LAST UPDATED MAY 28, 2021

 
MASTER SUBSCRIPTION AGREEMENT

The following Master Subscription Agreement(the “MSA”) together with the applicable Order Form entered into by and between the entity identified on the Order Form (“Employer”) and UpperCampus, Inc., a Delaware corporation with an address at 44 Mamaroneck Avenue, Suite E, White Plains, NY 10601 (“UpperCampus”)  form an agreement (the “Agreement”) by and between UpperCampus and Employer regarding Employer’s use of one or more of the Services set forth on the Order Form (the “Services”).  This MSA is effective as of the Order Form Effective Date set forth in the Order Form.   In the event of a conflict between the Order Form and this MSA, the Order Form shall control.   UpperCampus and Employer are each a “Party” and are collectively referred to as the “Parties”.

  1. Services. Subject to the Order Form and these Terms and Conditions, UpperCampus shall offer Employer, during the Term, the services set forth on the Order Form as these services may be updated by UpperCampus (“Services”) . In the event that Employer elects to add or change the Services provided under this Agreement, the Parties may execute additional Order Forms to describe any such Service additions or changes and additional Fees associated therewith, if any.   The Services and the content and features available on them are collectively referred to herein as “UpperCampus Properties”.

  2. Services Fees. During the Term of this Agreement, Employer shall pay to UpperCampus the fees and expenses (collectively the “Services Fees”) as set forth in the Order Form.  Unless specified otherwise in the Order Form, Employer shall pay the Services Fees to UpperCampus no later than 30 days after the applicable invoice date from UpperCampus. Employer shall be responsible for all taxes in connection with the Services (excluding taxes based on UpperCampus’s net income).  All invoices shall be deemed accepted unless disputed in good faith within 30 days after receipt thereof.  If an invoice is disputed, Employer shall pay the undisputed portion of the invoice when due. Late payments shall accrue interest daily following the due date at the lesser of 1.5% per month or the maximum interest allowed by applicable law.   UpperCampus reserves the right (without limiting its other rights or remedies) to suspend all Services in the event of late payment.  Employer shall also pay to UpperCampus all costs and expenses, including reasonable attorney’s fees incurred in collection of any delinquent amounts. 

  3. Authorized Users. Employer agrees to generate credentials for, and allow use of the Services by, only one of its employees, agents, or representatives per the total permitted number of seats (collectively, “Authorized Users Employer is solely responsible for any actions taken by its Authorized Users.)

  4. Privacy; Data Restrictions.   Each Party agrees that it will ensure that it:  (a) adheres to applicable privacy law and regulations (“Privacy Laws and Regulations”) and (b) posts a privacy policy and other applicable disclosures on its mobile site in accordance with all Privacy Laws and Regulations.  Both Parties shall further ensure that their actual privacy policies comply with their respective stated privacy policies.  Employer agrees that, absent the specific written consent of UpperCampus, it shall use any data contained in the Services or accessible in connection therewith (“UpperCampus Data”), including data concerning UpperCampus student users or university partners, solely in connection with using the Services as contemplated by this Agreement (“Purpose”) and it shall not collect more UpperCampus Data than is needed in connection with the Purpose.  Except to the extent Employer's use is necessary to fulfill the Purpose: (i) nothing contained herein shall be construed to convey any intellectual property rights in UpperCampus Data to Employer; and (ii) Employer shall not use, sell, or disclose UpperCampus Data for data analytics, data monetization, advertising, marketing or any other purpose other than the Purpose, even if such UpperCampus Data is aggregated or de-identified.

  5. Certain Restrictions.  Employer agrees that it shall not: (a) license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the UpperCampus Properties or any portion of the UpperCampus Properties, (b) frame or utilize framing techniques to enclose any trademark, logo, or other Content (including images, text, page layout or form) of UpperCampus; (c) use any metatags or other “hidden text” using UpperCampus’s name or trademarks; (d) modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the UpperCampus Properties except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape,” download or access data or Content from any web pages contained in the UpperCampus Properties; (f) access the UpperCampus Properties in order to build a similar or competitive platform or service; (g) copy, reproduce, distribute, republish, download, display, poste or transmit in any form or by any means any part of the UpperCampus Properties except as expressly stated herein; and (h) remove or destroy any copyright notices or other proprietary markings contained on or in the UpperCampus Properties.  UpperCampus, its suppliers and service providers reserve all rights not granted in this Agreement.

