different access and usage rights to the Subscription Software. Client shall ensure that Authorized Users comply with the terms and conditions of this Agreement, and any acts or omissions of such Authorized Users will be deemed acts or omissions of Client for which Client agrees to be responsible on a joint and several basis. Client is solely responsible for approving and provisioning any and all usernames and passwords assigned to or adopted by Client’s Authorized Users in connection with the use of the Subscription Software. Client is solely responsible for all activities that occur as a result of the use of individual usernames and passwords. Client will notify Metamorphix promptly of any unauthorized use of usernames and passwords or any other breach of security known to Client. Client will not authorize, enable, or permit access to or use of the Subscription Software by any individual or entity (including other school districts) other than an Authorized User.
Software Administrator; Maintenance Windows. Unless expressly agreed otherwise by the parties, at all times, Client must have an employee who has obtained the Software administrator certification training from Metamorphix and who is certified by Metamorphix as a Software administrator, if applicable, or an employee who is sufficiently trained or experienced in the use of the Subscription Software to act as the software administrator (“Software Administrator”). If Client’s Software Administrator ceases to serve as such, Client shall promptly provide written notice to Metamorphix and have another employee obtain Metamorphix Software Administrator Certification and be designated as a Software Administrator at Client’s expense. Metamorphix shall assist the Client with operational issues regarding using the Subscription Software during Metamorphix’s regular business hours. Such assistance shall be provided only to the Client’s Software Administrator. Metamorphix may perform system maintenance or software updates periodically upon advanced notice to the Client. However, due to exigent circumstances, Metamorphix may sometimes need to perform maintenance without the ability to provide advance notice.
Product Uptime. Metamorphix shall make commercially reasonable efforts to ensure accessibility and availability of its products with an approximate “uptime” of 99.5% as calculated within one calendar month – from the first day through the last day - excluding any force majeure event and any repair or maintenance window provided to the Client at least 24 hours in advance of the downtime.
Client Content. The Subscription Software may enable Client and its Authorized Users to upload, link to, transmit, or otherwise provide text, files, images, graphics, illustrations, information, data (including personally identifiable information (“PII”) and personal health information (“PHI”), as those terms are defined in applicable laws, (collectively “Personal Data”), audio, video, photographs and other content and material in any format (collectively, the “Client Content”) into the Subscription Software. Client grants to Metamorphix a non-exclusive, royalty-free license to reproduce, display, distribute, modify, prepare derivative works of, and otherwise use the Client Content to provide the Subscription Software and Professional Services to Client and its Authorized Users and otherwise perform Metamorphix’s obligations and exercising its rights under this Agreement. Client shall be solely responsible for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Client Content. Metamorphix will act as a data processor and act on Client’s instruction, as specified in the Purchase Agreement, concerning the treatment of Personal Data provided in connection with the Subscription Software and Services. Client shall provide all notices and obtain all consents (including consent of any parent or guardian for any minor) required for Client’s use of the Subscription Software and receipt of the Services, and Metamorphix’s provision of the Subscription Software and Services, including those related to the collection, use, storage, processing, transfer, and disclosure of Personal Data. Client agrees that it must properly enter data, information, and other Client Content and configure settings within the Subscription Software for the Subscription Software to operate correctly. Client shall verify the accuracy of the Client Content and any forms, workflow, or configuration settings entered in the Subscription Software. Metamorphix shall not have any liability arising from the inaccuracy, scoring, completeness, legality, use of, or reliance on the Client Content. Client assumes the sole responsibility for selecting the Subscription Software and Services to achieve Client’s intended results, the use of the Subscription Software and Services, and the results attained from such selection and use.
Client’s Statement Regarding Client Content. Client states that it is the owner of the Client Content (including evaluation frameworks uploaded into the Subscription Software and any other content or data made available to Metamorphix), or Client has notified and obtained informed consent from the owner of the Client Content and all other necessary persons (including parents, students, teachers, interns, aides, principals, other administrative personnel, and classroom visitors), for Client and Metamorphix to use the Client Content as contemplated under this Agreement, and has taken all other actions that may be necessary to ensure that Client’s and its Authorized Users’ use of the Subscription Software and Services, and any related materials provided or produced in connection with such use, complies with all applicable laws and regulations as well as school and district policies.
