If Licensee has chosen Campus Messenger, then the following terms apply (the “Agreement”):

1.      Services

1.1.  Infinite Campus, or an authorized third party, (the “Provider”), will provide the Licensee with non-exclusive and non-transferable access to Provider’s telephony engine, which includes an application programming interface accessed through Infinite Campus’ product, which provides a means to create, manage, and send telephone messages to students, parents, legal guardians, school faculty, and school district personnel (cumulatively, the “Services”).

1.2.  The Provider will allocate capacity for unlimited messaging based on the number of students enrolled, as certified by the state in which the Licensee is located. The Services will be provisioned in batches of students based on the student count. The Services may be used for an unlimited number of voice and SMS messages if messages are directly related to school business, although after the first year of Services, the Provider reserves the right to institute a monthly limitation on usage for subsequent terms by providing Licensee with written notice at least sixty (60) days prior to the expiration of then then-current term.

1.3.  In emergency circumstances, defined as circumstances when Licensee’s authorized personnel, reasonably and in good faith, believe communication will assist in the elimination or mitigation of physical harm to students, faculty, employees, or invitees, the subscribed capacity may burst to additional paths, which incrementally increases the speed that the messages are disseminated.

2.      License and Content

2.1.  Subject to Licensee’s compliance with this Agreement, Infinite Campus hereby grants Licensee a non-exclusive license, during the applicable order term, to use the Services. Licensee acknowledges that the Services; all source code, object code, class libraries, user interface screens, algorithms, development frameworks, repository, system designs, system logic flow, and processing techniques and procedures related thereto; the documentation, any system user documentation, or other documentation related thereto; any copies and derivatives of any of the foregoing, in whole or in part; as well as all copyright, patent, trademark, trade secret and other intellectual property rights in any of the foregoing; are and shall remain the sole and exclusive confidential property of Infinite Campus.

2.2.  Licensee agrees not to reverse engineer, decompile, disassemble, translate, or attempt to learn the source code of any software related to the Services. Other than using the Services for Licensee’s internal business purposes, Licensee may not resell the Services or otherwise generate income from the Services.

2.3.  Licensee is solely responsible for the information or content submitted, posted, transmitted, or made available through its use of the Services (the “Content”). Licensee is responsible for maintaining the confidentiality of the Content, its accounts used in conjunction with the Services, and for all uses of the Services, whether or not authorized by the Licensee, including unintended usage. Licensee acknowledges and agrees that Infinite Campus does not control nor monitor the Content nor guarantee the accuracy, integrity, security, or quality of such Content.

3.      Term and Termination

3.1.  The term of this Agreement shall begin as of the date of signature on the applicable Order and Pricing Schedule (the “Effective Date”) and remain in effect until completed or terminated as provided herein.

3.2.  Any order for the Services (“Order”) may be terminated as follows:

a)      by either party, with or without cause, with no less than thirty (30) days written notice;

b)      by either party upon the failure by the other party to perform any material obligation hereunder that is not cured within thirty (30) days after receipt of written notice and demand for cure from the affected party;

c)      immediately by either party upon the violation by the other party of any applicable state or federal law, statute, rule, or regulation in relation to its performance of the Order; provided that such right to terminate shall only be available for thirty (30) days from the time that the non-violating party is aware or should have been aware of such violation; or

d)      by Infinite Campus, upon fourteen (14) days written notice if undisputed payments are in arrears. In addition, Infinite Campus may take any or all the following actions any time undisputed payments are more than fourteen (14) days in arrears:

          i.     suspend the Services; or

         ii.      withhold data, materials, or reports.

4.      Pricing

Licensee agrees to pay for the Services in accordance with the rates and amounts set forth in the applicable Order and Pricing Schedule, in addition to all applicable taxes, fees and other charges set forth on the invoice. Any sum due Infinite Campus hereunder will be due and payable as set out in Licensee’s EULA. In the event part of an invoice is in dispute, Licensee agrees to pay the undisputed portion of the invoice and make a note on the invoice regarding the disputed portion within thirty (30) days from the date of invoice, otherwise Licensee will be deemed to agree to such charges.

5.      Representations and Warranties

5.1.  Infinite Campus warrants that, during the ninety (90) day period commencing on the Effective Date (the “Warranty Period”), the Services will operate in substantial conformity with the documentation when used in strict compliance therewith. This warranty is contingent upon Licensee’s installation of all corrections, enhancements, updates, and new releases provided by Infinite Campus to Licensee and the absence of damage or abuse to the Services.