  6. Term & Termination. This Agreement shall commence on the Effective Date and shall terminate on the date that there is no Order Form in effect (the “Term”). In the event of a material breach that is not cured within thirty (30) days of written notice thereof, the non-breaching Party may terminate this Agreement by providing written notice of termination to the breaching Party.  Either Party may terminate these Terms and Conditions if there is no Order Form in effect.  Either Party may terminate this Agreement if the other Party commences a voluntary or involuntary case in bankruptcy or similar proceeding or makes an assignment of all or substantially all of its assets for the benefit of creditors. Upon termination of this Agreement, Employer shall be obligated to make any payments then owing to UpperCampus for any Services received prior to the effective date of Termination. The provisions of this Agreement that are intended to survive termination shall so survive, including the following Sections : 2 (to the extent Services Fees are owed), 4, 6-10, 13-21.

  7. Employer’s Representations and Responsibilities.  Employer represents and warrants that: (a) it has the right to enter this Agreement and to grant the rights granted herein; (b) it has the right to use the Employer Marks (as defined below) and other content provided by Employer through the Service, including the content and websites to which Employer links (“Employer Content”); (c) the use of the Employer Content does not infringe on the intellectual property of third parties or violates applicable laws.  Employer Content includes all Employer Marks and other content provided by Employer to UpperCampus or uploaded to the Service  under this Agreement.

  8. UpperCampus Representations and Responsibilities.  UpperCampus represents and warrants that: (a) it has the right to enter this Agreement and to grant the rights granted herein; (b) the Service (excluding the Employer Content and content provided by third parties, including end users) does not infringe on any United States patent, copyright or trademark or violate applicable laws.

  9. UpperCampus Warranty.  UpperCampus represents and warrants that it shall perform all Services under this Agreement and any Order Form in a competent manner in accordance with industry practices.  Employer’s sole recourse and remedy for any breach of this warranty shall be the prompt correction of any defect.

  10. Limited Licenses; Cooperation.  Employer hereby grants to UpperCampus a non-exclusive, worldwide, irrevocable, fully paid license, with the right to sublicense (including any moral rights), to use, reproduce, distribute, modify, store, publicly display and publicly perform the Employer Content for the purpose of operating, developing and improving the Services and researching and developing new services.  During the Term of the Agreement, Employer grants to UpperCampus a non-exclusive, worldwide, limited license to use and reproduce Agency’s trademarks, trade names and logos (collectively, “Employer Marks”) in connection with marketing and promoting the Services.  All use of the Employer Marks shall be in accordance with Employer’s trademark usage guidelines and shall inure to the benefit of Employer.  Employer grants to UpperCampus a non-exclusive limited license to use samples of any deliverables provided by UpperCampus to Employer hereunder in order for UpperCampus to market and promote its Services. Employer also agrees to work diligently with UpperCampus and shall perform all tasks reasonably necessary to enable UpperCampus to provide the Services in accordance with this Agreement, including uploading Employer Content and responding to communications from end users.

  11. No Obligation to Pre-Screen Content.  Employer acknowledges that UpperCampus has the right, but not the obligation to pre-screen the Employer Content and Employer consents to such monitoring. Although UpperCampus reserves the right in its sole discretion to pre-screen, refuse or remove any such Employer Content, Employer acknowledges and agrees that Employer has no expectation of privacy concerning the transmission of the Employer Content, including without limitation chat, text, or voice communications or social media posts.  Without limiting the foregoing, UpperCampus shall have the right to remove any Content that violates this Agreement or is otherwise objectionable.

  12. Prohibited Conduct.  Employer agrees not to use the Services for any purpose that is prohibited by this Agreement or by applicable law. Employer shall not (and shall not permit any third party) provide any Employer Content that: (a) infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any person or entity; (b) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane; (c) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail; (d) impersonates any person or entity, including any employee or representative of UpperCampus; (e) interferes with or attempt to interfere with the proper functioning of the Service or uses the Service in any way not expressly permitted by this Agreement; or (f) attempts to engage in or engage in, any potentially harmful acts that are directed against the Service, including but not limited to violating or attempting to violate any security features of the Service, using manual or automated software or other means to access, “scrape,” “crawl” or “spider” any pages contained in the Service, introducing viruses, worms, or similar harmful code into the Service, or interfering or attempting to interfere with use of the Service by any other user, host or network, including by means of overloading, “flooding,” “spamming,” “mail bombing,” or “crashing” the Service.

