1. License and Access Rights.
a. License Grant. LeanStream hereby grants to Subscriber a limited, non-exclusive and non-transferable license to access and use the Software Services during the Term solely for the intended purposes as set forth herein, and subject to payment of all applicable fees. Subscriber is not permitted to lease, rent, distribute or sublicense the Software Services or any rights therein. Subscriber also may not install the Software Services on a network server, use it in a time-sharing arrangement or in any other unauthorized manner. Further, no license is granted to Subscriber in the human readable code of the Software Services ("Source Code") or user-specific data provided, collected, stored or maintained in conjunction with provision of the Software Services (“Source Code or Documentation”). Except as provided below, this Subscription does not grant Subscriber any rights to patents, copyrights, trade secrets, trademarks, or any other rights in the Software Services and Source Code or Documentation. This Subscription does not entitle Subscriber to receive any upgrades to or newer versions of the Software Services. Subscriber may not reproduce the Software Services or Source Code or Documentation, except as may be essential for backup or archive purposes.
b. No Modification; No Reverse Engineering. Subscriber agrees not to modify, translate, reverse engineer, decompile, disassemble, or create derivative works of the Software Services or assist someone in performing such prohibited acts.
c. Import/Export Restrictions. Subscriber agrees not to import or export the Software Services or any Source Code or Documentation (or any copies thereof) or any products utilizing the Software Services or any Source Code or Documentation in violation of any applicable laws or regulations of the United States or the country to which Subscriber has imported or exported.
d. Title. Subscriber agrees that LeanStream owns and holds title to the Software Services and any Source Code or Documentation and all content therein and all subsequent copies thereof regardless of the form or media. Furthermore, title, ownership rights, and intellectual property rights in the Software Services and any Source Code or Documentation and content therein shall remain with LeanStream. All Software Services and any Source Code or Documentation are protected by copyright and other intellectual property laws and international treaties.
2. Acceptable Use. The following terms and conditions shall apply to Subscriber’s use of the Software Services:
a. Authorized Users. The Software Services include the use of a web-based platform with features that are available to stakeholders of Subscriber and to the general public. The platform also has features that are password protected or are restricted to Subscriber and persons who are employees, contactors, agents or other persons affiliated with and authorized by Subscriber to utilize such restricted features (the “Authorized Users”). Subscriber shall only provide access to such password protected or restricted features to Authorized Users.
b. Unauthorized Use. Except as is expressly permitted in this Subscription, Subscriber will not and will not authorize any third party to:
i. Modify, translate, reverse engineer, decompile, disassemble, or create derivative works of the Software Services or assist someone in performing such prohibited acts.
ii. Import or export the Software Services or any Source Code or Documentation (or any copies thereof) or any products utilizing the Software Services or any Source Code or Documentation in violation of any applicable laws or regulations of the United States or the country to which Subscriber has imported or exported.
iii. Lease, rent, distribute or sublicense the Software Services or any rights therein.
iv. Install the Software Services on a network server, use the Software Services in a time-sharing arrangement or in any other unauthorized manner.
v. Copy or reproduce the Software Services and Source Code or Documentation, except as may be essential for backup or archive purposes.
3. Data Rights.
a. Subscriber Data. Subscriber represents that it owns or has permission to use all electronic data submitted by or on behalf of Subscriber to the Software Services Database (“Subscriber Data”). Subscriber hereby grants to LeanStream a non-exclusive, worldwide, royalty free, fully paid, sublicensable right and license to copy, display and crate derivative works of and use the Subscriber Data to perform LeanStream’s obligations under this Subscription. Subscriber also grants to LeanStream a non-exclusive, worldwide, royalty free, fully paid, perpetual and irrevocable license to de-identify, anonymize, process and create derivative works of Subscriber Data for the purpose of deriving anonymous statistical and usage data and data related to the use and functionality of the Software Services provided that such data cannot be used to identify Subscriber or its Authorized Users (“Anonymous Data”) and combining such Anonymous Data with or into other similar data and information available, derived or obtained from other Subscribers, licensees, users or other sources for the purpose of improving the Software Services and developing and commercializing improvements, new features, products and services, including generating statistics for marketing purposes. Subscriber represents and warrants that it has all necessary rights and permissions to grant the licenses granted in this Section.