5.2.  Infinite Campus does not warrant or guarantee, in any way, Licensee’s results from using the Services. If a material defect occurs, Infinite Campus’ sole obligation under this warranty is to remedy such defect in a commercially reasonable manner.

5.3.  Licensee agrees to provide and maintain systems and materials reasonably required by Infinite Campus to perform the Services, including but not limited to: Licensee databases (the “Licensee Data”). Infinite Campus shall not be liable hereunder for the Licensee Data, including the failure by Licensee to timely provide any necessary Licensee Data.

5.4.  Each party represents and warrants that:

a)      its execution and performance of this Agreement will not violate any provision of law, rule, regulation to which such party is subject;

b)      it will comply with all laws, rules, and regulations pursuant to which such party conducts its business and operation;

c)      it has all requisite power and authority to execute, deliver and perform its obligations under this Agreement;

d)      the execution, delivery and performance of this Agreement has been duly authorized by such party;

e)      no approval, authorization, or consent of any governmental or regulatory authority is required to be obtained by it for it to enter into and perform its obligations under this Agreement; and

f)       it possesses all necessary authority to enter into this Agreement.

5.5.  Licensee represents and warrants that:

a)      it has the legal right to use and send all Content to the recipients (including obtaining any required consent from each recipient);

b)      it is the transmitter of all Content and Infinite Campus is merely acting at Licensee’s direction as a technology conduit for the transmission of the Content;

c)      Infinite Campus’ use of the Content in performing the Services shall not violate the rights of any third party or any law, rule, or regulation; and

d)      it will not transmit or allow to be transmitted any Content that:

             i.        it does not have a right to make available under any law or under contractual or fiduciary relationship;

            ii.        is false, inaccurate, misleading, unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically, or otherwise objectionable, or harmful to minors in any way;

           iii.        infringes any patent, trademark, trade secret, copyright, or other proprietary rights or rights of publicity or privacy of any party;

          iv.        utilizes any unsolicited or unauthorized advertising, promotional materials, “junk mail”, “spam”, or any other forms of solicitation; or

           v.        interferes with or disrupts the Services or servers or networks.

e)      it has prior express consent to contact each wireless phone number delivered by Licensee to Infinite Campus in connection with the provision of any Services for delivering a prerecorded message or text (each a “Notification”), and that the intended contact recipient is the current subscriber to, or the non-subscriber customary user of, the wireless phone number. Upon request by Infinite Campus, Licensee shall promptly provide, in writing, proof of prior express consent and Licensee’s processes for consent management; and

f)       it: 

             i.        has incorporated an interactive opt-out mechanism as part of any program relating to any Notification;

            ii.        the contacts that are the subject of such Notification are not initiated to induce the purchase of goods or services or to solicit a charitable contribution (“Solicitations”); and

           iii.        it has obtained from the recipient of any Solicitation an express written agreement that meets the requirements set forth in Section 310.4(b)(1)(v)(A) of the FTC’s Abusive Telemarketing Acts or Practices rule.

5.6.  EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, INFINITE CAMPUS MAKES NO WARRANTY OR REPRESENTATION, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES OF QUALITY OR PERFORMANCE, OR AS A RESULT OF A COURSE OF DEALING OR USAGE OF TRADE, WITH RESPECT TO THE SERVICES AND ANY MAINTENANCE, SUPPORT OR OTHER SERVICES.

5.7.  Licensee and Infinite Campus will comply with the Family Educational Rights and Privacy Act (“FERPA”) and Licensee will indemnify Infinite Campus in the event that it is not found to be a “School Official” (as that term is used in FERPA and its implementing regulations).

5.8.  Licensee acknowledges and agrees that where Infinite Campus reasonably believes that Licensee may not have complied with all laws, rules, and regulations applicable to the performance of notifications, Infinite Campus may, in its sole discretion:

             i.        scrub all numbers against any appropriate database to remove all wireless phone numbers;

            ii.        insert an interactive opt-out mechanism and pass the resulting data to Licensee; or

           iii.        suspend the Services.

5.9.  Licensee shall indemnify, defend, and hold Infinite Campus, its affiliates and their officers, directors, employees, and agents, harmless from and against any and all claims of loss, damages, liability, costs, and expenses (including reasonable attorneys’ fees and expenses) arising out of or resulting from Infinite Campus following Licensee’s instructions in sending the Content, Notifications, or Solicitations, or Licensee’s breach of any representation and warranty set forth herein.

