Master Subscription Agreement
This Subscription Agreement (this “Agreement”) sets forth the terms and conditions pursuant to which Ruvna, Inc. (“Ruvna”) provides its subscribers (each, a “Subscriber”) with access to Ruvna’s applicable software-related service(s) set forth in the applicable Sales Order(s) (collectively, the “Ruvna System”). Each sales order that Ruvna offers to its Subscribers (each, a “Sales Order”) is governed by, and incorporated into and made part of, this Agreement. Acceptance of the Sales Order or Subscriber’s use of or access to the Ruvna System shall constitute Subscriber’s unconditional acceptance of this Agreement. This Agreement shall be effective upon the earlier of the date of Subscriber’s acceptance of the Sales Order or the date of Subscriber’s first use of or access to the Ruvna System (the “Effective Date”).
1. SUBSCRIPTION.
Subject to the terms and conditions of this Agreement and Ruvna’s standard user policies and terms (as made available and updated by Ruvna from time to time), Ruvna hereby grants to Subscriber a limited, non-exclusive, non-transferable license to access and use the Ruvna System during the term specified in the Sales Order, including any renewals thereof, unless earlier terminated in accordance with this Agreement (the “Term”). Subscriber hereby accepts the subscription to the Ruvna System more particularly described in the Sales Order (the “Subscription”).
2. BILLING AND PAYMENT.
Subscriber agrees to pay the fees for the Subscription to the Ruvna System in accordance with the payment terms set forth in the Sales Order. Ruvna will send an invoice to Subscriber, and Subscriber shall pay the amount due within 30 days of the invoice date by mailing a check or depositing the amount due via wire transfer (in which case Subscriber must contact Ruvna for wire transfer instructions). If Subscriber overestimated usage, Ruvna shall not be obligated to refund any fees paid hereunder; however, such overage shall be automatically credited towards any future payment due Ruvna by Subscriber. If, however, Subscriber uses more than the number of Subscribers originally estimated and paid for, Ruvna may submit an amended invoice for the amount of such excess usage, and Subscriber agrees to pay the variance within 30 days of the invoice date. Ruvna’s Subscription fee is subject to change by Ruvna, in its sole discretion, with at least 30 days’ notice, and any such change will take effect at the beginning of the next renewal period. Subscriber shall be solely responsible for any personal property taxes or local licensing fees resulting from Subscriber’s Subscription or in connection with Ruvna’s delivery of Ruvna System under this Agreement (the “Taxes and Fees”), but only so long as Ruvna provides Subscriber with notice of the value of such Taxes and Fees within 30 days of incurring same. Ruvna will use commercially reasonable efforts to advise Subscriber with as much advanced notice as reasonably practical of any such Taxes and Fees that it expects to incur.
3. OWNERSHIP.
The Ruvna System is owned and copyrighted by Ruvna and offered through a subscription, not sold, to Subscriber. All right, title, and interest in and to all images, source code, updates, enhancements, modifications, and improvements contained in or related to the Ruvna System, along with all intellectual property rights related thereto, shall remain with Ruvna, regardless of the source giving rise to the intellectual property and despite any modifications or adaptations made for the benefit of Subscriber. The “Ruvna” trademark is protected by United States and international trademark laws and treaties, as well as other intellectual property laws. Subscriber is not granted any license to use any of Ruvna’s trade or service marks and Ruvna retains all right, title, and interest in its trade and service marks. Ruvna reserves all rights not expressly granted to Subscriber under this Agreement. Subscriber agrees that Ruvna may use, without restriction or royalty obligation, any comments, suggestions or contributions provided by Subscriber with respect to the Ruvna System. Subscriber hereby grants and assigns to Ruvna any intellectual property rights that Subscriber may incidentally obtain or have with respect to any such comments, suggestions or contributions.
4. CONFIDENTIAL INFORMATION.
Subscriber acknowledges that all underlying ideas, algorithms, item calibrations, test scripts, concepts, procedures, processes, principles, know-how, and methods of operation that comprise the Ruvna System, including updates, enhancements, modifications, and improvements are confidential and contain trade secrets (collectively, “Confidential Information”), and Subscriber will respect such confidentiality, and shall keep all Confidential Information confidential. Subscriber agrees not to use, disclose, or distribute any Confidential Information, directly or indirectly, without the prior written consent of Ruvna, except that Ruvna authorizes Subscriber to disclose Confidential Information to Subscriber’s employees or agents who have signed written confidentiality and nondisclosure agreements before such disclosure.
5. SUBSCRIBER INFORMATION & COMMUNICATIONS.
Subscriber hereby permits Ruvna, its employees and its authorized third parties to use information regarding, or obtained from, its schools or school districts to the extent reasonably required to perform Ruvna’s obligations hereunder, provided that such third parties have agreed to confidentiality obligations with respect to such information.