  13. Confidentiality. The Parties acknowledge that during the course of the transactions contemplated by this Agreement, one Party (the “Disclosing Party”) may find it necessary or appropriate to share Confidential Information (as defined below) with the other Party (the “Receiving Party”). The Receiving Party will: (i) not use the Disclosing Party’s Confidential Information except in connection with performing its obligations hereunder; (ii) not disclose such Confidential Information to any Party, other than its employees, consultants and advisors who have a “need to know” such Confidential Information in order for the Receiving Party to exercise its rights or perform its obligations hereunder; and (iii) use at least reasonable measures to protect the confidentiality of such Confidential Information.  Each Party will be responsible for any breach of these provisions by its consultants and advisors.  If the Receiving Party is required by law to make any disclosure of such Confidential Information, the Receiving Party will first give written notice of such requirement to the Disclosing Party, and will permit the Disclosing Party to intervene in any relevant proceedings to protect its interests in the Confidential Information, and provide full cooperation to the Disclosing Party in seeking to obtain such protection.  Information will not be deemed to be Confidential Information hereunder if such information: (1) is known or becomes known (independently of disclosure by the Disclosing Party) to the Receiving Party prior to receipt from the Disclosing Party from a source other than one having an obligation of confidentiality to the Disclosing Party; (2) becomes publicly known, except through a breach hereof by the Receiving Party; or (3) is independently developed by the Receiving Party without any use of the Disclosing Party’s Confidential Information. “Confidential Information” means any information provided by one Party to the other Party and concerning such disclosing Party’s business or operations including, but not limited to, all tangible, intangible, visual, electronic, now-existing or future information such as: (a) trade secrets; (b) financial information, including pricing; (c) technical information, including research, development, procedures, algorithms, data, designs, code, and know-how; (d) business information, including operations, planning, marketing interests, and products; (e) the terms of this Agreement and any other potential agreement between Employer and UpperCampus and the discussions, negotiations and proposals related to such potential agreement; and (f) all other information which would, due to the nature of the information disclosed or the circumstances surrounding such disclosure, appear to a reasonable person to be confidential or proprietary.

  14. Intellectual Property. As between UpperCampus and Employer, the Services and all intellectual property rights therein (the “Services IP”) made available to Employer pursuant to this Agreement are and will at all times remain the sole and exclusive property of UpperCampus and are protected by applicable intellectual property laws and treaties. Employer acknowledges UpperCampus’s ownership of the Services IP and agrees that it will do nothing inconsistent with such ownership, including but not limited to challenging UpperCampus’s title to the Services IP, opposing any registration thereof, or challenging the validity of this Agreement with respect thereto. Employer will not reverse engineer, decompile, disassemble or otherwise attempt to derive the source code, techniques, processes, algorithms, or know-how contained in the Services, except solely to the extent required to be permitted under applicable laws. Nothing in this Agreement shall give Employer any right, title or interest in the Services IP other than the right to use the Services in accordance with this Agreement.   All rights not expressly granted are hereby reserved.

  15. Limitation of Liability. EXCEPT FOR LIABILITIES ARISING UNDER SECTION 16 (INDEMNIFICATION), OR BREACHES OF CONFIDENTIALITY OBLIGATIONS (SECTION 13) (COLLECTIVELY, THE “EXCLUDED ITEMS”), TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY LOST PROFITS OR FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL OR INDIRECT DAMAGES OF ANY KIND, INCLUDING THOSE ARISING AS A DIRECT OR INDIRECT RESULT OF THE ACTIONS OF A PARTY OR ONE OF ITS EMPLOYEES, AGENTS, SUBCONTRACTORS, PARTNERS, OR CONSULTANTS WHETHER ARISING IN CONTRACT, TORT OR OTHERWISE, AND REGARDLESS OF WHETHER SUCH PARTY HAS BEEN NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR THE EXCLUDED ITEMS, EACH PARTY’S MAXIMUM AGGREGATE LIABILITY FOR ANY DAMAGES CLAIM REGARDING THIS AGREEMENT SHALL NOT EXCEED THE AGGREGATE AMOUNT PAID BY EMPLOYER TO UPPERCAMPUS HEREUNDER DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM. CLAIMS FOR DAMAGES MUST BE MADE BY A PARTY WITHIN ONE YEAR OF THE INCIDENT TO WHICH THEY RELATE OR BE FOREVER BARRED.  THE PARTIES ACKNOWLEDGE AND AGREE THAT THE FOREGOING LIMITATIONS OF LIABILITY ARE AN ESSENTIAL ELEMENT OF THE AGREEMENT BETWEEN THE PARTIES AND THAT IN THEIR ABSENCE THE ECONOMIC TERMS OF THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT.

