MASTER SERVICES CONTRACT GENERAL PROVISIONS

The following terms and conditions will apply to all Services, Products and Materials made available to School in conjunction with the Contract entered into between Inceptia and the School:

1. Representations. Inceptia represents that it is the owner of the entire right, title, and interest in and to the Services, Products and Materials. Unless specifically qualified or accepted in the Contract, the Exhibits and these General Provisions, no usage rights have been granted to any other entity which restrict the rights granted to School. Inceptia represents and warrants to School that the Services and Products, when properly utilized by School and used with properly functioning or designated equipment will perform substantially as represented by Inceptia.

2. No Modifications by School. School may not modify, attempt to modify, or decompile or attempt to decompile the Services and Products. If School modifies or attempts to modify, or decompiles or attempts to decompile the Services and Products, or in any other way abuses or tampers with the Services and Products, the warranty obligations of Inceptia shall be null and void and subject to termination as described in Section 3 of the Contract. The limited warranty and restricted remedy contained herein is not applicable to the Services and Products that has been modified or misused by School.

3. Technical Updates. Technical updates to the Services and Products will be made periodically and distributed to School as a part of Inceptia’s usual update protocol so long as School is current in the payment of all fees. If the Contract has been cancelled by the School or payment has not been timely received by Inceptia, Inceptia shall have no obligation to provide on-going updates.

4. Product Support. Inceptia shall provide School with basic product instruction, support, and customer service in conjunction with use of the Services and Products.

5. Product and Service Customization. If School requests customization to any of the Services and Products that Inceptia determines (in Inceptia’s sole discretion) to be unique to School, then School will be given an estimate based upon an agreed customization rate. Such changes shall be in addition to the fees charged to School as outlined in Exhibit B. Inceptia will not make nor bill School for customization fees unless written approval from the School is received prior to changes being made. Title and ownership of any and all corrections, updates, and modifications shall be the sole property of Inceptia with all ownership and rights to title vested entirely with Inceptia.

6. Modifications Requested by School. School may, from time to time, request that Inceptia incorporate, upgrade, or otherwise modify certain features of the Services and Products. Such modifications shall be deemed to be non-customized upgrades, which are not unique to School or its use of the Services and Products; and therefore, not governed by the terms of Section 5 above. To the extent Inceptia undertakes, in its sole discretion, to incorporate such changes, the parties agree that Inceptia may use and distribute the modifications in its ordinary course of business. Modifications may be made in writing, represented by an amendment to the Contract, as mutually agreed upon by an authorized representative of both Inceptia and School. Title and ownership of any and all corrections, updates, and modifications shall be the sole property of Inceptia with all ownership and rights to title vested entirely with Inceptia.

7. Materials. Inceptia may develop and produce a number of written and electronic media materials (Materials) in the form contemplated by this Contract and shall provide them in conjunction with training and education services in accordance with a schedule as agreed to by the parties. All Materials will be copyrighted in the name of Inceptia, and School will not make any format changes or alterations in any part of the Materials except as provided within this Contract or as otherwise consented to in writing by Inceptia.

8. Scheduled Maintenance and Downtime. Inceptia shall use all reasonable efforts to ensure that the Services and Products are operating and reasonably available to school customers. Downtime is considered to be time that the Services and Products are unavailable due to a failure in the Inceptia network. There may be periods of time that Inceptia schedules maintenance on the Services and Products that requires an interruption of service. School will be notified in advance of scheduled maintenance and every effort will be made to schedule this maintenance outside the hours of 7:00 a.m. and 10:00 p.m. Central time. Scheduled maintenance is not considered downtime. Inceptia cannot be responsible for connectivity issues arising from problems in the School’s or customer network or Internet outages beyond Inceptia’s control.

9. Nonexclusivity. The creation, development, and dissemination of the Services, Products, and Materials shall be on a nonexclusive basis, and Inceptia retains the right to use and distribute the body of work, design, copy work, and related information and materials (proprietary and public domain) associated with the Services, Products, and Materials for itself or others including offerings of the Services, Products, and Materials to and in association with other school customers and entities.