Integration. Client may, at Client’s direction and with or without Metamorphix’s assistance, integrate or otherwise use the Subscription Software in connection with specific third-party courseware, training, services, software, and other information and materials of third parties (“Third-party Materials”), and Metamorphix may make certain Third-party Materials available in connection with the Subscription Software.
Client acknowledges and agrees that:
Client understands that the use of the Subscription Software may involve the transmission of the Client Content over the Internet and other networks, only part of which may be controlled by, owned, or operated by Metamorphix. Metamorphix shall have no responsibility for Client Content that is lost, altered, intercepted, or stored without Client’s authorization during the transmission of any Client Content across networks or parts of networks not owned or operated by Metamorphix.
If Client engages Metamorphix to assist in Client’s integration or use of the Subscription Software with Third-Party Materials, Client authorizes Metamorphix to access and use such Third-party Materials in connection with such assistance, and Client states that it has the rights necessary to grant such authorization. Client agrees to be bound by the terms, conditions, and restrictions of the applicable third-party agreements that govern the use of such Third-party Materials. Metamorphix may refuse to integrate Third-Party materials for which the Client does not have the appropriate license.
Hosting. Unless a Purchase Agreement explicitly provides that particular Subscription Software will be made available by Metamorphix for download and installation on Client’s computers, the Subscription Software will be hosted by an authorized subcontractor (the “Hosting Service Provider”) that has been engaged by Metamorphix and shall only be accessed by Client from its computers and devices via websites of Metamorphix. The Hosting Service Provider may be an independent third party that Metamorphix does not control.
Client Responsibilities. Client agrees that:
No Guarantee. Client and Metamorphix both agree on the functionality of the product or software and the intended results. Metamorphix warrants the functionality of the software as it is designed. Metamorphix does not warrant the expectations of the Client or any use inconsistent with the design or intended results of the product or software.
Medicinal, Therapy, and Legal Disclaimer. Metamorphix offers products, tools, or services to assist Clients in decision-making and is not a registered medical, therapeutic, or legal practitioner. All results or usage of the Subscription Software are advisory only and should be used as an informational component of a more extensive holistic decision-making or reference tool for the Client. For additional disclaimers, please see the Privacy Policy on Metamorphix’s website.
FERPA Designation. If a Purchase Agreement is for Subscription Software for which Metamorphix accesses, stores, or otherwise processes student PII or PHI, Client designates Metamorphix as a “School Official” with “Legitimate Educational Interests” (as those terms are defined under the Family Educational Rights and Privacy Act of 1974 (“FERPA”)) in such PII and PHI for purposes of providing the Subscription Software to Client, and Metamorphix agrees to abide by the limitations and requirements imposed by FERPA on School Officials.
Client acknowledges that:
Invoicing and Payment. All fees and charges will be stated in the applicable Purchase Agreement(s) and (if included) Statement(s) of Work. If appropriate, the Startup Cost stated on the Purchase Agreement will be invoiced to the Client by Metamorphix upon executing the applicable Purchase Agreement. Startup Costs are priced assuming that the Subscription Software will be implemented within 120 days after signing. Metamorphix reserves the right to charge Client additional service fees for added project costs due to Client-caused delays occurring after the 120-day implementation period. The Annual Subscription stated on the Purchase Agreement will be invoiced to Client by Metamorphix based on the Subscription Start Date stated in the Purchase Agreement unless otherwise stated in the Purchase Agreement. If no Subscription Start Date is stated in the Purchase Agreement, the Subscription Start Date shall be defined as 30 days after the Client’s signature of the applicable Purchase Agreement.
Invoicing and Payment. Metamorphix or a Metamorphix subsidiary or affiliate may send invoices. Except as otherwise provided in the applicable Purchase Agreement, Metamorphix shall invoice Client in US Dollars, and Client shall pay all fees, charges, and expenses within 30 days of the date of an invoice via the acceptable payment methods provided on the invoice or Purchase Agreement(s). Should the Purchase Agreement and this document conflict, the Purchase Agreement governs.
Interest Due. Without prejudice to its other rights and remedies, if Metamorphix does not receive any payment by its due date, Metamorphix may assess a late payment interest charge on the unpaid amount at the rate of 1.5% compounded per month or, if less, the highest rate allowed under applicable law.
Fee Increase Upon Renewal. Unless the Purchase Agreement states otherwise, Metamorphix reserves the right to increase any of the fees for any Renewal Term by providing notice of such increase to Client at least 30 days before the start of such Renewal Term.