“Subscriber Communication” means a text messaging, e-mail or other communication from Subscriber to its end users utilizing the Ruvna System. Subscriber shall: (i) be solely responsible for the accuracy, quality, and integrity of the Subscriber Communications, (ii) be solely responsible for the accuracy, quality, and integrity of Subscriber data and the provision thereof, (iii) be solely responsible for obtaining any consent or opt-in requirements required by Subscriber policies or applicable law and for ensuring that all Subscriber Communications are with the scope of any such consent or opt-in requirements, (iv) use commercially reasonable efforts to prevent unauthorized access to or use of the Ruvna System, and notify Ruvna promptly of any such unauthorized access or use, and (v) use the Ruvna System only for Subscriber’s internal use in accordance with the published documentation and all applicable laws and government regulations.
6. RENEWALS; TERMINATION.
Unless otherwise specified in the Sales Order, (a) the Term shall automatically renew for 1 year periods, unless Subscriber provides 30 days’ written notice to Ruvna prior to such renewal, and (b) Subscriber may terminate this Agreement before the end of the applicable Term by providing written notification to Ruvna. Ruvna may terminate this Agreement in the event Subscriber commits a breach hereof and fails to cure such breach within 30 days from written notice thereof. Without limiting Ruvna’s termination rights under this Agreement, Ruvna may suspend Subscriber’s (or any of its end users’) access to the Ruvna System, at any time and without prior notice, if (1) any undisputed payment obligation is delinquent by more than thirty (30) days; (2) Ruvna suspects that Subscriber has committed a material breach of this Agreement (including, without limitation, any breach of Sections 4, 5, 9, 14.1, or 14.2); or (3) Ruvna reasonably determines that continued access would, or is reasonably likely to, result in a violation of security, applicable law, or any intellectual property, privacy, or other rights. Upon the termination or expiration of this Agreement for any reason, (i) all rights granted to Subscriber under this Agreement shall immediately and automatically cease; (ii) Ruvna will be under no obligation to refund any fees paid by Subscriber for the Ruvna System, except in the case of an uncured material breach of this Agreement or the Sales Order by Ruvna, in which case Ruvna shall refund to Subscriber a pro-rated amount of the total fees invoiceable for the then-current Term as of the date of the breach (such payment to be refunded within 60 days of notice to Ruvna of such breach); (iii) except in the case of an uncured material breach of this Agreement or the Sales Order by Ruvna, Subscriber will promptly pay Ruvna all unpaid amounts (including, without limitation, any Subscription fees that would have been due in the absence of termination (even if such fees were not invoiced prior to termination)); and (iv) Ruvna shall, for a period of 30 days following such termination or expiration, maintain Subscriber’s Ruvna System information and permit Subscriber with access to such data, in Ruvna-augmented reporting form. The parties agree that Sections 2-4, 6 and 9-14 shall survive any termination or expiration of this Agreement.
7. SUPPORT & MAINTENANCE.
Ruvna may, from time to time, provide to Subscriber updates, enhancements, modifications, improvements in and to the Ruvna System which shall all be subject to the terms and conditions of this Agreement. Subscriber agrees that, in entering into and performing this Agreement, Subscriber is not relying on any statements or expectations relating to any potential future functionality or features of the Ruvna System. Ruvna may, at any time, modify the Ruvna System, provided that Ruvna will, to the extent practical, provide Subscriber with at least thirty (30) days’ prior notice of any changes to the Ruvna System involving a material loss of functionality.
Ruvna has system maintenance periods throughout the year that will affect Subscriber’s ability to interact with the Ruvna System. Ruvna will use commercially reasonable efforts to notify Subscriber in advance of any disruptions.
8. LIMITED WARRANTY.
Ruvna warrants to Subscriber that: (a) Ruvna will comply with all applicable laws, rules and regulations in the performance of its obligations under this Agreement, and (b) the Ruvna System will perform substantially in accordance with its specifications. In the event the Ruvna System fails to conform to these warranties, Ruvna will use commercially reasonable efforts to correct the Ruvna System. If Ruvna is unable to correct the error after using commercially reasonable efforts, Ruvna will refund the unused Subscription fees paid by Subscriber and terminate this Agreement. The limited warranties provided in this Section are void if the failure of Ruvna System results from (x) use of the Ruvna System in connection with software or hardware not compatible with the Ruvna System or not meeting the technical specifications provided by Ruvna; (y) improper or inadequate maintenance of Subscriber’s equipment, devices or software; or (z) inadequate Internet connectivity or bandwidth.