6.      Confidentiality

6.1.  Each party may disclose (the “Discloser”) confidential and proprietary information (“Confidential Information”) to the other party (the “Recipient”). In each such case, to the extent permitted by law, the Recipient shall hold such Confidential Information in confidence and shall not disclose such Confidential Information except to a party’s affiliates, employees or agents who have a need to know such Confidential Information to perform such party’s obligations under this Agreement. Infinite Campus’ Confidential Information shall include the computers, systems and software operating the Services and all documentation, development tools, phone numbers, know-how and data related thereto, and any derivative works thereof as well as physical property, analytical procedures, techniques, skills, ideas, models, research, development, trade secrets or business affairs of Infinite Campus, its affiliates, or their employees, suppliers, or agents. Neither party shall have any rights in the other party’s Confidential Information and shall return or destroy all such Confidential Information upon the termination of the applicable Order or the request of the Discloser. Notwithstanding the foregoing, the parties acknowledge that Recipient shall not be required to return to Discloser or destroy those copies of Confidential Information residing on Recipient’s backup, disaster recovery, or business continuity systems and the obligations hereunder with respect to such Confidential Information shall survive until such Confidential Information is destroyed.

6.2.  Notwithstanding any other term hereof, the term “Confidential Information” shall not include information that: (a) was already in the lawful possession of the Recipient prior to receipt thereof, directly or indirectly, from the Discloser; (b) lawfully becomes available to Recipient on a non-Confidential basis from a source other than Discloser that is not under an obligation to keep such information Confidential; (c) is generally available to the public other than as a result of a breach of this Agreement by Recipient or its representative(s); or (d) is subsequently and independently developed by employees, consultants or agents of the Recipient without reference to the Confidential Information disclosed hereunder. In addition, a party shall not be considered to have breached its obligations by disclosing Confidential Information of the other party as required to satisfy any request of a competent governmental body provided that, promptly upon receiving any such request and to the extent that it may legally do so, such party advises the other party of the request prior to making such disclosure in order that the other party may interpose an objection to such disclosure, take action to assure Confidential handling of the Confidential Information, or take such other action as it deems appropriate to protect the Confidential Information.

7.      Indemnification

7.1.  Licensee shall indemnify, defend and hold Infinite Campus, its affiliates and their officers, directors, employees and agents harmless from and against any and all third party claims of loss, damages, liability, costs, and expenses (including reasonable attorneys’ fees and expenses) arising out of or resulting from: (a) a breach by Licensee of any term of this Agreement or an Order; or (b) all liabilities, demands, damages, expenses, or losses arising out of or resulting from any usage of the Services.

7.2.  Infinite Campus shall indemnify, defend, and hold Licensee, its affiliates and their officers, directors, employees, and agents harmless from and against all third-party claims of loss, damages, liability, costs, and expenses (including reasonable attorneys’ fees and expenses) arising out of or resulting from a breach by Infinite Campus of any term of this Agreement or an Order. Nothing herein shall require Infinite Campus to indemnify the Licensee for any claim or any portion of any claim that arises from the Licensee’s reckless, wanton, wrongful, or otherwise negligent acts of the Licensee.

7.3.  The Provider will have the obligation and right at the entire expense of the Provider to defend any claim, suit or proceeding brought against Licensee its affiliates or their officers, directors, employees or agents so far as it is based on a third party claim that the Services supplied by the Provider infringes a United States copyright or a United States patent issued as of the effective date of the applicable Order, provided that the Provider will have no indemnity obligation or other liability hereunder arising from: (1) Licensee’s willful, reckless, wanton, wrongful, or otherwise negligent acts; (2) breach of the Agreement or an Order or alteration of the Services as provided by Infinite Campus; (3) combination of the Services with any other Licensee products, materials, or services not provided by Infinite Campus; or any (4) third-party products or services. Notwithstanding the foregoing, to be indemnified to the extent stated, the Licensee must operate the Services within the instructions and technical limits provided or approved by the Provider. If such a claim is or is likely to be made, the Provider will, at its own expense and sole discretion, exercise one or the following remedies: (1) obtain for Licensee the right to continue to use, the Services consistent with this Agreement; (2) modify the Services so they are noninfringing and in compliance with this Agreement; (3) terminate the applicable Services without liability for such termination other than the ongoing indemnity obligation hereunder. The foregoing states the entire obligation of the Provider, and the exclusive remedy of Licensee, with respect to infringement of proprietary rights.

