Silver Lining Learning, LLC

SchoolStack™ Terms of Use

Last Modified: October 15, 2021

This SchoolStack™ Terms of Use Agreement (this “Agreement“) is a binding contract between you (“Customer,” “you,” or “your“) and Silver Lining Learning, LLC (“Provider,” “we,” or “us“). This Agreement governs your access to and use of the SchoolStack Platform, as defined herein. 

THIS AGREEMENT TAKES EFFECT WHEN YOU CLICK THE “I AGREE” BUTTON BELOW OR BY ACCESSING OR USING THE SCHOOLSTACK PLATFORM (the “Effective Date“). BY CLICKING ON THE “I AGREE” BUTTON BELOW OR BY ACCESSING OR USING THE SCHOOLSTACK PLATFORM YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND, IF ENTERING INTO THIS AGREEMENT FOR AN ORGANIZATION, THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT ORGANIZATION; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. 

IF YOU DO NOT AGREE TO AND ACCEPT THESE TERMS, YOU MAY NOT ACCESS OR USE THE SCHOOLSTACK PLATFORM. 

  1. Definitions. 
    1. “Authorized User” means Customer and Customer’s employees, consultants, contractors, students and agents (i) who are authorized by Customer to access and use the SchoolStack Platform under the rights granted to Customer pursuant to this Agreement and (ii) for whom access to the SchoolStack Platform has been purchased hereunder.
    2. “SchoolStack Platform” collectively means the educational and other services provided by Provider under this Agreement that are detailed on Provider’s website available at myschoolstack.com and/or app.myschoolstack.com. 
    3. “Customer Data” means, other than Aggregated Statistics, information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or any other Authorized User through the SchoolStack Platform.  The following are examples of data that may be processed through use of the School Stack Platform; this is not an exhaustive list:
      1. Family Education and Rights Privacy Act (FERPA) Protected Data:  FERPA protected data, as defined by FERPA is the educational record of a student in whatever medium (handwritten, print, tape, film, disk, and etc.) that are in the possession of any school official (which shall include SchoolStack, as a recipient of such data from the Customer or Authorized User.
      2. Nonpublic Personal Information (NPI):  Any personally identifiable financial information; provided by a consumer to a financial institution; resulting from any transaction with the consumer or any service performed for the consumer; or otherwise obtained by the financial institution. NPI does not include publicly available information. NPI does include any list, description, or other grouping of consumers (and publicly available information pertaining to them) that is derived using any nonpublic personal information other than publicly available information; but shall not include any list, description, or other grouping of consumers (and publicly available information pertaining to them) that is derived without using any nonpublic personal information.
      3. Payment Card Industry (PCI) Security Standard: The primary account number (PAN) of a credit card, debit card, or bank account number in combination with any one or more of the following:  cardholder name; service code; or, expiration date.
      4. Personal Information (PI): The first name and last name or first initial and last name of a person (including a corporation, association, partnership or other legal entity) in combination with any one or more of the following:  Social Security number; Driver’s license number or state-issued identification card number; or Financial account number (e.g. bank account) or credit or debit card number that would permit access to a person’s financial account, with or without any required security code, access code, personal identification number, or password.  For the purposes of this Program, PI also includes passport number, alien registration number or other government- issued identification number.  
      5. Personal Data (PD) of Person(s) Located in European Union (EU) and Member States within the European Economic Area (EEA) (regardless of citizenship):  Any information relating to an identified or identifiable natural person (data subject) within the EU and EEA ( which, in addition to EU Member States, includes Iceland, Norway, Liechtenstein, United Kingdom and Switzerland); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier (IP address or cookie) or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.
    4. “Documentation” means Provider’s user guides and resources relating to the SchoolStack Platform provided by Provider to Customer either electronically or in hard copy form/end user documentation relating to the SchoolStack Platform available at myschoolstack.com and/or app.myschoolstack.com. 
    5. “Provider IP” means the SchoolStack Platform, the Documentation, and all intellectual property provided to Customer or any other Authorized User in connection with the foregoing. For the avoidance of doubt, Provider IP includes Aggregated Statistics and any information, data, or other content derived from Provider’s monitoring of Customer’s access to or use of the SchoolStack Platform, but does not include Customer Data.
    6. “Third-Party Products” means any products, content, services, information, websites, or other materials that are owned by third parties and are incorporated into or accessible through the SchoolStack Platform.
  2. Access and Use.
    1. Provision of Access. Subject to and conditioned on your payment of Fees, if any, and compliance with the terms and conditions of this Agreement, Provider hereby grants you a revocable, non-exclusive, non-transferable, non-sublicensable, limited right to access and use the SchoolStack Platform during the Term solely for your use and/or use by Authorized Users in accordance with the terms and conditions herein. Provider shall provide you the necessary passwords and access credentials to allow you to access the SchoolStack Platform. 
    2. Documentation License. Subject to the terms and conditions contained in this Agreement, Provider hereby grants you a non-exclusive, non-sublicensable, non-transferable license for Authorized Users to use the Documentation during the Term solely for educational purposes in connection with use of the SchoolStack Platform.
    3. Responsible Use and Related Restrictions. You shall not, and shall not permit any Authorized Users to, use the SchoolStack Platform, any software component of the SchoolStack Platform, or Documentation for any purposes beyond the scope of the access granted in this Agreement. You shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of the SchoolStack Platform, any software component of the SchoolStack Platform, or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the SchoolStack Platform or Documentation except as expressly permitted under this Agreement; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the SchoolStack Platform, in whole or in part; (iv) remove any proprietary notices from the SchoolStack Platform or Documentation; or (v) use the SchoolStack Platform or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law, regulation, rule or other generally accepted online practice or guideline.

