Intellispark Inc., a Delaware corporation, (“Intellispark”) provides Intellispark (the “Software”) and related services (collectively with the Software, the “Services”), subject to these terms of service (the “Terms”) as well as by any supplemental provisions provided in an Order Form or Purchase Order (the “Agreement”). Your use of the Services constitutes your agreement to be bound by the Terms. If you are accepting on behalf of your employer or another entity, you represent and warrant that: (a) you have full legal authority to bind your employer or the applicable entity to these terms; (b) you have read and understand this Agreement; and (c) you agree on behalf of the party you represent to this Agreement.

  1. Services
    1. Service Level. Intellispark will use commercially reasonable efforts to provide the Services to a school, school district, and/or community-based organization (the “Member Institution”) in accordance with this Agreement.
    2. New Features. Intellispark may make new features or functionality for the Services available from time to time, the use of which may be contingent upon agreement to additional terms by Member Institution and/or its end users (“Users”).
    3. Technical Support. Subject to the terms hereof, Intellispark will provide the Member Institution with reasonable technical support services in accordance with Intellispark’s standard practices.
  2. Member Institution Responsibilities
    1. Contacts. As part of the registration process, each Member Institution will identify a primary contact, technical contact, and billing contact for the Member Institution’s account.
    2. Compliance. Member Institution will (a) ensure that Member Institution and its Users’ use of the Services, including all access to and use of data submitted, stored, sent, or received via the Services by Member Institution or its Users (“Institution Data”) by it and its Users, complies with this Agreement and with any of its applicable contract terms or policies, including any employment contracts or employer’s policies regarding technology usage, security, or confidentiality; (b) use commercially reasonable efforts to prevent unauthorized access or use of the Services; and (c) promptly notify Intellispark of any unauthorized use of, or access to, the Services of which Member Institution becomes aware.
    3. Acceptable Use. Member Institution represents, covenants, and warrants that Member Institution will use the Services only in compliance with this Agreement, Intellispark policies, and all applicable laws and regulations and that its Users will use the Services only in compliance with the Acceptable Use Policy for Intellispark Products.
    4. Restrictions. Neither the Member Institution nor its Users will, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services, the Software, its documentation or its data; modify, translate, or create derivative works based on the Services (except to the extent expressly permitted by Intellispark); use the Services for the benefit of a third party other than the Member Institution’s Users; access the Services in a manner that breaches, or facilitates the breach of, any applicable export and re-export control laws and regulations, including (a) the Export Administration Regulations (“EAR”) maintained by the U.S. Department of Commerce, (b) trade and economic sanctions maintained by the U.S. Treasury Department’s Office of Foreign Assets Control, and (c) the International Traffic in Arms Regulations (“ITAR”) maintained by the U.S. Department of State; or remove any proprietary notices or labels.
    5. Account Security. Member Institution shall be responsible for maintaining the security of Member Institution’s account and related User accounts and passwords and files, and for all uses of Member Institution account with or without Member Institution’s knowledge or consent.
    6. Load Testing. Member Institution must not conduct or request that any other person conduct any load testing or penetration testing on the Services without the prior written consent of Intellispark.
  3. Account Information and Data
    1. Applicable Law. Intellispark and Member Institution each represents, warrants, and covenants that it complies with, and will comply with, all applicable federal, state, and international data-protection and privacy laws and regulations with respect to the personally identifiable information collected, stored, and maintained through the Software, as well as with all applicable business regulations.
    2. Privacy. Intellispark is committed to protecting the privacy of personally identifiable information provided by Member Institution and its Users, and maintains a detailed Privacy Policy for Intellispark Products.
