THIS OUTDOOR ED DATA COLLECTION SOFTWARE USE AGREEMENT (hereafter “Agreement”), is made and entered into by and between Outdoor Ed LLC, an New Jersey Limited Liability Company with principal offices at 27 Chicopee Drive, Princeton, New Jersey, United States 08540 (hereafter “OUTDOOR ED” or “Outdoor Ed”) and Client whose full name, business address and contact information are set forth at the end of this Agreement”). The parties are referred to in this Agreement individually as “party” and collectively as “parties.” This Agreement is valid for Ordering Document, which may be attached to the end of this Agreement. This, and any other attachments (“Exhibits”) are incorporated here, by this reference.
WHEREAS, Outdoor Ed has extensive experience is providing outdoor education and has developed Incident Database Tracking and Analytical Software available in the Cloud; and,
WHEREAS, Client desires to use software and associated service; and,
WHEREAS, OUTDOOR ED is willing to grant Client a limited, non-exclusive license to use OUTDOOR ED Software.
NOW THEREFORE, the parties agree as follows:
Certain Definitions. In this Agreement, the following words and expressions are defined as follows:
“Anniversary Date” means the date one year after the Effective Date and each annual date thereafter that arises until the termination of this Agreement;
“Effective Date” means the date upon which the last party signs below, and constitutes the Effective Date of this Agreement;
“OUTDOOR ED Software” means the OUTDOOR ED Incident Database Tracking and Analytical Software made available for Client’s use through this Agreement;
“Hosting Services” means the hosting services provided by OUTDOOR ED to Client via the Hosting Services Provider as specified in this Agreement, to support the OUTDOOR ED “Software Services,” as defined in Section 1.7;
“Ordering Document” means the ordering document executed by the parties that accompanies and incorporates this Agreement and contains payment and other terms and conditions for the provision of OUTDOOR ED’s Hosting and Software Services;
“Use Fees” means fees charged by OUTDOOR ED under this Agreement; and as identified in the Ordering Document;
“Software Services” means the OUTDOOR ED Software and associated services provided by OUTDOOR ED under this Agreement.
“Hosting and Software Services” or “Services” are collective terms used to describe the Hosting Services (section 1.4) and Software Services (section 1.7) provided by OUTDOOR ED under this Agreement.
“Key Users” – OUTDOOR ED Client Functional Representatives that assist Client with Hosting Services support issues (section 2.5). These Key Users will be listed in the Ordering Document.
Services, Term and Payments. During the term of this Agreement, OUTDOOR ED shall procure, on behalf of Client, the Hosting Services, as described herein, to support the Outdoor Ed Software and Software Services provided under this Agreement.
Charge for Using Software. There is an annual charge to Client for using the OUTDOOR ED Software. Payment must be made in advance and can be by check or credit card. The Use Fees for use of the OUTDOOR ED Software is as identified in the Ordering Document, which cost may change at any time, in OUTDOOR ED’s sole discretion, without advance notice to the Client.
Hosting Services Provider. Client acknowledges and accepts that OUTDOOR ED has selected a company to provide Hosting Services to Client (the “Hosting Services Provider”). The Hosting Services Provider selected shall remain as the Hosting Services Provider for the duration of this Agreement, until and unless: (a) OUTDOOR ED has reasonable grounds to change to an alternative suitable provider who shall then become the Hosting Services Provider; or (b) the Hosting Services Agreement terminates according to its terms; or (c) this Agreement is terminated by mutual agreement of OUTDOOR ED and Client; or (d) OUTDOOR ED decides in its sole judgement that Hosting Services Provider cannot or will not provide an adequate level of service or the price of the service ceases to competitive.
Hosting Services Agreement. OUTDOOR ED shall arrange to enter into a Hosting Services Agreement with the Hosting Services Provider on terms as set out in the Hosting Services Agreement attached hereto as Exhibit A. If the Hosting Services Provider changes, per section 2.2, OUTDOOR ED shall notify Client electronically, as soon as practicable, providing a link to the new Hosting Services Provider’s Agreement, which will replace Exhibit A and constitute an acceptable modification of this Agreement pursuant to section 14.
Hosting Services. Client shall benefit from the services set forth in the Hosting Services Agreement, only for functionalities provided by the Outdoor Ed Software, and shall be bound by the terms of, the Hosting Services Agreement as if Client was the signatory to that agreement (the “Hosting Services”). Accordingly, Client shall have full recourse to the Hosting Services Provider to receive the Hosting Services according to the service levels defined in the Hosting Services Agreement. The availability of the website hosted pursuant to the Hosting Services Agreement (the “Site”) shall be determined in accordance with the terms of the Hosting Services Agreement and this Agreement.
