Effective as of January 5, 2021.
THIS AGREEMENT GOVERNS YOUR ACQUISITION AND USE OF OUR SERVICES. BY ACCEPTING THESE TERMS OF SERVICE, BY REGISTERING ON OUR WEBSITE OR BY EXECUTING AN ORDER FORM OR ANY OTHER DOCUMENTATION THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
This Agreement is effective between You and Us as of the date of Your acceptance of this Agreement. The parties hereby agree to the following with respect to Your use, and Our provision, of the Service (as defined below).
1. Introduction. Pursuant to this Agreement, Northstar Education Services, LLC d/b/a Campus Sonar (“Campus Sonar” or “Us”) offers access to seasonal and annual research reports and related services subject to the terms set forth herein.
- Account-Related Information” means contact information, payment information, and biographical information about Customer’s representatives and contacts used for marketing, opening new user accounts to use the Services, and to maintain existing accounts.
- “Customer Content” means data or content Customer submits to Campus Sonar in connection with the use of the Services (not including Account-Related Information). Customer Content shall include, but not be limited to: chats, questions or comments during office hours or webinars, comments to blog posts and emails to Campus Sonar.
- “Documentation” means the technical user documentation provided with the Services.
- “Laws” means all applicable local, state, federal, foreign and international laws, regulations and conventions, including, without limitation, those related to data privacy and data transfer and the exportation of technical or personal data.
- “Order Form” means each quote, order form, or and/or statement of work referencing this Agreement.
- “Personal Information” means any information that identifies, relates to, describes, or is capable of being associated with, or could reasonably be linked, directly or indirectly, to an identified or identifiable living natural person, including but not limited to: (i) identifiers such as a real name, alias, postal address, unique personal identifier, online identifier Internet Protocol address, email address, account name, social security number, driver’s license number, government identification card number, passport number, or other similar identifiers; (ii) any patient, medical records or other protected or regulated health information; (iii) any financial information (including bank account or payment card numbers) or any other information subject to regulation or protection under specific laws or regulations; or (iv) information defined as “personal information,” “personally identifiable information,” “personal data,” or similar expressions under applicable privacy laws or data security Laws.
- “Services” means Campus Sonar’s seasonal and annual research reports and other related offerings as described in the applicable Order Form. Subject to the terms herein, references to the Services also include the Documentation.
3. Access to Services. Customer will purchase and Campus Sonar will provide the specific Services as specified in the applicable Order Form. Customer may access and use these Services during the Term (as defined below) solely for its own benefit and in accordance with the terms and conditions of this Agreement and any scope of use restrictions designated in the applicable Order Form. Customer may not share the Services with any third party. Rather, the Services may only be used for the Customer’s internal use.
4. Permitted Users. Use of and access to the Services is permitted by and only by the number of employees of Customer specified in the applicable Order Form (“Permitted Users”). If Customer is given passwords to access the Services on Campus Sonar’s systems, Customer will require that all Permitted Users keep user ID and password information strictly confidential and not share such information with any unauthorized person. User IDs are granted to individual, named persons and may not be shared. User IDs may only be reassigned to a new Permitted User if the prior Permitted User will no longer use the Services. Customer will be responsible for any and all actions taken using Customer’s accounts and passwords. Customer may not permit individuals serving as its independent contractors, consultants or other individuals who are not employees of Customer to serve as Permitted Users.
5. General Restrictions. Customer will not (and will not permit any third party to): (a) rent, lease, provide access to or sublicense the Services to a third party; (b) use the Services to provide, or incorporate the Services into, any product or service provided to a third party; (c) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs to the Services, except to the extent expressly permitted by applicable law (and then only upon advance notice to Campus Sonar); (d) copy or modify the Services or create any derivative work from any of the foregoing; (e) remove or obscure any proprietary or other notices contained in the Services (including any reports or data printed from the Services); or (f) publicly disseminate information regarding the performance of the Services. Notwithstanding the foregoing, Customer may cite no more than 3 sentences from the Services provided that Customer clearly identifies Campus Sonar as the source for the citation.
6. Customer Content. As between the parties, Customer will retain all right, title and interest (including any and all intellectual property rights) that Customer may have in and to the Customer Content as submitted to or accessed through the Services. Subject to the terms of this Agreement, Customer hereby grants to Campus Sonar a non-exclusive, worldwide, royalty-free right to use, copy, store, transmit, modify, create derivative works of and display the Customer Content solely to the extent necessary to provide the Services to Customer.7. Customer Obligations.