Tax Liability. All charges under this Agreement are exclusive of, and Client is solely responsible for, any applicable taxes, duties, fees, and other assessments of whatever nature imposed by governmental authorities, except for any tax based on Metamorphix’s income. Without limiting the preceding, Client shall promptly pay Metamorphix any amounts actually paid or required to be collected or paid by Metamorphix pursuant to any statute, ordinance, rule, or regulation of any legally constituted taxing authority. If the Client claims tax-exempt status or the right to remit taxes directly, the Client shall provide written notice of this status and provide the required documentation or information to Metamorphix.
Travel Fees. If the parties agree that Metamorphix’s personnel are to travel to Client’s facility or otherwise in connection with any of the Services, Client shall be responsible for the reasonable costs of transportation, lodging, meals, and the like for Metamorphix’s personnel in addition to any professional fees or additional service charges for this service.
Each party states that such party’s execution, delivery, and performance of this Agreement:
Subscription Software and Services Warranties. Metamorphix states that:
The preceding warranties will not apply to any non-conformance of the Subscription Software, Work Product, or Services due to the following:
Breach of Warranty. In case of any breach of the preceding warranties, reported to and verified by Metamorphix, Metamorphix will use commercially reasonable efforts to correct such non-conformance. Client’s sole remedy for Metamorphix’s breach of any of the preceding warranties is limited to the replacement, repair, or refund, at Metamorphix’s option, of defective Subscription Software or Work Product or re-performance of the affected Services.
Notwithstanding the preceding, any Third-party Materials shall be subject only to the terms and any warranties provided by the applicable third party and not any preceding warranties.
Disclaimers. Except as expressly provided herein, to the maximum extent permitted by applicable law, Metamorphix and its suppliers expressly disclaim all warranties, whether express, implied, or statutory, as to any aspect of the Subscription Software, Work Product, Services, or other materials provided by Metamorphix, including warranties of merchantability and fitness for a particular purpose. Metamorphix and its suppliers do not warrant that the Subscription Software, Work Product, Services, or other materials provided by Metamorphix will be uninterrupted or error-free, nor does Metamorphix make any warranty as to the results that may be obtained from the use of the Subscription Software, Work Product, Services, or other materials provided by Metamorphix.
American Psychiatric Association. The following provisions apply to any Subscription Software that utilizes or contemplates the use of intellectual property owned by and licensed through the American Psychiatric Association (APA) by Metamorphix:
Confidential Information. During the term and perpetually thereafter, each party will use the same degree of care to protect the other party’s Confidential Information as it uses to protect its own confidential information of like nature, but in no circumstances less than reasonable care. “Confidential Information” means any written information that is marked or otherwise indicated as confidential or proprietary, or, in the case of information that is disclosed orally or written information that is not so marked, by notifying the other party in writing of the proprietary and confidential nature of the information within seven calendar days after disclosure. Notwithstanding the preceding:
(a) Confidential Information of Metamorphix includes the Subscription Software, Documentation, Services, Work Product, and the terms of this Agreement; and
(b) Confidential Information of Client includes Personal Data contained within any Client Content.
Confidential Information does not include information which:
(a) was known to the receiving party free from any duty or obligation of confidentiality or generally in the public domain before disclosure;
(b) becomes generally part of the public domain after disclosure by a publication or other means except by a breach of this Agreement by the receiving party;
(c) was received from a third party under no duty or obligation of confidentiality to the disclosing party; or
(d) was independently developed by the receiving party without the use of or reference to Confidential Information.
Aggregated and/or deidentified data that does not contain Personal Data generated by Metamorphix or its suppliers in connection with the Client’s and its Authorized Users’ use of the Subscription Software and Services is Confidential Information and the sole property of Metamorphix. Metamorphix may use this aggregated and deidentified data in any commercially reasonable manner at their sole discretion, including but not limited to research, development, and cooperation with third-party agreements. The receiving party will not be liable for disclosures of Confidential Information that are required to be disclosed by law or legal process, so long as the receiving party notifies the disclosing party, provides it with an opportunity to object, and uses reasonable efforts (at the expense of the disclosing party) to cooperate with the disclosing party in limiting disclosure.
