Terms of Service
Updated October 22, 2020
This Master Subscription Agreement (the “Agreement”) is made between Pencil Learning Technologies, Inc., a Delaware corporation (“Pencil”) and each party (a “Customer”) that executes an Order Form for the Service defined below. Each end user of the Service is also a Customer, but may not have direct payment obligations. Between Pencil and each Customer the Agreement consists of these terms, each Order Form, including any exhibits, and each amendment of any of the foregoing. The “Effective Date” of this Agreement is date of Customer’s initial Order Form or initial access to the Service, whichever is earlier. By executing the initial Order Form clicking Agree or using the Service, Customer agrees to all the terms set forth below.
WHEREAS, Pencil is the developer of tools that allow businesses to manage educational content, data and communications; and
WHEREAS, Customer wishes to obtain a subscription to the Service identified below,
NOW THEREFORE, the parties agree as follows:
“Affiliate” means an entity controlling, controlled by or under common control with a party to this Agreement at any time during the term of this Agreement, for so long as such ownership and control exists, provided such entity is not a competitor to Pencil or in the business of developing and offering products or technologies that are substantially similar to the Service.
“Customer Data” means all data entered by Customer into the Service.
“Order Form” means Pencil’s online enrollment process or a manual order form for the Service that has been executed by Pencil and Customer. Each executed Order Form will be incorporated into this Agreement by reference.
“Service” means the customer-facing services, implementation services, support, Software (as defined below) and any other services provided by Pencil to Customer pursuant to this Agreement.
“Software” means the source code, object code, underlying structure, ideas, know-how and algorithms comprising the Service, documentation, and data related to the Service.
2. SERVICE ORDERS
Pencil will provide to Customer the Service identified on each Order Form. Subject to the terms of this Agreement, Pencil grants to Customer the right to access and use the Service in accordance with the terms identified on each Order Form.
2.2 License Term
Customer’s Service subscription is for the time period specified in the Order Form, or if no such term is stated, then for one year, in either case subject to the provisions of this Agreement.
The subscription term will automatically renew for additional one year periods unless either party notifies the other in writing at least 30 days prior to expiration of the then-current term, so long as Pencil makes the Service available. Pencil will invoice Customer for the subscription fees at the list prices in effect at the time of renewal.
2.4 Orders by Affiliates
Customer’s Affiliates may subscribe to use the Service on execution of additional Order Forms referencing this Agreement. On execution of an Order Form by Pencil and the Affiliate, the Affiliate will be bound by the provisions of this Agreement as if it were an original party hereto.
3. USE OF SERVICE
3.1 Use of Software Underlying Service
Customer will not, directly or indirectly: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover source code underlying the Service; (b) modify, translate, or create derivative works based on the Service or any Software (except to the extent expressly permitted by Pencil in writing or authorized within the Service); (c) frame, mirror or use the Service or use the Service for timesharing or service bureau purposes or otherwise for the benefit of a third party; or (d) remove any proprietary notices or labels from the Service.
3.2 Appropriate Use of Service
Customer will not, and will not permit its users to:
Post, upload, forward, or otherwise transmit any file or software code that contains, facilitates, or launches viruses, worms, trojan horses or any other contaminating or destructive features, or that otherwise interfere with the proper working of the Service; or
Attempt to access any other Pencil systems that are not part of the service.
Use the Service to upload, post, process, distribute, link to, publish, reproduce, or transmit any of the following, including but not limited to:
Illegal, fraudulent, libelous, defamatory, obscene, pornographic, profane, threatening, abusive, hateful, harassing, offensive, inappropriate or objectionable information or communications of any kind, including without limitation conduct that would encourage or constitute an attack or “flaming” others, or criminal or civil liability under any local, state, federal or foreign law;
Content or data that would impersonate someone else or falsely represent an individual’s identity or qualifications, or that constitutes a breach of any individual’s privacy, including posting images about children or any third party without their consent (or a parent's consent in the case of a minor);
Any information, software or content Customer does not have the legal right to process or transmit.