      Wherein, you understand that:

      1. In order to access the Platform, you may be required to provide certain information about yourself (such as identification, contact details, etc.) as part of the registration process, or as part of your ability to use the Platform.
      2. You are responsible for maintaining the confidentiality of any login information associated with any account you use to access our Platform. Accordingly, you are responsible for all activities that occur under your account/s.
      3. Accessing (or attempting to access) any aspect of our Platform by any means other than through the means we provide is strictly prohibited. You specifically agree not to access (or attempt to access) any aspect of our Platform through any automated, unethical, or unconventional means.
      4. Engaging in any activity that disrupts or interferes with our Platform, including the servers and/or networks our Platform is located on or connected to, is strictly prohibited.
      5. Attempting to copy, duplicate, reproduce, sell, trade, or resell our Platform is strictly prohibited.

Any violation of this provision may be subject to, at minimum, Service Suspension in accordance with section 2(f) of this Agreement.

  1. Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, Provider may monitor Customer’s use of the SchoolStack Platform and collect and compile data and information related to Customer’s use of the SchoolStack Platform to be used by Provider in an aggregated and anonymized manner, including to compile statistical and performance information related to the provision and operation of the SchoolStack Platform (“Aggregated Statistics“). As between Provider and Customer, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Provider. You acknowledge that Provider may compile Aggregated Statistics based on Customer Data input into the SchoolStack Platform. You agree that Provider may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law; provided that such Aggregated Statistics do not identify Customer or Customer’s Confidential Information or other data that may be defined and protected by applicable laws and regulations. 
  2. Reservation of Rights. Provider reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Provider IP.
  3. Suspension. Notwithstanding anything to the contrary in this Agreement, Provider may temporarily suspend Customer’s and any other Authorized User’s access to any portion or all of the SchoolStack Platform if: (i) Provider reasonably determines that (A) there is a threat or attack on any of the Provider IP; (B) Customer’s or any other Authorized User’s use of the Provider IP disrupts or poses a security risk to the Provider IP or to any other customer or vendor of Provider; (C) Customer or any other Authorized User is using the Provider IP for fraudulent or illegal activities; (D) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) Provider’s provision of the SchoolStack Platform to Customer or any other Authorized User is prohibited by applicable law; (ii) any vendor of Provider has suspended or terminated Provider’s access to or use of any third-party services or products required to enable Customer to access the SchoolStack Platform; or (iii) in accordance with 5 (any such suspension described in subclause (i), (ii), or (iii), a “Service Suspension“). Provider shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the SchoolStack Platform following any Service Suspension. Provider shall use commercially reasonable efforts to resume providing access to the SchoolStack Platform as soon as reasonably possible after the event giving rise to the SchoolStack Platform Suspension is cured. Provider will have no liability for any damage, liabilities, losses (including any loss of or profits), or any other consequences that Customer or any other Authorized User may incur as a result of a Service Suspension.
  1. Customer Responsibilities.
    1. Acceptable Use Policy. The SchoolStack Platform may not be used for unlawful, fraudulent, offensive, or obscene activity.  Provider hereby adopts the Customer’s acceptable use policy (“AUP“), as may be amended from time to time, which is incorporated herein by reference. You and all of your Authorized Users will comply with all terms and conditions of this Agreement, all applicable laws, rules, and regulations, and all guidelines, standards, and requirements that may be posted on myschoolstack.com and/or app.myschoolstack.com from time to time, including the AUP.