Outdoor Ed Hosting Support Services. In connection with the management of the Hosting Services Provider, OUTDOOR ED will provide the following services:
E-mail support to Client for issues related to Hosting Services during the hours of 8:00 am to 5:00 pm, Eastern time, Monday through Friday (national holidays excepted). This support shall be to a maximum of two (2) Key Users.
A named OUTDOOR ED Support Engineer will act to manage communications and issue resolution between OUTDOOR ED and the Hosting Services Provider.
The OUTDOOR ED Support Engineer, in cooperation with the Hosting Services Provider technical staff, will perform initial software installations and all subsequent upgrades/patches as released and made available by OUTDOOR ED. Upgrades/patches will only be applied in agreement with the Key Users.
The OUTDOOR ED Support Engineer will analyze exceptional and routine monitoring/performance data supplied by the Hosting Services Provider.
To the extent OUTDOOR ED is notified by the Hosting Service Provider, the OUTDOOR ED Support Engineer or Key Users will communicate to Client any planned maintenance, downtime or other issues which may impact service delivery or Client personnel access to the Site.
Payment of Hosting Services Costs. So long as this Agreement remains in effect, Client shall not be charged separately for Hosting Services. Hosting Services costs will be paid by OUTDOOR ED directly to the Hosting Service Provider using a portion of the Use Fees paid by Client to OUTDOOR ED. Client accepts that any changes in the Hosting Services Provider or in the Hosting Services costs, or, requests for additional hosting services or infrastructure will result in additional costs which OUTDOOR ED will pass on to Client by means of an increase in Use Fees. OUTDOOR ED shall notify Client regarding the increase in Use Fees, as soon as practicable.
Commencement of Hosting Services. Following the execution of this Agreement, OUTDOOR ED shall enter into the Hosting Services Agreement to meet such time frames as may be required by the agreed implementation plan to make the OUTDOOR ED Software available to Client.
Term and Termination. This Agreement shall have an initial term of one (1) year, commencing on the Effective Date (the “Initial Term”). Following the Initial Term, this Agreement shall automatically renew for successive one (1) year terms (each, an “Extension Term”), unless and until either party gives written notice of termination to the other party at least sixty (60) days in advance of the last day of the Initial Term or the then-current Extension Term.
Client Responsibility. Client accepts responsibility and liability for any breach of the Hosting Services Agreement as a direct consequence of the actions (or inactions) of Client or its employees or representatives, and further agrees to indemnify, defend and hold OUTDOOR ED harmless from and against any and all consequences of any such breach. In particular, Client agrees to comply with the terms of the Hosting Services Agreement that relate to Acceptable Use (the “Acceptable Use Policy”) and to the Additional Terms as outlined in Exhibit B.
Breaches by Hosting Services Provider. If the Hosting Services Provider should breach its obligations under the Hosting Services Agreement, then OUTDOOR ED shall assign and transfer to Client any right that OUTDOOR ED may have to pursue any claims against such Hosting Services Provider as a result of any such breach. OUTDOOR ED shall cooperate with Client in any resulting litigation, at Client’s cost and expense, but OUTDOOR ED shall not have any obligation to file or initiate a lawsuit against the Hosting Services Provider on Client’s behalf, for Client’s benefit or otherwise. Except as and to the extent expressly set forth in this Agreement, OUTDOOR ED shall not have any liability to Client as a result of a) the termination of the Hosting Services Agreement or b) a breach of the Hosting Services Agreement by the Hosting Services Provider.
Assignment. This Agreement may not be assigned by the Client without the express, prior written consent of OUTDOOR ED.
Proprietary Rights, Client Data, License Grant.
Proprietary Rights. The Parties agree that OUTDOOR ED exclusively owns, and retains ownership of, all right, title, interest and proprietary rights in its patent, trademark, copyright and other intellectual property and materials including but not limited to its logo/mark, methodology and associated trade secrets, technical or business information or other materials (collectively “Proprietary Rights”) in its Software and Hosting and Software Services provided to Client.
