Effective Date: Jan 6, 2017
SECTION 1. DEFINITIONS
“Application” means your products and services that are listed on each Order Form.
“Documentation” means the manuals, specifications, requirements, support documentation, example code, tools, any and all of the application programming interface(s) that Clever makes generally available to Developers for access and use hereunder (collectively the “APIs”) and other instructions regarding the capabilities, operation, integration and use of the Services that Clever makes generally available to all of its Developers at /developers/docs/, or such future location as Clever chooses.
“Marks” means a party’s corporate name, logo(s), product name, or product logo(s), as applicable.
“New Module” means any new feature, functionality, module or product that we may, in our sole discretion, release from time to time to all of our Developers for purchase for an additional fee as an add-on to the Services or as a separate product or service.
“Order Form” means an ordering document or online order specifying the Services to be provided hereunder that is mutually agreed upon and executed between you and us, including any addenda and supplements thereto.
SECTION 2. ADDITIONAL RIGHTS AND RESTRICTIONS FOR DEVELOPERS
Your Clever account gives you access to our Services. We maintain different types of accounts for different types of Users. If you open a Clever account on behalf of a Developer, then: (i) “you” includes you and that entity, and (ii) you represent and warrant that you are an authorized representative of the entity with the authority to bind the entity to this Agreement and that you agree to this Agreement on the entity’s behalf.
Schools may use the Services to authorize you and other third-party Developers to securely access Student Data and to access your Application through the Services using a single set of access credentials to the Services. We will not send Student Data to you unless a School has explicitly authorized such transfer. We will always transfer Student Data to you over an encrypted connection. You must use the Student Data in accordance with the terms and conditions of the agreement between you and the applicable School, this Agreement, and all applicable laws, rules and regulations.
Subject to the terms of the Agreement, Clever hereby grants to you a personal, limited, nonexclusive, nontransferable, revocable, non-sublicensable right and license to access and use the Documentation, and to modify such example code included therein, for the sole purpose of developing, supporting and maintaining the Data Integration (as defined below).
You may order a New Module at the then-current list price and subject to a separate Order Form, provided that you are in compliance with the terms and conditions of this Agreement. Until you have purchased the rights to access and use a New Module, you do not have any right hereunder to receive or use New Modules.
SECTION 3. DATA INTEGRATION AND APPLICATION OBLIGATIONS
When you sign up for a Developer account (the “Developer Account”), Clever will provide you with a private development account that will allow you to access the Services with simulated data for the purposes of completing and testing your Data Integration (as defined below). You agree to use the Developer Account in accordance with the Agreement and the applicable Documentation.
You agree to build and maintain a data integration between your Application and the Services with the APIs that either meets or exceeds the standards of our integration requirements available at: https://dev.clever.com/docs/clever-certification. You agree to: (i) develop the Data Integration in a professional and workman like manner, utilizing secure software design and testing procedures, (ii) update (either periodically or upon our request) the Data Integration to support any API Updates (as defined below), and (iii) perform regular security audits of the Data Integration.
Upon your completion of the Data Integration, you will notify us. We will evaluate and test the Data Integration to ensure that it meets or exceeds the standards of the Integration Requirements. If the Data Integration does not pass the Integration Requirements, then we will provide you with a written report of any required improvements. Upon your completion of these improvements, you will again notify us of your readiness for further integration testing.
Upon our determination that the Data Integration has successfully passed the Integration Requirements, we will enable your Developer Account with production capabilities for the Services, provided you use the Services to provision a sandbox School-level account in the Application that is kept active during the term of this Agreement for Clever’s testing purposes. The Developer Account with production capabilities will allow your Application to receive Student Data when Schools authorize us to transfer such Student Data to your Application.
We grant you permission during the term of this Agreement to access and use the APIs made available by us, solely for the purpose of developing, maintaining and supporting the Data Integration in accordance with the Integration Requirements and Documentation. We may, in our sole discretion, update the APIs for product improvements, including but not limited to performance enhancements, new features, or new functionality (collectively, the “API Update(s)”). We will give you notice of each API Update and within six months of such notice, you will update the Data Integration to the then-current version of the APIs. For each API Update, we may evaluate and test your updates to the Data Integration to ensure they successfully meet the Integration Requirements. Ongoing non-conformity to the Integration Requirements could result in your Developer Account losing production capabilities with the Services.