If the Customer is an individual, or is a school or district that has not enacted an AUP, the following terms shall apply:

  1. Acceptable Use
    1. All use of the SchoolStack Platform must be in support of educational and research objectives consistent with the mission and objectives of the Platform.
    2. Proper codes of conduct in electronic communication must be used. When using e-mail or any messaging service, extreme caution must always be taken in revealing any Customer Data.
    3. Exhibit exemplary behavior on the SchoolStack Platform as a representative of your school and community. Be polite!
    4. From time to time, the Provider will make determinations on whether specific uses of the SchoolStack Platform are consistent with the acceptable use practice.
  2. Unacceptable Use
    1. Giving out personal information about another person, including home address and phone number, is strictly prohibited.
    2. Any use of the SchoolStack Platform for commercial or for-profit purposes is prohibited.
    3. Excessive use of the SchoolStack Platform for personal business shall be cause for disciplinary action.
    4. Any use of the SchoolStack Platform for product advertisement or political lobbying is prohibited.
    5. Users shall not intentionally seek information on, obtain copies of, or modify files, other data, or passwords belonging to other users, or misrepresent other users on the SchoolStack Platform.
    6. No use of the SchoolStack Platform shall serve to disrupt the use of the SchoolStack Platform by others. Hardware and/or software shall not be destroyed, modified, or abused in any way.
    7. Malicious use of the SchoolStack Platform to develop programs that harass other users or infiltrate a computer or computing system and/or damage the software components of a computer or computing system is prohibited.
    8. Hate mail, chain letters, harassment, discriminatory remarks, and other antisocial behaviors are prohibited on the SchoolStack Platform.
    9. The unauthorized installation of any software, including shareware and freeware, for use on the SchoolStack Platform is prohibited.
    10. Use of the SchoolStack Platform to access or process pornographic material, inappropriate text files (as determined by the system administrator or building administrator), or files dangerous to the integrity of the SchoolStack Platform is prohibited.
    11. The SchoolStack Platform may not be used for downloading entertainment software or other files not related to the mission and objectives of the Platform for transfer to a user’s home computer, personal computer, or other media. This prohibition pertains to freeware, shareware, copyrighted commercial and non-commercial software, and all other forms of software and files not directly related to the instructional and administrative purposes of the Platform.
    12. Downloading, copying, otherwise duplicating, and/or distributing copyrighted materials without the specific written permission of the copyright owner is prohibited, except that duplication and/or distribution of materials for educational purposes is permitted when such duplication and/or distribution would fall within the Fair Use Doctrine of the United States Copyright Law (Title 17, USC).
    13. Use of the SchoolStack Platform for any unlawful purpose is prohibited.
    14. Use of profanity, obscenity, racist terms, or other language that may be offensive to another user is prohibited.
    15. Playing games is prohibited unless specifically authorized by a teacher for instructional purposes.
    16. Establishing network or Internet connections to live communications, including voice and/or video (relay chat), is prohibited unless specifically authorized by the system administrator.

Any violation of this provision may be subject to, at minimum, Service Suspension in accordance with section 2(f) of this Agreement.

