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HomeMy WebLinkAboutInstructure, Inc. 2015-16canvas Master Subscription Services Agreement This agreement is between Instructure, Inc., a Delaware corporation (Instructure), and the entity or individual agreelng to these terms and identified in the si8nature line below (Customerl. Itis effective as ofthe date ofthe last signature set forth below. LEARNING MANAGEMENT SYSTEM SOFTWARE SERVICE. With a signed order, Instructure will provide its learning management system software as a service through a URL within a hosted server environment under the terms below (Service]. This agreement contemplates one or more orders for the Serviae, which are governed by the terms of this agreemenl User means a participant, instructor, or adminisuator of Customer's organization, who is authorized by Customer to use the Service (and Customer has paid for this use) with login credentials. (1) USE OF SERVTCE. a). Customer Owned Content. All informahon, data, results, plans, sketches, texLs, files, links, images, photos, videos, audio files, notes, or other materials uploaded under Customer's User accounts in the Service remain the sole property of Customer, as between lnstructure and Customer [Customer Content). Customer grants Instructure the worldwide, royalty-free right to use, publicly display, and distribute the Customer Content solely for purposes of performing its obligations under thls agreement and providing and improving the Services. During tie term of this agreement and for 3 months after expiration or termination, Customer may export tJIe Customer Content through the API or by using t}le export feature within tie Service. lnstructure has no obligation to store the Customer Content 3 months after expiration or termination. b). API Access. lnstructure provides access to iLs application-programming interface (API) as part of the Service for no additional fee. Subjeat to the other terms of this agreement, lnstructure grants Customer a non-exclusive, nontransferable, revocable license to operate the API only for purposes of interfacing Customer's technolory applications or services with the Service as allowed by the API'S technical limitations and in accordance with the API Policy, as may be updated by Instructure from time to time, The Instructure API Policy is located at http://www.canvaslms.com/policies/api-policv cl. Customer Responsibilities. Customer (i] is solely responsible for Customer Content and all activities arising from its User accounts in the Service, (ii] must keep its passwords secure and confidential, and notiry Instructure promptly of any known or suspected unauthorized access, and (iiil may use the Service only in accordance with applicable law and regulation. d). Customer Restrictions. Customer may not, and will use reasonable means to ensure that each User does not, i. sell, resell, rent, or lease the Service or API; ii. reverse engineer the Service or the API; iii. remove or modiry any proprietary marking or restrictive legends in the Service, iv. use the Service to store or transmit infringing, unsolicited marketing emails, libelous, obscene, de.eptive, defamatory, pornographic, racist, sexual, hateful, or otherwise objectionable (except as necessary for Customer's instructional purposes, but in all cases in compliance witi applicable law and regulation), unlawful or tortious material, or any other material in violation ofa tiird-party right; v. use the Service to harm or impersonate any person, or for any commercial purpose fincluding aacessing the Service to build a competitive service or product, or copy any feature, function or graphic for competitive purposes); vi. interfere with or disrupt the integrity or performance ofthe Service; or vii. attempt to gain unauthorized access to the Service or their related systems or network. e), Customer SupporL Instructure must provide customer support for the Service under the terms of lnstructure's Customer Support (Support], which are located at @. (2) PAYMENT TERMS. Customer must pay all fees as specified on the order, but if not specified then within 30 days of receipt of an invoice. Customer is responsible for the payment of all sales, use, VAT and other similar taxes. All orders are non-cancelable and the fees are non-refundable (except as expressly provided below). (3) WARRANTY/SERVICE LEVEL AGREEMENT AND REMEDY. a). Compliancewith taws. Each party represents and warrants to the other party that it will comply with all applicable laws and regulations (including all applicable export control laws and restrictionsl with respect to its activities under