These Master Terms and Conditions (these “Terms and Conditions”) set forth the terms and conditions pursuant to which Tuition.io will provide Customer with access to and use of the Services during the Term (as defined below). References to the “Agreement” herein mean these Terms and Conditions, the Order Form executed between the Parties, the Exhibits hereto, and any written addenda or amendments to any of the foregoing that are signed by authorized representatives of both Parties.
Subject to payment of the Fees specified on the Order Form, Tuition.io will provide Customer with access to and use of the Services during the Term in accordance with the terms and conditions of this Agreement and as described in Exhibit 1. Any additional services to be provided by Tuition.io to Customer agreed to by the Parties shall be provided under a separate Order Form at rates mutually agreed upon by the Parties in such Order Form.
2. ACCESS RIGHTS.
(i) Solely to the extent necessary to utilize the Services during the Term in accordance with this Agreement, Tuition.io hereby grants to the Customer a personal, non-exclusive, non-transferable, and non-sublicensable right to access and use the Services, including the website maintained by Tuition.io through which Customer provides to its employees the Company Services (the “Site”), during the Term. Customer shall have no right to copy the Services or the Tuition.io Intellectual Property (defined below) on which the Services are based.
(ii) Customer shall access and use the Services via the Internet, and shall be exclusively responsible for procuring, maintaining and paying for any equipment, software, and ISP services necessary to access and use the Services.
(iii) Customer shall provide, as agreed upon by both Parties, Tuition.io with certain information, commentary, presentations, articles, logos, trademarks, structured data, multimedia web content, images, videos, text, branding materials and other materials (the “Customer Materials”) for use on the Site, which Tuition.io will use to customize the Site and the Services for Customer and, acting as a service provider to Customer, to Customer employees and/or students to whom Customer provides the Company Services. Customer Materials do not include Customer Data (as defined below). Customer retains ownership of the Customer Materials and grants to Tuition.io a license to use the Customer Materials in connection with the Site and the Services as well as for advertising and marketing purposes, both on the Site and to current and potential future customers or investors during the Term.
(iv) Customer may provide non-public data to Tuition.io to enable the provision of the Services (“Customer Data”), which Tuition.io will use to provide the Services. Customer retains ownership of Customer Data and grants to Tuition.io a license to use the Customer Data in connection with performance of the Services during the Term.
(v) Tuition.io will provide Customer with: (a) specific items of End User Information (as defined below) that is entered on the Site or otherwise provided by End Users to Tuition.io for the exclusive and limited purpose set forth and described on EXHIBIT 2; and (b) such End User Information aggregated and anonymized by Tuition.io. “End User” means the individual employees of Customer to whom Customer grants access to the Site for purposes of providing the Company Services. “End User Information” means all End User information provided to, or collected by, Tuition.io in the course of Customer’s access to and use of the Services under this Agreement that (1) identifies an individual (by name, signature, address, telephone number, email address, or other unique identifier), or (2) can be used to authenticate that individual.
(vi) Tuition.io will provide Customer with the information identified in sub-section (vi) above subject to and contingent upon (x) receipt of prior, express consent from the applicable End User permitting Tuition.io to collect such data and make such disclosure to Customer, and (y) Customer’s strict observance of the use and disclosure restrictions on such End User Information set forth in EXHIBIT 2.
3. INTELLECTUAL PROPERTY.
(i) Customer acknowledges and agrees that Tuition.io or its licensors are and shall remain the sole and exclusive owners of (A) the Services, including the Site, (B) any and all software, methodologies, tools, specifications, drawings, sketches, models, samples, records, documentation, works of authorship or creative works, ideas, knowledge, data or other materials or content relating to the Services, including the Site (collectively, the “Content”), (C) any and all new Intellectual Property developed by Tuition.io or on behalf of Tuition.io, (D) any and all improvements, enhancements, modifications and derivative works of any of the foregoing, and (E) any and all Intellectual Property Rights in any of foregoing (collectively, “Tuition.io Intellectual Property”). Customer does not obtain any rights to any of the Tuition.io Intellectual Property, other than the limited license expressly set forth in this Agreement.