  1. Account Use. You are responsible and liable for all uses of the SchoolStack Platform and Documentation resulting from access provided by you, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, you are responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by you will be deemed a breach of this Agreement by you. You shall use reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the SchoolStack Platform and shall cause Authorized Users to comply with such provisions. 
  2. Customer Data. You hereby grant to Provider a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for Provider to provide the SchoolStack Platform to you, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Customer Data incorporated within the Aggregated Statistics. You will ensure that Customer Data and any Authorized User’s use of Customer Data will not violate any policy or terms referenced in or incorporated into this Agreement or any applicable law. You are solely responsible for the development, content, operation, maintenance, and use of Customer Data.
  3. Passwords and Access Credentials. You are responsible for keeping your passwords and access credentials associated with the SchoolStack Platform confidential. You will not sell or transfer them to any other person or entity. You will promptly notify us about any unauthorized access to your passwords or access credentials.
  4. Third-Party Products. The Services may permit access to Third-Party Products. For purposes of this Agreement, such Third-Party Products are subject to their own terms and conditions presented to you for acceptance within the SchoolStack Platform by website link or otherwise. If you do not agree to abide by the applicable terms for any such Third-Party Products, then you should not install, access, or use such Third-Party Products.
    1. Service Levels and Support.
  • Service Levels. Subject to the terms and conditions of this Agreement, Provider shall use commercially reasonable efforts to make the SchoolStack Platform available in accordance with the service levels available at myschoolstack.com and/or app.myschoolstack.com (“Service Levels“).
  1. Support. The access rights granted hereunder entitle Customer to the support services described on Provider’s website located at myschoolstack.com and/or app.myschoolstack.com for the term of this Agreement and thereafter. 
  1. Fees and Payment. Customer shall pay Provider the fees as described on at myschoolstack.com and/or app.myschoolstack.com (“Fees“) within thirty (30) days from the invoice date without offset or deduction. Customer shall make all payments hereunder in US dollars on or before the due date. If Customer fails to make any payment when due, without limiting Provider’s other rights and remedies: (i) Provider may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Customer shall reimburse Provider for all reasonable costs incurred by Provider in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (iii) if such failure continues for thirty (30) days or more, Provider may suspend, in accordance with Section 2(f), Customer’s and all other Authorized Users’ access to any portion or all of the SchoolStack Platform until such amounts are paid in full. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Provider’s income.
  2. Confidential Information. From time to time during the Term, Provider and Customer may disclose or make available to the other party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, Customer Data as generally defined by this Agreement, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media/in written or electronic form or media, and whether or not marked, designated, or otherwise identified as “confidential” at the time of disclosure (collectively, “Confidential Information“). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving party; (c) rightfully obtained by the receiving party on a non-confidential basis from a third party; or (d) independently developed by the receiving party. The receiving party shall not disclose the disclosing party’s Confidential Information to any person or entity, except to the receiving party’s employees, agents, or subcontractors who have a need to know the Confidential Information for the receiving party to exercise its rights or perform its obligations hereunder and who are required to protect the Confidential Information in a manner no less stringent than required under this Agreement. Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required (i) to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the party making the disclosure pursuant to the order shall first have given written notice to the other party and made a reasonable effort to obtain a protective order; or (ii) to establish a party’s rights under this Agreement, including to make required court filings. Each party’s obligations of non-disclosure with regard to Confidential Information are effective as of the date such Confidential Information is first disclosed to the receiving party and will expire five years thereafter; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law. 
  3. Privacy Policy. Provider complies with its privacy policy available at myschoolstack.com and/or app.myschoolstack.com (“Privacy Policy“), in providing the SchoolStack Platform. The Privacy Policy is subject to change as described therein. By accessing, using, and providing information to or through the SchoolStack Platform, you acknowledge that you have reviewed and accepted our Privacy Policy, and you consent to all actions taken by us with respect to your information in compliance with the then-current version of our Privacy Policy.

    The Provider’s Privacy Policy is incorporated by reference in this Agreement.  By accepting these Terms of Use, you acknowledge that you accept and agree to be bound by the Provider’s Privacy Policy.

    If you are a teacher, you represent and warrant to Provider that prior to uploading any Customer Data that includes personal or student information for any child who is younger than 13 (or such other age as may be required under applicable law) onto the SchoolStack Platform, you have obtained the legally binding consent of the parent or legal guardian of each such child as further described in Provider’s Privacy Policy. In addition, you should consult with your school or district to ensure that you obtain proper consent to use the Platform in the classroom consistent with your school’s or district’s policies. If you are aware that the Platform is collecting information from a student without parental consent, please contact us immediately at hal@myschoolstack.com.

