SpotterEDU Software as a Service ("SaaS") Terms and Conditions

Effective: February 6, 2019

Your Purchase Order(s) with Arick LLC, an Illinois limited liability company d/b/a "SpotterEDU", having a place of business at 3510 N. Fremont Street, Suite 3, Chicago, Illinois 60657 is governed by these SaaS Subscription Terms and Conditions (collectively, with all Purchase Orders addenda and other documentation, the "Agreement"). You may be referred to herein as "Client" and each of us may be referred to as the "Party" or, collectively, as the "Parties."

WHEREAS, SpotterEDU operates an online service that provides schools with the tools they need to better track and manage class attendance and other educational obligations by students; and

WHEREAS, The Parties desire that SpotterEDU license such software to Client under the terms and conditions of this Agreement and applicable Purchase Order(s);

THEREFORE, in consideration of the mutual promises and covenants set forth in this Agreement and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

1. Definitions. As used in this Agreement, the following terms have the following definitions:

   • "Content" means the audio and visual information, documents, software, products, and services contained or made available to Client in the course of using the Service.
   • "Term Start" means the date upon which Client first receives access to the Service as a paid subscriber.
   • "Client Data" means any data, information, or material provided or submitted by Client and/or User to the Service in the course of using the Service.
   • "Intellectual Property Rights" means any unpatented inventions, patent applications and pending patents, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world.
   • "iBeacon" means the hardware manufactured by a third party which transmits a Bluetooth low energy signal and/or works with Receivers.
   • "Receiver" means any third party mobile or fixed device such as mobile phones, tablets, devices plugged into a power source, or other radio frequency devices that are designed to send Client an iBeacon’s broadcast information, including without limitation, the time, signal strength and location of receipt.
   • "SpotterEDU Technology" means all of SpotterEDU’s proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs, and other tangible or intangible technical material or information) made available to Client by SpotterEDU in providing the Service.
   • "SpotterEDU Web Portal" means the web-based service made available by SpotterEDU to enable Client to set up and manage Client’s SpotterEDU account, and provides Client the ability to manage communications and Receivers, and test, manage and generate data points and in some cases analytics and reports (such data points, analytics and reports hereinafter collectively referred to as "Analytics").
   • "Service(s)" means the specific edition of SpotterEDU software, billing, or other services developed, operated, and maintained by SpotterEDU, that are accessible via mobile application on authorized Receivers, https://spotteredu.com or another designated website or IP address, or ancillary online or offline products and services provided to Client by SpotterEDU, to which Client is being granted access under this Agreement, including the SpotterEDU Technology and the Content. For the avoidance of doubt, "Service(s)" includes the SpotterEDU Technology.
   • "User(s)" means Client employees, representatives, consultants, contractors, agents, or students of Client’s university, who are authorized to use the Service and have been supplied user identifications and passwords by Client (or by SpotterEDU at Client’s request).
2. License & Limitations.
   1. SpotterEDU hereby grants Client a nonexclusive, nontransferable license in the U.S. to use the Service, solely for Client’s own internal non-commercial purposes to manage student class attendance and related academic purposes, subject to the terms and conditions of this Agreement and any associated documentation. All rights not expressly granted to Client are reserved by SpotterEDU and its licensors. Client may not access or use the Service, including iBeacon, for any other purposes or in connection with third party applications, software, or programs not provided by SpotterEDU, except with SpotterEDU’s prior written consent. In addition, Client may not access or use the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes. Client will not (i) license, sublicense, sell, resell, transfer, assign, distribute, or otherwise commercially exploit or make available to any third party the Service or the Content in any way; (ii) modify or make derivative works based upon the Service or the Content; (iii) create Internet "links" to the Service or "frame" or "mirror" any Content on any other server or wireless or Internet-based device; or (iv) reverse engineer or access the Service in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Service. User licenses cannot be shared or used by more than one individual User but may be reassigned from time to time to new Users who are replacing former Users where such new Users agree to the terms applicable to use of the Service.
   2. Client will not use the Service to:
      1. send spam or otherwise duplicative or unsolicited messages in violation of applicable laws;
      2. send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights;
      3. send or store material containing software viruses, worms, Trojan horses, or other harmful computer code, files, scripts, agents, or programs;
      4. interfere with or disrupt the integrity or performance of the Service or the data contained therein;
      5. or attempt to gain unauthorized access to the Service or its related systems or networks.