this agreement. Instructure will implement reasonable and typical administrative, technical, and physical safeguards in an effort to secure its facilities and systems fi-om unauthorized access and to secure the Customer Confidential lnformation (defined belowl and data. Instructure agrees to only use or disclose personal information records created or received from, by, or on behalf of Customer or its Users for the purposes of (a] providing and improving the Services and in accordance with the lnstructure Privacy Policy, except that lnsEucture may create, use, and disclose de-identified and aggregated data based upon personal information records for its own purposes, (b] as Rev 03 06 15 (B Fntnyo,…………………………………………………………… permitted by this agreement, (c) as required by law or regulation, or (d) as authorized by Customer in writing. Notwithstanding the foregoing, lnstructure may access, preserve, and disclose User's registration and any other information if required to do so based on Instructure's good faith belief that such access, preservation, or disclosure is necessary to: (i] enforce this agreement; [ii) respond to claims of a violation of the rights of third parties, whether or not the third party is a User, individual, or Bovernment agency; (iii) respond to customer service inquiries; or (ivJ protect the righLs, property, or personal safety of Instructure, other users or the public. Instructure agrees to notify Customer as soon as possible and without unreasonable delay after Instructure discovers that a Data Breach or unauthorized data disclosure has occurred. lnstructure is prohibited from any secondary use of personally identifiable information, including sales, marketing or advertising. Personally Identifiable Information IPIl) includes: a student's name; the name of a student's family; tJle student's address; the students'social security number; a student education unique identification number or biometric record; or other indirect identifiers such as a student's date ofbirth, place ofbirth or mother's maiden name; and other information that alone or in combination is linked or linkable to a specific student that would allow a reasonable person in the school community who does not have personal knowledge ofthe relevant circumstances, to identil, the student Service Availability Warranty. Instructure warrants to Customer, (i) that commercially reasonable efforts will be made to maintain the online availability of the Service for a minimum availability in a trailing 365-day period as provided below (excluding scheduled outages, standard maintenance windows, force mateure, and outa8es that result from any technolos/ issue originating from Customer or a User], (ii) the functionality or features of the Service may change but will not materially degrade during the Term, and (iiil that Support may change but will not materially degrade during the Term. Annual Availability Warranty: 99.90,t availability percentage . IfCustomer has been using the Service for less than 365 days, the preceding 365 days rvill be used, but any days prior to Customer's use oflhe Service will be deemed to have had I00% availability. . Any unavailability occurring prior to a successful crcdrt claim cannot be used for any futurc claims. A Customer is eligible for a service credit if t}le annual availability percentage drops below 99.9016 for the preceding 365 days from the date ofa service credit claim. The maximum amount of the credit is 1/12 of the annual subscription fee for a twelve ( 121 month period. This service credit is calculated by taking the number of hours that the Service was unavailable below the warranty, and multiplying it by 3% of 1/12 the annual subscription fee. Customer'ssoleandex.lusiveremedyforbreachofthewarrantyinthisSection3(bl(i)will be for Instructure to provide a credit as provided above; provided that Customer notifies lnstructure in writing ofsuch claim within the applicable month Customer be.omes eliSible or 30 days after. Third Party LiDks/Seryice Disclaimer, The Sewice may link to t}lird party web sites (including without limitation, links provided by Users of the Servicel or allow access to third-party services (including without limitation, turnitin.com and Google docs). Such sites and services are not under the control of Instructure, and lnstrucfure is not responsible for the content or any link on such sites or for the temporary or permanent unavailability ofsuch third party sites or services. Warranty Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, INSTRUCTURE DISCLAIMS ALL WARMNTIES, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED, OR