Data Security. Metamorphix shall utilize commercially reasonable administrative, technical, and physical measures designed to maintain the confidentiality and security of Personal Data submitted by Client into the Subscription Software or otherwise provided to Metamorphix. Metamorphix shall deploy commercially reasonable encryption efforts to secure all digital data stored or accessed within Metamorphix’s environment. Client understands and agrees that no security measures can be 100% effective or error-free and understands that Metamorphix expressly disclaims:
(a) any warranty that these security measures will be 100% effective or error-free, and
(b) any liability related to the confidentiality and security measures utilized by third parties.
Data Compromise or Security Breach. If the Client or Metamorphix identifies or suspects a compromise or breach of their electronic data by an unknown or unidentified third party, the affected party shall provide written notice with confirmation of receipt by the receiving party within 48 hours of discovering or suspecting the security issue.
California Consumer Privacy Act. For Clients covered by the California Consumer Protection Act (CCPA), the Client states that Metamorphix is a Service Provider to the Client with respect to the Personal Information. Metamorphix shall not:
(a) Sell Personal Information or
(b) retain, use, or disclose any Personal Information for any purpose other than for the specific purpose of providing the Subscription Software and Services, including retaining, using, or disclosing Personal Information for a Commercial Purpose. For the avoidance of doubt, the foregoing prohibits Metamorphix from retaining, using, or disclosing Personal Information outside of its direct business relationship with Client. Metamorphix certifies that it understands the obligations under this Section and will comply with them. Metamorphix may use aggregated, anonymized, or Deidentified Personal Information; provided, however, that such use shall be permitted only to the extent that any such data constitutes Aggregate Consumer Information or has been Deidentified and Metamorphix complies with all requirements applicable under the CCPA. For purposes of this Section only, the terms Aggregate Consumer Information, Commercial Purpose, Deidentified, Personal Information, Sell, and Service Provider shall have the meanings specified in the CCPA.
Public Records Act Compliance. To the extent Client is subject to public record acts or freedom of information acts, Metamorphix shall make reasonable efforts to assist the Client in providing appropriate information in response to records requests, to the extent the requested information is not Metamorphix’s proprietary information or otherwise exempted from disclosure under state law. Any expenses arising out of Public Records Act Compliance, including but not limited to additional personnel labor, reproduction costs, data storage or retention, communications, and legal representation, in addition to any other expense allowable under law, contract, or policy, may be invoiced to the Client for reimbursement at Metamorphix sole discretion. Metamorphix reserves the right to decline to respond to any request for information that it is not lawfully required to disclose as a matter of law or agreement with the Client. Requests for information related to a public records act matter must be submitted to Metamorphix in writing by the Client, clearly indicate the request is associated with a public records act matter. A response from Metamorphix confirming receipt must be received by the Client.
Feedback. If Client provides Metamorphix with any comments, bug reports, feedback, or suggestions related to the Subscription Software, Work Product, Services, or Documentation (“Feedback”), Client assigns to Metamorphix all of Client’s rights in such Feedback and agrees that Metamorphix shall have the right to use and fully exploit such Feedback and related information in any manner it deems appropriate.
Indemnification. To the maximum extent permitted by applicable law, Client shall indemnify Metamorphix and its officers, directors, employees, and agents and hold them harmless from all third-party claims, liabilities, expenses, and losses (including attorneys’ fees and costs) arising from or related to any breach by Client of this Agreement, including failure to obtain consent to provide Personal Data.
Limitations of Liability. Other than the fees, charges and expenses payable under this Agreement, to the maximum extent permitted by applicable law, in no event shall either party (and in the case of Metamorphix, its suppliers) be liable to the other party or any third party for indirect, incidental, special, consequential, or punitive damages, whether foreseeable or unforeseeable, of any kind whatsoever (including lost profits) arising from or relating to this Agreement or the use or non-use of the Subscription Software, Work Product, or Services. Notwithstanding anything in this Agreement to the contrary, to the maximum extent permitted by applicable law, in no event shall Metamorphix’s (or its suppliers’) total liability arising from or relating to this Agreement, whether based on warranty, contract, tort (including negligence), product liability, or otherwise, exceed the total amounts paid to Metamorphix during the twelve months for the product at issue immediately preceding the events giving rise to such claims. Each party acknowledges and agrees that the warranty disclaimers and liability and remedy limitations in this Agreement are material, bargained-for provisions of this Agreement, and that fees and consideration payable under this Agreement reflect these disclaimers and limitations.