10. Confidential Information. Each party will protect the Confidential Information of the other party in accordance with the terms of this section. The term “Confidential Information” means all trade secrets, business and financial information, computer software, machine and operator instructions, business methods, procedures, know-how, and other information that relates to the business or technology of either party and is marked or identified as confidential, or disclosed in circumstances that would lead a reasonable person to believe such information is confidential. The Services, Products and Materials of Inceptia as defined in the Contract, the Exhibits and these General Provisions, as well as the Fees and Related Expenses described in the Contract, shall be considered Inceptia’s Confidential Information, notwithstanding any failure to mark or identify it as such. To the extent allowed by applicable law, the party receiving Confidential Information (“Receiving Party”) from the other party (“Disclosing Party”) will not use any Confidential Information of the Disclosing Party for any purpose not expressly permitted by the Contract, the Exhibits or these General Provisions, and will disclose the Confidential Information of the Disclosing Party only to the employees or contractors of the Receiving Party who have a need to know such Confidential Information for purposes of the Contract and who are under a duty of confidentiality no less restrictive than the Receiving Party’s duty hereunder. To the extent allowed by applicable law, the Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner as the Receiving Party protects its own confidential or proprietary information of a similar nature and with no less than reasonable care.

All tangible confidential information and any copies thereof shall be promptly returned to Disclosing Party or destroyed at Disclosing Party’s option upon direction by Disclosing Party or upon termination of the Contract. Receiving Party will not, however, be obligated to destroy or erase confidential information contained in an archived computer system backup made in accordance with its security and/or disaster recovery procedures, provided that such archived copy will eventually be erased or destroyed in the ordinary course of data processing procedures and will remain fully subject to the obligations of confidentiality stated in the Contract, the Exhibits and these General Provisions, until the earlier of the destruction of such copy or the expiration of the confidentiality obligations set out in the Contract.

11. Limited Warranty and Limitation of Liability. Inceptia warrants that, when used as permitted by Inceptia pursuant to the Contract, the Exhibits and these General Provisions, the Services and Products will substantially perform (i) according to the representations made by Inceptia, and (ii) in material compliance with federal and state laws, including laws associated with the management of personally identifiable information. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION, INCEPTIA MAKES NO OTHER WARRANTIES WHATSOEVER WITH RESPECT TO ANY OF THE SERVICES OR PRODUCTS PROVIDED BY INCEPTIA OR INCEPTIA’S PERFORMANCE UNDER THE CONTRACT, THE EXHIBITS AND THESE GENERAL PROVISIONS, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY; (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (C) WARRANTY OF TITLE; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.

12. Protection of Data and Information. Inceptia shall comply with applicable federal laws and regulations, and to the extent not preempted thereby, applicable state laws and regulations, including privacy laws associated with personally identifiable information (Information) concerning School’s students and other end-users. Inceptia will not disclose such Information to anyone, except as permitted by law. Such permitted exceptions include, but are not limited to, sharing information with contractors, agents, schools, and the U.S. Department of Education to the extent necessary to provide the Services and Products in the conformity with federal law. Furthermore, Inceptia shall (i) not sell or share Information with outside marketers or other companies, which may then try to sell the products or services to third parties; (ii) restrict access of Information to employees, contractors, and agents who need to know such Information in order to provide the Services and Products contemplated by the Contract, the Exhibits and these General Provisions; (iii) maintain physical, electronic, and procedural safeguards in compliance with federal law to safeguard relevant Information; (iv) properly dispose of Information when required to do so; and (v) promptly notify School in writing of any unauthorized access to or use of Information derived from the Services and Products provided under the terms of the Contract.

13. Dispute Resolution. In the event that any dispute arises between Inceptia and School in connection with the Contract, the Exhibits or these General Provisions, the representatives of each party responsible for the subject matter of such dispute shall use good faith efforts to resolve such dispute promptly. If the efforts to resolve disputed matters have not been successfully concluded through the process set out above, then normal avenues of remedy shall apply.

14. Changes and New Terms. Inceptia may change the terms of the Contract, Exhibits A and B, these General Provisions, as well as effect new terms (including, without limitation, adding new or changing fees and payment or settlement terms), from time to time (each a “Change”) solely to the extent necessary, as determined in Inceptia’s reasonable discretion, to comply with changes in applicable law or regulation. Inceptia will give notice of a Change in writing delivered directly to School (including via email). School’s use of the Services Products and/or Materials after ten (10) days from the date notice of a Change was given constitutes acknowledgment and acceptance of the Change, as of the actual effective date of such Change; provided, that School will have the right to terminate the Contract upon written notice to Inceptia for a period of thirty (30) days following receipt of notice of such Change. In all other cases, the Contract, the Exhibits and these General Provisions shall not be varied by unilateral conduct or oral agreement, but only by an instrument in writing duly executed by all parties.

