Administrative Tracking Applications License and Useage Agreement
ARTICLE 1:Definitions
The following definitions apply to the following terms:
ATA means Administrative Tracking Applications, a Limited Liability Company with
offices at P.O BOX 9871, Birmingham, Alabama 35220
RT means Reveal Technologies, a Limited Liability Company with offices at 300
Riverchase Parkway East, Birmingham, Alabama 35244
“Authorized Users” means the
faculty, staff, teachers, administrators and other persons that
are part of Customer’s institution.
The “Content” – Certain proprietary content for
use with the Program.
Such Content is the property of ATA or its Content partners.
“Customer
Data” means data provided by
Customer and its Authorized Users or created through Customer’s
utilization of the Program and Content, including assessment
results.
Customer's Invoice refers
to the actual invoice provided for service rendered as well as any
supporting documentation provide during the sign up
process.
The “Host Server” means a computer server or servers
maintained at ATA’s hosting site, whether owned or operated by ATA or its
contractor.
The “Program” means the edOpsTM managment
solution and documentation (exclusive of Content). The term “Hosted
Program” may be used when referring to the Program as operating on the
Host Server.
The “Support Coordinator” shall be Customer’s designated
employee or contractor to provide first line support to Authorized Users and to
communicate with RT and/or ATA for resolution of technical problems regarding
the Program that cannot be resolved by the System Administrator.
The “System” means the Host Server, the Hosted Program and
the Content.
The “System Administrator” shall be Customer’s designated
employee or contractor who is primarily responsible
for communication with RT and/or ATA and for coordinating
Customer's operation of the Program.
The “ATA Material” -
The Program and
Content.
Effective Date
- The date on which the last of
the following occurs: (1) RT
and/or ATA receives Customer's deposit described in Customer's invoice;
and (2) this Agreement has been executed by
logging in to the system.
ARTICLE 2: Program Installation
ATA shall be responsible for installation of the Program on the
“Host Server. Upon installation, ATA will demonstrate
to Customer’s System Administrator that the Hosted Program performs
substantially as described in the ATA documentation that is available within
the Program. Upon such demonstration, the Program will be
deemed operational and accepted as of such date (the “Program Availability
Date”). Should Customer not make its System Administrator or
other authorized representative available for such demonstration within five
(5) days of notice of installation by ATA, the Program will be deemed installed
and accepted for purposes of this Agreement.
ARTICLE 3:
Hosting Services
In
consideration of the fees paid by Customer, ATA shall maintain the
Hosted Program, Content and associated Customer Data on the Host
Server during the term of this Agreement. ATA will maintain an internet
connection for the Host Server to permit internet access via the
Customer Domain to the System and Customer Data. The System cannot store
Customer Data that is more than one year old on the Host
Server.
ATA will use reasonable efforts to provide Customer with access to the
System at all times other than regularly scheduled maintenance windows. Customer
acknowledges that access may be interrupted due to the limitations imposed by
the internet generally, due to actions by ATA’s or Customer’s internet service
provider, or due to occasional unscheduled maintenance by ATA.
ARTICLE
4: Grant of Object Code
Use License
Subject to the
terms and conditions of this Agreement, ATA hereby grants to
Customer and Customer hereby accepts
non-exclusive, non-transferable license to access the Host Server
via Customer Domain and utilize the Hosted Program and Content
solely for the internal use of Customer .
Customer shall not permit use or access by entities other
than Customer and its Authorized Users.
Except to the
extent inherent in the use of the ATA Material for online test
administration and reporting, no copies of any ATA Material may be
made. Customer may not operate a revenue producing
service, including without limitation any subscription-based
service, under this Agreement without the express written consent
of ATA. Customer may not
access the Host Server for any purpose other than utilization of
the Hosted Program.
ARTICLE
5:Title to and Ownership of the
Program and Program Modifications
ATA represents
and warrants that it has sufficient rights in the Host Server and
the ATA materials to grant the rights which are granted to
Customer under this Agreement.
The parties agree that the
ATA Material constitutes
valuable property, proprietary information and trade secrets of
ATA, whether or not any portion of the ATA Material is or may be copyrighted or patented. Apart from the rights
regarding Authorized Users, this Agreement does not include a
grant to Customer of any right to sublicense the ATA Material or
to make any use of the Host Server other than that described in
Article 4. This Agreement
does not grant to Customer any ownership right, title or interest,
nor any security interest or other interest, in the Host Server,
in any intellectual property rights relating to the ATA Material
nor in any copy of any part of the ATA Material. All rights to the ATA Material
not specifically granted to Customer under this agreement are
reserved to ATA and its licensors.