b. User Data. User data that is provided by users of the Software Services may be used by LeanStream and by Subscriber for any lawful purpose, consistent with any applicable Data Usage or Privacy Policies of the respective party using the data.
a. Software Services Warranty. LeanStream represents and warrants that, during the Term, the Software Services will include the functionality set forth in the published specifications or SLA(s) for the Software Services. As Subscriber’s sole and exclusive remedy for any breach of the foregoing limited warranty, LeanStream will either, in its discretion, use commercially reasonable efforts to remedy the non-conformity within a commercially reasonable period of time or terminate the Subscription and refund a pro-rata amount of any pre-paid License fees for the remaining unused Term. The warranties set forth above shall not apply to any nonconformities resulting from Subscriber’s or its Authorized Users’ acts or omissions or their non-compliance with this Subscription or from any hardware, software, networks, data, materials or other products not developed or provided by LeanStream.
b. No Warranties. EXCEPT AS IS OTHERWISE SET FORTH ABOVE, LEANSTREAM MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF THIRD PARTIES' RIGHTS. TO THE FULL EXTENT PERMITTED BY LAW, THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE ABOVE LIMITED WARRANTY PERIOD. MOREOVER, IN NO EVENT WILL WARRANTIES PROVIDED BY LAW, IF ANY, APPLY UNLESS THEY ARE REQUIRED TO APPLY BY STATUTE NOTWITHSTANDING THEIR EXCLUSION BY CONTRACT. NO DEALER, AGENT, OR EMPLOYEE OF LEANSTREAM IS AUTHORIZED TO MAKE ANY MODIFICATIONS, EXTENSIONS, OR ADDITIONS TO THIS LIMITED WARRANTY.
5. Intellectual Property.
a. Ownership of Software Services. LeanStream owns and reserves all Intellectual Property Rights in the Software Services. Subscriber has no claim of ownership in any of the Intellectual Property Rights in the Software Services. LeanStream shall retain the right to reuse or incorporate any and all elements of Software Services, whether previously developed or developed pursuant to or in conjunction with this Subscription.
b. Transferability. Except as otherwise provided in this Subscription, Subscriber may not engage in any of the following without the prior written consent of LeanStream:
i. sell, license or sublicense the Software Services;
ii. create or permit links to the Software Services from any other website;
iii. otherwise permit access to or use of the Software Services by any means through the Internet or otherwise.
iv. transfer, sell, donate, pledge as security, license or sublicense this Subscription or any of Subscriber's rights or obligations hereunder, in whole or in part.
6. Confidentiality, in General.
a. Proprietary Information. Both Parties acknowledge that during the performance of this Subscription, Proprietary Information of a party (the "Disclosing Party") may be disclosed to the other party hereto (the "Recipient"). Recipient acknowledges and agrees that the Proprietary Information includes without limitation Software Services, the terms and conditions of this Subscription, business and financial information of the Disclosing Party and pricing and sales information. The Proprietary Information shall remain the sole and exclusive property of the Disclosing Party and disclosure of the Proprietary information to Recipient does not confer upon Recipient any license, interest, or rights of any kind in or to the Proprietary Information, except as provided under this Subscription. The obligations set forth in this Section do not apply if and to the extent Recipient establishes that: (i) the information disclosed to Recipient was already known to Recipient without obligation to keep it confidential at the time of its receipt; (ii) Recipient received the information in good faith from a third party lawfully in possession thereof without obligation to keep such information confidential and without requiring Recipient to keep the information confidential; (iii) the information was publicly known at the time of its receipt by Recipient or has become publicly known other than by a breach of this Subscription; or (iv) the information is required to be disclosed by applicable statute or regulation or by judicial or administrative process, provided that with respect to all of the foregoing, Recipient shall use reasonable efforts under the circumstances to notify the Disclosing Party of such requirements so as to provide the Disclosing Party the opportunity to obtain such protective orders or other relief as the compelling court or other entity may grant. For the purposes of this Subscription, (i) "Proprietary Information" means Trade Secrets and Confidential Information; (ii) "Trade Secrets" means trade secrets as defined under Alabama law, as may be amended from time to time; and (iii) "Confidential Information" means information that is of value to the Disclosing Party and is treated as confidential other than Trade Secrets. Notwithstanding anything in this Subscription to the contrary, it is understood and agreed that Subscriber is, and therefore Subscriber may be, subject to pertinent public records laws.