    3. Family Educational Rights and Privacy Act (FERPA). In the event Member Institution is subject to the Family Educational Rights and Privacy Act (FERPA), the parties agree that Member Institution shall appoint Intellispark as a “school official” as that term is used in FERPA §§ 99.31(a)(1) and as interpreted by the Family Policy Compliance Office, and determines that Intellispark has a “legitimate educational interest,” for the purpose of carrying out its responsibilities under the Agreement. Intellispark acknowledges that it shall be bound by all relevant provisions of FERPA and agrees that personally identifiable student information as defined in FERPA and obtained from Member Institution and its Users by Intellispark in the performance of this Agreement: (a) will remain under the “direct control” of the Member Institution; (b) will be used only to fulfill Intellispark’s responsibilities under the Agreement; (c) will only be disclosed to third parties operating in partnership with Intellispark as necessary to provide Services to Member Institution, provided that all such third parties are contractually bound to manage the information in compliance with the Intellispark Privacy Policy and security policies and to use the information for the sole and limited purpose of providing the Services to the Member Institution; and (d) will not be disclosed to other third parties except as expressly provided for in FERPA §§99.31, without signed and dated written consent of the student’s parent/legal guardian, or if the student is eighteen (18) years of age or older, signed and written consent of the student.
    4. Children’s Online Privacy Protection Act (COPPA). Without limiting the generality of Section 7 of the Agreement, in the event that Member Institution allows Users under the age of 13 to submit personal information as defined in COPPA to Intellispark in connection with its use of the Software, Customer agrees that it will be responsible for obtaining verifiable parental consent prior to making the Software available to such Users. Intellispark shall fully comply with COPPA and any rules or regulations promulgated thereunder.
    5. Security. Intellispark implements, maintains, and updates, as appropriate, reasonable security policies, procedures, and practices as dictated by the nature of the personally identifiable information collected and maintained through the Software, in order to protect such information from unauthorized access, destruction, use, modification, or disclosure. The Software has security measures in place to help protect against the loss, misuse, and alteration of Member Institution and User personally identifiable information. The Internet, however, is not perfectly secure and Intellispark shall not be responsible for security incidents not reasonably within its control.
  4. Confidentiality and Proprietary Rights
    1. Obligations. The recipient will use the other party’s Confidential Information only to exercise rights and fulfill obligations under this Agreement. The recipient will use reasonable care to protect against disclosure of information from the other party that is marked as confidential or would normally be considered confidential information under the circumstances (“Confidential Information”) to other parties other than the recipient’s employees, affiliates, agents, or professional advisors (“Delegates”) who need to know it and who have a legal obligation to keep it confidential. The recipient will ensure that its Delegates are also subject to the same non-disclosure and use obligations.
    2. Disclosure. Regardless of any other provision in the Agreement, the recipient or its affiliates may disclose the other party’s Confidential Information (a) in accordance with a Legal Process or (b) with the other party’s written consent. The recipient will use commercially reasonable efforts to notify the other party before disclosing that party’s Confidential Information in accordance with Legal Process. Notice is not required before disclosure if the recipient is informed that (a) it is legally prohibited from giving notice or (b) the Legal Process relates to exceptional circumstances involving danger of death or serious physical injury. The recipient and its affiliates will comply with the other party’s reasonable requests to oppose disclosure of its Confidential Information.
    3. Ownership. Member Institution shall own all right, title and interest in and to the Institution Data. Company shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, and (c) all intellectual property rights related to any of the foregoing.
  5. Payment of Fees
    1. Billing. Member Institution shall pay Intellispark the applicable fees described in the Order Form for the Services (the “Fees”). Unless otherwise indicated, Fees are billed upon approval of an Order Form by Member Institution and are due in full within 30 days of the date of the invoice.
    2. Additional Scope. If Member Institution’s use of the Services exceeds the scope set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), Member Institution shall be billed for such usage and Member Institution agrees to pay the additional fees in the manner provided herein.
    3. Changes. Intellispark reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the initial term or then-current renewal term of this Agreement, upon thirty (30) days prior notice to Member Institution (which may be sent by email).
    4. Errors. If Member Institution believes that Intellispark has billed Member Institution incorrectly, Member Institution must contact Intellispark no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit.
    5. Late Payments. Unpaid 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 expenses of collection and may result in immediate termination of Service.
    6. Taxes. Unless Member Institution is tax exempt, Member Institution shall be responsible for all taxes associated with Services other than U.S. taxes based on Intellispark’s net income, net worth, asset value, property value, or employment.
  6. Term and Termination
    1. Initial Term and Renewal. Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Order Form, and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term.
    2. Termination for Breach. In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice if the other party materially breaches any of the terms or conditions of this Agreement.
    3. Payment Upon Termination. Member Institution will pay in full for the Services up to and including the last day on which the Services are provided.
    4. Availability of Data. Upon any termination, Intellispark will make all Institution Data available to Member Institution for electronic retrieval for a period of thirty (30) days.
  7. Warranty and Disclaimer. Intellispark shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform all Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Intellispark or by third-party providers, or because of other causes beyond Intellispark’s reasonable control, but Intellispark shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. However, Intellispark does not warrant that the Services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the Services. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND INTELLISPARK DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
  8. Indemnification
    1. Indemnification of Intellispark. Member Institution shall indemnify, defend, and hold Intellispark, its licensors, and each such party’s parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys, and agents harmless from and against any and all claims, costs, damages, losses, liabilities, and expenses (including attorney’s fees and costs) arising out of or in connection with: (a) a claim alleging that use of Institution Data infringes the rights of, or has caused harm to, a third party; or (b) a claim arising from or alleging a breach by a Member Institution or User(s) of any provision of the Agreement, provided that Intellispark: (i) gives written notice of the claim to Member Institution as soon as practicable; (ii) gives Member Institution sole control of the defense and settlement of the claim (provided that Member Institution may not settle or defend any claim unless it unconditionally releases Intellispark and its subsidiaries, affiliates, officers, directors, employees, attorneys, and agents of all liability and such settlement does not affect Intellispark’s business or the Services); (iii) provides to Member Institution all reasonably available information and assistance; and (iv) has not compromised or settled such claim without Member Institution’s prior written consent.
    2. Indemnification of Member Institution. Intellispark shall indemnify, defend, and hold Member Institution and its parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys, and agents harmless from and against any and all claims, costs, damages, losses, liabilities, and expenses (including attorney’s fees and costs) arising out of or in connection with a claim alleging that the Services directly infringe the copyright, patent, trademark, and other intellectual and proprietary rights of a third party. Intellispark shall have no indemnification obligation, and Member Institution shall indemnify Intellispark pursuant to the Agreement, for claims arising from any alleged infringement related to the combination of the Services with any of Member Institution’s or any of Member Institution’s licensor’s products, service, hardware, or business process(es), so long as such use was not authorized or directed by Intellispark, such authorization and/or direction having been expressly given in writing.
  9. Limitation of Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, INTELLISPARK AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY MEMBER INSTITUTION TO INTELLISPARK FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
  10. Miscellaneous
    1. Severability. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
    2. Assignment. This Agreement is not assignable, transferable or sublicensable by Member Institution except with Intellispark’s prior written consent. Intellispark may transfer and assign any of its rights and obligations under this Agreement without consent.
    3. Complete Agreement. 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, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in writing signed by both parties, except as otherwise provided herein.
    4. No Agency. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Intellispark does not have any authority of any kind to bind Intellispark in any respect whatsoever.
    5. Cost Recovery. In any action or proceeding to enforce rights under the Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.
    6. Notices. Intellispark may provide any notice to Member Institution by sending an email the address provided for the Member Institution’s primary contact. Customer may provide notice to Intellispark by sending an email to legal@intellispark.com. Notice will be treated as received when the email is sent, whether or not the other party has received the email. Member Institution is responsible for keeping its primary contact’s email address current throughout the Term.
    7. Survival. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
    8. This Agreement shall be governed by the laws of the Commonwealth of Virginia without regard to its conflict of laws provisions.
    9. If there is a conflict between the documents that make up this Agreement, the documents will control in the following order: the Order Form, a purchase order issued by the Member Institution, and these Terms.

 

Last updated: July 27, 2020