Customer agrees that modifications,
customizations and enhancements of the Program, prepared in whole
or in part by ATA, shall belong solely and exclusively to ATA;
provided, however, that any such modifications, customizations or
enhancements made by ATA at the request of, and paid for by,
Customer shall be licensed hereunder to Customer by ATA as part of
the Program.
ARTICLE
6:Customer's Responsibilities
Customer agrees
to accept full responsibility for the selection, implementation
after installation, use of the Program and Content, and its
interpretation of any assessment results to achieve Customer's
intended results. Customer
hereby absolutely and unconditionally agrees to indemnify and
defend ATA and/or RT and to hold ATA and/or RT harmless from and
against any and all claims, liabilities, costs, and damages
arising, made, incurred, or suffered, directly or indirectly, by
any person from or in connection with Customer's use of the
System.
Customer shall
appoint and give notice to RT of the identity of the System
Administrator and Support Coordinator. The Customer may also appoint
other staff members to act as trainers for Authorized Users. Provided Customer has purchased
such training as indicated on Customer’s Invoice, ATA and/or RT
will provide training for all Customer-appointed staff, subject to
class size limitations.
Customer shall
not, and shall not permit Authorized Users to, use the System for
the storage or distribution of material that infringes any
proprietary rights of a third party, that is libelous, obscene or
pornographic, that interferes with the ability of other customers
of ATA to use their Host Server, that contains any virus, worm or
similar unauthorized code, that violates any requirement of law,
or that in ATA’s reasonable judgment is offensive or otherwise
harmful to ATA and/or RT or their customers. ATA shall have the right to
delete any such materials and to suspend, or to require Customer
to suspend, the responsible Authorized User’s access to the
System.
ARTICLE
7:
Non-Disclosure
ATA and/or RT
agrees not to release Customer Data to any other person, firm,
corporation, institution or other third party except as
specifically authorized in writing by Customer. Customer acknowledges that ATA
and/or RT staff and contractors may have limited access to
Customer Data to the extent required for performing ATA and/or
RT’s obligations under this Agreement. ATA will make reasonable
efforts to ensure the security of Customer Data, but Customer
acknowledges that internet-accessible data cannot be rendered
completely secure.
Customer agrees
not to transfer, distribute or disclose the Program, Content or
any part thereof, or any information or materials related thereto,
to any other person, firm, corporation, institution or other third
party except as specifically authorized in writing by ATA. Customer shall use all
reasonable efforts to confine knowledge and use of the Program and
Content solely to its Authorized Users who require such knowledge
and use thereof in the ordinary course and scope of their
relationship with the Customer.
Customer
further agrees that it will not make, or have made, any copies of
the Program or part thereof.
The provisions of this Article 7 shall apply to any
material or information related to the Program provided to
Customer prior to the execution and during the term of this
Agreement.
Customer must
provide immediate written notice to ATA of any unauthorized
use or disclosure of the System or the ATA Material of which it
becomes aware.
ARTICLE 8:
Defense of Infringement Actions
Subject to the terms and conditions of this Article 8, ATA will defend any
action brought against Customer, and pay any resulting settlement or award, to
the extent that such action is based on a claim that the ATA Material
infringes upon the U.S. patent, copyright, trademark or trade secret rights of
any third party when used as provided for by this Agreement. ATA
shall be so obligated only if Customer notifies ATA promptly in writing of
any such claim, permits RT to control its defense and settlement, and provides
reasonable assistance to ATA. If Customer’s use of the
ATAMaterial or any part thereof is prevented by injunction or court order
because of a purported infringement, ATAwill, at its election, provided that
Customer is not in default of any payment obligations hereunder, at no cost or
expense to Customer either (i) replace the infringing material with a
functional equivalent system which is free of infringement, (ii) modify the
infringing material so that it becomes non-infringing, (iii) procure for
Customer the right to continue using the infringing material, (iv) if in ATA’s
reasonable judgment the infringing material constitutes a non-essential portion
of the ATA Material, promptly remove the infringing material and refund to
Customer a pro rata portion of the amounts paid for ATA Material by Customer
over the preceding twelve (12) months or, if shorter, the period from the date
hereof until such removal, or (v) promptly remove the ATA Material in its
entirety from the place of installation and refund to Customer all sums paid
for the ATA Material by Customer over the preceding twelve (12) months or, if
shorter, the period from the date hereof until such removal. The
obligations of ATA set forth in this Article 8 shall not apply if any
infringement or claim of infringement of the RT Material is caused by or
results from any modification of the ATA Material other than by ATA or the use
of the ATA Material in combination with equipment or software not
approved by ATA, and such infringement would not have existed but for such
design, modification or combination. The foregoing is Customer’s exclusive
remedy for, and states the entire liability of ATA with respect to,
infringement or misappropriation of any proprietary rights by the ATA Material.