You are solely responsible for hosting any Application that is a “software as a service” application and for all associated network connectivity, maintenance, backup, and other hardware, software, and support and other services required to provide the Application to Users pursuant to the Application’s own support terms and policies, and shall bear all costs and expenses associated therewith. In addition, you will adequately train your sales team members on the availability and benefits of using the Services.
SECTION 4. APPLICABLE FEES AND PAYMENT TERMS
Importantly, in addition to your regular fees charged to Schools for use of the Application(s), you will not charge Schools a premium charge or any additional fee that acts as a premium for use of the Application(s) via the Services.
As consideration for your use of the Services, you will pay all fees specified in each Order Form. Except as otherwise specified herein or in an Order Form, your payment obligations are non-cancelable and fees paid are non-refundable and must be in U.S. dollars.
You will provide us with valid and updated credit card information or alternative payment method reasonably acceptable to us. If you provide credit card information to us, you authorize us to charge such credit card for all purchased Services listed in the Order Form for the initial subscription term and any renewal subscription term(s) set forth in the applicable Order Form. Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, we will invoice you in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due to us within 30 days from the invoice date. You are responsible for providing complete and accurate billing and contact information to us and notifying us of any changes to such information.
If any invoiced amount is not received by us by the due date, then without limiting our rights or remedies: (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) we may condition future purchases, renewals and Order Forms on payment terms shorter than those specified herein.
All fees are exclusive of all taxes, levies, or duties, and Developer will be responsible for payment of all such taxes, levies, or duties, excluding U.S. (federal or state) taxes based solely on Clever’s net income. Developer will pay all fees free and clear of, and without reduction for, any sales tax, VAT, withholding, or similar taxes; any such taxes imposed on payments of fees will be Developer’s responsibility, and Developer will provide the appropriate documentation to establish that such taxes have been remitted to the appropriate taxing agency if applicable
SECTION 5. SECURITY
We take very seriously the security of our Users, including Schools, teachers, parents, and students. You represent and warrant that you will access and use Student Data: (i) in accordance with the terms of the agreement(s) between you and each School, and this Agreement, (ii) in compliance with all applicable federal, state and local laws, rules and regulations, including the applicable of FERPA, PPRA, COPPA, and 15 U.S.C. §§ 6501-6506, and (iii) at all times over a secure, industry-standard encrypted connection.
For the duration of this Agreement, you will maintain and implement an effective information security program that requires reasonable and appropriate administrative, technical, physical, organizational and operational safeguards and other security measures (“Security Safeguards”) against unlawful or unauthorized access to or use, destruction, loss, alteration, disclosure, transfer, or processing of Student Data. The Security Safeguards will ensure a level of security appropriate to the risks and harm that might result from unauthorized access or use and will be consistent with industry best practices and standards. In the event either party becomes aware of any potential or actual unauthorized access or use of Student Data, such party will: (a) notify the other party promptly but no later than is reasonably required to enable the other party to comply with data breach notification requirements under applicable law, (b) investigate such security breach, and (c) reasonably cooperate with the other party and any law enforcement or regulatory official.
SECTION 6. INTELLECTUAL PROPERTY RIGHTS
The Application(s), your Marks (as defined below), your Confidential Information and the software or other technology that you develop in connection with the Data Integration, and all related Intellectual Property Rights are your and your licensors’ exclusive property.
The APIs (including any and all API Updates), the Documentation, Clever’s Marks and Clever’s Confidential Information and the software or other technology that Clever develops in connection with the Data Integration, and all related Intellectual Property Rights are the exclusive property of Clever and its licensors. All rights not granted are expressly reserved. Except as expressly stated herein, nothing in this Agreement shall confer to Developer or any other party any license or right of ownership in material owned by Clever, whether by implication, estoppel, or otherwise.