  4. Intellectual Property Ownership; Feedback. As between you and us, (a) we own all right, title, and interest, including all intellectual property rights, in and to the SchoolStack Platform and (b) you own all right, title, and interest, including all intellectual property rights, in and to Customer Data. If you or any of your employees, contractors, or agents sends or transmits any communications or materials to us by mail, email, telephone, or otherwise, suggesting or recommending changes to the SchoolStack Platform, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback“), we are free to use such Feedback irrespective of any other obligation or limitation between you and us governing such Feedback. All Feedback is and will be treated as non-confidential. You hereby assign to us on your behalf, and shall cause your employees, contractors, and agents to assign, all right, title, and interest in, and we are free to use, without any attribution or compensation to you or any third party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although we are not required to use any Feedback.
  5. Limited Warranty and Warranty Disclaimer. 
    1. Provider warrants that it provides the SchoolStack Platform using a commercially reasonable level of care and skill. THE FOREGOING WARRANTY DOES NOT APPLY, AND PROVIDER STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY PRODUCTS.
    2. Customer Warranty. You warrant that you own all right, title, and interest, including all intellectual property rights, in and to Customer Data and that both the Customer Data and your use of the SchoolStack Platform are in compliance with the AUP.
    3. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 9(a), THE SCHOOLSTACK PLATFORM IS PROVIDED “AS IS” AND PROVIDER SPECIFICALLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. PROVIDER 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. PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE SCHOOLSTACK PLATFORM, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET YOUR OR ANY OTHER PERSON’S OR ENTITY’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY OF YOUR OR ANY THIRD PARTY’S SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED. 
  6. Indemnification. 
    1. Provider Indemnification. 
      1. Provider shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees (“Losses“), incurred by Customer resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim“) that the SchoolStack Platform, or any use of the SchoolStack Platform in accordance with this Agreement, infringes or misappropriates such third party’s US intellectual property rights, provided that Customer promptly notifies Provider in writing of the Third-Party Claim, cooperates with Provider, and allows Provider sole authority to control the defense and settlement of such Third-Party Claim.
      2. If such a Third-Party Claim is made or either party reasonably anticipates such a Third-Party Claim will be made, Customer agrees to permit Provider, at Provider’s sole discretion, to (A) modify or replace the SchoolStack Platform, or component or part thereof, to make it non-infringing, or (B) obtain the right for Customer to continue use. If Provider determines that neither alternative is reasonably available, Provider may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer. This Section 10(a)(ii) sets forth your sole remedies and our sole liability and obligation for any actual, threatened, or alleged Third-Party Claims that the SchoolStack Platform infringes, misappropriates, or otherwise violates any intellectual property rights of any third party. 
      3. This Section 10(a) will not apply to the extent that any such Third-Party Claim arises from Customer Data or Third-Party Products.
    2. Customer Indemnification. Customer shall indemnify, hold harmless, and, at Provider’s option, defend Provider and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all Losses arising from or relating to any Third-Party Claim (i) that the Customer Data, or any use of the Customer Data in accordance with this Agreement, infringes or misappropriates such third party’s US intellectual property rights; or (ii) based on Customer’s or any Authorized User’s negligence or willful misconduct or use of the SchoolStack Platform in a manner not authorized by this Agreement; provided that Customer may not settle any Third-Party Claim against Provider unless Provider consents to such settlement, and further provided that Provider will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
  7. Limitations of Liability. IN NO EVENT WILL PROVIDER BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER PROVIDER WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL PROVIDER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO PROVIDER UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM, OR $10,000, WHICHEVER IS LESS. The exclusions and limitations in this Section 11 do not apply to the parties’ obligations under 10.  
  8. Term and Termination. 
    1. Term. The term of this Agreement begins on the Effective Date and continues until terminated. SchoolStack Platform that are specified to automatically renew will renew for up to three (3) additional successive one-year terms unless earlier terminated pursuant to this Agreement’s express provisions or either party gives the other party written notice of non-renewal at least thirty (30) days prior to the expiration of the then-current services period.
    2. Termination. In addition to any other express termination right set forth in this Agreement:
      1. Provider may terminate this Agreement, for any reason upon thirty (30) days’ advance notice. 
      2. either party may terminate this Agreement, effective on written notice to the other party, if the other party materially breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured for thirty (30) days after the non-breaching party provides the breaching party with written notice of such breach; or
      3. either party may terminate this Agreement, effective immediately upon written notice to the other party, if the other party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
    3. Effect of Termination. Upon termination of this Agreement, Customer shall immediately discontinue use of the Provider IP. No expiration or termination of this Agreement will affect Customer’s obligation to pay all Fees that may have become due before such expiration or termination or entitle Customer to any refund. 
    4. Survival. This Section 12(d), Sections 5, 6, 10, 11, 14, 15, 16, and 17, and any right, obligation, or required performance of the parties in this Agreement which, by its express terms or nature and context is intended to survive termination or expiration of this Agreement, will survive any such termination or expiration.
  9. Modifications. You acknowledge and agree that we have the right, in our sole discretion, to modify this Agreement, and that modified terms become effective on posting. You will be notified of modifications through notifications and/or posts on myschoolstack.com and/or app.myschoolstack.com and/or direct email communication from us. You are responsible for reviewing and becoming familiar with any such modifications. Your continued use of the SchoolStack Platform after the effective date of the modifications will be deemed acceptance of the modified terms. Provider will provide at least thirty (30) days’ advance notice of changes to any service level that Provider reasonably anticipates may result in a material reduction in quality or services. 
  10. Export Regulation. The SchoolStack Platform utilizes software and technology that may be subject to US export control laws, including the US Export Administration Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release the SchoolStack Platform or the software or technology included in the SchoolStack Platform to, or make the SchoolStack Platform or the software or technology included in the SchoolStack Platform accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, regulation, or rule. You shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the SchoolStack Platform or the software or technology included in the SchoolStack Platform available outside the US.
  11. Governing Law and Jurisdiction. This agreement is governed by and construed in accordance with the internal laws of the State of Pennsylvania without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Pennsylvania.
  12. Dispute Resolution.  In the event of a dispute regarding the terms of this agreement or the rights granted hereunder, the parties will first make reasonable and good faith efforts to resolve the matter by good faith negotiation between themselves.  All discussions undertaken to resolve the matter will be treated as compromise offers or negotiations subject to the provisions of Federal Rule of Evidence Section 408 or any similar state rule. 