3. Trial Subscription. If Client receives a trial or evaluation subscription to the Service (a "Trial Subscription"), then Client may use the Service in accordance with this Agreement for the period designated in the Purchase Order or otherwise in writing by SpotterEDU ("Trial Period"). Trial Subscriptions are permitted solely for your trial use to determine whether to procure a subscription to the Service. Client’s Trial Subscription and access to the Service will automatically terminate upon expiration of the Trial Period. During the Trial Period, Client may purchase a full subscription to the Service and, if Client elects to do so, all of the terms and conditions in this Agreement and the appropriate Purchase Order will continue to apply to use of the Service.

   SpotterEDU reserves the right to terminate Client’s Trial Subscription at any time for any reason.

4. iBeacon Terms and Conditions. Client understands that in providing the Service, SpotterEDU may incorporate third-party technology, such as the iBeacon’s, for which SpotterEDU has certain rights and responsibilities. SpotterEDU grants Client a limited license to the iBeacon only pursuant to the terms of this Agreement. Client acknowledges and agrees that SpotterEDU’s ability to provide the Service may be contingent on certain third-party technologies, and that SpotterEDU makes no representations or warranties on behalf of any third-party companies, including, without limitation, Gimbal. Client expressly agrees that Gimbal (or any other third party beacon provider), their affiliates and licensors are not liable to Client. Client understands and agrees that the proximity locations generated by the Service are approximate based upon several factors including without limitation environmental surroundings, obstructions, orientation between iBeacon and Receiver, accuracy of Receiver’s location, and version of software running on iBeacon and/or Receiver. Client further understands and agrees that the Service may incur data usage charges in varying amounts, based on various factors.

5. Service Upgrades, Maintenance and Support.

   1. During the term of this Agreement, Client will be entitled to Service updates that are generally made available to all SpotterEDU clients, but in all instances limited to the specific edition of the Service for which the Client is licensed.
   2. During the term of this Agreement and subject to 5.3. below, SpotterEDU will provide maintenance and support for the SpotterEDU Technology, including the iBeacons. All items delivered by SpotterEDU in providing such support, including error corrections and upgrades, will be deemed part of the Services and will be subject to all terms and conditions of this Agreement. Notwithstanding the foregoing, Client understands that the iBeacons run on batteries (currently four (4) AA batteries), and that Client will be responsible for replacing batteries in the iBeacons as necessary and at Client’s cost to continue proper functioning of the Service. Client may not perform any other maintenance on the iBeacons beyond battery replacement without SpotterEDU’s prior written consent.
   3. Basic and routine support for the Service is provided to Clients and may be requested by contacting the SpotterEDU Rep assigned to Client’s account (as specified in the applicable Purchase Order). Support is subject to any applicable SpotterEDU support policies and does not cover (and SpotterEDU is not responsible for) issues arising from: (i) Client equipment, software, network connections or other infrastructure; (ii) use of the Service by Client in a manner not consistent with its documentation, (iii) modifications to the Service by any party other than SpotterEDU, (iv) third party acts, services or systems or (v) general Internet problems, force majeure events or other factors outside of SpotterEDU’s reasonable control. Unless otherwise noted in a Purchase Order, support and maintenance is not available for Trial Subscriptions.

6. Client Responsibilities. Client is solely responsible for all activity occurring under Client’s User accounts and will abide by all applicable local, state, national, and foreign, laws, treaties and regulations in connection with Client’s use of the Service, including those related to data privacy, international communications, and the transmission of technical or personal data. Client will: (i) notify SpotterEDU immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to SpotterEDU immediately and use reasonable efforts to stop immediately any copying or distribution of Content that is known or suspected by Client or Users; and (iii) not impersonate another User or provide false identity information to gain access to or use the Service.

