Master Terms & Conditions for Service
THESE MASTER TERMS AND CONDITIONS FOR SERVICES (THE “MASTER TERMS”), SHALL APPLY TO THE SERVICES MADE AVAILABLE BY FOXBRIGHT SOLUTIONS, LLC, DBA FOXBRIGHT (“FOXBRIGHT”), A MICHIGAN LIMITED LIABILITY COMPANY HAVING A PRINCIPAL PLACE OF BUSINESS AT 1115 IONIA AVE NW, SUITE 109, GRAND RAPIDS, MI 49503 FOR THE CUSTOMER (FOXBRIGHT AND CUSTOMER SOMETIMES COLLECTIVELY REFERRED TO AS THE “PARTIES”).
THE “CUSTOMER” IS AN ENTITY WHICH ENTERS INTO AN AGREEMENT WITH FOXBRIGHT PURSUANT TO THESE MASTER TERMS. EACH AGREEMENT EXECUTED BY THE PARTIES HEREUNDER SHALL FORM A SEPARATE CONTRACT BETWEEN THE PARTIES WHICH INCORPORATES AND SHALL BE GOVERNED BY THESE MASTER TERMS.
By (a) clicking an “Accept” or similar button, (b) checking a box captioned with acceptance language, or (c) using or accessing any portion of the Services, you agree to be bound by the terms of this Agreement. If you are using Services on behalf of a company or other legal entity, the term “you” shall refer to such entity in addition to the individual user, and the individual accepting this Agreement on behalf of such entity represents that he or she has authority to bind the entity to this Agreement.
1. The Services
Customer may purchase from Foxbright the right to use one or more software-as-a-service (“SaaS”) applications and/or modules (collectively, “SaaS Services”) which will be hosted by Foxbright or a third party on its behalf (the “Hosting Services”); and may purchase deployment services to be performed by Foxbright (collectively, “Deployment Services”), other professional services, such as training and consulting services (collectively, “Professional Services”) and support and maintenance of the SaaS Services (collectively, “Support Services”) (SaaS Services, Hosting Services, Deployment Services, Professional Services and Support Services sometimes collectively referred to in these Master Terms as “Services”). These Master Terms set forth the basis for the relationship between the Parties and the terms applicable to such transactions. In each instance in which Customer wishes to purchase Services from Foxbright, the Parties shall enter into a mutually agreed order describing the particular Services ordered and any special conditions or terms applicable thereto (each an “Order”). Customer shall only have the right to receive those Services specified in an applicable Order. As appropriate, an Order may include a Statement of Work (“SOW”) which is mutually agreed to by the Parties to further describe certain Services. In order to be effective, a SOW shall reference the applicable Order and either be attached to such Order or separately executed by both Parties. When mutually agreed and signed by duly authorized representatives of each Party, each Order shall be and hereby is deemed to be governed by these Master Terms. When taken together, these Master Terms (as they may be permissibly amended or supplemented by an Order) and each individual, fully executed Order shall form a contract between Foxbright and Customer. In the event of any conflict between the terms and conditions of this Agreement and the terms and conditions of any Order, the terms and conditions of the Order shall control with respect to such Order.
These Master Terms, together with all Orders executed by the Parties, constitute the agreement of the parties (the “Agreement”).
2. Access to SaaS Services/Restrictions
2.01 Subject to the terms and conditions of this Agreement, upon entering into an Order applicable thereto, Foxbright shall make the SaaS Services available to Customer for use by Customer and its Authorized Users solely in support of Customer’s internal operations and otherwise in accordance with the terms of this Agreement and Foxbright’s Privacy Policy set forth at Foxbright.com/privacy. Additional usage limitations or restrictions may be imposed on Customer’s use of the SaaS Services, including limitations on bandwidth and storage, to the extent specified in an Order, and Customer shall comply therewith. Due to the nature of a SaaS delivery model, the SaaS Services to which the Customer is provided web access hereunder will be the version of such SaaS Services (as may be updated by Foxbright pursuant to Section 5 below) which is then hosted by Foxbright (or its third party hosting provider) for its customers generally. All rights not expressly granted to Customer in this Agreement are reserved to Foxbright and its licensors.
2.02 Customer and its employees, faculty, administrators, students, parents of students, alumni and/or third party service providers who are permitted by Customer to use the SaaS Services on Customer’s behalf (collectively, “Authorized Users”) may access the SaaS Services, along with applicable content displayed by Customer through the use thereof, over the internet via Foxbright’s hosted website solely in support of Customer’s operations and within the scope of Customer’s permitted use of the SaaS Services. With respect to public-facing content which the SaaS Services are designed to display, Authorized Users include third party community members who access the screen displays of the SaaS Services on a remote, web-enabled basis in order to view the content which Customer has chosen to display to the public. Customer shall be fully responsible for any acts or omissions of its Authorized Users, including any unauthorized use of the SaaS Services or other breach of this Agreement.