9. DISCLAIMER.
Subscriber is solely responsible for the results obtained and decisions made from its use of the Ruvna System. The Ruvna System may include open source software components and use of such components may be subject to additional terms and conditions. EXCEPT FOR THE EXPRESS LIMITED WARRANTIES PROVIDED IN SECTION 8, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE RUVNA SYSTEM IS PROVIDED “AS-IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, QUALITY, AVAILABILITY, RELIABILITY, ACCURACY, TIMELINESS, PRODUCTIVENESS OR CAPACITY, OR THAT THE RUVNA SYSTEM, OR ITS USE, WILL BE UNINTERRUPTED OR ERROR FREE. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE ENTIRE RISK AND LIABILITY ARISING OUT OF THE USE OF THE RUVNA SYSTEM REMAINS WITH SUBSCRIBER, EXCEPT IN THE CASE OF GROSS NEGLIGENCE BY RUVNA. WITHOUT LIMITING THE FOREGOING, THERE IS NO WARRANTY FOR PERFORMANCE ISSUES (A) CAUSED BY FACTORS OUTSIDE OF RUVNA’S REASONABLE CONTROL; OR (B) THAT RESULTED FROM ANY ACTION OR INACTION OF SUBSCRIBER OR SUBSCRIBER’S THIRD PARTIES; OR (C) RESULTING FROM SCHEDULED MAINTENANCE PERIODS.
The Ruvna System is not a replacement for 911. If a Subscriber (or any other individual) is in immediate danger, is suffering a medical emergency or is the victim of a crime, 911 and/or the appropriate authorities should be contacted and no individual, entity or agency should solely rely on the Ruvna System. Ruvna and the Ruvna System have no control over whether any individual, entity or agency will receive or respond to any emergency message or signal. Ruvna makes no promises or guarantees that using the Ruvna System will provide Subscribers or others with greater personal safety. The Ruvna System does not take the place of common sense and other reasonable safety measures. Each Subscriber and other individual, entity, and agency shall exercise independent judgment regarding, and bear all risks associated with, the use of any content on or related to the Ruvna System.
Subscriber shall not enlarge or otherwise misrepresent any warranties or other information regarding Ruvna, the Ruvna System, or any other Ruvna products or services.
10. ADDITIONAL DISCLAIMER.
RUVNA DOES NOT AND CANNOT CONTROL PERFORMANCE OF THE RUVNA SYSTEM BASED ON THE FLOW OF DATA TO OR FROM RUVNA’S NETWORK AND OTHER PORTIONS OF THE INTERNET, WHICH DEPENDS IN LARGE PART ON THE PERFORMANCE OF INTERNET SERVICES PROVIDED OR CONTROLLED BY THIRD PARTIES. AT TIMES, ACTIONS OR INACTIONS OF SUCH THIRD PARTIES CAN IMPAIR OR DISRUPT SUBSCRIBER’S CONNECTIONS TO THE INTERNET (OR PORTIONS THEREOF). ALTHOUGH RUVNA WILL USE COMMERCIALLY REASONABLE EFFORTS TO REMEDY AND AVOID SUCH EVENTS, RUVNA CANNOT GUARANTEE THAT SUCH EVENTS WILL NOT OCCUR. ACCORDINGLY, RUVNA DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO SUCH EVENTS.
11. LIMITATION.
THE REMEDIES PROVIDED UNDER THE LIMITED WARRANTY ARE SUBSCRIBER’S SOLE AND EXCLUSIVE REMEDIES FOR ANY VIOLATION OF THIS AGREEMENT. EXCEPT TO THE EXTENT THE FOLLOWING LIABILITY LIMITATION IS PROHIBITED BY APPLICABLE LAW, IN NO EVENT WILL RUVNA, ITS DEVELOPERS, OR ITS SUPPLIERS BE LIABLE FOR ANY DAMAGES OR EXPENSES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOST OPPORTUNITY, LOST SAVINGS, LOSS OF GOODWILL, LOST BUSINESS, LOSS OF ANTICIPATED BENEFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, LOSS OF OR DAMAGE TO DATA, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER DIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL DAMAGES, OR PECUNIARY LOSSES, WHETHER BASED IN CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF THE USE OF OR INABILITY TO USE THE RUVNA SYSTEM, EVEN IF RUVNA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, RUVNA’S, ITS DEVELOPERS’ AND ITS SUPPLIERS’ ENTIRE LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY SUBSCRIBER FOR THE RIGHT TO USE THE RUVNA SYSTEM IN THE TWELVE (12) MONTHS PRECEDING THE INCIDENT GIVING RISE TO LIABILITY.
12. INDEMNIFICATION.
Subscriber agrees to indemnify, defend and hold harmless Ruvna, and Ruvna’s officers, directors, employees, agents, and representatives, from and against any and all third party claims and causes of action, and resulting proceedings, damages, expenses, judgments and fines, to the extent arising from Subscriber’s breach of this Agreement, Subscriber’s (or its end users’) use of the Ruvna System, or any information, instructions, or other materials provided or made available by Subscriber (or any of its end users), except for third party claims and causes of action to the extent expressly covered by Ruvna’s indemnification obligations set forth in this Agreement.