  16. Indemnification. Each party (an “Indemnifying Party”) shall defend, indemnify and hold the other Party (an “Indemnified Party”) and all of its officers, employees, directors, shareholders, partners, members or other owners  (collectively, “Indemnified Parties)  harmless from and against any and all third-party claims, demands, suits, fees, judgments, damages, losses, costs and expenses (collectively, “Claims”), including reasonable attorneys’ fees and costs incurred in responding to such Claims, that the Indemnified Party may suffer or incur proximately caused by: (i) Indemnifying Party’s gross negligence or willful misconduct; (ii) Indemnifying Party’s breach of its express representations and warranties under this Agreement or violation of any applicable law; or (iii) content or services provided to the Indemnified Party by the Indemnifying Party infringing or violating any United States patent, copyright or trademark, or misappropriating any trade secret, provided that no indemnification shall be available in the case of this clause (iii) to the extent the infringement is caused by: (x) the use of the content or services in combination with other products or services in a way not contemplated by this Agreement, if the infringement would not have occurred but for such combination or (y) an alteration or modification of the content or services not directed or provided by or with the consent of the Indemnifying Party, if the infringement would not have occurred but for such alteration or modification. If any portion of the Services becomes, or in UpperCampus’s opinion is likely to become, the subject of a claim of infringement, UpperCampus may, at UpperCampus’s option, either: (A) procure for Employer the right to continue using the Services; (B) replace the Services with non-infringing services which do not materially impair the functionality of the Services; or (B) modify the Services so that they become non-infringing. If the foregoing options are not available on commercially reasonable terms and conditions, Employer shall have the option to terminate this Agreement.

  17. Indemnification Procedure. In the event of any claim for indemnification hereunder, the Indemnified Party shall promptly notify Indemnifying Party in writing of any such Claim and shall cooperate with the Indemnifying Party at the Indemnifying Party’s sole cost and expense. The Indemnifying Party shall control the defense and investigation of the Claim and shall employ counsel of its choice that is reasonably acceptable to the Indemnified Party to handle and defend the Claim, at the Indemnifying Party’s sole cost and expense. The Indemnifying Party shall not settle any Claim in a manner that adversely affects the Indemnified Parties’ rights without the Indemnified Party’s prior written consent, not to be unreasonably withheld. The Indemnified Party’s failure to perform any obligations under this Section shall not relieve the Indemnifying Party of its obligations hereunder except to the extent that the Indemnifying Party can demonstrate that it has been materially prejudiced as a result of the failure. The Indemnified Party may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.

  18. No Warranties. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN,  NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, (EITHER IN FACT OR BY OPERATIONS OF LAW) BY STATUTE OR OTHERWISE, TO EMPLOYER, OR ANY OTHER PARTY WHATSOEVER., INCLUDINGTHE IMPLIED WARRANTIES OF TITLE, FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, SECURITY, NON-INFRINGEMENT AND THOSE WARRANTIES ARISING OUT OF THE COURSE OF DEALINGS OR USAGE IN TRADE.  UPPERCAMPUS DOES NOT WARRANT THAT THESERVICES WILL BE SECURE OR UNINTERRUPTED. UPPERCAMPUS HAS NO CONTROL OVER AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED UPON EMPLOYER’S USE OF THE SERVICES.  EMPLOYER ACKNOWLEDGES THAT UPPERCAMPUS HAS NO CONTROL OVER INFORMATION AND MATERIALS ONCE THEY HAVE BEEN PUBLISHED, RELEASED OR POSTED IN THE PUBLIC DOMAIN, INCLUDING, WITHOUT LIMITATION, VIA SEEDING MATERIALS ON SOCIAL NETWORKING WEBSITES, VIDEO SHARING WEBSITES, THE USE OF INTERNET-BASED “WIDGETS” OR ANY OTHER PLATFORMS THAT MAKE USE OF USER-GENERATED CONTENT.  AS SUCH, UPPERCAMPUS SHALL NOT BE RESPONSIBLE FOR ENSURING THE ACCURACY OF ANY CONTENT ANY THIRD PARTY PUBLISHES INCLUDING, TEXT, PHOTOGRAPHS, AUDIO OR VIDEO OR FOR ANY OTHER THIRD PARTY ACTIONS.