7. Privacy. Client agrees to SpotterEDU’s Privacy Policy, available at https://spotteredu.com. Client will be wholly responsible for ensuring that its employees, contractors, and customers (including students using the SpotterEDU Technology and Service), are made aware of this Privacy Policy and that the appropriate consents have been obtained from them to collect, store and use their information on the Service.

8. Account Information and Data. SpotterEDU does not own any Client Data. However, Client hereby grants SpotterEDU a non-exclusive license to the Client Data for purposes of providing the Service. Client, not SpotterEDU, will have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, or right to display, share, or otherwise use Client Data, and SpotterEDU will not under any circumstances be responsible or liable for Client’s upload or use of Client Data or for the deletion, correction, destruction, damage, loss or failure to store any Client Data. In the event this Agreement expires or is terminated (other than by reason of Client’s breach), SpotterEDU will make available to Client a file of the Client Data one time upon Client’s request within thirty (30) days following expiration or termination. SpotterEDU reserves the right to withhold, remove, and/or discard Client Data without notice for any breach, including, without limitation, Client’s non-payment. Upon termination for cause, Client’s right to access Client Data in the Service immediately ceases, and SpotterEDU will have no obligation to maintain or forward any Client Data. SpotterEDU will have no liability for any costs, losses, damages, or liabilities arising out of or related to termination of this Agreement.

9. Software Security. SpotterEDU employs commercially reasonable efforts to help make the Service non-invasive to a schools network. SpotterEDU will implement industry-standard security measures to protect Client’s computer systems, network devices and/or the data processed thereon when interacting with the Service against the risk of penetration by, or exposure to, an unauthorized third party. Client agrees that no personal information can be sent, stored or used, or transmitted via the Service beyond what is expressly allowed pursuant to this Agreement.

10. Intellectual Property Ownership. SpotterEDU (and its licensors, where applicable) will exclusively own all right, title, and interest, including all related Intellectual Property Rights, in and to the SpotterEDU Technology, the Content, Analytics, and the Service and any suggestions, ideas, enhancement requests, feedback, recommendations, or other information provided by Client or any other party relating to the Service. This Agreement is not a sale and does not convey to Client any rights of ownership in or related to the Service, the SpotterEDU Technology or the Intellectual Property Rights owned by SpotterEDU. SpotterEDU’s name, logo, and the product names associated with the Service are trademarks of SpotterEDU or third parties, and no right or license is granted to use them.

11. Charges and Payment of Fees. Client’s subscription to the Service begins s as set forth in a Purchase Order. Client will pay all fees or charges to Client’s account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable.

    1. Fee Basis. Client will pay the fees detailed in the Purchase Orders.
    2. Billing Cycle. SpotterEDU will invoice Client for its annual or semester service fee, set forth in the Purchase Order, prior to the start of each academic year or applicable semester. Aside from the Setup Fee and First Year Fee, which must be paid within ten (10) days of the Effective Date, Client will remit payment for all amounts properly invoiced to it by SpotterEDU within thirty (30) days of receiving said invoice. The First Year Fee and Setup Fee is non-cancelable and all other amounts, once paid, are nonrefundable. If Client terminates this Agreement early for any reason, it will pay SpotterEDU 50% of the outstanding balance owed for the remainder of the term of the Agreement (the "Cancellation Fee").
    3. Payment Responsibility. Client is responsible for paying for all User licenses ordered under this Agreement, whether or not such User licenses are actively used. An authorized License Administrator may add licenses by negotiating with SpotterEDU and executing an addendum to an existing Purchase Order.
    4. Additional Licenses. Added licenses will be subject to the following: (i) added licenses will be coterminous with the preexisting licenses pursuant to the Term Start of the subscription; (ii) the license fee for the added licenses will be the then current, generally applicable license fee; and (iii) licenses added in the middle of a month will be charged in full for that billing month, however will be prorated for the annual charge.
    5. Billing Information. Client agrees to provide SpotterEDU with complete and accurate billing and contact information. This information includes Client’s legal company name, street address, email address, and name and telephone number of an authorized billing contact and License Administrator. Client agrees to update this information within 30 days of any change to it. If the contact information Client has provided is false or fraudulent, SpotterEDU reserves the right to terminate Client’s access to the Service in addition to any other legal remedies.
    6. Disputes. If Client believes its bill is incorrect, Client must contact SpotterEDU in writing within 30 days of the invoice date of the invoice containing the amount in question to be eligible to be considered for an adjustment or credit.
    7. Reservation of Rights. SpotterEDU reserves the right to modify its fees and charges and to introduce new charges, upon at least 30 days prior notice to Client, which notice may be provided by email. All pricing terms are confidential, and Client agrees not to disclose them to any third party.