2.03 Except as expressly set forth in these Master Terms or an Order, Customer shall not permit its Authorized Users or other third parties to (i) use, copy, sell, assign, sublicense, convey or otherwise transfer, all or any portion of the SaaS Services; (ii) decompile, disassemble or otherwise reverse engineer the SaaS Services or any portion thereof; (iii) modify, translate or create any derivative works based on the SaaS Services; (iv) remove or alter any copyright notices, trademarks or other proprietary rights notices affixed to or contained within the SaaS Services (v) use the SaaS Services to provide hosting, service bureau, time sharing, outsourcing or other services on behalf of, or for the benefit of itself or any third parties; or (vi) violate or cause the violation of any law, regulation, order, decree or judgment in connection with the use of any Services or any content or data utilized therewith.
3. Hosting Services
Foxbright will provide Hosting Services and Support Services in accordance with the Service Level Agreement (“SLA”) attached as Schedule 1 to these Master Terms.
4. Deployment and Professional Services
4.01 Certain Deployment Services and/or Professional Services may require that the parties agree to a SOW, which may include a timetable for delivery and other assumptions. Any timetable set forth in a SOW, Order or other project document is in the nature of a good faith estimate which is dependent on, among other factors, Customer’s provision of appropriate information, cooperation, assistance, and tasks, including those items which may be identified as the responsibility of Customer in a SOW.
4.02 Customer shall provide Foxbright access to Customer’s logos and trademarks as may be necessary to perform the Deployment Services and other Services requested by Customer. For the avoidance of doubt, Customer shall retain ownership of its logos and trademarks.
4.03 Foxbright will provide all Professional Services and Deployment Services in a professional and workmanlike manner and in accordance in all material respects with any and all descriptions or requirements set forth in an applicable SOW. If deliverables are provided as part of the Deployment Services and/or the Professional Services and those deliverables do not conform in all material respects to any applicable specifications and other requirements which are described in the applicable Order or SOW, Customer shall give Foxbright written notification of the deficiency or non-conformance within thirty (30) days after delivery thereof. Foxbright then shall, within thirty (30) days of receipt of such written notification, exert commercially reasonable efforts to either correct the deficiency or non-conformance or provide Customer with a plan for correcting the deficiency or non-conformance. Customer shall provide reasonable support and assistance requested by Foxbright as reasonably necessary to discover the cause or a cure for the reported deficiency or non-conformance.
5. Maintenance & Support
5.01 During the Term, and subject to the terms and conditions of this Agreement, including payment of fees, and provided Customer has placed an Order for use of SaaS Services, Foxbright shall provide Customer with Updates and Upgrades to the SaaS Services as and when made available to customers generally. For purposes of this Agreement, “Updates” means a new version of the SaaS Services containing error corrections or bug fixes to the then-current version of the SaaS Services and does not contain functional enhancements, modifications or extensions. “Upgrades” means a new version of the SaaS Services containing functional enhancements, modifications or extensions to the then-current version of the SaaS Services which are not separately priced or marketed by Foxbright. An Upgrade may include architectural changes. Foxbright supports Customer’s web access to the SaaS Services utilizing the then-current version of Edge, Safari, Chrome or Firefox.
5.02 During the Term, Foxbright will make available Support Services in accordance with Foxbright’s then-current standard support practices. Certain Support Services are accessible through Foxbright’s Help Desk which includes written documentation and video tutorials. Support Services are unlimited to all Foxbright users and include phone and email support during normal business hours, Monday through Friday, excluding holidays observed by Foxbright. Urgent support tickets submitted outside of normal business hours will be addressed upon submission.
6. Third Party Technology
In connection with the SaaS Services, software or technology of third parties may be accessed and utilized by Customer in connection with its use of the SaaS Services and/or the SaaS Services may enable Customer to interact with and/or utilize third party software or technology (collectively, “Third Party Technology”). By way of example, and not limitation, Third Party Technology would include third party products and services such as online chat services, site translation services, accessibility overlay solutions, font and typography services, and any web service, website, social media platform or online library that allows (through an interface, a link or otherwise) for embedding functionality within a front-facing webpage served up by the SaaS Services. Except as otherwise expressly provided below, Customer is solely responsible, and shall ensure that Foxbright is not responsible or liable, in connection with Customer’s access to or use of any Third-Party Technology and any terms associated therewith. To the extent that Foxbright incorporates or embeds any Third-Party software into the SaaS Services such that the embedded software is a core part of the SaaS Services (collectively, “Embedded Software”), then such Embedded Software shall be supported, and Customer shall have the right to use such Embedded Software, to the same extent as the SaaS Services are supported and permitted to be used under this Agreement. Except as expressly provided above, no rights are granted by Foxbright to Customer or its Authorized Users to use any Third-Party Technology.
7. Ownership
7.01 Customer or its licensors shall own: (a) all data and content that Customer and its Authorized Users input, post, submit, or otherwise provide to Foxbright while utilizing the SaaS Services under this Agreement (where “content” includes text, images, and sounds); and (b) Customer’s logos and trademarks (collectively, “Customer Materials”). Customer, and not Foxbright, shall be solely responsible and liable for the content, accuracy or completeness of all Customer Materials (including monitoring the content posted on the website), and for any infringement by any Customer Materials of third-party intellectual property rights, and shall ensure that Foxbright is not responsible or liable therefor. For clarity, Customer Materials includes Customer’s Personal Information (as defined in Section 8.01 below) and Student Data (as defined in Section 9.01 below).