7.4.  The party claiming indemnification shall: (a) provide prompt written notice to the indemnifying party of any claim in respect of which the indemnity may apply; (b) relinquish control of the defense of the claim to the indemnifying party; and (c) provide the indemnifying party with all assistance reasonably requested in defense of the claim. The indemnifying party shall be entitled to settle any claim without the written consent of the indemnified party so long as such settlement only involves the payment of money by the indemnifying party and in no way affects any rights of the indemnified party. The indemnities set forth herein shall not apply to the willfulness on the part of the indemnified party or negligence of the indemnified party.

8.      Notices

All notices, consents, waivers, and other communication under this Agreement must be in writing and shall be deemed given: (a) if by hand delivery, upon receipt; (b) if mailed, three (3) days after deposit in the United States mail, postage prepaid, sent certified mail return receipt requested; or (c) if by a nationally recognized express delivery service, upon such delivery confirmed by tracking number; or (d) if by email, upon confirmed receipt of such transmission, to the recipient address set forth herein or to such other addresses as either party may designate from time to time by written notice to the other party hereto.

9.      Assignment

This Agreement may not be assigned or transferred by a party thereto without the prior written consent of the other party. Notwithstanding the foregoing, Infinite Campus may freely assign this Agreement and Orders to an affiliate or to an acquirer of all or part of Infinite Campus’ business or assets, whether by merger or acquisition. Licensee shall not assign, transfer, sublicense, or otherwise convey its right to use the Services hereunder, or any part thereof, to any person, by operation of law or otherwise, without Infinite Campus’ prior written consent, which may be given or withheld in Infinite Campus’ sole discretion. Any breach or attempted breach of this provision shall be null and void and shall entitle Infinite Campus to immediately terminate this Agreement without any cure period.

10.   Miscellaneous

10.1.         Each component licensed under this Agreement that constitute Infinite Campus Products and Services is a “commercial item” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and/or “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all end users acquire Infinite Campus Products and Services with only those rights set forth herein.

10.2.         This Agreement, in conjunction with the applicable Licensee End User License Agreement (“EULA”), constitutes the entire agreement between the parties with respect to the subject matter of this Agreement and the applicable Order and supersede all prior agreements, discussions, proposals, representations or warranties, whether written or oral.

10.3.         No course of dealing or failure of a party to enforce strictly any term or provision or to exercise any right, obligation, or option provided, will waive such term, provision, right, obligation or option.

10.4.         This Agreement is not a joint venture or partnership, and each party is entering the relationship as a principal and not as an agent of the other. The parties hereto agree that Infinite Campus is an independent contractor in performing the Services.

10.5.         This Agreement shall be governed under the laws of Minnesota without regard to any choice of law principles. If Licensee is not legally allowed to accept Minnesota as the choice of law, this Agreement shall be governed under the laws of the state in which the Licensee is located.

10.6.         All users of the Services must adhere to the terms of this Agreement. Infinite Campus has the right, but is not obligated, to strictly enforce this Agreement through self-help, active investigation, litigation, and prosecution. Infinite Campus may also access and disclose any information (including transactional information) related to Licensee’s access and use of Infinite Campus’ website or network for any lawful reason, including but not limited to: (1) responding to emergencies; (2) complying with law, rule or regulation (e.g., a lawful subpoena); (3) protecting our rights or property and those of our Licensees; or (4) protecting users of those services and other carriers from fraudulent, abusive, or unlawful use of, or subscription to, such services.

10.7.         If at any time during the Term of this Agreement or any Order, Infinite Campus believes that it is required by law to collect any taxes for which Licensee would be responsible for paying, Infinite Campus shall notify Licensee of such taxes, collect such taxes directly from Licensee and remit such taxes to the appropriate governmental authority. If any taxing authority determines at any time that Infinite Campus has incorrectly determined any tax liability regarding taxes for which Licensee is responsible pursuant to this Agreement or any Order, Infinite Campus shall have the right to invoice Licensee for such taxes determined by such taxing authority to be due and owing. If Licensee is exempt from taxes, Licensee shall provide a copy of any documentation evidencing such exemption before it begins to receive any of the Services.