ARTICLE 9: Support and Maintenance
Upon the
expiration of the warranty period set forth in Article 10, ATA
shall provide Customer with the following support and maintenance
services with regard to the Program only (“Support”).
Hotline:
Reasonable telephone, fax, and email support, on ATA
business days between the hours of 9:00am and 4:30pm Central
Standard Time. Customer
must designate a Support Coordinator and System Administrator to
be the sole points of contact with ATA and to provide direct
support to Authorized Users.
Program
Maintenance:
Updates, modifications and other changes to the Program
periodically released as a standard release of the hosted Program
will be incorporated into the Hosted Program.
Error Correction:
In the event of a material
defect in the Program which does not permit the Program to operate
substantially in accordance with the ATA documentation, ATA shall
perform the services described in Article 10 (subject to all
conditions, exclusions and limitations therein) provided
that: (1) Customer
fulfills the obligations set forth therein; (2) the malfunctions
are reported to ATA in detail, in writing.
ARTICLE
10: Limited Warranty for
the Program
For a period of
ninety (90) days from the Program Availability Date, ATA warrants
that the Hosted Program shall be free from material defects and
shall operate substantially in accordance with the then-current
ATA documentation. ATA
will, at ATA’s option, either replace or repair the defective
Program at no charge to Customer provided ATA is promptly notified
in writing upon Customer's discovery of the defects, and further
provided that ATA's examination of the Program confirms (a) that
such defects exist and (b) that the Program has not been: (1)
altered or modified by or on behalf of Customer; (2) subjected to
negligence or Equipment or electrical malfunction; or (3) used or
adjusted in a manner inconsistent with written instructions
provided by RT to Customer hereunder. In the event that RT is unable
to confirm (a) and (b) above, Customer shall be invoiced for the
services rendered by ATA at its then-current rate for such
services.
ATA shall
deliver any corrections to the Hosted Program in the form of an
updated individual Program or in the form of updated releases of
the Program. Such updates
may also include other changes and revisions that have been made
to the Program by ATA.
Incorporation into the Hosted Program of all such
corrections and updates shall be the responsibility of ATA.
Exclusions
The warranty
provided herein excludes any malfunction of the Hosted Program
occurring for reasons not connected to the logic of the System or
for reasons not under the control of ATA, and does not apply to
the Content. Customer
understands that use of the Hosted Program requires Customer to
utilize Customer’s own internet connection and Internet Explorer
5.0+ or Netscape 5.0+ as a graphical user interface. The parties acknowledge and agree that, due
to the complex nature of computer programs, it is impossible to
ensure that the Hosted Program will be error-free. ATA DELIVERS THE CONTENT
“AS IS”, AND THE USE AND OUTCOME OF SUCH USE SHALL BE THE SOLE
RESPONSIBILITY OF CUSTOMER.
DISCLAIMER
THE WARRANTIES
PROVIDED BY ATA IN ARTICLE 5 AND THIS ARTICLE 10 ARE THE ONLY
WARRANTIES PROVIDED BY ATA OR ITS LICENSORS WITH RESPECT TO THE
SYSTEM. SUCH WARRANTIES
ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING
ANY IMPLIED WARRANTY OF NONINFRINGEMENT, MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE SYSTEM, USER
MANUALS AND COLLATERAL MATERIALS.
ATA DOES NOT WARRANT THAT THE SYSTEM WILL OPERATE WITHOUT
INTERRUPTION, THAT THE SYSTEM’S FUNCTIONS SHALL BE ERROR-FREE OR
THAT THE SYSTEM IS FREE OF VIRUSES OR OTHER HARMFUL
COMPONENTS. THE REMEDIES
PROVIDED IN ARTICLE 8 AND THIS ARTICLE 10 ARE THE SOLE REMEDIES
FOR ANY BREACH OF THE WARRANTIES PROVIDED HEREIN.
ARTICLE
11: Limitation of
Liability
Except with
regard to ATA’s liability under Article 8, Customer agrees that
ATA's liability to Customer for any loss, injury, damage or
expense arising directly or indirectly under this Agreement or the
products or services provided hereunder, shall not exceed the
amount paid by Customer to ATA for the Program under this
Agreement. Under no
circumstances and notwithstanding any failure of essential purpose
of any limited remedy shall ATA be liable for costs of
procurement of substitute products or services, or for any
indirect, incidental, punitive, special or consequential damages,
whether based upon contract, tort, or any other legal theory,
including, but not limited to, loss of data, any lost profit or
third party claims against Customer arising from ATA's performance
or non-performance under this Agreement.
No action,
except actions for non-payment or breach of Article 7, arising out
of this Agreement may be brought by either party more than one (1)
year after the date of the alleged breach.
