PLATFORM LICENSE TERMS
PLEASE READ THESE PLATFORM LICENSE TERMS CAREFULLY BEFORE USING THE PLATFORM AND/OR THE CONTENT (EACH AS DEFINED BELOW) OFFERED BY MONEY EXPERIENCE, INC., A DULY FORMED DELAWARE CORPORATION WITH PRINCIPAL PLACE OF BUSINESS AT 1 KENDALL SQUARE, SUITE B4202, CAMBRIDGE, MA 02139 (“MONEY EXPERIENCE”). BY SIGNING AN ORDER FORM WITH MONEY EXPERIENCE WHICH REFERENCES THESE PLATFORM LICENSE TERMS (AN “ORDER FORM”), YOU, ON BEHALF OF THE ENTITY YOU REPRESENT (“SUBSCRIBER”), ARE UNCONDITIONALLY CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THE MONEY EXPERIENCE PLATFORM LICENSE AGREEMENT CONSISTING OF SUCH ORDER FORM, THIS PARAGRAPH AND THE BELOW TERMS (THE “AGREEMENT”). ACCESS TO THE PLATFORM AND CONTENT IS CONDITIONED ON, AND YOUR USE OF THE PLATFORM AND/OR CONTENT IN ANY WAY SHALL CONSTITUTE, YOUR CONSENT TO THE TERMS OF THIS AGREEMENT TO THE EXCLUSION OF ALL OTHER TERMS. IF THESE PLATFORM LICENSE TERMS ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS. IN THE EVENT OF A CONFLICT BETWEEN THESE PLATFORM LICENSE TERMS AND THE ORDER FORM, THE ORDER FORM SHALL CONTROL.
1.1 “Content” means, collectively, those documents, materials, courses and any other content made available to the Subscriber by Money Experience, whether accessible online or stored in some other format, or in printed or hard copy form.
1.2 “Enhancement Modifications” means modifications, additions or substitutions, other than Maintenance Modifications, made to the Platform, including those that accomplish structural or functional improvements or result in a successor product to the Platform.
1.3 “Maintenance Modifications” means modifications, updates, patches, upgrades or revisions made by Money Experience to correct errors, support new releases of operating systems, support changes as necessary to comply with applicable laws, or that are otherwise provided by Money Experience to its customers generally at no additional charge.
1.4 “Malicious Code” means any and all code, files, scripts, agents or programs intended to do harm (such as enabling unauthorized access and/or disrupting normal functionality and performance), including, for example, viruses, worms, time bombs and Trojan horses.
1.5 “Online Course” means a single class course created by Money Experience and made available on the Platform for access and use by a Student User, and utilizes the Content provided by Money Experience.
1.6 “Platform” means the online software application provided by Money Experience and offered to Subscriber hereunder for use by Subscriber’s Authorized Users and those Student Users that have access through a valid Seat License, including Maintenance Updates provided by Money Experience during the term of this Agreement or any Subscription Term set forth in any Order Form, together with all documentation provided by or otherwise required of Money Experience.
1.7 “Professional Services” means those services provided to Subscriber by Money Experience as may be described in an SOW for a fee to be negotiated by the parties, which are outside of or in addition to the utilization of the Platform by Subscriber. Professional Services may include, but not be limited to, consulting, implementation, training, customization, design, production and any other services that are mutually agreed upon by the parties in writing in an SOW.
1.8 “Seat License” means a single, limited, non-exclusive, non-transferable right granted to a Student User hereunder and subject to the Terms to access an Online Course via the Platform.
1.9 “Seat License Fee” means the fee associated with the grant of each Seat License for access to a single Online Course as specified in this Agreement and any applicable Order Form and as set forth in the applicable Pricing Schedule attached hereto as Exhibit A.
1.10 “Statement(s) of Work” or “SOW” means, if any, the mutually agreed upon statement of work for Professional Services signed by authorized representatives of both parties, each of which will incorporate and be governed by the terms and conditions of this Agreement and be deemed to be part of this Agreement, except as supplemented or explicitly modified therein, which will thereby be incorporated therein by this reference. The SOW form is attached hereto as Exhibit B. Any capitalized terms used in a Statement of Work that are defined in this Agreement shall have the meaning ascribed to them in this Agreement.
1.11 “Student User” means a user who acquires a Seat License to use Platform to access a single Online Course. Subscriber shall be solely and wholly responsible for all actions and negligence of any Student Users.
1.12 “Subscriber’s Authorized Users” means, unless otherwise limited on an applicable Order Form, the Subscriber’s employees, agents, consultants, outsourcing companies, contractors and others, other than Student Users, who are authorized by Subscriber to access and use the Platform in the performance of their duties for Subscriber. Subscriber shall be solely and wholly responsible for all actions and negligence of any Subscriber’s Authorized Users.
1.13 “Subscriber Data” means any and all personally identifiable information of a Student User or Subscriber’s Authorized User collected, used, processed, stored, or generated as the result of the use of the Platform by such Student Users or Subscriber’s Authorized Users, including, without limitation, any information that identifies an individual, such as an individual’s date of birth, address, telephone number, email address, credit card information, demographic information, any information related to outcomes of an individual following their use of the Platform, or an individual’s name in combination with any other of the elements listed above.
1.14 “Subscription Term” means the term specified in an applicable Order Form.
1.15 “Terms and Conditions of Use” or “Terms” means those terms and conditions governing the access and use of the Platform and Content applicable to each Student User, as agreed to by such Student User and Money Experience.
2.1 Subscription and Use
Subject to Subscriber making those applicable payments in accordance with an applicable Order Form and the terms and conditions of this Agreement, Money Experience hereby grants to the Subscriber a limited, revocable, non-exclusive, non-transferable license to permit Student Users and Subscriber’s Authorized Users to access and use the Platform and the Content via a valid applicable Seat License assigned to such Student User or Subscriber’s Authorized User (as applicable) during the applicable Subscription Term. For clarity, any access to or use of Enhancement Modifications by Subscriber, Student Users and Subscriber’s Authorized Users may be subject to additional fees. Subscriber acknowledges and agrees that each Seat License may be assigned to and used by only one (1) Student User, and may not be shared or otherwise re-used amongst multiple individuals.
2.2 Click-Through Licenses
In order to access the Platform and Content, Student Users may be required, from time to time and as either party deems necessary, to accept certain online terms and conditions, including without limitation the Terms. Any such online terms and conditions shall be subject to the terms and conditions of this Agreement and shall not have the effect of modifying any of the terms and conditions of this Agreement. In the event of a conflict between the Terms and this Agreement, the terms of this Agreement shall control. In the event Subscriber requires acceptance of certain online terms and conditions directed at Student Users, Subscriber shall submit such terms and conditions to Money Experience prior to making them available online so that Money Experience may determine promptly, within its sole discretion, but acting reasonably and in good faith, whether the submitted online terms and conditions are in compliance with this Agreement and whether Money Experience approves of their use with the Student Users.
3. FEES AND PAYMENT
Subscriber shall pay Money Experience Seat License Fees and other fees set forth on any applicable Order Form and/or SOW(collectively “Fee(s)”).
In the event that those amounts Money Experience charges for access to the Platform or any Professional Services become subject to sales, use, property or similar taxes, Subscriber shall be responsible for paying such taxes. Such taxes shall be in addition to any of the fees described in Section 3.1 above. Subscriber shall not be charged for, and Money Experience shall pay, any taxes based on the net or gross income of Money Experience or taxes imposed on Money Experience in lieu of income taxes or income tax increases, including value added taxes.
Unless otherwise specified in the payment schedule contained in an applicable Order Form or SOW, Subscriber will pay such invoices within thirty (30) days of receipt of applicable invoice. If Subscriber fails to make payment of any invoice in accordance with this Section 3.3, then Money Experience may, after ten (10) business days written notice (unless the Subscriber makes the applicable payment within such ten (10) business day period), without prejudice to any other rights and remedies and without liability to Subscriber or any Student Users, disable the Subscriber’s, Subscriber’s Authorized Users’, and Student Users’ password, account and access to all or part of the Platform. Interest shall accrue on any such unpaid overdue amounts (unless paid within the ten (10) business day period following receipt of the notice from Money Experience) equal to 1.5% monthly. Money Experience reserves the right to suspend Subscriber’s access to the Platform in the event that any overdue amounts remain unpaid beyond the ten (10) business day period following receipt of the notice from Money Experience. Subscriber agrees to reimburse Money Experience for: (a) any bank fees it incurs for checks returned for insufficient funds; and (b) reasonable attorney’s fees incurred for collection of any such unpaid overdue fees that remain unpaid after the ten (10) business day period which follows the receipt of the notice from Money Experience. Subscriber’s failure to make payment of any amounts due to Money Experience following the expiration of the ten (10) business day period shall be considered a material breach of this Agreement and be subject to Section 4.2 below.
4. AGREEMENT TERM AND SUBSCRIPTION TERM; TERMINATION
4.1 Agreement Term; Subscription Term
This Agreement is legally binding as of the Effective Date and shall continue until the expiration of all outstanding Order Forms and SOWs, unless earlier terminated as provided for herein (“Agreement Term”). The initial period of access to the Platform and any Content (including any renewal or extension periods) which are specified in any Order Form shall be referred to therein as the “Subscription Term”.
4.2 Termination for Cause
If either party (a) materially breaches any of its duties or obligations hereunder and such breach is not cured (if it can be) to the reasonable satisfaction of the non-breaching party within fifteen (15) calendar days after receipt of the written notice of the breach; or (b) institutes or has instituted against it insolvency, receivership or bankruptcy proceedings which are not dismissed within ninety (90) days of their commencement, makes an assignment for the benefit of creditors, or ceases doing business on a regular basis, then such non-breaching party may terminate this Agreement and/or an applicable Order Form and/or SOW (in whole or in part) for cause. Notwithstanding the foregoing, in the event of Subscriber’s failure to pay Fees, Subscriber shall have the additional cure period set forth in Section 3.3 above before non-payment becomes a material breach of this Agreement.
4.3 Termination Obligations
4.3.1 As to Subscriber
Upon the termination of this Agreement or any Order Form or SOW, Subscriber shall: (a) pay to Money Experience all amounts due and payable hereunder that are not subject to a good faith dispute, if any; (b) cease using the Platform; and (c) return or destroy, at Money Experience’s sole option, any all documentation and media containing any of Money Experience’s Confidential Information.
4.3.2 As to Money Experience
Upon the termination or expiration of this Agreement or any Order Form or SOW, Money Experience shall: (a) immediately cease using Subscriber’s Confidential Information, including, without limitation, Subscriber Data except as expressly permitted under Section 5.2; (b) within thirty (30) business days following the termination or expiration date provide Subscriber with a final extract of the Subscriber Data; provided that Subscriber shall pay Money Experience for its reasonable costs associated with the preparation and return of Subscriber Data; and (c) promptly return or destroy, at Money Experience’s sole option, any Subscriber Confidential Information within the possession or control of Money Experience after the earlier of (i) Subscriber confirming that it has received the final extract of the Subscriber Data (in reasonably satisfactory condition) and (b) forty-five (45) days after termination or expiration.
5 PROPRIETARY RIGHTS; LICENSE
5.1 Ownership of Money Experience Intellectual Property
Subscriber acknowledges and agrees that, between Subscriber and Money Experience, Money Experience shall own all intellectual property rights in the Platform, Content, Online Courses, materials, patents, copyrights and any trade- or service marks or logos of Money Experience (trademarks, services marks and logos collectively, the “Money Experience Marks”) (collectively, the “Money Experience IP”). Except as expressly stated herein, this Agreement does not grant Subscriber any right, title or interest whatsoever to or in any Money Experience IP, including without limitation any patents, copyrights, database rights, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licenses in respect of the Platform, Content, materials or documentation. All Money Experience IP, including the results and proceeds of any provision of any service or access offered by Money Experience to Subscriber (including that of any use by Subscriber’s Authorized Users or any Student Users) shall accrue to the benefit of and be wholly owned by Money Experience. For the purposes of this Agreement and any applicable Order Form and/or SOW, the term “Money Experience IP” shall include any tangible or intangible work, invention, test, research, improvement, specification, document, discovery, process, writing, design, model, drawing, photograph, report, flow chart, diagram, formula, pattern, device, compilation, database or computer program (whether or not subject to protection under Title 17 of the U.S. Code and whether or not patentable or otherwise subject to protection under Title 35 of the U.S. Code) that are conceived of, prepared, procured, generated or produced under this Agreement.
5.1.2 License; Restrictions.
Money Experience hereby grants to Subscriber a non-exclusive, worldwide, royalty-free, fully paid up license for the Subscription Term to use the Money Experience IP in connection with the Platform and solely for the purposes as set forth in this Agreement or applicable Order Form and/or SOW. In addition, Subscriber hereby grants to Money Experience a limited, non-exclusive, royalty-free right and license to use Subscriber’s trademarks, service marks and logos (collectively, the “Subscriber Marks”) (Money Experience Marks and Subscriber Marks each, the “Mark” and together, the “Marks”) as required to perform its obligations and receive the rights set forth herein. Subscriber further grants Money Experience a limited, non-transferable, non-exclusive, royalty-free license to include Subscriber’s name and standard logo within its list of customers utilizing Money Experience’s Services, both on Money Experience’s public-facing website and in its marketing and promotional materials. Except as expressly set forth herein, Subscriber is not granted the right to sell, license, sublicense or otherwise transfer (for a fee or otherwise) the right to use any Money Experience IP without the prior written consent of Money Experience, which may be withheld in Money Experience’s sole discretion. Each party (the “Licensee”) expressly agrees that any and all goodwill arising from Licensee’s use of any trade names, trademarks or logos of the other party (“Licensor”), its affiliates and licensees in connection with this Agreement shall inure to the sole benefit of the Licensor, shall remain the sole property of Licensor and Licensee shall not acquire any interest in the Marks of Licensee by virtue of any such use. In addition, Licensee acknowledges and agrees that Licensee’s use of Licensor’s Marks must comply with any and all written usage guidelines provided by Licensor, and Licensee shall not remove, alter or obscure in any way Licensor’s Marks or any part thereof, and all proprietary rights notices (including copyright and trademark notices) of Licensor’s Marks unless otherwise agreed to in writing by Licensor.
5.2 Ownership of Subscriber Data & IP
Subscriber Data, Subscriber’s trademarks and logos (if any) used on the Platform are and shall remain the sole and exclusive property of Subscriber and all right, title, and interest in the same shall remain in and inure to Subscriber.
5.2.1 Security of Subscriber Data
Subscriber shall ensure the security of its account ID, password, and connectivity with the Platform. If any administrative account ID or password is stolen or otherwise compromised, Subscriber shall immediately change the password and inform Money Experience of the compromise. Subscriber acknowledges that responsibility for all Subscriber Data, text, information, messages and other material submitted by Subscriber or Subscriber’s Authorized Users or Student Users to the Platform lies solely with Subscriber. Subscriber is solely responsible for the integrity and quality of Subscriber Data. Money Experience may change the authorization method for access to the Platform if it determines in its sole discretion that there are circumstances justifying such changes. Money Experience shall use commercially reasonable efforts to protect against the loss, misuse and alteration of Subscriber Data under Money Experience’s reasonable control. Notwithstanding the foregoing, Subscriber agrees that Money Experience shall not be liable to Subscriber for any loss, misuse or alteration of Subscriber Data exported by Subscriber or a Subscriber’s Authorized User or Student User to third-party applications. Subscriber is solely responsible for the integrity of data in storage or transmission and ensures proper storage or transmission of data by Subscriber’s Authorized Users of the Platform. Money Experience will adhere to industry standard security process and will promptly respond to remedy any security breaches of the Platform of which it becomes aware.
5.3 License to Use Subscriber Data
Subscriber hereby grants Money Experience a limited, non-exclusive, royalty-free, fully paid up, non-transferable, worldwide license to use Subscriber Data solely for the purposes of: (a) allowing Student User authorized access to the Platform pursuant to a Seat License; (b) providing the Content under this Agreement, including collecting, processing, storing, generating, uploading and displaying Subscriber Data; (c) technical administration of Platform; and (d) Data Aggregation. “Data Aggregation” shall mean the mining process where Subscriber Data is searched, gathered, copied, and reproduced in a summarized format meaningful to Money Experience solely so Money Experience may create and disclose statistics about its users’ registration information in connection with Money Experience’s marketing activities, provided that Money Experience will only disclose such information in an anonymized form and in the aggregate. Money Experience shall: (i) keep and maintain Subscriber Data in strict confidence, using such degree of care as is consistent with industry standards and applicable law and regulations designed to avoid unauthorized access, use, disclosure, or loss; (ii) use and disclose Subscriber Data solely and exclusively for the purposes permitted under this Agreement, any Order Form, any SOW, and applicable law and regulations; and (iii) not use, sell, rent, transfer, distribute, or otherwise disclose or make available non-aggregated and non-anonymized Subscriber Data without Subscriber’s prior written consent. Money Experience acknowledges and agrees that, as between the parties, Subscriber and/or its licensors own all intellectual property rights in Subscriber Data.
Each party may receive or be given access to (“Receiving party”) the business, product or service, or customer information of the other party (“Disclosing party”), that is marked or otherwise identified as “proprietary” or “confidential” or that is of such a nature that a reasonable person would understand such information to be proprietary or confidential (“Confidential Information”). A party’s Confidential Information shall not be deemed to include information that: (a) is or becomes publicly known other than through any act or omission of the Receiving party; (b) was in the other party’s lawful possession without any obligations of confidentiality before the disclosure; (c) is lawfully disclosed to the Receiving party by a third party without restriction on disclosure; (d) is independently developed by the Receiving party without use of or reference to the Confidential Information of the Disclosing party, which independent development can be shown by written evidence; or (e) is required to be disclosed by applicable law, by any court of competent jurisdiction or by any regulatory or administrative body, provided the Receiving party will promptly notify the Disclosing party upon learning of any such legal requirement, and reasonably cooperate with the Disclosing party in the exercise of its right to protect the confidentiality of the Confidential Information before any tribunal or governmental agency.
Each party shall hold the other’s Confidential Information in confidence and, unless required by law, not make the other’s Confidential Information available to any third party other than as contemplated by this Agreement, or use the other’s Confidential Information for any purpose other than the implementation of this Agreement. Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement.
The Subscriber acknowledges that details of Platform and/or Content, and the results of any performance tests of the Platform, constitute Money Experience’s Confidential Information. Money Experience acknowledges that the Subscriber Data is the Confidential Information of the Subscriber.
EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, MONEY EXPERIENCE DOES NOT WARRANT THAT THE PLATFORM, ONLINE COURSES OR CONTENT WILL MEET SUBSCRIBER’S REQUIREMENTS OR RESULTS IN ANY OUTCOME, OR THAT THE OPERATION THEREOF WILL BE UNINTERRUPTED OR ERROR-FREE. EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, TO THE FULLEST EXTENT PERMITTED BY LAW, MONEY EXPERIENCE HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO ANY SERVICE, CONTENT, MONEY EXPERIENCE IP, ONLINE COURSES OR ANY OTHER INFORMATION OR MATERIALS OFFERED BY MONEY EXPERIENCE OR OTHER SUBJECT MATTER OF THIS AGREEMENT INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT, INTEGRATION, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. EXCEPT AS EXPRESSLY SET FORTH HEREIN, MONEY EXPERIENCE MAKES NO REPRESENTATIONS CONCERNING ANY CONTENT, ONLINE COURSES, MONEY EXPERIENCE IP OR ANY OTHER INFORMATION OR MATERIALS PROVIDED OR OTHERWISE MADE ACCESSIBLE BY MONEY EXPERIENCE HEREUNDER, AND MONEY EXPERIENCE WILL NOT BE RESPONSIBLE OR LIABLE FOR ANY ACCESS TO OR USE OF THE CONTENT, ONLINE COURSES, MONEY EXPERIENCE IP OR ANY OTHER INFORMATION OR MATERIALS BY ANY THIRD PARTY, INCLUDING WITHOUT LIMITATION SUBSCRIBER AND STUDENT USERS. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE PLATFORM, ONLINE COURSES, MONEY EXPERIENCE IP AND CONTENT ARE PROVIDED “AS IS,” “AS AVAILABLE,” AND WITHOUT WARRANTY OF ANY KIND. MONEY EXPERIENCE AND MONEY EXPERIENCE’S DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, PARTNERS AND CONTENT PROVIDERS DO NOT WARRANT THAT THE RESULTS OF THE PLATFORM, ONLINE COURSES, MONEY EXPERIENCE IP OR THE CONTENT WILL MEET SUBSCRIBER’S OR ANY STUDENT USER’S REQUIREMENTS.
8.1 By Money Experience: Infringement
Except as provided below, Money Experience agrees to defend Subscriber and its directors, officers, employees and independent contractors (collectively, “Subscriber Indemnitees”) against any claim by a third party that the Platform or Content, or use thereof, infringes or misappropriates a valid patent, trademark or any copyright or trade secret, of such third party and agrees to indemnify and hold harmless Subscriber Indemnitees for settlement amounts, or damages, liabilities, costs and expenses (including reasonable outside attorney’s fees) awarded by a court of competent jurisdiction and arising out of such claim. If the Platform or Content becomes or, in Money Experience’s opinion, is likely to become the subject of any injunction preventing its use as contemplated herein, Money Experience may, at its option: (a) obtain for Subscriber the right to continue using the Platform or Content or (b) replace or modify the Platform or Content so that it becomes non-infringing. If (a) and (b) are not reasonably available to Money Experience after use of Money Experience’s commercially reasonable efforts then it may terminate this Agreement upon written notice to Subscriber and refund to Subscriber any fees that were pre-paid for the then current terms, pro-rated for the remainder thereof.
Money Experience shall have no liability or obligation under the preceding paragraph with respect to any claim to the extent based upon: (a) use of the Platform or Content in an application or environment or on a platform or with devices for which it was not designed or contemplated; (b) modifications, alterations, combinations or enhancements of the Platform or Content not created by or for Money Experience or authorized by Money Experience; (c) any Subscriber Data; (d) Subscriber’s continuing use of any prior version after being provided modifications in a new version that would avoid the alleged infringement; (e) any use or activity by Subscriber’s Authorized Users or Student Users which are in violation of the Terms or any terms contained in this Agreement or any Order Form or any SOW; or (f) any intellectual property right in which Subscriber or any of its affiliates has an interest.
8.1.2 Entire Liability
This Section 8.1 states the entire liability of Money Experience and sets forth Subscriber’s exclusive remedy, with respect to any actual or alleged violation of intellectual property rights with respect to any use of the Platform or Content.
8.2 By Subscriber: Subscriber Data; Subscriber’s Authorized Users; Student Users
Subscriber agrees to defend Money Experience against any third party claim against Money Experience that Subscriber Data directly or indirectly: (a) infringes on such third party’s intellectual property or proprietary rights, or rights of publicity or privacy; (b) violates any applicable law, statute, ordinance or regulation; (c) is defamatory, trade libelous, threatening, unlawfully harassing, indecent, abusive, obscene, or contain child pornography; (d) contain Malicious Code (provided that (i) Money Experience uses industry standard methods and technologies designed to prevent the Platform or Content from being adversely affected by Malicious Code and (ii) Money Experience notifies Subscriber in writing within ten (10) business days after it becomes aware or has reasonable reason to believe that any Subscriber Data directly or indirectly contains Malicious Code (e) damage, disable, overburden or impair the Platform, provided that Money Experience provides written notice to Subscriber of such situation, such notification to include any and all details of which it is aware regarding such situation (f) caused injury to persons (including death) and indemnify Money Experience for settlement amounts or damages, liabilities, costs and expenses (including reasonable attorney’s fees) awarded by a court of competent jurisdiction and arising out of such claim. Subscriber shall also defend and hold Money Experience harmless for any claims, demands, or causes of action which are brought against Money Experience by any third party as a result of the actions, inactions, or negligence of Subscriber’s Authorized Users or any Student User including, without limitation, any violation of the Terms.
Any claim for indemnification hereunder requires that: (a) the indemnified party provides the indemnifying party with prompt written notice of the claim and reasonable cooperation, information and assistance in connection therewith; and (b) the indemnifying party shall have sole control and authority to defend, settle or compromise such claim. The indemnifying party shall not make any settlement that requires a materially adverse act or admission by the indemnified party without the indemnified party’s written consent (such consent not to be unreasonably delayed, conditioned or withheld). The indemnifying party shall not be liable for any settlement made without its prior written consent.
9 LIMITATION OF LIABILITY
EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 8, A PARTY’S BREACH OF SECTION 5 OR SECTION 6 OR A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY (A) INACCURACY OF DATA, LOSS OR INTERRUPTION OF USE (EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT), (B) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, PROFITS AND GOODWILL OR (C) DAMAGES, IN THE AGGREGATE IN EXCESS OF THE AMOUNTS PAID TO IT (IN THE CASE OF MONEY EXPERIENCE) OR PAID AND PAYABLE BY IT (IN THE CASE OF MONEY EXPERIENCE) HEREUNDER DURING THE PREVIOUS TWELVE (12) MONTHS FROM THE TIME SUCH CLAIM AROSE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10 FORCE MAJEURE
Neither party shall have any liability to the other under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the supplier or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, or regulation, accident, breakdown of plant or machinery, fire, flood, or storm, provided that the other party is notified of such an event and its expected duration.
11 MISCELLANEOUS PROVISIONS
11.1 Assignment. Money Experience may directly or indirectly assign this Agreement or the rights or duties created by this Agreement without the prior written consent of Subscriber. Subscriber may not directly or indirectly assign this Agreement or the rights or duties created by this Agreement without the prior written consent of Money Experience, such consent not to be unreasonably withheld or delayed. Any attempt at assignment by Subscriber without consent shall be null and void. Notwithstanding the foregoing, both parties shall have the right to assign this Agreement together with the rights and duties created by this Agreement in the event of a Change of Control. “Change of Control” shall mean the transfer of more than fifty (50) percent of the party’s stock or all or substantially all of its business that concerns this Agreement to another entity through merger, sale or otherwise. This Agreement will be binding upon, and inure to the benefit of, the successors, representatives, and permitted assigns of the parties.
11.2 Notices. Any notice required to be given under this Agreement shall be in writing and shall be delivered by hand, email or sent by pre-paid first-class mail (return receipt requested) to the other party in accordance with the following: To Money Experience: Steve Scully, GM / VP Operations Money Experience, Inc. One Kendall Square, Suite B4102 Cambridge, MA 02139 Tel: 617-852-1759 Email: email@example.com To Subscriber: Attn: Title: Company: Address: Tel: Email: Either party may change its address for service of future notices by informing the other party in a notice given as set forth in this provision.
11.3 Severability. If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
11.4 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same Agreement. The parties agree that a facsimile or electronic signature may substitute for and have the same legal effect as the original signature.
11.5 Amendments. This Agreement may be amended, modified, or supplemented only by a written instrument signed by both parties hereto.
11.6 Waiver. The failure of either party at any time to require performance by the other party of any provision of this Agreement shall in no way affect that party’s right to enforce such provisions, nor shall the waiver by either party of any breach of any provision of this Agreement be taken or held to be a waiver of any further breach of the same provision. All waivers must be in writing signed by the authorized representative of the party against which the waiver is being enforced.
11.7 Entire Agreement and Integration. This Agreement, together its attached exhibits and any and all Order forms and Statements of Works entered into by the parties, constitutes the entire agreement between the parties and supersedes any and all previous representations, understandings, or agreements between Subscriber and Money Experience as to the subject matter hereof. There will be no force or effect to any different terms of any related purchase order or similar form, even if signed by the parties after the applicable Order Form Effective Date, unless it expressly references this Agreement and is signed by authorized representatives of both parties. Each party’s acceptance of this Agreement was and is expressly conditioned upon the other’s acceptance of the License to the exclusion of all other terms. Each party hereby represents and warrants that such party’s designated signatory on any Order Form has all necessary right, title and interest to bind the applicable entity on whose behalf they are signing. This Agreement shall be construed without regard to the party that drafted it. Any ambiguity shall not be interpreted against either party and shall, instead, be resolved in accordance with other applicable rules concerning the interpretation of contracts.
11.8 Publicity. Money Experience may refer to the Subscriber directly or indirectly in any advertisement, news release, publication or marketing materials.
11.9 Choice of Law. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, without regard to its conflicts of law provisions. The United Nations Convention on Contracts for the International Sale of Goods (CISGs) shall not apply to this Agreement. Both parties hereby consent and submit to the jurisdiction and forum of the state and federal courts located in Boston, Massachusetts in all questions and controversies arising out of this Agreement.
12.1 Survival. The following Sections shall survive the expiration or earlier termination of this Agreement: 4, 5, 6, 7, 8, 9, and 11.
This First Amendment (“First Amendment”) dated April 1, 2020 is entered into by and between Money Experience and Subscriber, and is an amendment under the Money Experience Platform License Agreement, the terms of which are incorporated herein by reference. Capitalized terms not defined herein shall have the meaning ascribed to them in the Money Experience Platform License Agreement. For the purposes of this First Amendment both Money Experience and Subscriber may be referred to herein individually as a “Party” and collectively as the “Parties”. There are no other parties to this First Amendment.
a. “Subscriber” means a user who has successfully self-registered online and has been authorized by Money Experience to access to the Platform
b. “You” means an authorized user of the Platform, and in addition, when the user of the Platform is provided access to use the Platform by a school, school district, financial institution, or any other organization (“Organization”), the term “You” shall also
include such Organization.
c. “Territory” means the geographic region within which the Platform may be used, or a
user of the Platform may be located. Territory shall be United States.
2. Self-Registration. A valid online, self-registration by Subscriber shall have the same effect as if the Subscriber signed an Order Form with Money Experience. Subscriber’s self-registration will be deemed valid upon completion by Subscriber of Money Experience’s email validation process. Once Subscriber has been presented with a login page to the Platform, self-registration will be complete and valid.
3. Promotional Term. This Agreement is legally binding as of April 1, 2020 and shall terminate as follows:
a. For educational institutions, this Agreement terminates on June 30, 2020
b. For non-profits, companies, financial institutions, and all other organizations, this Agreement shall terminate 30 days from the date of self-registration, provided that the last day for self-registration shall be June 30, 2020.
4. Fee. Access to the Platform under this Agreement and First Amendment shall be granted at no cost to Subscriber for the Promotional Term.
5. Limited License. Subscribers shall have a limited license and only have access to the version of the Platform named Essentials, as described at the following URL: https://moneyexperience.com/product-essentials/ Notwithstanding the foregoing, this limited license shall exclude reports and curriculum as described at such website link, and shall also exclude access to Money Experience’s admin portal.
a. Subscribers shall only have authorization to use this limited license from within the Territory.
6. Use of the Platform by Minors. Individuals under the age of 18 may not use the Platform unless their Organization enters into an agreement with Money Experience that allows such individuals to use the Platform. In the event that you authorize a minor to, or provide a minor with access to, use the Platform, you hereby agree to this Agreement on behalf of yourself and such minor, and you understand and agree that you will be responsible for all uses of the Platform by the minor to whom you provide access to use
the Platform whether or not such uses were authorized. Alternatively, in lieu of you, a parent or guardian of the minor may agree to this Agreement on behalf of him or herself and such minor, so long as the parent or guardian agrees in writing that he or she is responsible for all uses of the Platform under the Agreement by such minor, whether or not such uses were authorized.
8. All other terms and conditions of the Platform License Terms shall remain unchanged and shall remain in effect, unless otherwise indicated in this First Amendment. In the event of any conflict between the terms contained in the Platform License Terms, and those found in this First Amendment then the First Amendment terms shall control.