Term. The term of this Agreement will commence on the Effective Date and, unless earlier terminated under this Agreement, continue until such time that there are no valid Purchase Agreements in effect (the “term”). The initial term of each Purchase Agreement under this Agreement shall:
Termination. Upon notice of termination, all outstanding invoices shall become immediately due and payable. Either party may terminate this Agreement if the other party materially breaches it and does not cure it within 30 days after receipt of written notice of such breach.
Termination – Expiration of Term. One party shall notify the other party of non-renewal in writing at least 60 days prior to the end of the current Purchase Agreement Initial Term or Renewal Term. In the event notice of a price increase is not provided to Client within 60 days prior to the end of the current Purchase Agreement Initial Term or Renewal Term, Client will have ten (10) days after notice of the price increase within which to provide the notice of non-renewal. If the Purchase Agreement contains a proration for a term less than one year, the Initial Term will extend to the end of the first full year of the Purchase Agreement.
No Termination for Convenience. Client is not entitled to terminate this agreement for any reason other than those contained in this Agreement. No termination for convenience is permitted.
Termination for Lack of Funding. If a Client is bound by law which prevents it from committing to payment of funds beyond the current school fiscal year and if the funds designated for payment of Metamorphix Subscription Software and/or Services are not allocated in any succeeding school fiscal year, then the Client may terminate the Purchase Agreement without penalty for such school fiscal year. Client is obligated to pay all charges incurred through the end of the last school fiscal year for which funds were appropriated. Client must notify Metamorphix 30 days prior to the date of termination.
Effects of Termination. Expiration or termination of any Purchase Agreement or Statement of Work shall constitute the expiration or the termination of such Purchase Agreement or Statement of Work only and shall not affect this Software Services Agreement or any other Purchase Agreement or Statement of Work outstanding under this Software Services Agreement.
Notwithstanding the preceding, unless otherwise mutually agreed by the parties in writing, any Purchase Agreement or Statement of Work outstanding as of the date of termination or expiration of this Agreement shall remain in effect and continue to be governed by the terms of this Agreement and its own terms until the Purchase Agreement or Statement of Work is completed, expires, or is otherwise terminated.
Upon the termination or expiration of this Agreement, the subscription rights and licenses granted to Client will terminate automatically, and Client:
Term Survival After Termination. Some terms of this agreement survive regardless of termination, including terms that contemplate payment(s) and invoicing, confidentiality, FERPA designation, warranties, disclaimers on warranties, limitations on liability, indemnification, feedback, data retention, data usage, data ownership, data security, solicitation, and all terms contained in the “general” heading concluding this agreement.
Suspension. Metamorphix may (without limitation of any other rights or remedies) suspend Client’s and its Authorized Users’ use of the Subscription Software if:
Any such suspension will not constitute a termination of this Agreement.
Treatment of Bundled Discounts Upon Termination. If Client has been given a discount on Metamorphix’s list prices for bundling Subscription Software solutions and/or entering into a multi-year agreement, and Client terminates one or more of the bundled Subscription Software solutions or terminates before the end of the multi-year term, Metamorphix may charge Client an early termination fee of up to 25% of the annual subscription fee for the terminated solution(s) within sixty (60) days following termination. This clause will not apply if the Agreement is terminated due to Metamorphix’s breach under this agreement.
Competitive Bid Ordering. At Metamorphix’s sole discretion, any school district or governmental entity in the same state as Client (“School District”) may purchase from Metamorphix a license or subscription to the Subscription Software and provision of the Services for the School District’s own account on the same terms and conditions that apply to Client under this Agreement (excluding Client’s Purchase Agreements and Statements of Work). Each School District will be separately liable for payment for such Subscription Software and Services and its compliance with this Agreement, and neither the Client nor the School District will be liable for the acts, omissions, or obligations of any other School District under this Agreement. Metamorphix will have no obligations to provide any Subscription Software or Services to a School District until Metamorphix and such School District enter into a Purchase Agreement that references and is subject to this Agreement. By so doing, the School District agrees to be bound by this Agreement.