3.3 No Transfers
The Service and all licenses granted to Customer may not be transferred or redistributed to any third party, except in connection with a permissible assignment pursuant to Section 12.2.
Although Pencil has no obligation to monitor Customer’s use of the Service, Pencil may do so and may prohibit any use of the Service it believes may be in violation of the foregoing.
4. OWNERSHIP RIGHTS
4.1 No Ownership Assignment
This Agreement is for SAAS use rights. Neither party will assign ownership rights in any of its assets to the other pursuant to this Agreement, and neither party grants the other any rights or licenses not expressly set out in this Agreement.
4.2 What Pencil Owns
The Service is the proprietary intellectual property of Pencil and its licensors, protected by copyright and other intellectual property laws. Except for the rights granted herein, Pencil and its licensors retain all right, title and interest, including all intellectual property rights, in the Service (and any derivative works of or improvements to any of the foregoing created by or for Pencil) and the documentation. Even if the terms “purchase” and “sale” are used, Customer does not receive ownership rights in the Service and have only those use rights in this Agreement. Pencil retains all rights not explicitly granted herein.
4.3 What Customer Owns
Customer retains all rights to Customer Data. Pencil disclaims all ownership and other rights as to Customer Data, except any limited rights granted by Customer to provide the Service.
5. INVOICING, PAYMENT AND RECORDS.
5.1 Fees, Taxes and Payment.
Fees are payable in advance via credit card or bank account information provided during the online purchase process. If Pencil agrees to accept payment by any other mechanism, Customer will pay Pencil in U.S. Dollars the fees in the amounts and at the times specified on the Order Form. Unless otherwise stated, all fees are due 30 days from the date of Pencil’s invoice and all fees are non-cancelable and non-refundable. If payment is not received by the due date, Pencil may suspend Customer’s access to Service until overdue amounts are paid in full. Unpaid undisputed amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all reasonable expenses of collection. Customer is responsible for any sales, use, value added, excise, property, withholding or similar tax and any related tariffs, and similar charges, except taxes based on Pencil’s net income. If Customer is required to pay any such taxes, Customer shall pay such taxes with no reduction or offset in the amounts payable to Pencil hereunder. If an applicable tax authority requires Pencil to pay any taxes that should have been payable by Customer, Pencil will advise Customer in writing, and Customer will promptly reimburse Pencil for the amounts paid.
In order to confirm compliance with this Agreement, Pencil may, at its expense and not more frequently than annually, audit Customer’s records relating to Customer’s use of the Service, and Customer agrees to reasonably cooperate with respect to any such audit. Any such audit shall be conducted with at least 30 days’ notice, during regular business hours online or at Customer’s facilities and shall not unreasonably interfere with Customer’s business. If the audit indicates a discrepancy in the fees payable to Pencil greater than 5% of the amount paid by Customer for the period audited, Customer shall pay Pencil’s reasonable expenses of the audit in addition to any additional fees due.
6.1 Confidential Information
Subject to the limitations set forth in Section 6.2, all information disclosed by one party to the other party during the term of this Agreement that is identified in writing at the time of disclosure as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of the disclosure, whether in oral, written, graphic or electronic form, shall be deemed to be “Confidential Information”. The existence and terms of this Agreement are Confidential Information of both parties.
Information will not be considered Confidential Information if the receiving party can establish by documentary evidence that the information is or was: publicly available through no act or omission of the receiving party; in the receiving party’s lawful possession prior to disclosure by the disclosing party and not obtained either directly or indirectly from the disclosing party; lawfully disclosed to the receiving party by a third party without restriction on disclosure; or independently developed by the receiving party without use of or access to the disclosing party’s Confidential Information.
The parties agree, both during the term of this Agreement and for a period of five years (and with respect to Confidential Information that is: (a) a trade secret for an indefinite period, and (b) Personal Data for the period required by applicable law) after its termination, to hold each other’s Confidential Information in confidence and not to disclose such information in any form to any third party without the express written consent of the disclosing party, except to employees and service providers performing services for the benefit of the receiving party who are under a written non-disclosure agreement protecting the applicable Confidential Information in a manner no less restrictive than this Agreement. Each party agrees to take all reasonable steps to ensure that Confidential Information is not disclosed or distributed by its employees or agents in violation of this Agreement. A receiving party facing legal action to disclose Confidential Information of the disclosing party shall, to the extent permitted, promptly notify and provide the disclosing party the opportunity to oppose such disclosure or obtain a protective order and shall continue to treat such information as Confidential Information. This Section 6.3 shall not be construed as granting or conferring any rights to either party by license or otherwise, expressly or implicitly, to any Confidential Information.
7. LIMITED WARRANTIES AND EXCLUSIVE REMEDIES
Each of Pencil and Customer represents and warrants that: it has the full right, power and authority to enter into and fully perform this Agreement; the person signing this Agreement on its behalf is a duly authorized representative of such party who has in fact been authorized to execute this Agreement; its entry herein does not violate any other agreement by which it is bound; and it is a legal entity in good standing in the jurisdiction of its formation and shall continuously remain in good standing during the term of this Agreement.
7.2 Protection of Customer Data
Pencil will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Customer Data by Pencil personnel except (a) to provide the Service and to pr
7.3 Warranty Exclusions
Pencil is not obligated to correct errors caused: by unauthorized modification to the Service, if Customer uses the Service other than as described in the documentation, by non-Pencil software or services, or by combining the Service with any other hardware or Service not authorized by Pencil in writing.
7.4 NO IMPLIED WARRANTIES
THE WARRANTIES ABOVE ARE THE EXCLUSIVE WARRANTIES REGARDING THE SERVICE AND ARE GIVEN IN LIEU OF ALL OTHER WARRANTIES OF Pencil, WHETHER EXPRESS OR IMPLIED, INCLUDING NON-INFRINGEMENT AND THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
PENCIL DOES NOT WARRANT THAT THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS, THAT THE OPERATION OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT THE FEATURES OR FUNCTIONALITIES OF THE SERVICE WILL BE AVAILABLE AT ANY TIME IN THE FUTURE OR THAT ALL ERRORS IN THE SERVICE OR DOCUMENTATION WILL BE CORRECTED. PENCIL SHALL HAVE NO RESPONSIBILITY FOR DETERMINING THAT CUSTOMER’S PROPOSED USE OF THE SERVICE COMPLIES WITH APPLICABLE LAWS IN CUSTOMER’S JURISDICTION(S).
8. INFRINGEMENT INDEMNITY.
8.1 Indemnification by Pencil
Pencil at its own expense will defend, indemnify and hold Customer and its Related Parties against all liabilities, damages, fines, judgments, settlements, costs or expenses (including reasonable attorney’s fees and disbursements) (“Costs”) arising from or relating to claims, demands, suits, actions or proceedings made or brought by third parties against Customer and its Related Parties (collectively, “Claims”) alleging that the Service infringes such third party’s trademark or copyright arising under the laws of the United States, or that Vendor misappropriated such third party’s trade secrets in the development of the Service. “Related Parties” means Affiliates, successors, assigns, members, shareholders, officers, directors and agents of Pencil or Customer, as applicable.
If Pencil believes the Service, or any part thereof, may be the subject of an infringement or a misappropriation claim as to which this Section 8.1 applies, Pencil may, in its discretion and at its sole expense: (1) procure for Customer the right to continue using such Service or any applicable part thereof, (2) modify or replace the Service so as to make it non-infringing, or (3) terminate this Agreement and refund to Customer any unused prepaid fees for periods following the termination date. This section 8.1 states Pencil’s sole liability to, and Customer’s exclusive remedy for intellectual property infringement claims of any kind in connection with the Service.
Pencil shall not have any indemnification obligation pursuant to this Agreement to the extent a Claim is based on: use of any version of the Service other than the then-current, unaltered version, if infringement would have been avoided by use of a current, unaltered version thereof that has been made available to Customer; use of the Service in violation of this Agreement; modifications to the Service made by Customer; where Customer continues to use the Service after being notified of allegedly infringing activity or being informed of modifications that would have avoided the alleged infringement; or a third party service or Customer Data.
8.2 Indemnification by Customer
Customer at its own expense will defend, indemnify and hold Pencil and its Related Parties harmless against any liabilities, damages, fines, judgments, settlements, costs or expenses (including reasonable attorney’s fees and disbursements) arising out of Claims made or brought by anyone other than an Pencil Related Party alleging misappropriation, misuse or breach of applicable law related to Customer Data.
8.3 Indemnification Procedure
Promptly after a party seeking indemnification obtains knowledge of the existence or commencement of a Claim, the party to be indemnified will notify the other party of the Claim in writing; provided however, that the indemnifying party’s indemnity obligations will be waived only if and to the extent that its ability to conduct the defense are materially prejudiced by this failure to give notice. The indemnifying party will assume the sole control of defense and settlement of the Claim with counsel reasonably satisfactory to the indemnified party at the indemnifying party’s risk and expense; provided, however, the indemnified party may join in the defense and settlement of the Claim and employ counsel at its own expense, and will reasonably cooperate with the indemnifying party in the defense and settlement of the Claim. The indemnifying party may not settle any Claim without the indemnified party’s written consent unless the settlement (x) includes a release of all covered claims pending against the indemnified party; (y) contains no admission of liability or wrongdoing by the indemnified party; and (z) imposes no obligations upon the indemnified party other than an obligation to stop using any infringing items. If both the indemnified party and the indemnifying party are named parties in any action relating to the Claim and the counsel chosen by the indemnifying party cannot represent both the indemnified party and indemnifying party due to any present or potential conflict in representing the interests of both of them, then the indemnifying party will retain separate counsel for the indemnified party.
8.4 Entire Liability
This Section 8 states the entire liability of the indemnifying party, and the indemnified party’s exclusive remedy with respect to all Claims described in this section.
9. LIMITATIONS OF LIABILITY
9.1 No Consequential Damages
In no event shall either party or its agents and suppliers (including their directors, officers, employees, representatives, agents and suppliers) be liable for any indirect, incidental, special or consequential damages, including without limitation procurement of substitute products or services or loss of profits, revenue, data or data use, even if such party has been advised of the possibility of such damages. Nothing in this Agreement will limit Customer’s liability for misappropriation of Pencil’s intellectual property rights in the Service.
9.2 Direct Damages
The aggregate, cumulative liability of each party (including its directors, officers, employees, representatives, agents and suppliers) under this Agreement shall be limited to the Fees paid or payable by Customer to Pencil during the twelve month period prior to the event giving rise to any claim, or $100 if Customer is using a trial of a Service. The foregoing shall not limit Customer’s payment obligations.
9.3 Allocation of Risk
The provisions of this Agreement fairly allocate the risks between Pencil, on the one hand, and Customer on the other. Customer acknowledges and agrees that the pricing reflects this allocation of risk and the limitation of liability specified herein, and that Pencil would not enter into this Agreement without such allocation and limitation.
10. TERM AND TERMINATION
This Agreement begins on the Effective Date and continues until terminated as provided below.
10.2 Termination for Breach
Either party may terminate this Agreement (including all related Order Forms) if the other party: fails to cure any material breach of this Agreement within 30 days after written notice of such breach; ceases operation without a successor; or seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against such party (and not dismissed within 60 days). Termination is not an exclusive remedy and the exercise by either party of any remedy under this Agreement will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise.
10.3 Effect of Termination
Immediately on termination of this Agreement, Customer shall cease all use of the Service. Within ten business days following the termination date, Customer shall, at Pencil’s option, return to Pencil or destroy (and certify to Pencil in writing as to such destruction) all copies materials embodying or reflecting the Service, documentation and any other Pencil Confidential Information. On termination or expiration of this Agreement or an Order Form other than termination by Customer for Pencil’s breach, Customer will immediately pay Pencil, as liquidated damages based on the varying levels of effort required over time to maintain Customer’s subscription, the remaining balance (if any) identified on the Order Form for the remainder of the subscription term.
Sections 1, 3.2 - 3.3, 4 and 6 through 12 of this Agreement shall survive any termination of this Agreement; provided that Sections 7 and 8 shall only survive to the extent applicable to claims, other than with respect to confidentiality obligations, arising prior to the termination date.
11. U.S. GOVERNMENT RIGHTS.
This section is applicable only if Customer is a US government agency or a contractor to a US government agency. The Software and any related documentation contain commercial computer software and documentation which are proprietary data belonging solely to Pencil and its licensors. Pursuant to DFARS 227.7202 or FAR 12.212, as applicable, the U.S. Government's right to use, reproduce or disclose the Software and any related documentation acquired under this Agreement is subject to the restrictions of this Agreement. The terms and conditions of this Agreement are fully applicable to the Government’s use and disclosure of the Software and any related documentation and shall supersede any conflicting terms or conditions. No license of any kind is granted in the case of acquisitions which contain or are subject to the clause FAR 52-227.19 COMMERCIAL COMPUTER SOFTWARE-RESTRICTED RIGHTS (JUNE 1987) or DFARS 252.227-7013 RIGHTS IN TECHNICAL DATA AND COMPUTER SOFTWARE (OCT 1988) or any other clause which purports to grant to the government rights greater than, or additional to those, set forth in this Agreement.
12.1 Integration; Severability.
This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter hereof, including any NDAs or confidentiality agreements entered previously. If any provision of this Agreement is adjudicated invalid or unenforceable, the remaining provisions will remain in effect and the Agreement will be amended to the minimum extent necessary to achieve, to the maximum extent possible, the same legal and commercial effect originally intended by the parties. This Agreement shall supersede the terms of any purchase order or other business form. If accepted by Pencil in lieu of or in addition to Pencil’s Order Form, Customer’s purchase order shall be binding only as to the following terms: the Service ordered and the appropriately calculated fees due. Other terms shall be void.
This Agreement may not be assigned by either party without the other party’s prior written consent, whether by operation of law or otherwise, except that either party may assign this Agreement to its successor in the event of a merger, acquisition or sale of all or substantially all of the assets of such party. Any other purported assignment shall be void. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties hereto and their successors and assigns.
12.3 Force Majeure
Neither party shall be liable to the other for its failure to perform its obligations under this Agreement, except for payment obligations, during any period in which such performance is delayed or rendered impracticable or impossible due to unforeseen circumstances beyond its reasonable control.
12.4 Amendment; Counterparts.
No supplement, modification, or amendment of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each party. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. This Agreement may be executed electronically or by written signature and delivered in multiple versions, including facsimile, PDF, or other electronic counterparts, all of which will constitute one and the same instrument and agreement.
12.5 Governing Law and Venue.
This Agreement shall be governed by the laws of the State of California, United States of America without regard to its conflict of laws provisions. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods or the Uniform Computer Information Transactions Act. Any legal action relating to this Agreement will be brought in the federal or state courts in the Northern District of California, U.S.A., and the parties agree to the exercise of jurisdiction by such courts. In the event of any action, suit or proceeding related to this Agreement, the prevailing party, in addition to its rights and remedies otherwise available, shall be entitled to receive reimbursement of reasonable attorney’s fees and expenses and court costs.
All notices must be in writing and sent to Customer at the email address it used when registering for the Service, and to Pencil at firstname.lastname@example.org. If parties provide physical mailing addresses, hard copy notices may also be sent to those addresses. Either party may update its address as described in this paragraph. Notices will be deemed delivered when: (a) verified by written receipt if sent by personal courier, overnight courier, or postal mail; or (b) confirmed or replied to by the recipient if sent by email.
12.7 No Agency Relationship
Nothing in this Agreement shall be construed to create a partnership, joint venture or agency relationship between Customer and Pencil.
12.8 Customer Identification
Customer agrees that Pencil may identify Customer as a user of Pencil products and may use Customer’s name and logo in Pencil's customer list, press releases, blog posts, advertisements, and website.