STATUTORY, INCLUDINC, WITHOUT LIMITATION, THE IMPLIED WARMNTIES OF MERCHANTABILITY, TITLE, NON.INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, COMPANY DOES NOT WARMNT THAT THE SERVICE WILL BE UNINTERRUPTED OR BE ERROR-FREE. (4) MUTUAL CONFlDENTIALITY, a). Definition of ConEdential Information. Confidential Information means all confidential information disclosed by a party IDiscloser) to tie other party (Recipient), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature ofthe information and the circumstances ofdisclosure (Confidential lnformation). b). Protection of Confidential Information, The Recipient will protect the Confidential lnformation using the same degree of care that it uses to protect the confidentiality of its own Confidential Information (but in no event less than reasonable care). The Recipient shall not disclose or use any Confidential Information of the Discloser for any purpose outside the scope of this agreement. The Recipient must make commercially reasonable efforts to limit access to Confidential Information of Discloser to those of its employees and contractors who need such access for purposes consistent with this agreement and who have signed confidentiality agreements with Recipient no Iess restrictive than the confidentiality terms ofthis agreement. c). Exclusions. Confidential lnformation excludes information that: (i) is or becomes generally known to the public without breach of any obligation owed to Discloser, [ii] was known to the Recipient prior to its disclosure by the Discloser without breach of any obligation owed to the Discloser, (iii) is received from a third party without breach ofany obli8ation owed to Discloser, or (ivl was independently developed by the Recipient without use or access to the Confidential Information. Notwithstanding any of the foregoing, the Recipient may disclose Confidential Information to the extent required by law or court order, but will provide Discloser with advance notice to seek a protective order. b〕 Rev 03 0615 (5)PROPRIETARY RIGHTS al Reservatlon of Rights by lnstructure The so鮨 ″are,worknow prOcesses,user interface′designs,know hOw,API infonna●on,third pany technOlogy and other techn。10gies provided by lnstlucttlre as part of the Service are the proprietary properり of instructure and its licensors,and all righL title and interest in and to such items,including all associated intellec●ュal property rights,remain only with lnstructure and its licensors lnstructure reserves a∥rights unless expressly granted in this agreernent b〕Feedback lnstru“ュre may contact each user(nO mOre tllan once each yearl fOr the soた p口 ″οse OF seeking Feedback regarding perfOrmance of the Service and suggestlons for improvements(suCh Feedback wHl be stOred in anOnymous and aggregate Form〕 Customer,and each User(to the extent Customer has such rightl,hereby grants lnstructure an irrevocable,royalty‐free perpetual license to use allFeedback and suggest10ns regarding the Service (6〕EXCLuS10N OF DAMAGES AND LIMITAT10N OF LIABILITι a) EXCLUS10N OF CERTAIN DAMAGES INSTRUCTURE AND ITS SUPPLIERS SHALL NOT BE LIABLE TO CUSTOMER FOR ANY INDIRECT, SPECIAL.EXEMPLヽ RY,PUNITIVE,INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OuT OF OR RELATED TO THIS AGREEMENT OR THE USE OR INABILITY TO USE THE SERVICES(INCLUDING,WITHOUT LIMITAT10N,COSTS OF DELAY,LOSS OF DATA,RECORDS OR INFORMAT10N,AND ANY FAILURE OF DELIVERY OF THE SERVICE〕,EVEN IF INSTRUCTURE HAS BEEN NOTIFIED OF THE LIKELIH00D OFSuCH DAMACES b) LIMITAT10N OF LIABIL:TY EXCEPT FOR INSTRUCTURE'S INTELLECTUAL PROPERTY INDEMNITY OBLIGAT10NS IN SECT10N 9, INSTRUCTURE.S MAXlMUM LIABILITY FOR DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT,TORT OR OTHERWiSE〕SHALL NOT EXCEED THE AMOUNT PAID BY CuSTOMER WITHIN THE PRECEDING 12 MONTHS UNDER THIS ACREEMENT (7〕TERM,TERMINAT:ON,AND SuSPENS10N OF SERVICE a) Term This agreementcontlnues for the duratlon specined On the order(Term〕 bl Mutual Terlnina●on for Matenal Breach iF either paw iS in material breach oFthis agreement(inCluding without hmitatlon non― payment Ofany amounts owed instlucture),the Other pa●may terminate this agreement atthe end of a written 30‐day notlce/cure period,if the breach has not been cured ln the event this agreement is terminated due to lnstructure's uncured material breach, Instructure tvill provide Customer a pro―rated refund of any prepaid fees c) Return or Destroy Upon Terllinatlon UpOn termination or expirat10n OF this agreement for any reason,Customer must pay lnstructure an amounts owed,and destroy or return all prope●Of lnStructure Customer w■ll connrm this destruction or