- In General. Customer will ensure that Customer’s use of each Service and all Customer Content is at all times compliant with Customer’s privacy policies and all applicable local, state, federal and international laws, regulations and conventions, including, without limitation, those related to data privacy and data transfer and the exportation of technical or personal data. Customer is solely responsible for the accuracy, content and legality of all Customer Content. Customer represents and warrants to Campus Sonar that Customer has all necessary rights, consents and permissions to collect, share and use all Customer Content as contemplated in this Agreement (including granting Campus Sonar the rights in Section 6), and that no Customer Content will violate or infringe (i) any third party intellectual property, publicity, privacy or other rights or (ii) any Laws.
- No Personal Information. Customer acknowledges that the Services are not designed for use with (and do not require) Personal Information included in Customer Content. Customer specifically agrees not to use the Services to collect, store, process or transmit any Personal Information other than Account-Related Information, and will not submit to the Services any Customer Content containing any Personal Information. Campus Sonar will have no liability under this Agreement for Personal Information included within Customer Content, or any security incident or breach regarding such Personal Information, notwithstanding anything to the contrary herein.
- Customer Content Guidelines. Customer will not use the Services with any Customer Content that (i) is deceptive, fraudulent, illegal, obscene, defamatory, libelous, threatening, harmful to minors, pornographic, indecent, harassing, hateful, religiously, racially or ethnically offensive, that encourages illegal or tortious conduct or that is otherwise inappropriate in Campus Sonar’s sole discretion; (ii) contains viruses, bots, worms, scripting exploits or other similar materials; (iii) could otherwise cause damage to Campus Sonar or any third party; or (iv) sells, solicits, promotes or attempts to sell, solicit or promote Customer’s products or services.
8. Indemnification by Customer. Customer will indemnify, defend and hold harmless Campus Sonar from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with any claim arising from or relating to (a) any Customer Content or acts or omissions of Customer that constitute a breach or alleged breach by Customer of Section 7 (Customer Obligations) or (b) any service or product offered by Customer in connection with or related to the Services. This indemnification obligation is subject to Customer receiving (i) prompt written notice of such claim (but in any event notice in sufficient time for Customer to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, or settlement of such claim; and (iii) all necessary cooperation of Campus Sonar at Customer’s expense. Notwithstanding the foregoing sentence, Campus Sonar may participate in the defense of any claim by counsel of its own choosing, at its cost and expense and Customer will not settle any claim without Campus Sonar’s prior written consent, unless the settlement fully and unconditionally releases Campus Sonar and does not require Campus Sonar to pay any amount, take any action, or admit any liability.
- Campus Sonar Technology. This is a subscription agreement for access to and use of the Services. Customer acknowledges that it is obtaining only a limited right to the Services and that irrespective of any use of the words “purchase”, “sale” or like terms in this Agreement no ownership rights are being conveyed to Customer under this Agreement. Customer agrees that Campus Sonar or its suppliers retain all right, title and interest (including all patent, copyright, trademark, trade secret and other intellectual property rights) in and to the Services, all deliverables and any and all related and underlying technology and documentation and any derivative works, modifications or improvements of any of the foregoing, including as may incorporate Feedback (collectively, “Campus Sonar Technology”). Except as expressly set forth in this Agreement, no rights in any Campus Sonar Technology are granted to Customer. Further, Customer acknowledges that the Services are offered as an on-line, hosted solution, and that Customer has no right to obtain a copy of any of the Services.
- Feedback. Customer, from time to time, may submit comments, questions, suggestions or other feedback relating to any Campus Sonar product or service to Campus Sonar (“Feedback”). Campus Sonar may freely use or exploit Feedback in connection with any of its products or services without the need to pay compensation for any use of such Feedback.
- Usage Data. Notwithstanding anything to the contrary herein, Customer agrees that Campus Sonar may obtain technical data about Customer’s use of the Services that is personally identifiable with respect to Customer (“Usage Data”), and Campus Sonar may use the Usage Data to analyze, improve, market, support and operate the Services and otherwise for any business purpose during and after the term of this Agreement. For clarity, this Section does not give Campus Sonar the right to publicly identify Customer as the source of any Usage Data.