12. Downtime. Client acknowledges and agrees that SpotterEDU may need to suspend performance under this Agreement in the event SpotterEDU’s access to necessary third-party technology is interrupted or as a result of a change in law or regulation. SpotterEDU will make commercially reasonable efforts to secure an adequate substitute so as to resume providing the Services as quickly as possible, and in any event, SpotterEDU will use commercially reasonable efforts to give notice to Client of any scheduled downtime associated with upgrades and maintenance to the Services via email communication or posted to Client’s account.

13. Nonpayment and Suspension. In addition to any other rights granted to SpotterEDU in this Agreement, SpotterEDU further reserves the right to suspend or terminate this Agreement and Client’s access to the Service if Client’s account becomes delinquent. Delinquent invoices and accounts are subject to interest of one (1.0) percent per month, (12% annum) on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection. Client will continue to be charged for User licenses during any period of suspension. If Client initiates termination of this Agreement, Client will be obligated to pay the Cancellation Fee in accordance with this Agreement. Client agrees that SpotterEDU may bill Client for such unpaid fees.

14. Term. This Agreement commences on the Term Start and will continue for the period set forth in the applicable Purchase Order, unless terminated in accordance with this Agreement or an additional purchase order is executed.

15. Termination

    • Client.
      1. Client may immediately terminate this Agreement, and all active subscriptions if SpotterEDU materially breaches this Agreement that, (if it is capable of being cured) is not cured within thirty (30) days from written notice to SpotterEDU.
    • SpotterEDU.
      1. Without limiting any other remedies available to it, SpotterEDU may immediately suspend access to the Service and/or terminate this Agreement (including all active subscriptions) if: (a) Client materially breaches this Agreement (including failure to pay any applicable fees) that, (if it is capable of being cured) is not cured within thirty (30) days from written notice to Client; or (b) SpotterEDU determines that Client’s actions are likely to cause immediate, material or ongoing harm to SpotterEDU or others or otherwise cause legal liability for SpotterEDU.
      2. Client understands, acknowledges, and agrees that SpotterEDU’s ability to provide the Service is conditioned upon certain third party licenses SpotterEDU has been granted, and that if any such third party license granted to client is revoked, then SpotterEDU may be unable to provide the Services under this Agreement and be required to suspend and/or terminate this Agreement.
    • Effect of Termination.
      Upon any expiration or termination of this Agreement, or upon expiration of the Term, the rights granted under this Agreement will automatically terminate, and Client may not continue to use the Service.

16. Return of iBeacons. If Client terminates this Agreement for any reason at any time (except for breach by SpotterEDU), Client agrees at its sole expense, to remove all iBeacons from any and all locations where iBeacons are installed and ship them to SpotterEDU at Client’s expense.

17. Representations & Warranties. Each party represents and warrants that it has the legal power and authority to enter into this Agreement. SpotterEDU represents and warrants that it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof and that the Service will perform substantially in accordance with the online SpotterEDU help documentation, if available, under normal use and circumstances, and subject to Client’s compliance with this Agreement. Client represents and warrants that Client has not falsely identified Client nor provided any false information to gain access to the Service and that Client’s billing information is correct. Client represents and warrants that it has all rights and permissions from all users of the SpotterEDU Service to whom Client makes it available. Client further represents and warrants that its use, rollout and the use by its users of the Service will not violate any laws or regulations or third party rights.

18. Indemnification. Client will indemnify, defend and hold SpotterEDU, its licensors and each such party’s parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys, and agents harmless from and against any and all claims, costs, damages, losses, liabilities, and expenses (including attorneys’ fees and costs) arising out of or in connection with: (i) a claim alleging that use of the Client Data infringes the rights of, or has caused harm to, a third party; (ii) a violation by Client of Client’s representations and warranties; or (iii) a claim arising from the breach or alleged breach by Client or Client Users of this Agreement. Client will not settle any claim without the prior written consent of SpotterEDU.