The parties agree that any signup forms, documentation and other materials pertaining directly to the Application’s integration with the Services will be co-branded with the Marks of both Developer and Clever. Subject to the terms and conditions of the Agreement, and prior written authorization, each party hereby grants to the other party a worldwide, nonexclusive, nontransferable license to use its Marks in connection with co-branded promotional materials.
You hereby grant to Clever a limited, nonexclusive, nontransferable license to use your Marks in connection with Clever’s internal presentations, customer lists, and financial reports, in any format, relating to the Services. All use of the other party’s Marks will be in accordance with the branding requirements and instructions that are provided from time to time. Each party acknowledges and agrees that: (i) no right, title or interest in such Marks are granted to it by the other party, (ii) it will not claim any right, title or interest in or to the other party’s Marks, and (iii) it will not, at any time, challenge or attack the other party’s rights in or to the Marks for any reason whatsoever. Any use by one party of the other party’s Marks under this Agreement inures to the benefit of the other party. The parties further agree to protect and promote the good will attached to the Marks and to include notice of the registered status of the Marks, as applicable.
SECTION 7. CONFIDENTIAL INFORMATION OBLIGATIONS
In connection with this Agreement, each party may disclose Confidential Information to the other party. For purposes of these Additional Terms for Developers, the term “Confidential Information” will be deemed to include personally identifiable information (as defined in FERPA) from student education records (as defined in FERPA), and all information and materials furnished by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) that is of a proprietary or confidential nature, including but not limited to, software, technology, data, all financial and cost information, business information, trade secrets relating to sales, client lists, research or business of the parties, and any other personal or intellectual property relating to the parties, their parent or subsidiaries. Confidential Information also includes information that is intended to be confidential that: (i) is disclosed in oral, visual or magnetic form, if identified as being “Confidential” at the time of the disclosure or so identified in writing within thirty (30) days of disclosure, (ii) marked as confidential or proprietary if in writing, or (iii) under the circumstances, a reasonable person would understand to be confidential.
Notwithstanding the foregoing, the following will not be considered “Confidential Information” as defined herein: information that: (a) is approved for release by prior written authorization of the Disclosing Party, (b) Receiving Party can reasonably show was already known to the Receiving Party at the time of the disclosure, (c) is independently developed or formulated by or for the Receiving Party without reliance on Confidential Information, or (d) is received by the Receiving Party from a third party who is not under an obligation of confidence to the Disclosing Party.
The Receiving Party agrees not to use any Confidential Information for any purpose other than in the performance of its rights and obligations under this Agreement and will not disclose any such Confidential Information, except: (I) to its employees, agents, independent contractors, lawyers and other advisers who are bound by confidentiality obligations no less stringent than those contained herein, and (II) pursuant to, and to the extent of, a request or order by a governmental authority, provided that the Receiving Party has first given the Disclosing Party notice of such request or order and the opportunity for the Disclosing Party to seek a court order or other protection against the disclosure of such Confidential Information. The Receiving Party agrees to take all reasonable measures to protect the secrecy and confidentiality of, and avoid disclosure or unauthorized use of, the Confidential Information, but in any event will exercise the degree of care exercised by a reasonable business person in the protection of its valuable confidential information. Without limiting the foregoing, each Party will advise the other Party immediately in the event that it learns or has reason to believe that any person who has had access to the Confidential Information of the other Party has violated or intends to violate the terms of this Agreement, and the Receiving Party will, at its own expense, cooperate with the Disclosing Party in seeking injunctive or other equitable relief against any such person.
Subject to retaining one copy of the Confidential Information solely for the purpose of compliance with any legal requirement in relation to the retention of records or in the event of litigation, and subject to the following sentence, within 30 days of the termination or expiry of this Agreement for any reason, a Receiving Party must: (x) cease the use of all Confidential Information of or relating to the Disclosing Party (or any affiliate of the Disclosing Party), (y) deliver to the Disclosing Party all documents and other materials in its possession or control containing, recording or constituting that Confidential Information or, at the option of the Disclosing Party, securely destroy, and certify to the Disclosing Party that it has destroyed, those documents and materials. Copies of the Confidential Information can be retained on a confidential basis if they are electronically archived and not readily accessible, or contained in board papers or other internal senior management reports. In the event of expiration or termination of this Agreement, the Receiving Party shall not develop any software, devices, components or assemblies utilizing the Disclosing Party’s Confidential Information.