  19. Reference and Feedback. Employer agrees to be identified as a client of the UpperCampus Services in marketing materials, and provided as a reference to other companies considering purchasing the UpperCampus Services. UpperCampus in its sole discretion, may utilize all comments and suggestions, whether written or oral, furnished by Employer to UpperCampus in connection with its access to and use of the Service (all reports, comments and suggestions provided by Employer hereunder constitute, collectively, the “Feedback”). Employer hereby grants to UpperCampus a worldwide, non-exclusive, irrevocable, perpetual, royalty-free right and license to incorporate the Feedback into UpperCampus products and services.

  20.  Governing Law; Arbitration.   The parties agree that this Agreement shall be governed by the laws of the State of  New York without regard to its conflict of laws principles. The Parties unconditionally consent and agree that: (1) any claim, dispute, or controversy (whether in contract, tort, or otherwise) arising out of, relating to, or connected in any way with this Agreement  or the determination of the scope or applicability of this agreement to arbitrate, will be resolved exclusively by final and binding arbitration administered by JAMS and conducted before a sole arbitrator in accordance with the rules of JAMS; (2) this arbitration agreement is made pursuant to a transaction involving interstate commerce, and shall be governed by the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1-16; (3) the arbitration shall be held in New York, New York; (4) the arbitrator’s decision shall be controlled by the terms and conditions of this Agreement; (5) the arbitrator shall apply New York law consistent with the FAA and applicable statutes of limitations, and shall honor claims of privilege recognized at law; (6) there shall be no authority for any claims to be arbitrated on a class or representative basis; the arbitrator may not consolidate or join the claims of other persons or parties who may be similarly situated; (7) the arbitrator shall not have the power to award punitive damages; and (8) if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the rules of JAMS, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein.  THE PARTIES HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY.  ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.   For any disputes deemed not subject to binding as provided below, the Parties agree to submit to the exclusive jurisdiction of the federal and state courts located in New York, New York

 

21. General.

 

  1. Independent Contractors. Each Party agrees that it is an independent contractor, and that no joint venture, partnership, employment or agency relationship exists between the Parties as a result of this Agreement.

  2. Notices. All notices, requests, consents and other communications which are required or permitted under this Agreement shall be in writing, and shall be delivered personally or mailed by certified or registered mail, postage prepaid, return receipt requested (in which case the same shall be deemed given three business days after mailing), or sent by email or fax (in which case it shall be deemed given on the next business day after it is transmitted), at the addresses set forth in the Order Form.

  3. Entire Agreement. This MSA, together with the Order Form(s), sets forth the entire and final agreement between the Parties hereto regarding the subject matter of this Agreement, superseding all prior or contemporaneous discussions and other written and oral communications, agreements or contracts of any kind. Each Party acknowledges that it has consulted with or had the opportunity to consult with counsel of its choice, and that in executing this Agreement it has not relied upon any statements, representations or agreements other than those expressly contained herein.

  4. Amendments. This Agreement may not be modified or amended except by an instrument in writing signed by both Parties.

  5. No Third Party Beneficiary. No person other than the Parties hereto will be entitled to any of the benefits of this Agreement or be deemed to acquire any rights hereunder.

  6. Severability. In the event any one or more of the terms or provisions contained in this Agreement or any application thereof has been or will be declared by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, then (i) such term or provision shall be adjusted or limited to the minimum extent necessary to cure such invalidity or unenforceability and (ii) the validity, legality and enforceability of the remaining provisions of this Agreement or any application thereof will not in any way be affected or impaired.

  7. Neither party shall be deemed in default of this Agreement to the extent that performance of its obligations (other than Employer’s payment obligations) or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, riots, acts of government, epidemic, pandemic, widespread outbreak of any virus, pathogen or other disease or illness or public health crisis, acts of war or terrorism, shortage of materials or supplies, failure of transportation or communications or of suppliers of goods or services, or any other cause beyond the reasonable control of such Party...

  8. Employer may not assign this Agreement or any rights hereunder, whether by assignment, transfer or otherwise, without the prior written consent of UpperCampus which shall not be unreasonably withheld.  Any assignment in violation of the foregoing is void ab initio.

  9. No waiver of any breach of this Agreement will (a) be effective unless it is in a writing which is executed by the Party charged with the waiver, or (b) constitute a waiver of a subsequent breach, whether or not of the same nature. All waivers will be strictly construed. No delay in enforcing any right or remedy as a result of a breach of this Agreement will constitute a waiver thereof.

  10. Counterparts. This Agreement may be executed in counterparts, each of which will constitute an original of this Agreement, and both of which together will constitute one and the same Agreement. Facsimile and electronic (including .pdf) signatures will be deemed to be originals hereunder.