7. Confidentiality, Student Information/FERPA Compliance.
a. General. LeanStream acknowledges the need to protect personal identifying information and other information regarding Subscriber’s students. LeanStream will ensure that its employees and all persons providing services hereunder will protect all such information from disclosure without the written consent of students and parents/guardians and will comply with all federal and state laws and regulations pertaining to protection of student information.
b. School Official. More specifically, LeanStream acknowledges that the Subscriber has designated LeanStream as a "school official" with “legitimate education interests" in the information of students whose records are being shared under the terms of this Subscription, for purposes of the Family Educational Rights and Privacy Act (FERPA). Furthermore, LeanStream "acts for" and is an agent of the Subscriber only for the limited purpose of LeanStream's receiving protected information within the bounds of FERPA and other applicable federal law and regulations. Nothing in this Subscription is to be construed as establishing an agency relationship between LeanStream and the Subscriber for any purpose other than as set out in this paragraph. LeanStream agrees that it will not use or allow anyone to obtain access to personally identifiable information from education records except in strict accordance with the Subscriber's Student Education Records policy.
8. Publicity. Authorization, Use of Subscriber Logo(s). Subscriber authorizes LeanStream, its employees, agents, contractors, designees and assigns, to obtain and to display, print, copy, and/or otherwise utilize the Subscriber’s logo(s) (“Logos”) for the sole purposes of; (a) facilitating LeanStream’s ability to satisfy its service/performance obligations contemplated herein, and (b) reducing administrative burden on the Subscriber by formally engaging and authorizing LeanStream to support marketing and advertising measures related to this Subscription. LeanStream shall utilize the Logos in conjunction with the scope of its obligations as defined throughout this Subscription. During the term of this Subscription, LeanStream may (a) display the Logos on its LeanStream website and/or (b) ‘co-brand’ marketing and advertising deliverables (in both digital and print file format) promoting the Subscriber’s use of Software Services. This authorization shall not be construed to and shall not serve to convey ownership of the Logos to LeanStream or to any other party.
9. Limitation on Liability; Release, Waiver.
a. Limitation on Liability. NEITHER PARTY HERETO NOR ANY OF THEIR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SHAREHOLDERS, OR OTHER REPRESENTATIVES SHALL BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGE (INCLUDING WITHOUT LIMITATION LEGAL EXPENSES AND ATTORNEY'S FEES), LOSS OF PROFITS, LOSS OF DATA OR LOSS OF GOODWILL ARISING OUT OF THE SUBJECT MATTER OF THIS SUBSCRIPTION, REGARDLESS OF THE NATURE OF THE CLAIM OR ACTION, EVEN IF THAT RESPECTIVE PARTY HAS BEEN NOTIFIED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES. EITHER PARTY'S TOTAL, AGGREGATE LIABILITY ARISING OUT OF THE SUBJECT MATTER OF THIS SUBSCRIPTION DURING THE CURRENT YEAR OF THE TERM, REGARDLESS OF THE NATURE OF ANY AND ALL CLAIMS, SHALL NOT EXCEED THE FEES AND PAYMENTS RECEIVED BY LEANSTREAM FROM THE SUBSCRIBER PURSUANT TO THIS SUBSCRIPTION DURING THE APPLICABLE YEAR OF THE TERM.
b. Limitation on Damages. In no event shall the Subscriber or any of its members, officers, employees, agents, or servants be liable to LeanStream for any direct or indirect, special, consequential, or incidental damages or lost profits or punitive damages, arising out of or related to this Subscription, or to the performance of or breach of any provision hereof.
c. No Limitation on Immunity or Other Defenses. Nothing in this Subscription may be construed to limit in any way any immunity afforded to the Subscriber and its members, officers, employees, agents or servants pursuant to federal or state constitutional, statutory, or common law. Nothing in this Subscription may be construed to limit any defense available at law or in equity to the Subscriber and its administrators, officers, employees, agents or servants.