(ii) To the extent Customer provides any input or feedback regarding the Services or Company Services, during the Term, Customer hereby grants Tuition.io a fully paid-up, royalty free, perpetual, irrevocable right and license to use, share, modify, commercialize and otherwise fully exercise and exploit such feedback and all related intellectual property rights for any purpose.
(iii) For purposes of this Agreement, “Intellectual Property” or “Intellectual Property Rights” means all inventions and/or works and any and all rights under U.S. and/or foreign patents, trade secrets, know-how, copyrights, and other industrial or intangible property rights of a similar nature; all rights pursuant to grants and/or registrations worldwide in connection with the foregoing and all other rights with respect thereto; all rights under applications for any such grant or registration, all rights of priority under international conventions to make such applications and the right to control their prosecution, and all rights under amendments, continuations, divisions and continuations-in-part of such applications; and all rights under corrections, reissues, patents of addition, extensions and renewals of any such grant, registration and/or right.
4. RESTRICTIONS ON USE.
Customer shall not, and shall cause its employees and students not to, take any of the following actions: (i) create or enable the creation of derivative works, modifications, or adaptations of the Services or the Tuition.io Intellectual Property; (ii) decompile, reverse engineer, disassemble or otherwise attempt to discern the source code, underlying ideas, algorithms, file formats or interface protocols of the Services or the Tuition.io Intellectual Property; (iii) distribute or disclose the Services or any Tuition.io Intellectual Property to third parties, except as expressly permitted hereunder to provide the Company Services; (iv) remove or modify any proprietary marking or restrictive legends placed on the Services or any Tuition.io Intellectual Property; (v) use any robot, spider, other automatic device or program or manual process to monitor, copy or reproduce the Services or any Tuition.io Intellectual Property; or (vi) use the Services or any Tuition.io Intellectual Property in any manner not expressly set forth in this Agreement or in violation of any applicable law or regulation.
Customer does not have the right to post any content on the Site or alter the Content or structure of the Site in any way. All Customer Materials will be posted to the Site by Tuition.io in Tuition.io’s sole discretion. Customer will have no rights with respect to the Content other than those expressly granted hereunder.
The Initial Term of this Agreement is set forth on the Order Form. Upon expiration of the Initial Term, the Agreement will renew automatically for additional two (2) year terms (each, a “Renewal Term” and, together with the Initial Term, the “Term”) unless either Party gives the other Party written notice of its intention not to renew at least thirty (30) days prior to the expiration of the then current term. Each Renewal Term will be governed by the same terms and conditions of this Agreement unless modified as provided in this Agreement, except for the Fees, which will be amended as agreed upon by the parties for each Renewal Term.
Either Party may terminate this Agreement upon written notice if the other Party: (i) becomes subject to the control of a trustee, receiver or similar authority; (ii) makes an assignment for the benefit of creditors; (iii) is unable to pay debts as they become due; (iv) becomes subject to any bankruptcy or insolvency proceeding and such proceeding is not dismissed within sixty (60) days; or (v) fails to perform a material obligation under this Agreement, which failure to perform continues for a period of thirty (30) days after a Party’s receipt of written notice regarding its failure to perform any material obligation under this Agreement.
7. EFFECT OF TERMINATION OR EXPIRATION.
Customer’s right to use the Services and provide the Company Services shall end immediately upon any termination or expiration of this Agreement and Customer shall immediately cease any use of the Services, including the Site, and any Tuition.io Intellectual Property upon such termination. Within fifteen (15) days after expiration or termination of the Term, (i) Customer shall pay Tuition.io all Fees and other sums due and owing on the effective date of termination or expiration, and (ii) each Party shall (a) return to the other Party all tangible forms of the other Party’s Confidential Information (defined below) that are in the receiving Party’s possession or control, (b) use all reasonable efforts to destroy all copies of all materials that incorporate or reflect such Confidential Information, and (c) at the disclosing Party’s request, certify to the disclosing Party that such Confidential Information has been either returned or destroyed. Customer’s obligations under Section 4 (Restrictions on Use), Section 9 (Confidentiality), Section 12 (Indemnity), Section 13 (Limitation of Liability) and the limitations on use of End User Information shared with Customer as described in EXHIBIT 3, will survive indefinitely the expiration or any termination for any reason of this Agreement.
