Lauren Innovations, LLC dba NaviGate Prepared (hereinafter “NaviGate Prepared”) offers a secure Cloud-based service and centralized system for developing, managing, accessing, and implementing Customer’s safety information, and utilizing the software products of NaviGate Prepared, which are comprised of NaviGate Prepared’s proprietary methods, processes, and analytical capabilities. Customer is interested in acquiring use of the software products in connection with its operations from NaviGate Prepared. In consideration of the promises and conditions contained herein, and other valuable consideration, the receipt and sufficiency of which is hereby acknowledged by the parties, NaviGate Prepared and Customer, intending to be legally bound, agree to the terms and conditions set forth herein and in the Quote (the “Terms.”) Customer shall be bound by the Terms upon signature of the Quote (defined below) or accepting the Software or any other services from Navigate Prepared.
ARTICLE 1 – Software and Services
1.1. Supply of Software and Services by NaviGate Prepared. The parties hereby agree that Customer shall purchase the software products and services otherwise set forth on the Quote provided by NaviGate Prepared and attached hereto as Exhibit A (the “Quote”) and further described herein.
1.2. Description of the Software. NaviGate Prepared offers an on-line system for critical information management that is designed for school grades K-12 planning, storage, communication, and training, and is intended for emergency preparedness and response only (the “Software”). NaviGate Prepared provides Customer, through a secure internet portal, with electronic storage space (on NaviGate Prepared-controlled servers) at which to develop, store, retrieve, modify, and communicate Customer’s various policies and procedures for emergency preparedness and response, floor plans, images, and content files. Customer, rather than NaviGate Prepared, selects, up-loads, and modifies the information placed within Customer’s area of NaviGate Prepared (the “Uploaded Content”). Subject to the provisions below, Customer may give third parties, including technical assistants, police, and other security and emergency response personnel, access to Customer’s NaviGate Prepared area.
1.3. Description of the Services. At Customer’s request, NaviGate Prepared shall provide services at the rates and pursuant to the description on the Quote (the “Services”).
1.4. Fees. Customer shall pay NaviGate Prepared the fees set forth on the Quote (the “Fees”). Unless otherwise provided on the NaviGate Prepared Quote, all Fees shall be paid within thirty (30) days after date of invoice. All amounts payable by Customer under these Terms will be paid to NaviGate Prepared without setoff or counterclaim, and without any deduction or withholding. NaviGate Prepared may charge Customer interest at the rate of 1.5% per month (or the highest rate permitted by law, if less) on all late payments and/or suspend access to the Software until all amounts are paid. The Fees paid under these Terms are nonrefundable. For annual Services, if Customer wishes to terminate all or any portion of these Terms prior to the end of the then-current term, Customer’s payment obligation for the full term is irrevocable and will accelerate and shall be due immediately.
1.5. Grant of License. Subject to the terms and conditions of these Terms, and upon payment of the Fees, NaviGate Prepared grants to Customer a limited, non-exclusive, revocable, non-transferrable, and non-sublicensable license to use the Software described in the Quote strictly in accordance with the use and other requirements in these Terms, and NaviGate Prepared’s documentation related to the Software. In addition to the other restrictions set forth in these Terms, Customer shall not use such license of the Software for any use whatsoever other than as expressly provided for herein as part of the Software for uploaded content, in accordance with and subject to these Terms and the Quote and Invoice, in support of the internal needs and activities of Customer. This license shall terminate upon the termination pursuant to Section 2 of these Terms.
1.6. Use. Customer’s license Fees for the NaviGate Prepared License are based on the number of buildings covered by the license. Customer will not, without agreeing with NaviGate Prepared for expanded coverage of Customer’s NaviGate Prepared License, in any manner use or attempt to use the NaviGate Prepared system to cover, in whole or in part, more buildings than the NaviGate Prepared License has been priced to cover. Customer and each of its agents and any other person acting for the benefit of Customer or on its behalf or with its authorization will use the NaviGate Prepared portal and site and Customer’s space in NaviGate Prepared only for planning, storage, communication, and training in accordance with the overall design and intent of the NaviGate Prepared system which is limited to emergency preparedness and response. Within its own organization Customer will only allow those individuals with a legitimate role in Customer’s NaviGate Prepared-related programs to have access to the NaviGate Prepared system. Neither Customer nor any of its agents or any other person acting for the benefit of Customer or on its behalf or with its authorization will attempt to access or enter into any area on the NaviGate Prepared system which has been reserved for another customer’s uploaded content or any another area beyond those which Customer has been given permission by NaviGate Prepared to use.
1.7. Availability. Subject to the provisions herein, NaviGate Prepared will take all commercially reasonable steps to keep the Software operating smoothly and efficiently. However, since the Software operates using computer equipment, computer software programs, telecommunications services, and the Internet, NaviGate Prepared shall not be responsible for delays or service interruptions attributable to causes beyond its reasonable control, including, without limitation, limitations on the availability of telephone transmission lines and facilities, failures of other communications equipment, Internet access delays or failures, failures on the part of any third party, failures or deficiencies of Customer’s equipment, or Customer’s failure to meet its responsibilities under these Terms. NaviGate Prepared will maintain adequate back-up arrangements and equipment in order to maintain Customer’s data stored on or through the website in the event of the failure of any of NaviGate Prepared equipment. Service interruptions for maintenance and system upgrades will be scheduled, to the extent reasonably practicable, to minimize interference with Customer’s daytime business activities.
1.8. Downtime. The Software shall be available to Customer, except during Scheduled Downtime (defined below), or due to Customer-side downtime, or when outages or issues occur due, including, without limitation, any force majeure event. For the purposes of these Terms, “Scheduled Downtime” shall mean those hours, as determined by NaviGate Prepared, during which time NaviGate Prepared shall perform scheduled maintenance, updates, or adjustments to the Software. If Customer opts out or otherwise objects in writing to NaviGate Prepared prior to commencement of the Scheduled Downtime, NaviGate Prepared shall not be liable for the failure to obtain any such updates or other maintenance or adjustments to the Software. Notwithstanding any provision to the contrary, NaviGate Prepared shall not be responsible for any delays or deficiencies to the extent that such delays or deficiencies are caused by Customer’s action or omissions. In the event that such delays or deficiencies occur, NaviGate Prepared shall be permitted to extend any relevant deadline as NaviGate Prepared deems necessary to accommodate such delays or deficiencies.
1.9. Compliance with Law and Third Party Rights. Customer warrants that it and its agents, and any person acting for the benefit of Customer or on its behalf or with its authorization will in all respects comply with all applicable laws and regulations and refrain from violating the rights or infringing the interests (or attempting to do so) of any third parties in connection with the use of the NaviGate Prepared portal and site, including without limitation in the selection, gathering, creation, modification, uploading onto the NaviGate Prepared site, maintenance, preservation, retrieval, dissemination, other utilization, and (for Customer, only) granting access of and to the Uploaded Content stored in Customer’s NaviGate Prepared area.
1.10. Necessary Rights. Customer affirms that it has, and at all times will have, all necessary rights, licenses, consents, and permissions (without the need for any additional approval, waivers, or releases, or payment to another person or entity) to submit, store, develop, use, disseminate, and grant access to all of the Uploaded Content with regard to any restraints that otherwise might be imposed by law or contract protecting copyrights, patents, trademarks, trade secrets, trade names, or privacy, publicity, or confidentiality (including statutory and contractual restrictions on disclosure and appropriation), and/or for any other intellectual property rights or rights or interests arising in connection with proprietary information.
1.11. FERPA. “Education records” as defined by the Family Educational Rights and Privacy Act (“FERPA”) are not to be stored under the NaviGate Prepared License, which is intended for storage of information to be used for emergency preparedness and response, only. Without relieving Customer of its duty to utilize the NaviGate Prepared system in accordance with its overall design and intent, if NaviGate Prepared obtains access to confidential “education records,” as defined by FERPA, NaviGate Prepared agrees that it will not disclose any such education records except in order to perform its duties under these Terms or as required by law.
1.12. Threat Assessment Wizard. This Section shall only apply to those Customers which utilize the Threat Assessment Wizard, and shall be in addition to the other terms and conditions herein. For those Customers utilizing the Threat Assessment Wizard, all references to “Software” shall include the Threat Assessment Wizard as identified on the Quote. Customer acknowledges that the Threat Assessment Wizard incorporates threat assessment principles developed and published by the United States Secret Service, Department of Homeland Security, and the United States Department of Education. It is intended to be a useful resource, and a mechanism for gathering information consistent with those principles. NaviGate Prepared assumes no liability for the development or application of those principles. The effectiveness of the Threat Assessment Wizard will depend upon a number of variables, including the quality of information collected and entered by User. User is responsible for reviewing and modifying all content to match its policies, plans, and practices. The use of the Threat Assessment Wizard does not guarantee compliance with federal, state, or local law. This tool is not intended to serve as legal advice or as a recommendation based on Customer’s specific circumstances. The Threat Assessment Wizard is not intended to be the sole or exhaustive means of ensuring the safety of persons or the security of property.
ARTICLE 2 – Term and Termination
2.1. Term. Unless otherwise provided in the NaviGate Prepared Quote, the term will be set forth in the NaviGate Prepared Quote. Thereafter, the term will automatically renew for one (1) year periods, unless either party provides notice to the other within ninety (90) days prior to the end of the then-current term or as otherwise terminated pursuant to Section 2.2.
2.2. Termination. NaviGate Prepared shall have the right to immediately terminate all rights of Customer by providing written notice to Customer upon the following:
(a) Customer is in breach or default of these Terms, and such breach or default is not cured within ten (10) days of notice to Customer; or
(b) Customer shall apply for or consent to the appointment of a receiver, trustee, or liquidator of it or any of its assets; admit in writing its inability to pay its debts as they mature; make a general assignment or trust mortgage of the benefit of creditors; or file a voluntary petition of bankruptcy, or a petition or an answer seeking reorganization or an arrangement with creditors or to take advantage of any bankruptcy, reorganization, insolvency, readjustment of debt, dissolution or liquidation protection law or statute, or an answer admitting the material allegations of a petition filed against it in any proceeding under any such law; or
(c) NaviGate Prepared provides Customer with thirty (30) days’ written notice of termination of all or any portion of the Software or the rights of Customer hereunder.
2.3. Suspension. NaviGate Prepared may suspend or terminate Customer’s right to access or use any portion or all of the Software, or its Services, immediately upon notice if: (a) Customer’s use of the Software (i) poses a security risk to the Software or any third party, (ii) could adversely impact NaviGate Prepared systems, the Software or the systems or data of any other NaviGate Prepared customer or third party, (iii) could subject NaviGate Prepared, its affiliates, or any third party to liability, or (iv) could be fraudulent, illegal or contrary to NaviGate Prepared’s documentation or instructions; or (b) Customer is in breach of these Terms. If NaviGate Prepared suspends Customer’s right to access or use any portion or all of the Software, Customer remains responsible for all fees and charges Customer incurs during the period of suspension.
2.4. Effect of Termination. Customer shall cease all use of the Software, Services and Materials immediately upon termination. Within ten days after the effective date of any termination, Customer shall return to NaviGate Prepared or destroy the Materials and all materials or media, including any information, records, and materials developed on the basis of any NaviGate Prepared confidential information. No termination shall release Customer from any obligation to pay NaviGate Prepared any amount that has accrued or becomes payable at or prior to the date of termination. No suspension of access to the Software or shall release Customer from any obligation to pay NaviGate Prepared any fees due under these Terms. Only if Customer terminates due to NaviGate Prepared’s default, will Customer be entitled to a refund of amounts paid to NaviGate Prepared for the portion of the current fee period following the date of termination. At Customer’s request, upon termination, Customer and NaviGate Prepared will determine the appropriate data retention and destruction strategies for Customer’s data archived on the website, based on both Customer’s retention requirements and the legal retention requirements then in effect. Customer shall pay NaviGate Prepared’s then-current standard rates for NaviGate Prepared’s work to destroy or to format, prepare, and deliver Customer’s data to Customer. Notwithstanding the foregoing, NaviGate Prepared has no obligation to deliver Customer’s data to Customer until Customer has paid NaviGate Prepared all amounts due from Customer.
ARTICLE 3 – Non-Disclosure and Ownership
3.1. Non-Disclosure of Confidential Information. Customer agrees to hold in strictest confidence any information and material which is related to NaviGate Prepared’s or its affiliates’ business or is designated as proprietary and confidential, including without limitation, the Software, research, development, pricing, trade secrets, processes, procedures, machinery, apparatus, prices, discounts, manufacturing costs, future plans, ideas, technical data, supplier and licensor information, drawings, reports, records, prototypes, materials, samples, models, designs, formulae specifications, salaries or business affairs, financial statements, marketing reports, or any other such confidential or proprietary information of NaviGate Prepared or its affiliates (hereinafter “Confidential Information”). Customer hereto agrees not to make use of the Confidential Information other than for the internal use of the Software and performance of these Terms. Furthermore, Customer agrees that it shall not, without the prior written consent of NaviGate Prepared, use, publish, or otherwise divulge any Confidential Information of NaviGate Prepared, discuss the nature and terms and conditions of these Terms, or use any of the Confidential Information of NaviGate Prepared for any purpose whatsoever other than the performance under these Terms. At any time upon written request of NaviGate Prepared, or upon termination or expiration of the term, Customer agrees that it shall immediately return any and all Confidential Information. Notwithstanding anything to the contrary contained in these Terms, Customer may disclose any Confidential Information without breaching the terms of these Terms if compelled to do so by a valid order of any government officer or agency or of a court of competent jurisdiction, specifically directing Customer to disclose the Confidential Information, provided, that Customer shall use its best efforts to avoid or resist such an order and, in any event, not less than five days prior to any such disclosure the party shall notify NaviGate Prepared in writing of such order.
3.2. Ownership. The Software and Materials and all copies, versions, and derivative of NaviGate Prepared Software and Materials made by or on behalf of Customer are and shall remain the sole property of NaviGate Prepared or its licensors. Any modifications to the Software, including all associated intellectual property rights, made or provided by NaviGate Prepared, whether alone or with any contribution by Customer, shall be owned exclusively by NaviGate Prepared or its licensors. To the extent that Customer may acquire any right or interest in the modifications by operation of law, Customer irrevocably assigns all such right and interest exclusively to NaviGate Prepared. Customer shall take any action and execute any documents reasonably necessary and sufficient to give effect to the provisions of the foregoing. At the Customer’s request, NaviGate Prepared will, to the best of its ability, transfer all of the Customer’s safety information to a mutually agreed upon platform. All right, title, and interest in and to the Uploaded Content or any of Customer’s materials provided by Customer to NaviGate Prepared shall remain exclusively in Customer.
3.3. Copyrighted Material. Customer acknowledges that the software components of the Services, including but not limited to associated report formats, screen displays, menu features, and all derivative NaviGate Prepared components comprising the Software and the written materials and other content provided as part of the Services (collectively, “Materials”) constitute copyrighted NaviGate Prepared Software and Materials protected by federal and international copyright laws and are owned by NaviGate Prepared or its licensors. The Software, Materials, and all copies, versions, and derivative of NaviGate Prepared Software and Materials shall remain the sole property of NaviGate Prepared or its licensors. Customer shall not permit any personnel to remove any proprietary or restrictive notices contained or included in the Software or Materials, and Customer shall not permit any personnel to copy or modify the Software or Materials, except as specifically authorized by these Terms. Customer may copy and adapt the Materials for its own internal use, provided all such copies and adaptations include NaviGate Prepared’s proprietary and restrictive notices. In addition, Customer may copy and disclose the Materials to the limited extent necessary for it to comply with any applicable public records laws or regulations.
3.4. Restrictions. Customer further acknowledges that the Software and Materials are commercially valuable proprietary products belonging to NaviGate Prepared or its licensors, the design and development of which have involved the expenditure of substantial amounts of money over a long period of time, and which afford NaviGate Prepared and its licensors a commercial advantage over its/their competitors. Customer understands that loss of this competitive advantage due to any unauthorized copying or downloading or use of the Software or the Materials would cause substantial damage to NaviGate Prepared and its licensors. Customer shall not decompile or otherwise reverse engineer or decode the Software. Customer shall not disclose the results of any benchmark tests run on the Software, without the prior written approval of NaviGate Prepared. Customer shall not undertake, directly or indirectly, any action or omission that may in any way lead to the unauthorized dissemination, reproduction, or use of the Software or the Materials. Customer may allow certain third parties access to the Software when such parties require access in order for Customer to use the Software as contemplated by these Terms. Other than as permitted by the foregoing sentence, Customer may not allow access to the Software by any entity without the prior written consent of NaviGate Prepared.
3.5. Other Intellectual Property Rights. Customer recognizes that NaviGate Prepared, or its affiliates, are the owners of the trademarks used in connection with the Software, including but not limited to, “NaviGate Prepared” (“Trademarks”), and Customer agrees that it will not dispute or put at issue such ownership or validity. During the Term, and any renewal or extension thereof, Customer shall have the non-exclusive limited privilege to use the Trademarks solely in connection with the internal use of the Software. Customer shall not at any time apply for or obtain the registration of such Trademarks or any confusingly similar variation thereof in any language, in any country or do or suffer to be done any other act or thing which might in any way impair the rights of NaviGate Prepared, or its licensors, in and to such Trademarks, and shall not claim any right or interest in such Trademarks. Customer’s use of the Trademarks shall be subject to the approval of NaviGate Prepared and its licensors. NaviGate Prepared and its affiliates shall have the right, at any time, to compel discontinuance of the use of the Trademarks by Customer, its agents, or representatives in the event of a breach or a threatened breach by Customer of these Terms. Upon termination, Customer shall immediately discontinue any and all use of the Trademarks. Customer shall not imply a relationship with NaviGate Prepared or any of its affiliates in any advertising, promotional material, labels, publications or discussions at any time during or after the term without the express written consent of NaviGate Prepared. Customer shall not use the Trademarks in any manner indicating or suggesting that Customer is other than a user of the Software.
3.6. Software Improvements. If Customer provides any suggestions to NaviGate Prepared or its affiliates, NaviGate Prepared will be entitled to use the suggestions without restriction. Customer hereby irrevocably assigns to NaviGate Prepared all right, title, and interest in and to the suggestions and agrees to provide assistance in documenting, perfecting, and maintaining NaviGate Prepared’s rights in the suggestions.
3.7. Use of Data. Customer hereby grants NaviGate Prepared a perpetual, royalty-free license to use all data and analytics related to the Software, and Customer’s use thereof, for purposes of using the data to improve the Software and the product offerings of NaviGate Prepared, and for other purposes, including, without limitation, other business applications by NaviGate Prepared, all of which rights shall survive the expiration of the term or termination, and shall be without any payment from NaviGate Prepared.
3.8. Student and Staff Records. NaviGate Prepared acknowledges that it may create, receive from or on behalf of Customer or Customer authorized parties, or have access to records or record systems that are subject to certain federal, state, and local laws and regulations (such records collectively, “Records”). The Records are the sole property of Customer. NaviGate Prepared shall maintain the confidentiality of the Records. NaviGate Prepared shall not be liable for any unauthorized or inappropriate disclosure of confidential student or staff information by Customer. NaviGate Prepared may disclose confidential student or staff information when required by law to do so or when authorized by Customer to make such a disclosure. Customer is solely responsible for obtaining all rights, permissions, and consents from its users and other personnel that are necessary to grant the rights under these Terms.
ARTICLE 4 – Additional Terms
4.1. Representations and Warranties of Customer. Customer represents and warrants that (a) Customer has legal authority to enter into and perform the Quote and the Terms, including providing the data and allowing NaviGate Prepared the rights to perform the Services hereunder without violation of any law, rule, regulation, order, or other agreement, (b) any software, hardware, system, equipment, process, method, data, or information used by Customer, including without limitation, any data Customer uses with the Software, does not infringe any third party copyright, patent, trade secret, confidentiality, privacy, trademark, or other intellectual property right, and (c) it has, and at all times will have, all necessary rights, licenses, consents, and permissions (without the need for any additional approval, waivers, or releases, or payment to another person or entity) to submit, store, develop, use, disseminate, and grant access to all of the Uploaded Content with regard to any restraints that otherwise might be imposed by law or contract protecting copyrights, patents, trademarks, trade secrets, trade names, or privacy, publicity, or confidentiality (including statutory and contractual restrictions on disclosure and appropriation), and/or for any other intellectual property rights or rights or interests arising in connection with proprietary information.
4.2. Compliance with Law and Third Party Rights. Customer warrants that it and its agents, and any person acting for the benefit of Customer or on its behalf or with its authorization will in all respects comply with all applicable laws and regulations and refrain from violating the rights or infringing the interests (or attempting to do so) of any third parties in connection with the use of the NaviGate Prepared portal and site, including without limitation in the selection, gathering, creation, modification, uploading onto the NaviGate Prepared site, maintenance, preservation, retrieval, dissemination, other utilization, and (for Customer, only) granting access of and to the Uploaded Content stored in Customer’s NaviGate Prepared area.
4.3. Insurance. Customer shall, at all times, maintain general liability insurance in adequate amounts, but in any case not less than $2,000,000.00 per occurrence, (hereinafter collectively “Insurance”) with a carrier reasonably acceptable to NaviGate Prepared, and upon request, naming NaviGate Prepared as an additional insured, and providing that such insurance may not be cancelled without thirty (30) days prior written notice to NaviGate Prepared. Customer shall provide NaviGate Prepared with a Certificate of Insurance evidencing the insurance upon request of NaviGate Prepared.
4.4. Indemnification. To the fullest extent permitted by law, Customer shall defend, hold harmless and indemnify NaviGate Prepared, and its directors, officers, members, employees, agents, representatives, affiliates, subsidiaries, successors and assigns from and against any and all claims, demands, losses, suits, damages, liability and expenses, including reasonable attorney fees, arising out of or related to (i) Customer’s use of the Software and Services in violation of these Terms, (ii) any acts or omissions of Customer or its agents, contractors or employees, (iii) any breach of these Terms or any other agreement with NaviGate Prepared by Customer, (iv) actual or alleged misuse or misappropriation of any intellectual property right of or other confidential, proprietary information resulting directly or indirectly from Customer’s information, acts or omissions. Customer shall promptly notify NaviGate Prepared of any suit filed against it or its Clients on account of any such indemnification obligation of Customer hereunder, and at NaviGate Prepared’s option, Customer may assume the sole responsibility for the defense of such action at Client’s sole expense. NaviGate Prepared may be represented by their own counsel in any such suit at the expense of Client, however, no settlement shall be entered into on behalf of NaviGate Prepared without NaviGate Prepared’s prior consent in its sole discretion.
ARTICLE 5 – Disclaimers and Limitations
5.1. No Warranty. NaviGate Prepared does not warrant its Software or Services and shall have no responsibility for any third party software, products, installation, or modifications not provided or made by NaviGate Prepared. All installation and modifications made by Customer or other third parties are made at the sole risk and expense of Customer and shall void any warranties related to NaviGate Prepared’s products. NaviGate Prepared is in no way responsible for Customer’s data or use of the Software. NAVIGATE PREPARED MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SOFTWARE OR ANY RIGHTS GRANTED HEREUNDER INCLUDING, WITHOUT LIMITATION, ANY WARRANTY (I) OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT SATISFACTORY QUALITY, NON-INFRINGEMENT, OR QUIET ENJOYMENT, (II) ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE, (III) THAT THE SERVICE OFFERINGS OR THIRD-PARTY CONTENT WILL BE UNINTERRUPTED, ERROR FREE OR FREE OF HARMFUL COMPONENTS INCLUDING VIRUSES AND THE LIKE, AND (IV) THAT ANY CONTENT OR DATA WILL BE SECURE OR NOT OTHERWISE LOST OR ALTERED.
5.2. Exclusions and Limitation of Liability. NAVIGATE PREPARED AND ITS AFFILIATES AND LICENSORS WILL NOT BE LIABLE TO CUSTOMER FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, REVENUES, CUSTOMERS, OPPORTUNITIES, GOODWILL, USE, OR DATA), EVEN IF ANY SUCH PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, NEITHER NAVIGATE PREPARED NOR ANY OF ITS AFFILIATES OR LICENSORS WILL BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH: (A) CUSTOMER’S INABILITY TO USE THE SOFTWARE OR SERVICES, INCLUDING AS A RESULT OF ANY (I) TERMINATION OR SUSPENSION OR CUSTOMER’S USE OF OR ACCESS TO THE SOFTWARE OR SERVICES, (II) NAVIGATE PREPARED’S DISCONTINUATION OF ANY OR ALL OF THE SOFTWARE OR SERVICES, OR, (III) ANY UNANTICIPATED OR UNSCHEDULED DOWNTIME OF ALL OR A PORTION OF THE SOFTWARE OR SERVICES FOR ANY REASON OR (III) OTHER REASONS BEYOND THE CONTROL OF NAVIGATE PREPARED; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SOFTWARE OR SERVICES; (C) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY CUSTOMER IN CONNECTION WITH THESE TERMS OR CUSTOMER’S USE OF OR ACCESS TO THE SOFTWARE OR SERVICES; OR (D) ANY UNAUTHORIZED ACCESS TO, ALTERATION OF, OR THE DELETION, DESTRUCTION, DAMAGE, LOSS OR FAILURE TO STORE ANY OF CUSTOMER’S CONTENT OR OTHER DATA. CUSTOMER ACKNOWLEDGES THAT NAVIGATE PREPARED DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SOFTWARE AND RELATED SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. NAVIGATE PREPARED, ITS AFFILIATES AND LICENSORS ARE NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. NAVIGATE PREPARED AND ITS AFFILIATES’ AND LICENSORS’ AGGREGATE LIABILITY WILL NOT EXCEED THE FEES PAID BY CUSTOMER TO NAVIGATE PREPARED FOR THE PRODUCT OR SERVICE THAT GAVE RISE TO THE CLAIM DURING THE TWELVE (12) MONTHS BEFORE THE LIABILITY AROSE. THE REMEDIES OF CUSTOMER HEREUNDER ARE EXCLUSIVE AND IN LIEU OF ALL OTHER REMEDIES.
UNDER NO CIRCUMSTANCES SHALL NAVIGATE PREPARED HAVE ANY LIABILITY HEREUNDER, OR BE LIABLE FOR ANY DAMAGES, TO ANY PARTY OTHER THAN CUSTOMER. UNDER NO CIRCUMSTANCES SHALL NAVIGATE PREPARED, ITS LICENSORS, SUPPLIERS, OR SUBCONTRACTORS BE LIABLE TO CUSTOMER OR ANY OTHER PERSON FOR ANY DAMAGES ARISING OUT OF OR CAUSED, IN WHOLE OR IN PART, BY ANY ERRORS OR OMISSIONS IN ANY DATA, CONTENT, OR OTHER INFORMATION PROVIDED THROUGH THE SERVICES OR BY DELAYS IN OR INTERRUPTIONS OF ACCESS TO NAVIGATE PREPARED’S WEBSITE. NAVIGATE PREPARED WILL NOT BE LIABLE TO ANY PERSON FOR ANY BODILY INJURY, DEATH, PROPERTY DAMAGE OR ECONOMIC LOSS, LOSS OF REVENUE, COSTS OF REPLACEMENT(S), DAMAGES SUFFERED BY PERSONS WHOM OR WHICH CUSTOMER SERVES (SUCH AS STUDENTS, PARENTS, TEACHERS, STAFF, ETC.), REGULATORY FINES OR PENALTIES OR CITATIONS AGAINST CUSTOMER OR ANY AFFILIATE OF CUSTOMER, EVEN IF NAVIGATE PREPARED HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
5.3. Acknowledgment. NaviGate Prepared is under no obligation to further develop, maintain, or market the Software, and may abandon its technical or other support at any time. Future versions of the Software, if any, may not be compatible with the current release of the Software and the hardware and software. Customer is responsible for (a) providing power, other hardware, equipment and components, not part of those supplied by NaviGate Prepared as part of the Software; (b) internet access necessary to access and/or use the Software; and (c) complying with any policies and procedures as submitted by NaviGate Prepared from time to time.
5.4. Data Security. NaviGate Prepared is not responsible for any activities related to the Software and Services that occur under Customer’s online account or within Customer’s network environment, regardless of whether the activities are authorized by Customer or undertaken by Customer, its employees or a third party (including Customer contractors, agents or end users). NaviGate Prepared and NaviGate Prepared’s affiliates are not responsible for unauthorized access to Customer’s account. Customer will ensure that all data provided under these Terms will not violate applicable laws. Customer is solely responsible for the collection, use, updates, and maintenance of Customer data. Customer is responsible for securing, protecting and backing up data in a manner that will provide appropriate security and protection. Customer acknowledges that NaviGate Prepared does not provide backup services for the data. Furthermore, Customer acknowledges that if it deletes or destroys its data, NaviGate Prepared shall not be responsible for any destruction or deletion of such data. Any log-in credentials and passwords generated by the Software are for Customer’s internal use only and Customer will not sell, transfer or sublicense them to any other entity or person. Customer acknowledges that the data will be located on a service which may be outside of the United States.
Customer understands and agrees that NaviGate Prepared is not responsible for any data breach or intrusion into NaviGate Prepared’s system, unless caused by the gross negligence or intentional misconduct of NaviGate Prepared. In the event that NaviGate Prepared discovers that any NaviGate Prepared computer system has been breached, NaviGate Prepared agrees to comply with applicable law but, unless applicable law specifically requires other notice, NaviGate Prepared’s sole obligation shall be to give notice to Customer, and to reasonably cooperate with Customer in providing written notice if required by applicable law. Customer acknowledges and agrees that use of any communications technology entails certain unavoidable risks, and that no technology is foolproof or immune from attack.
5.5. Customer Duties and Limitations on NaviGate Prepared’s Liability. Customer is responsible, at its own expense, for (a) procuring, installing, and maintaining computer equipment and computer software programs at its premises compatible with and as necessary to use the Software, (b) obtaining access to the Internet, (c) downloading and installing any necessary plug-ins, (d) determining whether the Software or Services will achieve the results desired by Customer, (e) determining the accuracy and suitability for Customer of all data and content it uploads to and downloads from the Software, (I) adopting reasonable measures to limit Customer’s exposure to potential losses and damages from use, nonuse, errors, or omissions of or in the Software or Services, or the results thereof, including, without limitation, examining and confirming data and content prior to use and providing for the identification and correction of errors and omissions, (g) data integrity and any necessary conversion of its data to the format required by the Software or Services, and (h) maintaining the compatibility of third-party supplied software and equipment with the Software or Services.
Customer is required to consistently exercise prudence and adhere to risk-containment strategies, including use of a backup strategy to safeguard information uploaded to Customer’s NaviGate Prepared area. Notwithstanding anything to the contrary herein, NaviGate Prepared will not be responsible, or otherwise liable, for: (i) any damages suffered due to access into Customer’s area of NaviGate Prepared which are caused by any agent of Customer or any person acting for the benefit of Customer or on its behalf or with its authorization or by any person which decrypts or otherwise “breaks” Customer’s password for NaviGate Prepared; (j) the accuracy, utility, or effectiveness of any Uploaded Content put into Customer’s area of NaviGate Prepared; or (k) the nature, accuracy, completeness, applicability, suitability, or utility of any information contained on any website – or the continued existence of any website, or transactions to which Customer may become a party on any website – which may from time to time be available through a “link” presented on the NaviGate Prepared website.
5.6. Passwords. NaviGate Prepared acknowledges that NaviGate Prepared must have access to Customer’s systems and any and all systems and resources to perform its duties. As such, NaviGate Prepared must have access to Customer’s passwords. If a password is lost or not available, data of the NaviGate Prepared will not be available, and NaviGate Prepared will not be held liable for being unable to provide the Software or Services.
ARTICLE 6 – Miscellaneous Provisions
6.1. Assignment. These Terms and the license granted hereunder is personal to Customer, and shall not be assigned or transferred by Customer, in whole or in part, without the prior written consent of NaviGate Prepared. NaviGate Prepared may assign its rights, interest, duties and obligations, in whole or in part to an affiliate, subsidiary, successor or assign. These Terms shall inure to the benefit of and be binding upon Customer and NaviGate Prepared and their permitted successors and assigns.
6.2. Notice. Any notice or other communication pursuant to these Terms shall be sufficiently made or given if sent to such party: (a) by certified first class mail, postage prepaid, addressed to a party at the address set forth above, or as last designed in written notice by a party; (b) by overnight mail through a reputable overnight courier addressed to a party at the address set forth above, or as last designated in written notice by a party; or (c) by electronic mail or via a web or electronic application specified by NaviGate Prepared in writing.
6.3. Damages. Customer acknowledges that a breach or threatened breach of these Terms shall result in irreparable and incalculable damages to NaviGate Prepared. Therefore, in addition to any action by NaviGate Prepared for collection of damages resulting from the breach of these Terms, NaviGate Prepared shall also be entitled to immediate injunctive relief, restraining Customer from continued or threatened breach of these Terms. Customer further agrees that upon breach of the terms of these Terms, it shall pay to NaviGate Prepared the costs and expenses, including attorneys’ fees, which NaviGate Prepared incurs in enforcing the terms of these Terms.
6.4. Choice of Law; Venue. These Terms shall be construed, governed, interpreted and applied in accordance with the laws of the State of Ohio, excluding conflict of laws provisions. The parties agree that any dispute or controversy arising out of these Terms not otherwise resolved pursuant to the arbitration provision above shall be resolved in the courts sitting in Tuscarawas County, Ohio, or the Federal District Court with jurisdiction over Tuscarawas County, Ohio.
6.5. Entire Agreement. These Terms, the NaviGate Prepared Quote, and any attachment hereto, represents the entire agreement and understanding of the parties hereto as to the subject matter hereof, and shall not be subject to any change or modification except by the execution of a written instrument signed by the parties hereto. The parties further agree that any and all terms and conditions presented by Customer, whether in a purchase order or any other document or writing, are hereby expressly rejected and shall not be made a part of the agreement between the parties. No prior inconsistent or additional terms, provisions, proposals, or discussions (including any that are on Customer’s forms) are a part of the agreement for the “NaviGate Prepared License.” By logging onto the NaviGate Prepared system, Customer affirms its agreement to be bound by the provisions of the NaviGate Prepared License as defined herein.
6.6. Severability. The provisions of these Terms are severable. If any provisions of these Terms are determined by a court of competent jurisdiction to be invalid or unenforceable under any controlling body of law, then such invalidity or unenforceability shall not in any way affect the validity or enforceability of the remaining provisions hereof.
6.7. Waiver. The failure of either party to assert a right hereunder or to insist upon compliance with any term or condition of these Terms shall not constitute a waiver of that right or excuse a similar subsequent failure to perform any such term or condition by the other party.
6.8. Force Majeure. The parties hereto shall not be responsible for any failure or delay in performance of any obligations hereunder caused by resulting directly or indirectly from an act of force majeure or causes beyond Lauren’s reasonable control, including without limitation, equipment or technical failures, electrical power failures or fluctuations, failure of environmental control systems, denial of service attacks (including distributed denial of service attacks) or any other form of adverse cyber attack or hacker activity, any failure or delays of ISP’s, any general or regional malfunction or overload of the web or the internet, strikes, labor disputes, terrorism, riots, civil disturbances, shortages of labor or materials, fire, flood, natural or man-made disasters, Acts of God, government actions, statutes, ordinances, or regulations, orders of domestic or foreign courts or tribunals, non-performance of third parties, or any event, cause, contingency, or circumstance beyond the reasonable control of a party. Upon the occurrence of any such event, the party shall promptly notify the other party of the nature and extent of any such condition.
6.9. Attorney’s Fees. In the event of any dispute hereunder, the prevailing party shall be entitled to receive from the other party all costs and expenses, including attorney fees, incurred by the prevailing party in enforcing these Terms.
6.10. Independent Contractor. The relationship between Lauren and Customer does not extend beyond the express terms of these Terms, and does not constitute a partnership, joint venture, or agency. Neither party has any right or authority to assume or create any obligations on behalf of or in the name of the other or to bind the other in any manner whatever.
6.11. Limitations on Prosecution of Claims. Any legal proceeding, regardless of form, arising out of these Terms, or any part thereof, which is not initiated by Customer within one (1) year from the date the cause of action accrues is forever barred.
6.12. Survival. All provisions of these Terms relating to the obligations of Customer under these Terms shall survive the expiration of the term or termination.