Client Data. OUTDOOR ED acknowledges that Client Data inputted into the OUTDOOR ED Software shall remain the sole property of the Client; subject to Client’s grant of a limited, nonexclusive license to OUTDOOR ED to: 1) access and use the Client Data for purposes of performing its Services under this Agreement and 2) for anonymous inclusion in any collective metadata that OUTDOOR Ed may choose, in its sole discretion, to analyze, use, disseminate or publish to third parties and/or to the general public.
License Grant. Subject to Client’s fulfillment of its obligations under this Agreement, OUTDOOR ED grants Client a limited, non-exclusive license to use OUTDOOR ED’s Hosting and Software Services pursuant to the terms of this Agreement.
Client Responsibilities and Obligations and Limits of OUTDOOR ED Services:
Client has voluntarily chosen to use OUTDOOR ED Hosting and Software Services as a means by which to record and store Client Data for itself or its organization. Client acknowledges that use of these Services is not intended to - and will not - encompass every possible inquiry or prompt relevant or beneficial to the Client in its collection and/or future assimilation and analysis of its Client Data. In offering its Services to Client, OUTDOOR ED is simply providing a means for Client to collect, assimilate and analyze its Data included in the OUTDOOR ED Database, for its own purposes; and, if Client chooses, to compare and analyze its Data with other Clients’ Data, as included within OUTDOOR ED’s collective Clients’ Database. Further, Client’s choice to use OUTDOOR Ed’s Services to collect and/or analyze its Data does not guarantee that Client's program/s will be safe, or that those participating in Client's program/s will be free from harm.
In providing Client access to and use of OUTDOOR ED’s Software, OUTDOOR ED is not providing any legal, and/or professional risk management, insurance or other advice to Client, particularly in regard to formulated inquiries or prompts included in the OUTDOOR ED Software. Further, OUTDOOR ED is not reviewing or monitoring the specific content of Client’s Data to make any judgments regarding whether the Data is accurate, acceptable or appropriate: 1) for the Client’s purposes, 2) as compared with other Data in any particular segment of an industry, or 3) as compared with other Clients’ Data included in the OUTDOOR ED collective Database. In addition, Client acknowledges that OUTDOOR ED Software inquiries and prompts may elicit both objective (factual) and subjective (opinion or assessment) responses from Client as it inputs its Data, and that Client’s subjective responses may imply or identify potential responsibility, liability or fault on the part of the Client. Client agrees it is solely responsible for accepting and utilizing the Software to input its Data, and consulting with its legal counsel, representatives and/or consultants to determine what Data to include, when to include it, and how to craft and articulate its responses to the OUTDOOR ED Software inquiries and prompts.
Client recognizes that it is solely responsible for the nature of the Data it inputs into OUTDOOR ED Software, the timing of its Data input, and how, if at all, to follow up, address or respond to Client incidents that form the basis for Client’s Data entered into the OUTDOOR ED Software. Client understands and acknowledges that Client incidents that form the basis of Data that Client inputs into the OUTDOOR ED Software may be the subject of current or future litigation or other formal or informal dispute. Although applicable U.S. or International laws, regulations or case law may protect Client’s Data from discovery by others (e.g.: lawyers seeking information in the context of a formal litigation or arbitration proceeding, or an official governmental request for information), OUTDOOR ED cannot provide any guarantee. Either via a formal request directed to the Client or to Outdoor Ed, this Client Data may ultimately be subject to disclosure, potentially increasing Client’s exposure to legal claims or litigation and resulting financial or other loss. Client should consult with legal counsel and/or other professionals, including but not limited to risk management consultants and insurance representatives, regarding its decision to utilize OUTDOOR ED’s Services, the content and nature of Client Data inputted into the OUTDOOR ED Software, and the handling of any Client incidents that form the basis for Client Data inputted into the OUTDOOR ED Software.
DISCLAIMER: OUTDOOR ED expressly disclaims any and all responsibility and liability (including for negligence) for injury, damage, death or other loss to Client, including its owners, members, managers, officers, directors, employees, agents, representatives, volunteers, contractors or any other person/s or entity/s, related in any way to Client’s failure to heed or comply with the above Section 5 Responsibilities and Obligations and Limits of OUTDOOR ED Services.