15. Independent Contractors. The parties understand and acknowledge that School and Inceptia are independent contractors. Neither party is an agent, representative, or partner of the other party. Unless otherwise provided in the Contract, the Exhibits or these General Provisions, neither party shall have any right, power, or authority to enter into any contract for or on behalf of, or incur any obligation or liability of, or to otherwise bind the other party. The Contract, the Exhibits and these General Provisions and any revisions to the same shall not be interpreted or construed to create an association, agency, joint venture, or partnership between the parties or to impose any liability attributable to such relationship upon any party. The parties specifically acknowledge and agree that any equipment and personnel of Inceptia shall be under Inceptia’s sole responsibility and control.

16. Entire Agreement. The Contract, the Exhibits and these General Provisions represent the entire understanding of the parties with respect to its subject matter, and supersedes all previous writing, correspondence, and memoranda with respect thereto; and no representations, warranties, contracts or covenants, expressed or implied, of any kind or character whatsoever with respect to such subject matter have been made by either party to the other, except as herein expressly set forth.

17. Miscellaneous Provisions. School shall not assign or otherwise transfer the Contract, the Services, Products, and Materials or any interest therein to any person or entity (other than a wholly-owned affiliate) without the prior written consent of Inceptia. The Contract, the Exhibits and these General Provisions shall be binding upon the parties hereto as well as their successors and assigns as permitted. No waiver of any breach of the Contract, the Exhibits or these General Provisions shall constitute a waiver of any prior, concurrent, or subsequent breach of the same, or any other provision of the Contract, the Exhibits and these General Provisions. The Contract may be executed in one or more counterparts, including electronic/digital execution pages, each of which shall be an original, but all of which shall constitute one and the same instrument. The Contract and any documents relating to it may be executed by one party by electronic signature technology and transmitted to the other party by facsimile, email or other digital/electronic means, which electronic signature and transmission shall be deemed to be, and utilized in all respects as, an original, wet-inked manually executed document. The Contract, the Exhibits and these General Provisions shall be governed by the laws of the state in which the School is chartered, principally located or is identified as its principal place of business (as selected by the School), and the parties submit and consent to the jurisdiction of the courts within such state for any matter associated with the Contract.

18. Third Party Servicing. For all services provided by Inceptia to School under in which Inceptia is acting as a third-party servicer as defined in 34 C.F.R. §668.2 (as may be amended from time to time) the following provisions shall specifically apply:

  • Inceptia shall comply with all statutory provisions of or applicable to Title IV of the Higher Education Act of 1965, as amended (HEA), all regulatory provisions prescribed under that statutory authority, and all applicable special arrangements, agreements, limitations, suspensions, and terminations entered into under the authority of statutes applicable to Title IV of the HEA, including the requirement to use any funds that Inceptia administers under any Title IV, HEA program and any interest or other earnings thereon solely for the purposes specified in and in accordance with that program and including the requirement that Inceptia file independent compliance audits as described under 34 C.F.R. § 668.23.
  • Inceptia acknowledges its obligation to refer to the Office of Inspector General of the Department of Education for investigation any information indicating there is reasonable cause to believe that the School may have engaged in fraud or other criminal misconduct in connection with the School's administration of any Title IV, HEA program or an applicant for Title IV, HEA program assistance who may have engaged in fraud or other criminal misconduct in connection with his or her application. Examples of the type of information required to be reported can be found at 34 C.F.R. §668.25(c)(2), as may be further amended from time to time.
  • The parties acknowledge and agree that both Inceptia and the School shall be jointly and severally liable to the Secretary for any violation by Inceptia acting as a third-party servicer of any statutory provision of or applicable to Title IV of the HEA, any regulatory provision prescribed under that statutory authority, and any applicable special arrangement, agreement, or limitation entered into under the authority of statutes applicable to Title IV of the HEA.
  • The parties acknowledge that if Inceptia or School terminates the Contract, or if Inceptia stops providing services for the administration of a Title IV, HEA program, goes out of business, or files a petition under the Bankruptcy Code, Inceptia will return to the School all records in its possession pertaining to the School’s participation in the program or programs for which services are no longer provided. However, Inceptia will not be obligated to destroy or erase documentation contained in an archived computer system backup made in accordance with its security and/or disaster recovery procedures, provided that such archived copy will eventually be erased or destroyed in the ordinary course of data processing procedures and will remain fully subject to the obligations of confidentiality stated in the Contract, the Exhibits and these General Provisions, until the earlier of the destruction of such copy or the expiration of the confidentiality obligations set out in the Contract, the Exhibits or these General Provisions.
  • To the extent any provision of the other portions of the Contract may conflict with this Section 18 of the General Provisions, the terms of this Section 18 shall govern.