19. Disclaimer of Warranties. THE SOFTWARE/SERVICE IS PROVIDED "AS IS" AND WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. USE OF THE SOFTWARE/SERVICE IS AT USER'S SOLE RISK. SpotterEDU NEITHER WARRANTS THAT THE SOFTWARE/SERVICE WILL BE UNINTERRUPTED OR ERROR FREE, NOR DOES SpotterEDU MAKE ANY WARRANTY AS TO ANY RESULTS THAT MAY BE OBTAINED BY USE OF THE SOFTWARE/SERVICE. SpotterEDU MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE IN RELATION TO THE SOFTWARE/SERVICE. SpotterEDU MAKES ABSOLUTELY NO WARRANTIES WITH REFERENCE TO THIRD PARTY SOFTWARE AND/OR SERVICES USED ALONG WITH THE SOFTWARE.

20. Limitation of Liability. IN NO EVENT WILL SpotterEDU’S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM CLIENT IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. UNDER NO CIRCUMSTANCES WILL SpotterEDU, DIRECTLY OR INDIRECTLY, BE LIABLE TO CLIENT OR ANY OTHER PERSON, ENTITY, PARTNERSHIP, ORGANIZATION, ASSOCIATION OR OTHERWISE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES FOR ANY MATTER ARISING FROM OR RELATING TO THIS AGREEMENT, THE SOFTWARE/SERVICE OR THE INTERNET IN GENERAL, INCLUDING, WITHOUT LIMITATION, USER'S USE OR INABILITY TO USE THE SOFTWARE/SERVICE, ANY CHANGES TO OR INACCESSIBILITY OF THE SOFTWARE, DELAY, FAILURE, UNAUTHORIZED ACCESS TO OR ALTERATION OF ANY TRANSMISSION OR DATA, ANY MATERIAL OR DATA SENT OR RECEIVED OR NOT SENT OR RECEIVED, ANY CLIENT DATA UPLOADED BY CLIENT, ANY TRANSACTION OR AGREEMENT ENTERED INTO THROUGH THE SOFTWARE/SERVICE, OR ANY DATA OR MATERIAL FROM A THIRD PARTY ACCESSED ON OR THROUGH THE SOFTWARE/SERVICE, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT OR OTHERWISE AND EVEN IF SpotterEDU HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH.

21. Notice. Any notices, consents or approvals required or permitted to be given under this Agreement will be deemed to be given and sufficient (i) three (3) days after deposit in the United States mails, if sent via certified or registered letter, return receipt requested or (ii) one (1) day after deposit with a reputable overnight delivery or courier service in each case, to the respective addresses set forth above or such other address provided by either party to the other.

22. Assignment; Change in Control. This Agreement may not be assigned by Client without the prior written approval of SpotterEDU but may be assigned without Client’s consent by SpotterEDU to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger. Any purported assignment in violation of this section will be void.

23. Miscellaneous.

    1. Choice of Law. This Agreement will be governed by Illinois law and controlling U.S. federal law, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims, or causes of action arising out of or in connection with this Agreement or the Service will be subject to the exclusive jurisdiction of the state and federal courts located in Cook County, Illinois.
    2. Complete Agreement. This Agreement and the exhibits attached to it constitute a complete and exclusive statement of the terms of the agreement between the parties with respect to its subject matter. This Agreement may not be amended, supplemented, or otherwise modified except by a written agreement executed by both parties. In the event of any conflict between the terms of this Agreement and the terms of any attached Exhibit, the terms of this Agreement will prevail, except where specifically noted on the Exhibit.
    3. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) will be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.
    4. Not a Partnership. No joint venture, partnership, employment, or agency relationship exists between Client and SpotterEDU as a result of this Agreement or use of the Service.
    5. No Waiver. The failure of SpotterEDU to enforce any right or provision in this Agreement will not constitute a waiver of such right or provision unless acknowledged and agreed to by SpotterEDU in writing.