Customer will pay Tuition.io the then applicable fees described in the Order Form executed between Customer and Tuition.io for the Services and Implementation Services in accordance with the terms therein (the “Fees”). Implementation Fees are payable upon execution of this Agreement. Monthly Fees are payable net 30 after the end of each calendar month. Customer shall transfer Fees via Automatic Clearing House (ACH) debit to the Tuition.io bank account designated by Tuition.io for this purpose. Customer hereby agrees to take all steps necessary to establish the automatic debit payment through ACH debit. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Tuition.io’s net income.
(i) Customer and Tuition.io shall each (a) hold the Confidential Information of the other Party in trust and confidence, using the same degree of care as it uses to avoid unauthorized use, disclosure, or dissemination of its own Confidential Information of a similar nature, but not less than reasonable care, (b) disclose the Confidential Information of the other Party only to those of its employees and consultants having a need to know in order to meet its obligations hereunder, and (c) not use the Confidential Information of the other Party for any purpose whatsoever except as expressly contemplated under this Agreement. Each Party shall be responsible for compliance with this Agreement by its employees and consultants.
(ii) The term “Confidential Information” shall mean any and all information or proprietary materials (in every form and media) not generally known in the relevant trade or industry and which have been or are hereafter disclosed or made available by either Party (the “disclosing Party”) to the other (the “receiving Party”) in connection with the efforts contemplated hereunder, including, without limitation, (a) all trade secrets and other intellectual property, (b) existing or contemplated products, services, designs, technology, processes, technical data, engineering, techniques, methodologies and concepts and any information related thereto and (c) information relating to business plans, sales or marketing methods and customer lists or requirements. Confidential Information of Tuition.io includes the Services, the Tuition.io Intellectual Property. Confidential Information of Customer includes Customer Data.
(iii) The obligations under this Section 9 will not apply to information that the receiving Party can demonstrate (a) was in its possession at the time of disclosure and without restriction as to confidentiality, (b) at the time of disclosure was generally available to the public or after disclosure becomes generally available to the public through no breach of agreement or other wrongful act by the receiving Party, (c) has been received from a third Party without restriction on disclosure and without breach of agreement by the receiving Party, or (d) is independently developed by the receiving Party without regard to the Confidential Information of the other Party. In addition, the receiving Party may disclose Confidential Information as required to comply with binding orders of governmental entities that have jurisdiction over it, provided that the receiving Party (A) gives the disclosing Party reasonable written notice to allow the disclosing Party to seek a protective order or other appropriate remedy, (B) discloses only such Confidential Information as is required by the governmental entity, and (C) uses commercially reasonable efforts to obtain confidential treatment for any Confidential Information so disclosed.
(iv) Customer hereby represents, warrants and certifies that its collection, access, use, storage, disposal, and disclosure of End User Information does and will conform to the limited permissible use set forth in EXHIBIT 2, and further complies with federal and state privacy and data security law, as well as all other applicable regulations, directives, and regulatory guidance. Customer acknowledges that End User Information will be subject to the confidentiality obligations set forth in Section 9 and EXHIBIT 2.
10. CUSTOMER DATA SECURITY.
Tuition.io shall: (a) employ industry standard practices to protect all Customer Data, and use and access Customer Data only for the purpose of performing its obligations hereunder; (b) materially comply with applicable laws relating to privacy and data protection; and (c) provide Customer with notice of any material unauthorized access, use, copying, alteration, transfer or breach of security involving Customer Data of which Tuition.io becomes aware, and provide reasonable efforts to cooperate with Customer in the investigation and resolution thereof.