10. Fees, Invoicing and Remittances.
a. Platform License. Platform license fees shall be outlined in and agreed upon via the Subscription & Services Agreement.
b. Transaction & Other Fees. Transaction and other associated fees shall be outlined in and agreed upon via the Subscription & Services Agreement.
c. Subscriber Retention. Subscriber retention requirements shall be outlined in and agreed upon via the Subscription & Services Agreement.
d. Disputes. Subscriber shall notify LeanStream in writing of any disputed fees within fifteen (15) days of Subscriber’s receipt of the corresponding invoice, setting forth in reasonable detail the basis for the dispute. LeanStream will review and resolve any dispute raised by Subscriber within thirty (30) days of receipt of such notice. If the parties determine that Subscriber owes any portion of the disputed amount, Subscriber will have fifteen (15) days to remit payment.
e. Non-Payment. Subscriber understands and agrees that failure to pay amounts due in accordance with this Subscription shall afford LeanStream the right to suspend access to Software Services until such non-payment is cured.
11. Term and Termination.
a. Term. This Subscription shall commence upon the date of execution by the latest of the parties to execute the Subscription (the “Effective Date”) and shall continue in effect until terminated pursuant to the Termination section below.
b. Termination. This Subscription may be terminated by either party by providing thirty (30) days’ written notice to the other party. In addition, this Subscription may be terminated at any time by mutual, written consent of both parties. In the event of termination, LeanStream shall be paid any and all amounts due under this Subscription for services which have already been performed, or for services which will be performed pursuant to this Subscription between the termination notice date and the effective termination date.
12. Other Provisions.
a. Independent Contractor, No Agency. It is mutually agreed and understood by the parties to this Subscription that, except as provided in the Confidentiality, Student Information/FERPA Compliance paragraph and other pertinent provisions herein:
i. The services of LeanStream are retained on an independent contractor basis;
ii. Subscriber asserts no control or reserved right of control over the activities of LeanStream or the officers, directors, employees, servants, agents, or subcontractors of LeanStream;
iii. All officers, directors, employees, servants, agents, and subcontractors of LeanStream are selected, employed and terminated exclusively by LeanStream, shall not be agents or employees of the Subscriber and shall not make a claim for any benefit that is conferred upon an employee of the Subscriber including, but not limited to, status under the Students First Act of Alabama (as applicable);
iv. Neither party is authorized to act as an agent for, or legal representative of, the other party; and
v. Unless otherwise authorized, neither party shall have the authority to assume or create any obligation on behalf of, or in the name of, or binding upon, the other party.
b. Notices. Any notice required or allowed to be delivered hereunder shall be in writing and shall be deemed to be delivered when either (1) hand-delivered to the party's representative below, or (2) when deposited in the United States Mail, postage prepaid, certified mail, return receipt requested, to the party's representative below, at the address set forth herein, or at such other address as a party hereto shall have specified by written notice to the other party hereto delivered in accordance herewith.
If to Subscriber:
Notices to Subscriber shall be made to the address posted on Subscriber's website and/or via electronic mail to the signor (or signor's office) of the Subscription & Services Agreement.
If to LeanStream:
LeanStream Resource Partners LLC
4950 Corporate Drive NW, Suite 115
Huntsville, Alabama 35805
c. Insurance. LeanStream shall, at its own expense, carry and maintain liability insurance providing coverage for bodily injury, personal injury, property damage, motor vehicle operations, and as otherwise required for all activities authorized under this Subscription. Minimum limits of insurance shall be at least $1,000,000 in the aggregate. All such insurance shall be procured from companies with ratings of “A” or above in A.M. Best's Ratings. LeanStream will keep all such coverage in full force and effect for the duration of this Subscription and all extensions hereof. LeanStream shall furnish to the Subscriber Certificates of Insurance upon each policy evidencing all of the aforementioned types and limits of insurance to be in effect, properly executed by an authorized representative of the insurer authorized to do business in the State to the Subscriber’s designee upon request. Further, LeanStream shall not allow the liability insurance to lapse without sixty (60) days' prior written notice to the Subscriber. LeanStream acknowledges and agrees that failure to maintain the required insurance coverage shall be grounds for immediate termination of this contract by the Subscriber.