    If the parties cannot resolve the matter through negotiation within thirty (30) days, or if the parties mutually agree that the matter is unlikely to be resolved through negotiation, then the parties may mutually agree to submit the dispute to alternative dispute resolution.  Binding commercial arbitration with the American Arbitration Association (AAA) in State College, Pennsylvania (unless some alternative location shall be mutually agreed upon by the parties) shall be the sole method and exclusive remedy for interpretation and enforcement of this agreement and its terms (except as otherwise set forth herein).  The arbitration shall be governed by the AAA Commercial Arbitration Rules (“Rules”).  The parties shall mutually agree upon one arbitrator to hear the dispute pursuant to the Rules. 
  13. Miscellaneous. This Agreement constitutes the entire agreement and understanding between the parties hereto with respect to the subject matter hereof and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. Any notices to us must be sent to our corporate headquarters address available at myschoolstack.com and/or app.myschoolstack.com and must be delivered either in person, by certified or registered mail, return receipt requested and postage prepaid, or by recognized overnight courier service, and are deemed given upon receipt by us. Notwithstanding the foregoing, you hereby consent to receiving electronic communications from us. These electronic communications may include notices about applicable fees and charges, transactional information, and other information concerning or related to the SchoolStack Platform. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing. The invalidity, illegality, or unenforceability of any provision herein does not affect any other provision herein or the validity, legality, or enforceability of such provision in any other jurisdiction. Any failure to act by us with respect to a breach of this Agreement by you or others does not constitute a waiver and will not limit our rights with respect to such breach or any subsequent breaches. This Agreement is personal to you and may not be assigned or transferred for any reason whatsoever without our prior written consent and any action or conduct in violation of the foregoing will be void and without effect. We expressly reserve the right to assign this Agreement and to delegate any of its obligations hereunder.