10.8.         If any provision of this Agreement or the applicable Order is held invalid or unenforceable at law, such provision shall be modified, rewritten or interpreted to include as much of its nature and scope as will render it enforceable and the remainder of this Agreement and the applicable Order will continue in effect and be valid and enforceable to the fullest extent.

10.9.         This Agreement and Orders are for the sole benefit of the parties to such Order and are not intended to, nor shall it be construed to, create any right or confer any benefit on or against any third party.

10.10.      “Including” means “including, without limitation”, and “days” refers to calendar days. This Agreement and each Order is the joint work product of the parties thereto, and no inference may be drawn or rules of construction applied against either party to interpret ambiguities. If any terms of this Agreement and an Order conflict, the terms of the Order will govern for that Order only. No preprinted or form terms, including on any purchase order, will apply.

10.11.      Except for materials already made public, neither party will distribute any news releases, articles, brochures, speeches, or advertisements concerning this Agreement, nor use the other party’s name or trademarks (or any variation thereof), without the other party’s prior written consent.

10.12.      Neither party shall be liable for delays and/or defaults in its performance (other than Licensee’s obligation to pay fees for Services performed) due to causes beyond its reasonable control, including, but without limiting the generality of the foregoing: acts of god or of the public enemy; fire or explosion flood; stability or availability of the Internet; the elements; telecommunication system failure; war; technology attacks, epidemics, pandemics; acts of terrorism; riots; embargoes; quarantine; viruses; strikes; lockouts; disputes with workmen or other labor disturbances; total or partial failure of transportation, utilities, delivery facilities, or supplies; acts or requests of any governmental authority; or any other cause beyond its reasonable control, whether or not similar to the foregoing.

10.13.      Each amendment, change, waiver, or discharge shall only be valid if made in writing by authorized representatives of all applicable parties.

10.14.      All provisions of this Agreement or any Orders which by their nature should survive termination shall survive termination of this Agreement.

10.15.      Each party will comply with all applicable personal data protection and privacy laws where such party is located (the “Data Protection Laws”). The parties acknowledge and agree that[: (i) Infinite Campus may have access to personal data under the Data Protection Laws and will: (a) use it solely for the purpose of providing the Services; (b) process it only in accordance with Licensee’s instructions; and (c) take appropriate technical and organizational measures to prevent unauthorized or unlawful processing, accidental loss, destruction or damage to it; (ii) personal data may be processed by Infinite Campus and its affiliates in the United States; and (iii) Licensee is the data controller and retains full responsibility for the data processed on its behalf by Infinite Campus acting as data processor.

11.   Limited Warranty and Limitation of Liability

11.1.         EXCEPT AS EXPRESSLY PROVIDED HEREIN, INFINITE CAMPUS MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES, AND INFINITE CAMPUS EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. INFINITE CAMPUS EXPRESSLY DENIES ANY REPRESENTATION OR WARRANTY ABOUT THE ACCURACY OR CONDITION OF DATA OR THAT THE SERVICES OR RELATED SYSTEMS WILL OPERATE UNINTERRUPTED OR ERROR-FREE.

11.2.          NO CAUSE OR ACTION WHICH ACCRUED MORE THAN TWO (2) YEARS PRIOR TO THE FILING OF A SUIT ALLEGING SUCH CAUSE OF ACTION MAY BE ASSERTED UNDER THIS AGREEMENT BY EITHER PARTY.

11.3.         EXCEPT FOR THE PARTIES’ PAYMENT OBLIGATIONS, NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INDIRECT, EXEMPLARY, SPECIAL, PUNITIVE, CONSEQUENTIAL, OR INCIDENTAL DAMAGES OR LOSS OF GOODWILL, DATA OR PROFITS, OR COST OF COVER. THE TOTAL LIABILITY OF INFINITE CAMPUS FOR ANY REASON, SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID TO INFINITE CAMPUS BY LICENSEE UNDER THE Order APPLICABLE TO THE EVENT GIVING RISE TO SUCH ACTION DURING THE SIX (6) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. THE LIMITS ON LIABILITY IN THIS SECTION SHALL APPLY IN ALL CASES INCLUDING IF THE APPLICABLE CLAIM ARISES OUT OF BREACH OF EXPRESS OR IMPLIED WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR STRICT PRODUCT LIABILITY, AND EVEN IF THE PARTY HAS BEEN ADVISED THAT SUCH DAMAGES ARE POSSIBLE OR FORESEEABLE.