d. Authority. LeanStream represents and warrants to the Subscriber that (a) LeanStream is a duly organized limited liability company validly existing and in good standing under the laws of the State of its formation, (b) LeanStream is authorized to do business in the state where Subscriber is located, (c) the person executing this Subscription on behalf of LeanStream has full power and authority to execute and deliver this Subscription to the Subscriber, and (d) this Subscription constitutes the valid and legally binding obligation of LeanStream, enforceable in accordance with its terms and conditions.
e. Amendment. This Subscription may be amended only by an instrument in writing signed by the parties hereto.
f. Time is of the Essence. Time is of the essence in the performance of the terms and conditions of this Subscription.
g. Assignment. The Parties may, upon written consent of the other party, assign any or all of their respective rights or may delegate any or all of their respective performance obligations due hereunder.
h. Legal Construction. Should any one or more of the provisions contained in this Subscription for any reason be held to be invalid illegal, or unenforceable in any respect, this invalidity, illegality or unenforceability shall not affect any of the other provisions of this Subscription and this Subscription shall be construed as if the invalid, illegal, or unenforceable provision had never been contained in it. Any ambiguities in this Subscription, or any amendment or exhibit hereto, shall not be resolved against the drafter but shall be construed in accordance with their fair meaning. The parties hereto additionally acknowledge that each party and its counsel have had the opportunity to review and revise this Subscription.
i. Choice of Law, Jurisdiction and Venue. It is expressly agreed and stipulated that this Subscription shall be deemed to have been made and to be performable in the State of Alabama, County of Madison, and all questions concerning the validity, interpretation, or performance of any of its terms or provisions, or of any rights or obligations of the parties hereto, shall be governed by and resolved in accordance with the laws of the State of Alabama. Venue and jurisdiction for any action related to this Subscription shall be proper only in the State or Federal Courts located in Huntsville, Alabama.
j. Successors and Assigns. This Subscription shall be binding upon and shall inure to the benefit of LeanStream and the Subscriber and their respective successors, heirs, or assigns, as the case may be.
k. Compliance with Applicable Laws. LeanStream will comply with the requirements of all applicable laws, statutes, ordinances, rules, regulations and orders of all governmental authorities.
l. Headings. The headings in this Subscription are inserted for convenience only and shall not be used to define, limit or describe the scope of this Subscription or any of the obligations herein, and shall be of no effect in the construction of this Subscription.
m. Third Parties. Nothing in this Subscription shall be construed to create in any third party in favor of any third party any rights, licenses, powers, privileges or remedies. Nothing in this Subscription shall be construed to create, impose, or give rise to any duty of a party hereto to a non-party to this Subscription.
n. Survival. The representations, warranties and covenants contained or made in the Subscription shall survive the expiration or termination of this Subscription, and the performance of the work contemplated by this Subscription, for the maximum period allowed by law.
o. Waiver. The waiver by a party hereto of a breach or violation of any provision of this Subscription shall not operate as, nor be construed to be, a waiver of any subsequent or other breach or violation of that provision, or of any other provision(s) of this Subscription.
p. Default. It shall be an event of default hereunder if either party breaches a term or provision of this Subscription and fails to cure such breach within fourteen (14) days after receiving written notice from the other party of such breach.
q. Force Majeure. The parties' obligations under this Subscription are subject to, and neither party shall be liable for, delays or failure to perform caused by or due to fire, flood, water, weather events, labor disputes, power outages, civil disturbances, pandemic or any other cause beyond the party's reasonable control.
r. Non-Exclusive Agreement. This Subscription Agreement is wholly non-exclusive and Subscriber is free to enter into other contracts, agreements, or arrangements with similar providers of fundraising, e-commerce, connectivity or related solutions at will and without limitation, whether Subscriber has so chosen to enter into such other agreements or not. Similarly, LeanStream is free to enter into other contracts, agreements, or arrangements with other entities, companies, agencies or persons at will and without limitation.
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