7.02 Foxbright shall not use or disclose any Customer Materials except: (a) as requested or permitted by Customer; (b) in connection with providing, facilitating or supporting the Services or otherwise exercising rights or performing obligations under this Agreement (including, for example, by addressing technical and other issues related to the Services); (c) to the extent required, or permitted, by applicable laws or regulations; and/or (d) as otherwise permitted under this Agreement.
7.03 Without limiting Customer’s ownership of the Customer Materials, Foxbright and its licensors shall own all right, title, and interest in and to the SaaS Services (including the underlying software and all application program interfaces (“API’s”) provided or made available by Foxbright) and all documentation, materials, work product and deliverables resulting from or related to the Services (including in each case all enhancements, modifications, updates, upgrades and derivative works thereof and all intellectual property rights in any of the foregoing). Any enhancements, modifications, derivative works or any other intellectual property created directly or indirectly using or referring to the SaaS Services or components thereof, whether created solely by Customer or a third party on behalf of Customer, or jointly by Customer and Foxbright or a third party on either party’s behalf, shall belong exclusively to Foxbright, and Customer hereby irrevocably assigns all rights therein (including without limitation, all patent, copyright, trademark, trade secret and moral rights) to Foxbright. In the event that Customer or any of its users submit any ideas, suggestions, proposed enhancements, or other feedback relating to the SaaS Services (collectively, “Feedback”), Foxbright shall automatically own such Feedback without compensation to Customer and Customer hereby assigns all rights in such Feedback to Foxbright.
8. Security of Personal Information
8.01 To effect the purposes of an Order, Customer or an Authorized User may from time to time provide Foxbright with certain personally identifiable information (Customer representing that it has the right to do so in each such instance) of Customer’s students, prospective students, parents of students, faculty, administrators, employees and/or Authorized Users that is regulated by various United States laws and regulations (“Personal Information”).
8.02 Consistent with laws governing Personal Information and Student Data which are applicable to Foxbright’s performance of Services hereunder, Foxbright shall maintain reasonable, industry-standard administrative, physical, and technical safeguards, and implement and maintain reasonable security practices and procedures, which are designed to protect Personal Information from unauthorized access, destruction, use, modification and disclosure. Foxbright shall not use or disclose Personal Information, except for the purposes for which it is permitted to use or disclose Customer Materials under Section 7.02 above. Similarly, Customer agrees to comply with its responsibilities under laws governing Personal Information which are applicable to Customer.
8.03 Customer shall maintain reasonable, appropriate administrative, physical, and technical safeguards designed to protect the security, confidentiality and integrity of its account IDs, passwords, and connectivity with the SaaS Services and Hosting Services. Customer shall be solely responsible and liable, and shall ensure that Foxbright is not responsible or liable, for account IDs or passwords which are disclosed by Customer or an Authorized User or those which are lost, stolen, compromised, or used for malicious or unauthorized purposes, including in respect of all use of the Services through the use of such account information.
9. Customer Reference
Customer agrees that Foxbright may identify Customer as a recipient of Services and use Customer’s logo in sales presentations, marketing materials and press releases, and to develop a brief customer profile for use by Foxbright on its website for promotional purposes
10. Consent to Use/Transfer
10.01 Customer warrants and represents that it shall obtain all consents necessary for Foxbright to provide the Services in connection with the Customer Materials, and otherwise use Customer Materials pursuant to the Agreement, including those consents related to the collection of Personal Information from children under the age of 13 in compliance with the Children’s Online Privacy Protection Act, as amended (“COPPA”), consents necessary under FERPA to enable Foxbright’s provision of Services hereunder, and other consents necessary for the protection and use of the Personal Information and Student Data under applicable law and regulation. Foxbright shall be entitled to rely on this Agreement as Customer’s representation that all necessary consents have been obtained and Foxbright shall not be required to independently verify such fact or compliance by Customer with applicable law with respect thereto.
10.02 Customer further represents and warrants that the use of Personal Information and other Customer Materials by Foxbright, in accordance with the terms of the Agreement, is not in violation of any applicable law or regulation, or in breach of any covenant or obligation of confidentiality that Customer has to any person or entity. Customer acknowledges that Foxbright has no responsibility to review or monitor any Customer Materials including reviewing or determining the legality, accuracy or completeness of Customer Materials. Foxbright, however, reserves the right to take any action with respect to the Services that Foxbright deems necessary or appropriate in its sole discretion, if Foxbright reasonably believes Customer’s use of the Services could create liability for Foxbright, its affiliates and/or its suppliers or could compromise or disrupt services provided to other clients.
10.03 Customer acknowledges and agrees that, in the course of Foxbright providing Services hereunder, Foxbright may provide access to Customer Materials to employees, affiliates, subcontractors and third party service providers (“Representatives”) who have a legitimate need to access such information in order to provide their services to Foxbright as part of Foxbright’s provision of Services to Customer. By way of example, Representatives include third parties who provide back-up, hosting, support and business recovery services. Representatives shall be required to maintain the confidentiality of all Personal Information, Student Data and other Confidential Information of Customer.
10.04 In addition, Customer agrees that Foxbright may collect, use and disclose data which is generated, collected or derived in connection with the use of the SaaS Services by Customer and its Authorized Users, including data derived from the Customer Materials to: (a) determine usage trends, (b) conduct research and development (including enhancing its products and services), (c) collect and analyze cookies and other metadata, (d) create analytics and (e) for other business purposes; provided that such data shall be de-identified (such that it will not identify Customer or its Authorized Users) and aggregated (collectively, “De-Identified Data”, which includes De-identified student information defined in Section 9.09(d) above). Subject to the above conditions, Foxbright shall own all De-Identified Data.
11. Customer Responsibilities
11.01 In addition to its other responsibilities as set forth in this Agreement, Customer is solely responsible for and assumes all liability relating to (i) decisions about Customer’s computer and communications systems needed to access the SaaS Services; (ii) all purchases of any necessary hardware, software, services or licenses required by Customer to access and use the SaaS Services as contemplated in this Agreement; and (iii) obtaining appropriate permissions for posting any content or images to website.
11.02 Customer and its Authorized Users shall comply with all applicable law and governmental regulation in their respective execution, delivery and performance of this Agreement and access and use of the SaaS Services.
11.03 Customer represents and warrants, and shall ensure that it and all Authorized Users shall not: (i) use the Services, in whole or in part, to store, initiate or transmit material (including Customer Materials) that is infringing, libelous, defamatory, abusive, harmful to minors, designed to cause annoyance, inconvenience or distress to any person; comprises unsolicited marketing (i. e. spam), in violation of third-party privacy or property rights, or otherwise tortious or in violation of applicable law: (ii) interfere with, unreasonably burden, or disrupt the integrity or performance of the Services or third-party data or content contained therein; (iii) attempt to gain unauthorized access to the Services or its related systems or networks; (iv) provide the Services to third parties who are not Authorized Users, including, by resale, license, loan or lease; and, (v) without Foxbright's prior written consent, imply or state, directly or indirectly, that Customer is affiliated with or endorsed by Foxbright; or, publicize the existence of the Agreement, or any of its terms. Customer will use best efforts to prevent and/or block any prohibited use and will cooperate with Foxbright to prevent or cease such use from continuing. Customer will notify Foxbright immediately, in writing, if it knows or has reason to know that that the Services are being used in violation of the Agreement or applicable law, describing such violation(s), and the basis for such knowledge, and shall be solely responsible and liable, and shall ensure that Foxbright, its officers, directors, representatives and its affiliates are not responsible or liable, for such violative use.
12. Term of the Agreement/Orders
This Agreement shall become effective on the effective date of the first Order entered into by Customer and Foxbright and shall continue through the termination date of all Orders hereunder (the “Term”), unless terminated earlier in accordance with the provisions of this Agreement. If no effective date is specified in the Order, the effective date shall be 30 days from the date of the signature. The term shall renew automatically for successive one-year terms unless either Party provides written notice of its intent not to renew at least sixty (60) days prior to the expiration of the then-current term.
13. Termination
13.01 In the event either party defaults in any obligation in this Agreement or any Order, the non-defaulting Party shall give written notice of such default. If the Party in default has not cured the default within thirty (30) days of receipt of the notice, the non-defaulting Party may terminate this Agreement by delivering written notice thereof to the defaulting Party.
13.02 Either Party may terminate this Agreement, effective immediately upon written notice, in the event that the other party: (i) makes a general assignment for the benefit of creditors; (ii) institutes proceedings seeking relief or reorganization under any laws relating to bankruptcy or insolvency or (iii) has a court of competent jurisdiction appoint a receiver, liquidator or trustee over all or substantially all of such party’s property or provides for the liquidation of such Party’s property or business affairs.
13.03 Customer shall have the right to terminate an Order if it first meets each of the following conditions: (i) it must provide Foxbright with at least sixty (60) days prior written notice of the effective date of such termination of the applicable Order; (ii) it must pay Foxbright, as and when due, all fees and expenses which are due for Services provided through the effective date of such termination; and (iii) it must additionally pay Foxbright, prior to the effective date of termination, an amount equal to the full amount of the fees owed to Foxbright for all periods from the effective date of termination through the end of the then-current term of the applicable Order.
13.04 Customer commits that it has sufficient available funds to pay for the Services purchased under each Order through at least the end of the then-current fiscal year. If, for any fiscal year thereafter during which an Order is in effect, sufficient funds are not appropriated by Customer’s public funding body to pay in full the fees due under such Order for that fiscal year, then Customer shall have the right to terminate the Order by providing Foxbright with written notice of termination at least ninety (90) days (or, if later, promptly upon becoming aware of the non-appropriation) prior to the first day of the fiscal year for which sufficient funds will not be available and by paying Foxbright in full for all fees and expenses due through the end of the then-current fiscal year. Customer agrees that the termination rights set forth in this Section 13.05 will not apply if any funds are appropriated to it for the acquisition, retention or operation of software or other services substantially similar to the Services provided by Foxbright hereunder. Customer agrees to use its best efforts to obtain and maintain sufficient funds to make all payments due hereunder and commits that it will only utilize this provision in the event that, despite its good faith best efforts to continue to fund all Order under this Agreement, such funds were withdrawn by its funding body.
13.05 Termination of this Agreement or any Order shall terminate all Services provided by Foxbright thereunder, and Customer and its Authorized Users shall cease all use of the applicable Services on the effective date of termination or expiration. The due dates of all payments owed by Customer to Foxbright under this Agreement shall become due on the effective date of termination or expiration.
13.06 Foxbright may terminate Services at expiration of the then-current term with at least twelve (12) months written notice to Customer if Foxbright discontinues marketing (i.e. sunsets) the Software.
14. Subcontractors
Foxbright may utilize third party subcontractors and/or service providers to perform, or support performance of, any Services under this Agreement in its sole discretion, subject to the terms of Section 10.03 above to the extent applicable. In such event, Foxbright shall not be relieved from its obligations under this Agreement.
15. Fees and Expenses
15.01 The fees and general scope of the services purchased by Customer shall be as described in the applicable Order, which is made part of this Agreement. Unless otherwise specifically provided in an Order, Foxbright may increase fees effective on the first, and each subsequent, auto renewal of each Order provided that any such increase shall not exceed the greater of six percent (6%) of the fees due for the immediately preceding year or the most recently measured annual increase in the U.S. Consumer Price Index for the immediately preceding annual period.
15.02 In addition to the fees described above, all out-of-pocket expenses incurred by Foxbright in connection with the Services which are pre-approved by Customer (including in an Order or a Statement of Work) shall be invoiced by Foxbright at actual cost after the corresponding Professional Services are completed.
15.03 Unless otherwise provided in an Order, Foxbright will invoice Customer on an annual basis, payable in advance. Payment for the invoice covering the first year of this Agreement, which may include subscription fees, Deployment Services fees and other fees as described in the Order, is due and payable within thirty (30) days of the effective date of the Order unless otherwise stated in the applicable Order. Thereafter, unless otherwise specified in the Order, Foxbright will invoice Customer, for each subsequent period of the initial term and for each renewal term, on each annual anniversary of the effective date of the Order. Invoices (including invoices for expenses under Section 15.02 and invoices for any Services other than the subscription fees for the SaaS Services) shall be due and payable within thirty (30) days of invoice date. After thirty (30) days from the invoice date, all overdue unpaid amounts shall carry interest at the rate of 1.0% per month, or the highest rate allowed by applicable law, whichever is less, until payment is received by Foxbright. All fees incurred by Foxbright for collections (including attorneys’ fees) must be paid or reimbursed by the Customer. All invoices shall be sent to Customer at the billing address set forth in the Order.
15.04 Customer shall be responsible for the payment of, or reimbursement of Foxbright for, any applicable present or future services, sales, use, excise, goods, property, value added or other taxes or duties levied against or upon the provision of SaaS Services (excluding taxes based upon Foxbright’s net income). Upon request, Customer shall furnish to Foxbright evidence of payment of any taxes payable by Customer. If Customer is exempt from the payment of any such taxes, Customer will provide Foxbright with a valid tax exemption certificate authorized by the appropriate taxing authority.
16. Confidentiality
16.01 In the course of performance of this Agreement, the Parties may receive or have access to information that is confidential to one or the other Party and a Party’s Authorized Users (collectively, “Confidential Information”). Confidential Information shall mean non-public materials and information, in whatever form, written, oral or otherwise, that include, but shall not be limited to (i) the SaaS Services, including any modules, functionality or content licensed by Foxbright from third parties; (ii) the distinctive methods or procedures which Foxbright uses in the design, development, licensing, support, or maintenance of the SaaS Services, (iii) the terms and pricing under this Agreement, (iv) each Party’s business processes and strategies, (v) all portions of the Customer Materials which are treated as confidential by Customer; and (vi) all information clearly identified by either Party as confidential, provided however that a party’s Confidential Information shall not include information that: (a) is or becomes generally available to the public through no act or omission of the other Party; (b) was in the other Party’s lawful possession prior to the disclosure and had not been obtained by the other Party either directly or indirectly from the disclosing Party or from a third party whom the receiving Party knows or should know is under an obligation of confidentiality with the owner of the Confidential Information; (c) is lawfully disclosed to the other Party by a third party without restriction on disclosure; or (d) is independently developed by the other Party.
16.02 Each Party agrees to hold the other Party’s Confidential Information in confidence during the Term of this Agreement and following termination for any reason. Except for disclosure to a Party’s subcontractors and third party service providers who are bound by confidentiality obligations with respect to such Confidential Information and as otherwise provided in the Agreement, each Party agrees not to make the other Party’s Confidential Information available in any form to any third party or to use the other Party’s Confidential Information for any purpose not intended under this Agreement. Each Party agrees to take all reasonable steps to ensure that Confidential Information is not disclosed or distributed by any person or entity in violation of the terms of this Agreement. Following receipt of a written request, the other Party shall return to the requesting Party, in whole or in part, the Confidential Information that has been disclosed in tangible form. Each Party may retain a copy of Confidential Information solely for archival purposes.
17. Warranties and Representations; Limitations & Disclaimers
17.01 Foxbright warrants to Customer that for a period of ninety (90) days from execution of this Agreement, the SaaS Services will substantially perform in all material respects the functions described in Foxbright’s then-current standard documentation (i.e., online user manuals, online help or other such guides which are made available by Foxbright as part of the SaaS Services) for the applicable SaaS Services when used and/or accessed in accordance with the terms and conditions of this Agreement and the applicable Order. Customer’s sole and exclusive remedy for a breach of this warranty shall be that Foxbright shall be required to use commercially reasonable efforts to provide modifications or fixes with respect to the applicable non-conformity in the operation of the SaaS Services. The foregoing warranties shall not apply in the event : (i) Customer or its Authorized Users use and/or access the SaaS Services in a manner which is not in conformance with the terms and conditions of this Agreement and any Order; (ii) Customer or its Authorized Users use the SaaS Services with third party data, software or hardware which is incompatible with the SaaS Services; (iii) errors occur in the SaaS Services or Data resulting from Customer’s or its representatives’ configuration or manipulation of the SaaS Services, in each case not specifically recommended in writing by Foxbright; or (iv) reduced performance or non-availability of the Services result from failure of network connections, or other factors, beyond the reasonable control of Foxbright.
17.02 Foxbright represents, warrants and covenants that: (i) this Agreement constitutes the valid and binding agreement of Foxbright, duly authorized by all necessary action on the part of Foxbright; and (ii) the execution, performance and delivery of this Agreement by Foxbright are within Foxbright’s corporate powers and do not and will not violate (a) the articles of incorporation or bylaws of Foxbright, (b) any law, rule, regulation, judgment, order or decree applicable to Foxbright’s performance of its obligations hereunder or contravene or cause a default under any license, franchise, permit or other similar authorization held by Foxbright, or any agreement to which Foxbright is a party, or (c) require the consent or other action of any person or entity which has not been obtained prior to execution of this Agreement.
17.03 Foxbright will exert commercially reasonable efforts to help promote Customer’s ability to comply with certain requirements of the Americans With Disabilities Act through the use of available features of the SaaS Services.
17.04 Customer represents, warrants and covenants that: (i) this Agreement constitutes the valid and binding agreement of Customer, duly authorized by all necessary action on the part of Customer; (ii) Customer has full authority to act on its behalf as contemplated by this Agreement; and (iii) the execution, performance and delivery of this Agreement by Customer are within Customer’s organizational powers, have been duly authorized by all necessary action on the part of the Customer, and do not and will not violate (a) the applicable organizational documents of Customer, (b) any applicable law, regulation, judgment, order or decree or cause a default under any license, franchise, permit or other similar authorization held by Customer, or any agreement to which Customer is a party, or (c) require the consent or other action of any person or entity (including in respect of, or filing with, any governmental body, agency or official) which has not been obtained prior to execution of this Agreement.
17.05 It is Customer’s responsibility to determine the suitability of the SaaS Services for Customer’s use.
EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, AND TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, FOXBRIGHT AND ITS LICENSORS MAKE NO, AND HEREBY DISCLAIM ANY, REPRESENTATION, WARRANTY OR GUARANTY, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE SERVICES PROVIDED UNDER THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY: (1) OF MERCHANTABILITY; (2) OF FITNESS FOR A PARTICULAR PURPOSE; (3) ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE; OR (4) OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS. EXCEPT AS SET FORTH IN THIS SECTION, THE SERVICES ARE PROVIDED “AS IS”, WITHOUT ANY FURTHER WARRANTIES OF ANY KIND. FOXBRIGHT AND ITS LICENSORS MAKE NO WARRANTY THAT OPERATION OF THE SAAS SERVICES WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ALL DEFECTS WILL BE CORRECTED. FOXBRIGHT AND ITS LICENSORS MAKE NO, AND HEREBY DISCLAIM ANY, REPRESENTATION, WARRANTY OR GUARANTY, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, REGARDING ANY THIRD PARTY TECHNOLOGY.
17.06 EXCEPT TO THE EXTENT EXPRESSLY PROHIBITED BY LAW, FOR ALL CLAIMS BY CUSTOMER, WHETHER SUCH CLAIMS ARE MADE IN CONTRACT, TORT, OR OTHERWISE, CUSTOMER’S POTENTIAL RECOVERY SHALL BE LIMITED TO THE ACTUAL, DIRECT DAMAGES SUFFERED BY CUSTOMER UP TO THE ACTUAL AMOUNT PAID BY CUSTOMER TO FOXBRIGHT UNDER THE APPLICABLE ORDER (I.E., THE ORDER GIVING RISE TO THE LIABILITY) DURING THE TWELVE (12) MONTHS PRIOR TO THE INITIAL ASSERTION OF CLAIM(S) FOR THE SPECIFIC SERVICE(S) GIVING RISE TO SUCH CLAIM(S).
17.07 EXCEPT TO THE EXTENT EXPRESSLY PROHIBITED BY LAW, IN NO EVENT SHALL FOXBRIGHT OR ITS SUPPLIERS, LICENSORS, SERVICE PROVIDERS AND/OR SUBCONTRACTORS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFIT OR COSTS OF SUBSTITUTE SERVICES) SUFFERED BY CUSTOMER, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT, PRODUCT LIABILITY OR OTHERWISE, EVEN IF FOXBRIGHT HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY, OR HAS CONSTRUCTIVE KNOWLEDGE, OF SUCH DAMAGES, AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THIS AGREEMENT SHALL NOT CONVEY UPON ANY THIRD PARTY ANY RIGHTS HEREUNDER, AND NO THIRD PARTY SHALL BE DEEMED A THIRD PARTY BENEFICIARY.
18. Modifications/ Amendments
This Agreement and any Order can only be modified by a written agreement signed by persons authorized to sign agreements on behalf of the parties.
19. Waiver
No failure to exercise and no delay in exercising on the part of either Party, or partial exercise, shall operate as a waiver of any right under this Agreement. A waiver on one occasion shall not operate as a waiver on other occasions.
20. Severability
If any term or provision of this Agreement or application of the terms of this Agreement to the Parties shall to any extent be held invalid or unenforceable by a court of competent jurisdiction, then such invalidity will not affect the remainder of this Agreement and each other term and provision shall be valid and enforceable to the fullest extent permitted by law.
21. Relationship of Parties
The Parties are independent contractors and will have no power or authority to assume or create any obligation or responsibility on behalf of each other. This Agreement will not be construed to create or imply any partnership, agency or joint venture, association, or other form of agency relationship between the Parties. A Party and its respective personnel shall not be eligible to participate in any employee welfare or other benefit plans, however characterized, which may be maintained by the other Party. Each Party agrees to assume all responsibility and liability for any and all federal and state employers’ liability, workers’ compensation, social security and unemployment insurance requirements with respect to its respective personnel. Each Party agrees to pay and report (or require to be paid and reported) all federal, state and local income, employment and payroll withholding taxes and other governmental taxes or charges for its respective personnel, including, without limitation, federal and state income tax withholding, FICA, FUTA and state payroll taxes, as may be applicable.
22. Assignment
This Agreement may not be transferred or assigned directly or indirectly by Customer, in whole or in part, without the prior written consent of Foxbright, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, either Party may transfer or assign this Agreement in connection with a Change of Control of such Party. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and assigns. For purposes of this Agreement, “Change of Control” shall mean the sale or other transfer of (i) all or substantially all of a Party’s assets; or (ii) 50% or more of the capital stock or other equity interests of a Party, including by merger, consolidation or similar transaction; or (iii) the transfer of majority voting control of a Party.
23. Force Majeure
Either Party will be excused from delays in performing or from failing to perform its obligations under this Agreement (except for payment obligations which shall not be so excused) to the extent the delays or failures result from causes beyond the reasonable control of the Party. Without limiting the generality of the foregoing, such causes include acts of God, the public enemy, fires, floods, storms, earthquakes, riots, terrorism, strikes, blackouts, wars or war operations, restraints of government, utility or communications failures, computer hackers, denial of service attacks, software viruses, telecommunications slow-downs or failure, erroneous data transmission, or causes which could not with reasonable diligence be controlled or prevented by the Party. However, to be excused from delay or failure to perform, the Party must act diligently to remedy the cause of the delay or failure.
24. Entire Agreement
This Agreement, including any and all Orders, Exhibits, Schedules, Appendices, Attachments and material incorporated by reference, contains the entire agreement of the Parties relating to the rights granted and obligations assumed in this Agreement. This Agreement represents the complete and final agreement of the Parties and supersedes and replaces all prior or contemporaneous oral or written agreements, understandings or commitments between the Parties, including any purchase order. For clarity, while Customer may utilize a purchase order for its internal administrative purposes, any terms or conditions in any such purchase order shall be deemed null and void and the terms and conditions of this Agreement shall solely govern and control.
25. Mutual Indemnification
25.01 Foxbright shall defend, indemnify and hold Customer and Customer’s officers, directors, employees, and agents harmless from and against any and all third party claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys' fees and costs incurred by Foxbright in defending a covered claim) to the extent caused by (i) any willful misconduct of Foxbright ; and/or (ii) the infringement by the SaaS Services, in their as-delivered, unaltered form, of a U.S. copyright, a U.S. patent issued as of the date on which the applicable Order is entered into by the parties, or a U.S. registered trademark of a third party; provided that Customer shall (a) promptly give written notice of such claim to Foxbright; (b) give Foxbright sole control of the defense and settlement of such claim; and (c) promptly provide to Foxbright all available information and assistance reasonably requested by Foxbright in defending such claim. Foxbright shall have no indemnification obligation, and Customer shall defend, indemnify and hold Foxbright and its officers, directors, employees, attorneys and agents harmless from and against any and all third party claims arising from any alleged infringement of any third party intellectual property rights arising from the combination of any SaaS Services with any of Customer’s products, service, content, web service, hardware and/or business process(s).