11. Fees and Payment. All fees are as set forth in the applicable Order Form and are due within thirty (30) days from the date of invoice . All fees are non-cancellable and non-refundable. Customer is required to pay any sales, use, GST, value-added, withholding, or similar taxes or levies, whether domestic or foreign, other than taxes based on the income of Campus Sonar. Customer must make all payments without any setoffs, withholdings, or deduction of any kind. Campus Sonar may change the fees in effect or add new fees and charges from time to time. Furthermore, notwithstanding any other provision contained herein (but subject to any applicable law), at the time of any renewal of a subscription, Customer agrees that Campus Sonar may increase Customer’s recurring fees up to the greater of (i) the then list price as publicly marketed on our website, or (ii) five percent (5%). If Customer does not accept the increase or addition to the existing fees, Customer may elect to terminate its account during the then current billing period and Customer shall not be liable for such fee increase after the applicable billing period; however, any later renewal of service will be subject to the increased fee structure.12. Suspension of Service. In addition to any of Campus Sonar’s other rights or remedies (including but not limited to any termination rights set forth herein), Campus Sonar reserves the right to suspend Customer’s access to the Services if: (i) Customer’s account is thirty (30) days or more overdue; (ii) Campus Sonar determines that Customer has breached Section 5 (General Restrictions) or Section 7 (Customer Obligations); or (iii) Campus Sonar determines that suspension is necessary to prevent harm or liability to other customers or third parties, or to preserve the security, stability, availability or integrity of the Services. Campus Sonar will have no liability for taking action as permitted above in this Section. However, unless this Agreement has been terminated, Campus Sonar will reasonably cooperate with Customer to restore access to the Services once it verifies that Customer has resolved the condition requiring suspension.
13. Term and Termination.
- Term. This Agreement is effective as of the Effective Date. Each Service is provided on a subscription basis for a set term designated on the Order Form and unless otherwise provided on the Order Form, will automatically renew thereafter for successive terms of equal length to the initial term unless either party provides the other party with written notice of non-renewal at least sixty (60) days prior to the end of the then-current term (the initial term and each renewal term, a “Subscription Term”). In the event Customer decides to add subscriptions during the Subscription Term, the cost for the additional subscriptions shall be prorated to match Customer’s current Subscription Term.
- Termination for Cause. Either party may terminate this Agreement (including all related Order Forms) if the other party (a) fails to cure any material breach of this Agreement (including a failure to pay fees) within thirty (30) days after written notice; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter).
- Effect of Termination. Upon any expiration or termination of this Agreement, Customer will immediately cease any and all use of and access to all Services (including any and all related Campus Sonar Technology) and delete any Campus Sonar passwords or access codes and any other Campus Sonar Confidential Information in its possession. Provided this Agreement was not terminated for Customer’s breach, Customer may retain and use internally copies of all reports exported from any Service prior to termination. Customer acknowledges that following termination it will have no further access to any Customer Content input into any Service, and that Campus Sonar may delete any such data as may have been stored by Campus Sonar at any time. Except where an exclusive remedy is specified, the exercise of either party of any remedy under this Agreement, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law or otherwise.
15. Limited Warranty and Disclaimers.
- Limited Warranty. Campus Sonar warrants, for Customer’s benefit only, that each Service will operate in substantial conformity with the applicable Documentation. Campus Sonar’s sole liability (and Customer’s sole and exclusive remedy) for any breach of this warranty will be, at no charge to Customer, for Campus Sonar to use commercially reasonable efforts to correct the reported non-conformity, or if Campus Sonar determines such remedy to be impracticable, either party may terminate the applicable Subscription Term and Customer will receive as its sole remedy a refund of any fees Customer has pre-paid for use of such Service for the terminated portion of the applicable Subscription Term. The limited warranty set forth in this Section 15 will not apply: (i) unless Customer makes a claim within thirty (30) days of the date on which Customer first noticed the non-conformity, or (ii) if the error was caused by misuse, unauthorized modifications or third-party hardware, software or services.
- Warranty Disclaimer. EXCEPT FOR THE LIMITED WARRANTY IN SECTION 15(A), ALL SERVICES ARE PROVIDED “AS IS”. NEITHER CAMPUS SONAR NOR ITS SUPPLIERS MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. CAMPUS SONAR DOES NOT WARRANT THAT CUSTOMER’S USE OF ANY SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, NOR DOES CAMPUS SONAR WARRANT THAT IT WILL REVIEW THE CUSTOMER CONTENT FOR ACCURACY OR THAT IT WILL PRESERVE OR MAINTAIN THE CUSTOMER CONTENT WITHOUT LOSS. CAMPUS SONAR WILL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF CAMPUS SONAR. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, WILL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.