return requirementin wriung upOn request Ofinstructure Upon written request by the Customer fo1lowing the termination ofthe subscriptiOn tO the web―based products and services provided by lnstructure,all records containing PII provided by the Customer、vili be Securely Deleted or returned to the School District、vithin sixty(60〕dayS「Om the date ofreques1 0the口 ″ise Licensor wnl securely Delete such P∥records wlthin a commerciany reasonable periOd Oftime Securely Delete dlatindustry standard medlods are taken for the purpose of ensuring that no unauthorized person shall be able to reasonably locate or extractthe Customer Content From the Service d〕 SuSpension oF Service and Removal oF Customer Content ror ViOla●Ons oF Law or Policy.Instruculre may immediately suspend the Service and remove applicable Customer Contentifitin good faith believes that,as part Of using the Service,Customer and/or itS users may have violated a la、v or a restriction in this agreernenし instructure may try to contact Customer in advance,but it is not required to do so (0〕GOVERNING LAW AND FORUM This agreementis governed by the laws ofthe State of Utah,without regard to cOnnict oflaw principles Any dispute arising out of or related to this agreement may only be brought in the state and Federal coutt For Salt Lake County,UT Both pardes consent to the persOnal iuriSdiction oF such courも and、vaive any claim that it is an inconvenient Forum Nothing in this agreement prevents either pa"frOm seeking iniunctiVe relieFin a cou●oF competentiurisdiction The prevalling paゥ in any litigatiOn is enutled tO recover its attorneys'fees and costs frOm the other pa● The COnven●on On Contracts for the internatlonal Sale of Goods does nOt apply to this agreement (9〕INFRINGEMENTINDEMNITY Rev 03 06 15 ii':i ca nvasゞムレ k). Force Dlaieure. Any dclay in rhe perforrnance of any duties or obliganons of either parfy Iexcept the payment of nroney owed) will not be considered a breach of this agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, llood, or any other cvent beyond rhe control ofstlch pa[ty. Bonneville School Distnct 9acustomer〕 Title JlJne 18 2015 ■ue JUN 2 3 20■ 3お 7 N Ammon Road Date 6330 Sotlth 3000 East Suite 700 Salt Lake City,UT 84121 chris Takemorl Rev 03 061S canvas Force Maieure, Any delay in the performance ofany duties or obligations of either party [except the payment ofmoney owed] will not be considered a breach of this agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, or any other event beyond the control ofsuch party. (Customer)Instructure, Inc, Signature 4/L Date 6330 South 3000 East Suite 700 Salt Lake City.UT 84121 ″ 「メrr Address Date Rev 03 06 15 (I〕書,1'‐ `串 `i Services Order Form Customer Contact Information Customer Bonneville loint School District Contact Ben Walker Address 3497 N Ammon Road Phone% Email walkerb@d93.k12.id.us City ldaho Falls State/Province Idqhq Zip/POStal code 83401 country uDlted states Year 1 Description Term Metric Qua rtity Price Total K-12 Pilot 9/1/2015 1 6/30/2016 User 1,000 $750 $7.50000 Sub‐Total $7,50000 Non Recurring DescriDtion Term Metric lOuaDtiW Price Total Sub・ Total $000 Grand Total $7,50000 User Definition User means a part-time or full-fime student, teacher, or adminisEator of Customer's educational rnstitution, which is authorized by Customer to use the Service with a login credential. Payment Terms: Customer agrees to pay to Instructure the applicable fees set forth on this order form. For the initial term Customer must pay such amount to Instructure on the date ofthis order. For each subsequent term, lnstructure will invoice Customer 30 days prlor to the begitrning of such term and Customer must pay such invoice within 30 days of receipt. Duration: This order begins on the initial date listed aboveunderTerm, and contiDues until thelastdate Iisted above, unless sooner terminated under the Agreement. Terms: This order is governed by the terms of Master Subscription Services Agreement between the parties (Agreement), which terms are incorporated into this order for all purposes. lf there is a conflict between the terms of this order and the Agreement, this order goveIns, This order and the Agreement are the entire agreement between the parties, and they supersede and replace all prior and contemporaneous negotiations, agreements, representations and drscussions regarding this subject matter. Only a signed writing of the parties may amend this order. Any terms used in this order but not detined, will use the definihons in the Agreement. Page 1 of 2 Bonneville Joint School District Name: Ehris Takemorl Page 2 of 2 Signature: -′ Name Tte: Date: