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This Subscription Services Agreement (the "Agreement") set forth the terms pursuant to which Shamrck Social Impact Corporation (“Shamrck”) will provide the Organization (“Subscriber”) access to its subscription services as outlined herein (“Services”) pursuant to one or more invoices (each an “Order”) signed by Subscriber. The Services include proprietary content, activities, articles, tools, software applications, databases, and other materials.
A. License Grant. Subject to Subscriber’s continued compliance with this Agreement, including payment of all fees, Shamrck hereby grants to Subscriber a limited, non-exclusive, non-transferable license to access and use the Services as provided herein, and to have Authorized Users, as defined below, use and access the Services in accordance with the foregoing grant.
C. Prohibited Activities. Except as expressly authorized in this Agreement, Subscriber will not: (i) rent, lease, sublicense, distribute, transfer, copy, reproduce, display, modify, or timeshare the Services or any portion thereof; (ii) use the Services as a component of or as a base for products or services prepared for commercial sale, sublicense, lease, access, or distribution; (iii) modify, translate, or prepare any derivative work based on the Services; (iv) decompose, decode, or otherwise reverse engineer any Shamrck technology; (v) allow any third party or unlicensed user or computer system to access or use the Services; or (vi) remove any proprietary notices or labels attached to the Services. Subscriber agrees to take all reasonable steps to protect the Services from unauthorized access, copying, or use.
2. Administration of Services.
A. Subscriber Administrator. Subscriber will designate one (1) or more of its employees to serve as the primary point of contact and administrator(s) for the Services. The administrator is responsible for coordinating and/or completing required integration steps such as scheduling training, delivering data files, and other steps as identified by Shamrck. The administrator will also serve as the primary point of contact for Subscriber’s Authorized Users.
B. Registration. Shamrck will assign a unique username and password to all Authorized Users that will allow them to access and use the Services. Passwords and usernames may not be shared or utilized by anyone other than the Authorized User to whom such identification has been assigned.
C. Password Protection. Subscriber is solely responsible for the security of all usernames and passwords issued to Authorized Users. Subscriber agrees to comply at all times with the procedures specified by Shamrck regarding password security. Shamrck may cancel or suspend the use of a username and password in the event that it is misused by Subscriber or an Authorized User. The reissuance or reactivation of any canceled or suspended usernames or passwords will be at Shamrck’s sole discretion. Subscriber agrees to ensure that each Authorized User treats his or her username and password as confidential and will use his or her best efforts to prevent any third party from obtaining his or her password. Subscriber will immediately notify Shamrck of any actual or potential unauthorized access to a password or to the Services. Shamrck cannot and will not be liable for any loss or damage arising from Subscriber’s or any Authorized Users’ failure to comply with these obligations.
D. Instructions. Shamrck will make instructions regarding use of the Services available in electronic form on the Platform, including instructions for accessing the Services, procedures for printing or storing data, and user identification and security procedures. Shamrck shall be permitted to contact Authorized Users, and if such Authorized Users are minors, then such Authorized Users parent or guardian, regarding the Services, as well as other services offered by Shamrck and its affiliates.
E. Retrieval of Data. Upon termination of the Services, Subscriber will have thirty (30) days to retrieve all Subscriber Data. Shamrck will not be responsible for any Subscriber Data not retrieved within this period.
F. Support Hours and Platform Availability. Shamrck provides customer support during normal business hours, which are Monday through Friday, excluding major federal holidays, between 8:00 am and 4:00 pm Eastern Standard Time. Shamrck shall make the Platform available during the term of this Agreement, excluding only when the Platform is not available as a result of an Exception. As “Exception” shall mean (a) Subscriber’s or Student’s misuse of the Platform; (b) failures of Subscriber’s or Student’s internet connectivity; (c) internet or other network traffic or server problems; (d) Subscriber’s or any of its Student’s failure to meet any minimum hardware or software requirements; or (e) Scheduled Downtime as defined below.
G. Scheduled Downtime. Shamrck shall notify District at least 24 hours in advance of all scheduled outages of the Platform in whole or in part (“Scheduled Downtime”). All such scheduled outages shall: (a) last no longer than reasonably necessary; (b) be scheduled outside of normal school hours whenever reasonably possible, eastern standard time; and (c) occur no more frequently than once per week; provided that Shamrck may request Subscriber’s approval for extensions of Scheduled Downtime.
H. Changes. Shamrck reserves the right, in its sole discretion, to make any changes to the Services that it deems necessary or useful to: (a) maintain or enhance: (i) the quality or delivery of Shamrck's services; (ii) the competitive strength of or market for Shamrck's services; or (iii) the Services' cost efficiency or performance; or (b) to comply with applicable law. Without limiting the foregoing, either party may, at any time during the Term, request in writing changes to the Services.
I. Subscriber Obligations. Subscriber shall at all times during the Term: (a) set up, maintain, and operate in good repair and in accordance with the Shamrck’s request all necessary systems on or through which the Services are accessed or used; (b) provide personnel with such access to Subscriber's premises and systems as is necessary for Shamrck to perform the Services; and (c) provide all cooperation and assistance as Shamrck may reasonably request to enable it to exercise its rights and perform its obligations under and in connection with this Agreement.
3. Term of Agreement. This term of this Agreement shall begin on the date signed by both parties and continue for so long as any license granted pursuant to an invoice remains in effect.
4. Subscription Fee.
A. Access to the Services is subject to Shamrck’s receipt of the full amount of the annual subscription fee as set forth in an Order. Payment may be made by direct deposit (ACH) or by check. Shamrck may suspend Subscriber’s access to and use of the Services if Subscriber fails to pay any by the date due. Suspension of the Services does not reduce Subscriber's liability to pay for past due fees. Subscriber is responsible for paying all applicable taxes and duties, including, without limitation, sales, use, excise, value-added, and franchise taxes, associated with its use of the Services and any transactions that result there from, except for taxes based on Shamrck income. This clause will not apply if Subscriber is tax exempt and provides Shamrck with a tax exempt certificate.
B. If Subscriber fails to make any payment when due then, in addition to all other remedies that may be available: (i) Shamrck may charge interest on the past due amount at a rate of 1.5% per month, calculated daily and compounded monthly or, if lower, the highest interest rate permitted under applicable law; and (ii) Subscriber shall reimburse Shamrck for all reasonable costs incurred in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees.
C. Subscriber may be allowed to access the platform at no cost, in which case, an Order and Payment is not required from the Subscriber.
A. By Shamrck. Shamrck may terminate this Agreement and Subscriber’s access to the Services (i) upon written notice to Subscriber if Subscriber fails to pay or materially breaches a provision of this Agreement and fails to cure such breach within thirty (30) calendar days after receipt of notice; or (ii) immediately if Subscriber files for or has a bankruptcy petition filed against it, ceases to conduct business in the normal course, makes an assignment for the benefit of its creditors, becomes insolvent, or is liquidated or otherwise dissolved.
B. By Subscriber. Subscriber may terminate this Agreement by providing Shamrck written notice of its intent to terminate if (i) Shamrck materially breaches a provision of this Agreement and fails to cure such breach within thirty (30) calendar days after receipt of such notice; or (ii) immediately if Shamrck files for or has a bankruptcy petition filed against it, ceases to conduct business in the normal course, makes an assignment for the benefit of its creditors, becomes insolvent or is liquidated or otherwise dissolved.
C. Effect of Termination. Upon the expiration or earlier termination of this Agreement, Subscriber will promptly discontinue any further use of the Services. Subscriber will not be entitled to any refund of fees paid in the event of termination. This clause does not impact Shamrck’s right to collect any amount due hereunder, nor does it limit Subscriber’s rights under termination for breach of Agreement by Shamrck.
7. Intellectual Property Rights.
A. All right, title, and interest in and to the Services and related materials, improvements, enhancements, or modifications thereto, including all intellectual property rights therein, are and will remain with Shamrck and, with respect to third-party materials, the applicable third-party providers own all right, title, and interest, including all intellectual property rights, in and to the third-party materials. Subscriber has no right, license, or authorization with respect to any of the Services or related materials. All other rights in and to the Services and related materials are expressly reserved by Shamrck. In furtherance of the foregoing, Subscriber hereby unconditionally and irrevocably grants to Shamrck an assignment of all right, title, and interest in and to the Resultant Data, including all intellectual property rights relating thereto. Subscriber agrees that the Services and its components are protected by copyright, patent, trademark, trade secret, and other intellectual property rights and registrations. Subscriber agrees not to remove, obliterate, obscure, or alter any copyright or other proprietary rights notice that appears on any document, web page, or other component of the Services or any related materials or documentation. “Resultant Data” means data and information related to Subscriber’s and all Authorized User’s use of the Services that are used by Shamrck.
B. Subscriber hereby irrevocably grants all such rights and permissions in or relating to Subscriber Data as are necessary or useful to Shamrck and its affiliates to enforce this Agreement, perform the Services, and otherwise exercise its rights and perform its obligations herein.
EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, ALL SERVICES ARE PROVIDED "AS IS." SHAMRCK SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, SHAMRCK MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET SUBSCRIBER’S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED "AS IS" AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.
Subscriber represents, warrants, and covenants that (i) it has the right and authority to enter into this Agreement and to use and disclose Subscriber Data; (ii) it has all necessary rights and permissions to grant access to the Services to its Authorized Users; (iii) it will obey all applicable laws, rules, and regulations in its use of the Services and Subscriber Data; (iv) Subscriber Data will not infringe upon any copyright, trademark, privacy right, right of publicity, or other proprietary right(s) of any third party; and (v) Subscriber Data will not contain any material that is unlawful, hateful, obscene, libelous, threatening, or defamatory. Subscriber acknowledges that Shamrck has no obligation to monitor Subscriber Data. However, in the event that Shamrck becomes aware that any Subscriber Data may or does violate the representations and warranties set forth herein, Shamrck will have the right to remove such item(s) pending resolution.
9. Indemnification. Subscriber agrees to indemnify, defend, and hold Shamrck harmless from and against any and all liability, damage, loss or expense (including reasonable attorneys' fees) arising out of any claim, demand, or proceeding based on allegations arising as a result of (i) any inaccuracies or errors within the materials, Subscriber Data, and/or other information provided by Subscriber; (ii) breach of this Agreement, including any of the representations or warranties contained herein, by Subscriber or an Authorized User; or (iii) Subscriber's use of the Services in violation of applicable law. Shamrck agrees to indemnify, defend, and hold Subscriber harmless from and against any and all liability, damage, loss or expenses (including reasonable attorneys’ fees) arising out of any claim, demand, or proceeding alleging that the Services infringe or violate any United States patent, copyright or trademark. Shamrck acknowledges that Subscriber’s liability in any of the above listed circumstances may be limited or eliminated based upon applicable local, state, or federal law.
10. Limitation of Damages. NEITHER PARTY WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED TO THE SERVICES WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, EVEN IF EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SUBSCRIBER ACKNOWLEDGES THAT THE SERVICES ARE PROVIDED "AS IS" AND "AS DELIVERED," AND CANNOT BE CUSTOMIZED OR MODIFIED. WITHOUT LIMITING THE FOREGOING, AND EXCLUDING THE INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 10, THE TOTAL LIABILITY OF SHAMRCK FOR ANY REASON WHATSOEVER RELATED TO THE SERVICES WILL, IN NO EVENT, EXCEED THE FEES PAYABLE BY SUBSCRIBER TO SHAMRCK IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEEDING THE EVENT GIVING RISE TO SUCH CLAIM.
11. Confidentiality. In connection with this Agreement each party (as the "Disclosing Party") may disclose or make available Confidential Information to the other party (as the "Receiving Party"). "Confidential Information" means information in any form or medium (whether oral, written, electronic, or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party's technology, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, in each case whether or not marked, designated, or otherwise identified as "confidential". As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall:
not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement;
not disclose or permit access to Confidential Information other than to representatives who: (i) need to know such Confidential Information; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party's obligations hereunder; and (iii) are bound by confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth herein;
safeguard the Confidential Information from unauthorized use, access, or disclosure using at least the degree of care it uses to protect its most sensitive information and in no event less than a reasonable degree of care; and
promptly notify the Disclosing Party of any unauthorized use or disclosure of Confidential Information and take all reasonable steps and cooperate with Disclosing Party to prevent further unauthorized use or disclosure.
12. General Terms.
A. Severability. If any provision of this Agreement is found to be invalid or unenforceable, such provision will be interpreted as to give maximum effect to its intended purpose without affect to the validity or enforceability of any other provision of this Agreement.
B. Legal Notice. Shamrck will provide any legal notice to Subscriber via mail at the address noted in your registration account:
Subscriber must provide any legal notice to:
136 N 4th Street, Suite 2014
St. Petersburg, FL 33701
Any legal notices provided without compliance with this section will have no legal effect.
IN WITNESS WHEREOF, Shamrck Social Impact Corporation and the Subscriber have caused this agreement to be executed and represent that the persons whose signatures appear below are duly authorized to execute this Agreement and agree to be bound by the provisions herein.