CLIENT’S ACKNOWLEDGMENT AND ASSUMPTION OF RISKS AND AGREEMENT TO RELEASE, INDEMNIFY AND DEFEND:
Client acknowledges the risks in voluntarily choosing to use OUTDOOR ED Services and agrees to expressly assume and accept those risks (whether identified or not, disclosed or undisclosed). In addition, to the fullest extent allowed by law, Client agrees to release, indemnify ("indemnify" meaning reimburse by payment or otherwise), defend, and hold harmless OUTDOOR ED, and its owners, members, managers, officers, directors, employees, agents, representatives and volunteers, from and against any and all claims (including claims or allegations of negligence), liabilities, losses, damages, suits, costs and/or expenses (including legal costs and reasonable attorneys' fees) (hereafter collectively "claim" or "claim/s"), made or brought by anyone, for any injury, damage, death or other loss arising out of, resulting from or related in any way to: 1) Client’s use of OUTDOOR ED Services, 2) Client’s input of Client Data into the OUTDOOR ED Software, 3) Client’s compliance or non-compliance with its section 5 Client Responsibilities and Obligations and Limits of OUTDOOR ED’s Hosting and Software Services, and/or 4) Client's, including its owners, members, managers, officers, directors, employees, agents, representatives, volunteers, contractors, or any third parties’ alleged or actual negligence or other wrongful act/s or omission/s.
Limit of Liability; No Other Warranties; Additional Disclaimer.
EXCEPT AS OTHERWISE SET FORTH IN THIS AGREEMENT OR THE HOSTING SERVICES AGREEMENT, OUTDOOR ED SHALL NOT BE LIABLE TO CLIENT FOR ANY DIRECT, INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST REVENUE, LOST BUSINESS, LOST PROFITS, LOST GOODWILL, LOST DATA, LOST USE OF DATA OR OTHER PECUNIARY LOSS, EVEN IF CLIENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL OUTDOOR ED’S TOTAL LIABILITY FOR ANY ACTION UNDER THIS AGREEMENT EXCEED A MAXIMUM OF ONE YEAR’S FEES PAID UNDER THIS AGREEMENT, EVEN IF OUTDOOR ED HAS BEEN ADVISED OF THE CLAIM OR POTENTIAL CLAIM.
TO THE EXTENT NOT PROHIBITED BY LAW, OUTDOOR ED DISCLAIMS ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED OR STATUTORY, OTHER THAN THOSE SET FORTH IN THIS AGREEMENT, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE HOSTING SERVICES, SOFTWARE SERVICES AND ANY OTHER PRODUCTS AND RELATED MATERIALS AND/OR SERVICES PROVIDED TO CLIENT UNDER THIS AGREEMENT. IN ADDITION, EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN AND IN THE HOSTING SERVICES AGREEMENT, OUTDOOR ED MAKES NO REPRESENTATIONS OR WARRANTIES AND HEREBY DISCLAIMS ALL RESPONSIBILITY FOR ANY SITUATION WHERE THE SECURITY, THE AVAILABILITY OR THE STABILITY OF THE HOSTING SERVICES IS COMPROMISED BY (A) CLIENT, (B) THE CONTENT OF THE SITE, OR (C) ANY ACTIONS TAKEN BY OUTDOOR ED OR THE HOSTING SERVICES PROVIDER AT THE REQUEST OF CLIENT.
Indemnification. Client agrees to defend, indemnify and hold OUTDOOR ED and the Hosting Services Provider harmless against any and all Liabilities arising out of any injury to person or property caused by any services provided or products offered, sold or distributed on or through the Site, by virtue of the use of the Hosting Services, or under this Agreement. Each party agrees to defend, indemnify and hold the other Party harmless against any and all Liabilities arising out of (a) any material supplied by either party that infringes or allegedly infringes on the proprietary rights of a third party, or (b) any claim of copyright infringement and/or any defective product offered, sold or distributed on or through the Site.
Additional Terms. Client acknowledges that it is subject to, and bound by, certain other terms imposed by the Hosting Services Provider, as set forth in Exhibit A, and by OUTDOOR ED, as set forth in Exhibit B, as if they were set forth herein. If the identity of the Hosting Services Provider should change, then the terms of Exhibit A may also change. In that event, OUTDOOR ED shall provide Client with an electronic link to the new Exhibit A in connection with the process described in sections 2.2 and 2.3, above.
Force Majeure. Neither party to this Agreement will be in default of its obligations under this Agreement or the Hosting Services Agreement to the extent such performance is delayed or prevented by causes beyond its reasonable control, including but not limited to acts of God, earthquake, flood, embargo, riots, sabotage, utility or transmission failures, fire, labor disturbances, acts of war, acts of terrorism, radiological, nuclear, chemical, or biological attack, or spread of infectious disease, a new and unforeseeable law or court order that prohibits performance or imposes a substantial and commercially unreasonable burden on performance, the unavailability of third-party telecommunications or services (after taking all commercially reasonable steps to provide substitutes therefore), the inability to obtain raw materials, supplies, or power needed herein (after taking all commercially reasonable steps to provide substitutes therefore).