Tuition.io hereby represents and warrants that:
(i) The Services shall operate substantially in accordance with the Exhibits for the duration of the Term (the “Warranty Period”). Tuition.io shall use commercially reasonable efforts to correct any Services that fail to meet the foregoing warranty provided that Customer reports such non-conformity to Tuition.io during the Warranty Period and Tuition.io is able to recreate and verify the non-conformity. The foregoing shall constitute Customer’s sole and exclusive remedy, and Tuition.io’s sole and exclusive obligation for any failure of the Services to meet the foregoing warranty. This warranty shall immediately become void and inapplicable if the Services are modified, enhanced or customized in any way, including by Tuition.io at Customer’s request.
(ii) THE EXPRESS LIMITED WARRANTIES IN THIS SECTION 11 ARE PROVIDED BY TUITION.IO IN LIEU OF, AND TUITION.IO HEREBY DISCLAIMS, ALL OTHER WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS REGARDING THE SERVICES, THE SITE AND THE TUITION.IO INTELLECTUAL PROPERTY. CUSTOMER, ITS AFFILIATES, ITS OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS (THE “CUSTOMER PARTIES”) EXPRESSLY WAIVE ANY AND ALL SUCH WARRANTIES OTHER THAN THOSE EXPRESSLY WARRANTED IN THIS SECTION 11. THE REMEDIES PROVIDED TO CUSTOMER AND CUSTOMER AFFILIATES AS SET FORTH IN THIS SECTION ARE EXCLUSIVE.
Tuition.io shall hold Customer harmless from liability to third parties resulting from infringement by the Service of any United States patent or any copyright or misappropriation of any trade secret, provided Tuition.io is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Tuition.io will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Service (i) not supplied by Tuition.io, (ii) combined with other products, processes or materials not provided by Tuition.io where the alleged infringement would not have arisen absent such combination, or (iii) where Customer’s use of the Service is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Tuition.io to be infringing, Tuition.io may, at its option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Service.
13. LIMITATION OF LIABILITY.
IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, LOST REVENUES OR PROFITS) ARISING FROM OR RELATING TO THIS AGREEMENT, REGARDLESS OF WHETHER THE PARTY WAS ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF. EACH PARTY’S AGGREGATE LIABILITY FOR DIRECT DAMAGES UNDER THIS AGREEMENT WILL NOT EXCEED THE SERVICES FEES PAID BY CUSTOMER HEREUNDER DURING THE PERIOD TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR NEGLIGENCE, CONSEQUENTIAL, INCIDENTAL OR OTHER DAMAGES, IN SUCH JURISDICTIONS TUITION.IO’S LIABILITY IS LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
14. SITE POLICIES AND ACCEPTANCE BY END USERS.
15. PROCESS FOR CUSTOMER CONTRIBUTIONS TO STUDENT LOANS.
The process by which Customer may make through the Company Services contributions to the student loans of its employees and/or students is described on EXHIBIT 3.
EXHIBIT 1 COMPANY SERVICES; IMPLEMENTATION SERVICES
Company Services. The Company Services which will be supported by Tuition.io through the Services provided to Customer pursuant to this Agreement are set forth below.
• Customer funded student loan payments on behalf of Employees as described in Exhibit 3 (if applicable in the Order Form)
• Employee financial wellness portal with regard to student loan debt
Prior to launching the Company Services, Tuition.io will provide the following implementation services:
• Advisory services regarding plan design including eligibility criteria, payment amount and payment frequency.
• Setup and testing of eligibility data file and imputed income file
• Creation and delivery of enrollment communication to eligible Employees via email or such other method as mutually agreed upon.
• Customer support to Employees during the initial enrollment period prior to launch.
• Setup and training of Customer administrative personnel for the Employer portal hosted by Tuition.io