ARTICLE
12: Pricing and Terms of
Payment
The prices and
terms of payment for the ATA Materials and ATA’s services are
set forth on Customer's Invoice.
Reimbursement of travel and living expenses incurred in
connection with services provided at Customer’s site shall be due
as incurred, and shall be in accordance with ATA’s reimbursement
policy. ATA may from
time to time change the prices with regard to any term of
this Agreement not already paid for by Customer.
Customer shall
be subject to payment of a late fee of one-and-one-half percent
(1.5%) per month or part thereof, for any invoiced amount not paid
within thirty (30) business days from the due date. In the event of non-payment of
an invoice within such period, ATA may, in addition to other
rights and remedies under this Agreement and in law, suspend any
or all services and terminate this Agreement, in whole or in part,
without prior notice to Customer.
If ATA is required to bring legal action for recovery of
any amounts due hereunder, Customer agrees to be responsible for
the payment of reasonable attorneys’ fees and costs incurred by
ATA.
ARTICLE
13: Term and Termination
The license term shall commence on the Program Availability Date, and shall
continue for the period specified on Customer's Invoice year unless
sooner terminated as provided herein. Upon expiration of the
initial and any subsequent terms, this Agreement shall automatically renew for
additional one (1) year periods at ATA’s then-current license fees, unless
either party provides written notice to the other of its intent not to renew at
least sixty (60) days prior to the end of the then-current term.
Termination for Default or
Bankruptcy
ATA shall
have the right to terminate this Agreement without further
obligation or liability by written notice to Customer in the event
that Customer is in default regarding any material term
hereof (other than those of Article
7), and such default is not cured within thirty (30) days
of notice to Customer of such default. In
the event that Customer fails to perform any of its obligations
under Article 7, ATA may, at its option, terminate this Agreement
immediately upon notice to Customer.
Either party
may terminate this Agreement without prior notice upon an act of
bankruptcy by or against the other party, if the other party is
insolvent and unable to pay its debts as they mature, upon
assignment for the benefit of creditors, or upon dissolution of
the other party's business.
Return of the ATA Material
In the event of
any termination of this Agreement, Customer shall within thirty
(30) days return to ATA the original and all existing copies of
any ATA Material, together with all related material provided by
ATA, in Customer's possession or control, and will furnish to ATA
a written statement certifying that all such materials have been
returned.
ARTICLE 14:
General
Entire Agreement; Governing Law and
Forum
This Agreement,
including its Exhibits and Schedules, constitutes the entire
understanding between Customer and ATA with respect to its subject
matter, superseding all prior or contemporary agreements,
understandings and representations whether written or oral, and
shall be construed and governed by the substantive laws of the
State of Alabama, without reference to its principles of conflicts
of law. Federal and state
courts located in Birmingham, Alabama shall have exclusive
jurisdiction over any action by the parties arising under this
Agreement.
Notices
Any notices
provided for herein shall be given in writing and transmitted by
personal delivery, express courier service or prepaid first-class
registered or certified mail to the addresses herein, and shall be
deemed received upon actual receipt. Notices to Customer shall be
sent to the attention of the authorized signatory of Customer,
unless otherwise specified in writing by Customer. Notices to ATA shall be sent to
the attention of the Contact Administrator, unless otherwise
specified in writing by ATA.
Force Majeure
Except with
respect to the obligation to pay money, neither party will be
responsible for delays or failures in performance resulting from
acts beyond the control of such party. Such acts shall include, but
not be limited to, acts of God, strikes, supplier delays,
lockouts, riots, acts of war, epidemics, governmental regulations
superimposed after the fact, fire, communication line failures,
power failures, earthquakes or other disasters.
Waiver
No term or
provision hereof shall be deemed waived and no breach excused,
unless such waiver or consent shall be in writing and signed by
the party claimed to have waived or consented. Any consent by any party to,
waiver of, or excuse for any other breach shall not be deemed a
consent to waiver of, or excuse for any other different or
subsequent breach.
Headings
Headings used
in this Agreement are for reference purposes only and shall not be
deemed a part of this Agreement.
Enforceability
If any
provision of this Agreement shall be held to be invalid, illegal
or unenforceable, the validity, legality and enforceability of the
remaining provisions shall in no way be affected or impaired
thereby.
Survival of
Section
The rights and
obligations of the parties under Articles 4, 5, 7, 8, 11, 12, 13
and 14 of this Agreement shall survive any termination of this
Agreement.
Equitable
Remedies
ATA will be
entitled to equitable relief, including orders for specific
performance and injunctions, as well as monetary damages, in the
event of any breach by Customer of Articles 4 or 7.
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