SECTION 8. TERM AND TERMINATION
This Agreement commences on the date you first access or use the Services, checking the box marked “I Agree”, or otherwise affirmatively stating your desire to use the Services, and continues for the term specified in the Order Form or until it is terminated as provided for herein.
Either party may terminate this Agreement for cause: (i) upon 30 days’ written notice to the other party of a material breach if such breach remains uncured at the expiration of such period (“Uncured Material Breach”), or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. If this Agreement is terminated by you due to our Uncured Material Breach, we will refund you any prepaid fees covering the remainder of the term of all Order Forms after the effective date of termination. If this Agreement is terminated by us for your Uncured Material Breach, you will pay any unpaid fees covering the remainder of the term of all Order Forms. In no event will termination relieve you of your obligation to pay any fees payable to us for the period prior to the effective date of termination. Provisions that by their nature should survive termination will survive termination, such as provisions relating to warranty disclaimers, representations and warranties, confidential information, export controls limitations of liability, indemnities, and governing law.
SECTION 9. REPRESENTATIONS AND WARRANTIES
Clever and Developer each represent and warrant that: (i) it has the right and authority to enter into this Agreement and perform its obligations hereunder, (ii) there is no outstanding commitment or agreement to which it is a party that conflicts with this Agreement or could be reasonably expected to limit, restrict or impair the rights granted to the other party hereunder, and (iii) it has the necessary licenses, rights, consents, and permissions to grant and authorize the other party, Schools and Users (as applicable) to access and use the Applications and Marks as necessary to exercise the rights and licenses granted in this Additional Terms for Developers or the agreement between you and the applicable School.
You further represent and warrant that: (a) to your knowledge, the Application(s) and Marks do not infringe, violate or misappropriate upon any third-party Intellectual Property Rights, (b) your performance related to this Agreement and the Application(s) will not slander, defame, libel, or invade the right of privacy, publicity or other rights of any person or entity, or contain false or misleading information, (c) your performance related to this Agreement and the Application(s) will not violate any law or governmental rule or regulation, including without limitation any laws related to the collection, storage, processing, use, and disclosure of personal information, (d) your marketing and promotional materials related to the Application(s) are not false or misleading, (e) the Application(s) does not contain any viruses, adware, spyware, back door, time bomb, drop dead device, worms, or other malicious code or any content or file or system that provides a method to circumvent any security features of the Services (including without limitation any School privacy settings), or obtain unauthorized access to any device or computer, and (f) you and the Application(s) will comply with all applicable export and reexport control laws and regulations, including the EAR, trade and economic sanctions maintained by OFAC, and the ITAR. You agree to indemnify, to the fullest extent permitted by law, Clever from and against any fines or penalties that may arise as a result of your breach of this provision.
SECTION 10. INDEMNIFICATION OBLIGATIONS
You agree to defend any and all claims, suits, actions or proceedings brought by third parties (including government entities) against Clever, our affiliates, officers, directors, agents, and employees (each a “Claim Against Clever”) alleging or related to: (i) any breach of any agreement between you and a School, (ii) your breach of your representations and warranties under this Agreement, (iii) your gross negligence or willful misconduct with respect to your obligations under this Agreement, (iv) infringement by your Application(s) of a third party's United States Intellectual Property Right; and with respect to each of (i) through (iv) you will pay all fines assessed, damages finally awarded (including payment of reasonable attorneys’ fees, court costs and costs of professionals) or settlement amounts entered into to the extent based upon a Claim Against Clever provided that: (a) we promptly notify you in writing of any Claim Against Clever, and (b) give you sole discretion and control to defend, compromise, or settle (except that you may not settle any Claim Against Clever unless it unconditionally releases Clever of all liability) such claim and provide you with full information and reasonable assistance and cooperation (at your cost and expense). We may participate with counsel of our own choosing at our own expense. Any portion of any compromise or settlement entered into by you that would adversely prejudice us, constitutes an admission of fact by us, or requires contribution from us will be subject to our prior written consent.
SECTION 11. QUESTIONS
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