- Specific Disclaimers. TO THE EXTENT PERMITTED BY LAW, CAMPUS SONAR IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR ANY OTHER LOSS OR DAMAGE RESULTING FROM (I) THE TRANSFER OF DATA OVER PUBLIC COMMUNICATIONS NETWORKS AND FACILITIES, INCLUDING THE INTERNET, OR (II) ANY DELAY OR DELIVERY FAILURE ON THE PART OF ANY OTHER SERVICE PROVIDER NOT CONTRACTED BY US, AND CUSTOMER ACKNOWLEDGES THAT THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. CUSTOMER ACKNOWLEDGES THAT CAMPUS SONAR CANNOT GUARANTEE THE ABSOLUTE PREVENTION OF CYBER-ATTACKS SUCH AS HACKING, SPYWARE, AND VIRUSES. ACCORDINGLY, CAMPUS SONAR SHALL NOT BE LIABLE FOR ANY UNAUTHORIZED DISCLOSURE, LOSS OR DESTRUCTION OF CUSTOMER DATA ARISING FROM SUCH RISKS AS LONG AS SUCH RISK CANNOT BE ATTRIBUTED TO NEGLIGENCE OR FAILURE ON CAMPUS SONAR’S PART.
- Consequential Damages Waiver. EXCEPT FOR EXCLUDED CLAIMS (DEFINED BELOW), NEITHER PARTY (NOR ITS SUPPLIERS) WILL HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE SERVICES, OR THE DOCUMENTATION FOR ANY LOSS OF USE, LOST DATA, LOST PROFITS, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
- Liability Cap. CAMPUS SONAR’S AND ITS SUPPLIERS’ ENTIRE LIABILITY TO CUSTOMER ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE SERVICES, OR THE DOCUMENTATION AT ANY TIME WILL NOT EXCEED $1 UNDER THIS AGREEMENT.
- Excluded Claims. “Excluded Claims” means any claim arising (a) from Customer’s breach of Section 5 (General Restrictions); (b) under Section 7 (Customer Obligations), Section 8 (Indemnification by Customer) or Section 11 (Fees and Payment); or (c) from a party’s breach of its obligations in Section 17 (Confidential Information) (but excluding claims related to Customer Content).
- Nature of Claims and Failure of Essential Purpose. The parties agree that the waivers and limitations specified in this Section 16 apply regardless of the form of action, whether in contact, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
18. General Terms.
- Assignment. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Customer may not assign this Agreement without the advance written consent of Campus Sonar. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section 18(A) will be null and void.
- Severability. If any provision of this Agreement will be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision will be limited to the minimum extent necessary so that this Agreement will otherwise remain in effect.
- Governing Law; Jurisdiction and Venue. This Agreement will be governed by the laws of the State of Wisconsin without regard to conflicts of laws provisions thereof. All disputes relating to or arising out of this Agreement shall be resolved in a state or federal court located in or encompassing Dane County, Wisconsin, USA, and the parties hereby consent to the jurisdiction of such courts.
- Attorneys’ Fees and Costs. The prevailing party in any action to enforce this Agreement will be entitled to recover its attorneys’ fees and costs in connection with such action.
- Notice. Any notice or communication required or permitted under this Agreement will be in writing to the parties at the addresses set forth on the Order Form or at such other address as may be given in writing by either party to the other in accordance with this Section and will be deemed to have been received by the addressee: (i) if given by hand, immediately upon receipt; (ii) if given by overnight courier service, the first business day following dispatch; (ii) if given by email, when received by the recipient; or (iii) if given by registered or certified mail, postage prepaid and return receipt requested, the second business day after such notice is deposited in the mail.
- Amendments; Waivers. No supplement, modification, or amendment of this Agreement will be binding, unless executed in writing by a duly authorized representative of each party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. No provision of any purchase order or other business form employed by Customer will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement will be for administrative purposes only and will have no legal effect.
- Force Majeure. Except with respect to pay amounts owed hereunder, neither party will be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events that occur after the signing of this Agreement and that are beyond the reasonable control of such party (each, a “Force Majeure Event”), including but not limited to, such an act of God, a strike, blockade, war, act of terrorism, riot, governmental action, natural disaster, epidemic or pandemic, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency.
- Independent Contractors. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.
- Export Control. In its use of the Services, Customer agrees to comply with all export and import laws and regulations of the United States and other applicable jurisdictions. Without limiting the foregoing, (i) Customer represents and warrants that it is not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country, (ii) Customer will not (and will not permit any of its users to) access or use the Services in violation of any U.S. export embargo, prohibition or restriction, and (iii) Customer will not submit to the Services any information that is controlled under the U.S. International Traffic in Arms Regulations.