Notices. All notices, requests, demands and other communications required or permitted to be made under this Agreement shall be in writing and shall be deemed duly given if hand delivered against a signed receipt therefor, sent by Federal Express, registered or certified mail, return receipt requested, first class postage prepaid, sent by internationally recognized overnight delivery service, or sent by confirmed electronic mail (with any notices sent by electronic mail to also be sent by one of the other methods set forth in this Section, except as identified in section 14), in each case addressed to the party entitled to receive the same at the addresses set forth in the Ordering Document (or, if no addresses are set forth in the Ordering Document, to the addresses set forth on the first page of this Agreement). Either party may change the address to which communications are to be sent by giving notice of such change of address in conformity with the provisions of this Section providing for the giving of notice. Notice shall be deemed to be effective, if personally delivered, when delivered; if mailed, at midnight on the seventh business day after being sent by registered or certified mail; if sent by nationally recognized overnight delivery service, on the next business day following delivery to such delivery service; and if sent by confirmed electronic mail, on the next business day following transmission (so long as any notices sent by electronic mail are also sent by one of the other methods set forth in this Section).
Severability. If any provision or term (or part thereof) of this Agreement shall be found by any governmental body or court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect the other provisions or terms (or parts thereof) of this Agreement, all of which shall remain in full force and effect.
Enforcement. No failure to exercise and no delay in exercising on the part of a party hereto of any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power or privilege preclude the enforcement of any other right, power or privilege nor shall the waiver of any breach of any provision herein be taken or held to be a waiver of the provision itself. Any waiver to be effective must be in writing and signed by the party to be bound thereby.
Controlling Law and Venue. This Agreement shall be deemed signed in the state of New Jersey and in the event of any dispute between the parties, construed in accordance with the laws of that state, without regard to conflict of laws rules or principles. The parties agree that any dispute between the parties arising under this Agreement or otherwise shall be resolved only (exclusively) in the courts of New Jersey, or, in the case of alternative dispute resolution, in a place of business in New Jersey. This Agreement is intended to be interpreted and enforced to the fullest extent allowed by law.
Complete Agreement, Modification and Survival. This Agreement (and all Exhibits, including the Hosting Services Agreement). reflects the entire agreement between the Parties (superseding all previous agreements, written or oral) regarding the Hosting and Software Services, and shall not be modified or altered in any way, except by written agreement signed by an authorized representative of each of the parties. However, in the case of a change in the Hosting Services Provider, an electronic communication by OUTDOOR ED to Client, providing a link to the new Hosting Services Agreement is an acceptable modification to this Agreement. Pertinent sections of this Agreement shall survive its termination or expiration,
Counterparts; Facsimiles. This Agreement may be executed in counterparts, each of which shall constitute an original and all of which, when taken together, shall constitute one instrument. Copies of executed counterparts transmitted by facsimile or electronic means (e.g. as an attachment to electronic mail) shall be considered original executed counterparts for purposes of this Agreement.
Rules of Interpretation. In this Agreement:
the masculine includes the feminine and the neuter, and the singular includes the plural and vice versa;
references to “including” or “include(s)” shall be deemed to mean, respectively, “including without limitation” or “include(s) without limitation”;
headings are included in this Agreement for ease of reference only and shall not affect the interpretation or construction of this Agreement;
references to sections and Schedules (if any) are, unless otherwise provided, references to sections in and schedules to this Agreement;
in the event and to the extent of any conflict between the terms of this Agreement and the Schedules hereto, the terms of this Agreement shall prevail; and
in the event and to the extent of any conflict between the terms of this Agreement and the Ordering Document, the terms of this Agreement shall prevail.
18. Good Faith, Dispute Resolution, and Costs.
The parties mutually agree to use good faith and reasonable efforts to comply with all Agreement terms, and to address any issues, as they may occur. In addition, the parties agree to attempt to settle any dispute (that cannot be settled by discussion) through mediation before a mutually acceptable New Jersey mediator. If mediation proves unsuccessful, the parties agree to consider the use of arbitration or other alternative dispute resolution techniques. If informal negotiations or mediation fail to settle the dispute, the prevailing Party in any formal litigation or arbitration shall be entitled to all costs, including reasonable attorneys’ fees.