Competitive Bid Amendment(s). If Client and Metamorphix amend this Agreement (“Amendment”), any and all such Amendments will be enforceable against each School District that has executed a Purchase Agreement which references and is subject to this Agreement upon written notice of the Amendment by Metamorphix unless Metamorphix has agreed in writing with School District that the Amendment, or specific provisions within the Amendment, do not apply to such School District.
Solicitation and Exclusivity. Client and Client’s employees, agents, managers, and assigns shall not solicit or cause Client to receive information, sales, quotes or bids, marketing information, or seek future public or private dealings with any direct or indirect competitor, producer of similar products, or similar competitively situated entity. This exclusivity and prohibition on solicitation clause is in effect at the signing of the Purchase Agreement through sixty (60) days before the end of the current Initial Term or Renewal Term. Metamorphix may waive its exclusivity and prohibition on solicitation restriction only upon a request in writing from the Client and a written, signed response granting waiver from Metamorphix.
Independent Contractors. Metamorphix and Client are each independent contractors and neither party shall be, nor represent itself to be, the franchiser, partner, broker, employee, servant, agent, or legal representative of the other party for any purpose whatsoever.
Trademark and Copyright. The Subscription Software and its components may be subject to trademarks and/or copyrights by Metamorphix or partners/vendors/suppliers of Metamorphix. The Client agrees to adhere to all relevant federal, state, and local laws surrounding intellectual property, in addition to adhering to all reasonable customs and norms of the professional world as it pertains to this provision.
Assignment. Client may not sublicense, assign, or transfer this Agreement or any rights and obligations under this Agreement, in whole or in part, without Metamorphix’s prior written consent. Any attempted assignment in violation of this Section shall be void. This Agreement shall be binding upon and inure to the benefit of each party’s permitted successors and assigns.
Compliance with Laws. Client will comply with all local, state, and federal laws, regulations, or other limitations in using and operating the Subscription Software. Client will not directly or indirectly export or transfer any technical data or software in violation of any laws, regulations, rules, or other limitations imposed by the US export control laws or that of any other country.
Force Majeure. Notwithstanding anything to the contrary in this Agreement, except for Client’s obligations to pay amounts due under this Agreement, neither party will be deemed to be in default of any provision of this Agreement for any unforeseen delay, error, failure, or interruption of performance due to any act of God, United States or foreign governmental acts in either a sovereign or contractual capacity terrorism, pandemic, war, strike, or other labor or civil disturbance, interruption of power service, interruption of communications services, road icing or inclement conditions, flood, freight embargos, problems with the Internet, or act of any other person not under the control of such party.
Payments. Client’s payment obligations under this Agreement are absolute and unconditional. They are not subject to any abatement, reduction, defense, setoff counterclaim, or recoupment due or alleged to be due as a result of any past, present or future claim that Client may have against Metamorphix.
Additional Insured. If the Client requests to be added as an additional insured on any Metamorphix insurance policy, the limits of such policies shall be subject to the Limitations of Liability stated in Section 7 above.
Choice of Law/Venue. This Agreement shall be governed by the laws of the State of Tennessee without reference to its conflict of laws principles. Any disputes under this Agreement shall be resolved in a federal or state court of competent jurisdiction in the state where the Client is located.
Amendment. This Agreement may be amended only with a signed written agreement of the parties, and any attempted amendment, including any handwritten changes on this Agreement, in violation of this Section, shall be void.
No Waiver. The waiver or failure of either party to exercise in any respect any right provided under this Agreement shall not be deemed a waiver of such right in the future or a waiver of any other rights established under this Agreement.
Severability. If any provision of this Agreement is held invalid, illegal, or incapable of being enforced because of any local, state, or federal rule of law, administrative order, judicial decision, or public policy, all other conditions and provisions of this Agreement shall, nevertheless, remain in full force and effect, and no covenant or provision shall be deemed dependent upon any other covenant or provision unless so expressed herein.
Construction. This Agreement does not confer rights or remedies upon anyone other than the parties except Metamorphix’s suppliers. When used herein, the words “includes” and “including” and their syntactical variations shall be constructively understood to include the phrase “without limitation.”
Counterparts. The Purchase Agreement may be physically or digitally executed in counterparts, each of which shall be deemed an original, but all of which together shall be considered the same agreement.
Unless modified by the Purchase Agreement or SOW, each signed party has caused its authorized representative to execute the Purchase Agreement (which incorporates these terms) as of the Effective Date listed on the Purchase Agreement or the default provision in this agreement.