25.02 Except to the extent expressly prohibited by applicable law, including applicable laws providing for the sovereign immunity of government entities, Customer shall indemnify and hold Foxbright, its licensor's and each such party's affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all third party claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) to the extent caused by : (i) any willful misconduct of Customer; (ii) the infringement by the Customer Materials, and/or any Third Party Technology provided to Foxbright or input into the SaaS Services by Customer or its Authorized Users, of the intellectual property rights of a third party; (iii) the nature, substance or content of the Customer Materials (such as a defamation claim, an invasion of privacy claim, a claim arising from lack of consent to use the Customer Materials, and/or other claims; (iv) Customer’s failure to assume liability or responsibility where it expressly agrees to do so hereunder; and (v) Customer’s or its Authorized Users’ failure to access and use the SaaS Services in compliance with the restrictions or prohibitions set forth in this Agreement and/or applicable law and regulation; provided in any such case that Foxbright (a) gives written notice of the claim promptly to Customer; (b) gives Customer sole control of the defense and settlement of the claim (provided that Customer may not settle or defend any claim unless Customer unconditionally release Foxbright of all liability and such settlement does not affect Foxbright’ business or Service); (c) provides to Customer all reasonably available information and assistance; and (d) has not compromised or settled such claim.
26. Venue and Applicable Law
This Agreement shall be governed by and interpreted according to the laws of the State of Michigan (without regard to its conflict of law principles), and the parties hereby consent to the exclusive jurisdiction of the state or federal courts in the State of Michigan to adjudicate any dispute arising under or in connection with this Agreement. Any such dispute shall be brought before the Circuit Court for Kent County, Michigan or the United States District Court for the Western District of Michigan, Southern Division. The parties hereby waive any objection based on inconvenient forum. The Uniform Computer Information Transactions Act does not apply to this Agreement or orders placed under it.
Schedule 1
Service Level Agreement
This Service Level Agreement (“SLA”) sets forth the Service Level(s) applicable to the Hosting Services and Support Services provided by Foxbright for the Foxbright SaaS Services. This SLA forms a part of the Agreement between Customer and Foxbright with respect to the provision of the SaaS Services by Foxbright and is incorporated into the Agreement by reference.
1.Hosting/ Availability of the SaaS Services
Service Level – Availability
Service Level Commitment – 99%
Measurement Window – Quarterly
For Purposes of this SLA, the following definitions shall apply:
“Availability” shall mean the portion (in percentage terms) of Scheduled Uptime that the Hosting Services are actually Available for Use.
“Available For Use” shall mean that all of the supported functions and features of the Hosting Services are capable of sending and receiving data to and from the Internet.
“Scheduled Uptime” shall mean the difference between (i) the total time Available for Use during each month and (ii) the sum of the time during which Foxbright may perform Scheduled Maintenance plus Excluded Time (as defined below).
“Scheduled Maintenance” shall mean maintenance performed by Foxbright during regularly scheduled maintenance windows, which normally shall occur during off-peak hours, or such other times Foxbright may determine.
“Excluded Time” shall mean any period of time that the Hosting Services are not Available For Use due to the following:
- Emergency maintenance
- Interruptions in third party networks that prevent Internet users from accessing the Hosting Services
- Interruptions in utility service, provided that the Foxbright hosting environment is served by redundant utility connections entering the facility at which the Hosting Services are provided.
- Interruptions caused by the Customer from custom scripting, mal-formed content, coding or the installation of third-party applications
- Customer DNS issues
- Causes beyond Foxbright's control or that are not reasonably foreseeable such as "Acts of God"
2. Availability Service Credits
a. Customer must notify Foxbright in writing of any failure to meet the Availability Service Level and request a Service Level Credit, if appropriate.
b. In the event Foxbright fails to meet the Availability Service Level Commitment in a given quarter, Customer may contact Foxbright and request a Service Credit of the hosting fees for the percentage of time the service was not available beyond the Service Level Commitment %. Such Service Credits will be allocated to the Customer annually on the anniversary date of the applicable Order for the SaaS Services.
c. The Service Credits described above shall be the sole and exclusive remedy for Foxbright’s failure to meet the Availability Service Level Commitment.
3. Backup Process
Foxbright will back-up or cause daily and weekly back-ups of Data (excluding Customer logos and trademarks) on-site and to an off-site location chosen by Foxbright. Backups are retained for a period of two (2) weeks. Data backups are for catastrophic hardware failures and are not intended to be used by Customer to recover deleted data. Restoration Services for deleted data are available at an additional cost.
4.Hosting / Bandwidth / Storage Obligations
Foxbright will provide and will be responsible for creating and maintaining the hosting, bandwidth and storage obligations as set out within the Order. If the Customer exceeds the limits defined in the Order, if applicable, Foxbright shall not be held liable for any performance related issues which arise from use outside of these limits and may, at its discretion, charge for any excess use of these obligations.