Ruvna agrees to indemnify, defend and hold harmless Subscriber, and Subscriber’s officers, directors, employees, agents, and representatives, from and against any and all third party claims and causes of action, and resulting proceedings, damages, expenses, judgments and fines, to the extent (a) based on a claim that the Ruvna System (excluding any non-Ruvna components, content, or other materials contained or incorporated therein) infringes such third party’s United States intellectual property rights, except to the extent resulting from (i) any information, instructions, or other materials provided or made available by Subscriber (or any of its end users), (ii) any modification (not made by or on behalf of Ruvna), (iii) any combination with any non-Ruvna product, service or technology (if such infringement would not have occurred but for such combination), or (iv) any breach of this Agreement by Subscriber or any of its end users (including, without limitation, any unauthorized use of the Ruvna System); or (b) arising from Ruvna’s breach of Sections 8(a) or 13.
13. PRIVACY.
Ruvna shall treat all information collected through Subscriber's use of the Ruvna System in accordance with the terms of Ruvna's Privacy Policy located at www.ruvna.com/privacy, which are hereby incorporated by reference.
14. ADDITIONAL TERMS.
14.1 Publicity.
Subscriber consents to Ruvna’s use of and/or references to Subscriber’s name, directly or indirectly, in Ruvna’s marketing and training materials. Subscriber may not use Ruvna’s name or trademark without Ruvna’s prior written consent, except to advise students, their families, any representatives of the Department of Education or other advisory or regulatory bodies, and other interested parties that Subscriber uses the Ruvna System.
14.2 Restrictions.
Subscriber shall not (directly or indirectly), and shall not permit any end user or third party to, do or attempt to do any of the following: (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover or access the source code or the underlying content, algorithms, or other materials accessible through, or contained in, the Ruvna System (collectively, including any portions, modifications, versions, or embodiments of any such materials, “System Materials”)); (ii) copy, modify, download, or transfer the Ruvna System or any System Materials; (iii) rent, lease, distribute, sell, resell, assign, or otherwise transfer its rights to use the Ruvna System or any System Materials; (iv) use the Ruvna System or any System Materials for timesharing or service bureau purposes or otherwise for the benefit of a third party or for any unauthorized purpose; (v) remove any proprietary notices from the Ruvna System or any System Materials; (vi) circumvent, or attempt to circumvent, any mechanisms designed to protect the security or integrity, or limit access to or functionality of, the Ruvna System or any System Materials; (vii) make the Ruvna System or any System Materials available to anyone other than users expressly authorized under the applicable Sales Order; (viii) use the Ruvna System or any System Materials, or provide any information or other materials, for any purpose or in any manner that violates any law, regulation, or third party right; or (ix) interfere with or disrupt the integrity or performance of the Ruvna System or any System Materials (or any associated Ruvna or third party systems or mechanisms). Subscriber shall be responsible for its end users’ compliance with this Agreement and Ruvna’s standard user policies and terms (as made available and updated by Ruvna from time to time).
14.3 Force Majeure.
Except for payment obligations hereunder, neither party shall be liable for any delay or failure to perform any obligation hereunder due to causes beyond its reasonable control, including without limitation, war, riot, insurrection, civil commotion, terrorist activity, fire, industrial disputes of whatever nature, acts of nature, computer crimes, epidemics, acts or omissions of third party vendors or suppliers, equipment failures, public enemies of government, failure of telecommunications, system malfunctions, fire, or other casualty.
14.4 Waiver and Severability.
Waiver of any default or breach under this Agreement by either party does not constitute a waiver of any subsequent default or a modification of any other provisions of this Agreement. If any provision of this Agreement is held invalid or unenforceable by a court of competent jurisdiction, such provision shall be enforced to the maximum extent permissible under applicable law and the remainder of this Agreement will nevertheless remain in full force and effect.
14.5 No Third Party Beneficiaries.
The parties do not intend to confer any right or remedy on any third party.
14.6 Entire Agreement and Modifications.
This Agreement, including the accompanying Sales Order(s) and Ruvna’s Privacy Policy, contains the entire understanding of the parties regarding the subject matter of this Agreement and supersedes all prior and contemporaneous negotiations and agreements, whether written or oral, between the parties with respect to the subject matter of this Agreement. In the event, but solely to the extent, of any conflict between the terms of the body of this Agreement and the terms of a Sales Order, the terms of the Sales Order will prevail for the purposes of such Sales Order. From time to time, in Ruvna’s sole discretion, Ruvna may amend the terms and conditions of this Agreement (other than the specific terms expressly set forth in a Sales Order). Such changes (a) will become effective upon the date specified in Ruvna’s notice of such changes, provided that Ruvna will (unless otherwise required to comply with applicable law) provide Subscriber with at least thirty (30) days’ prior notice of any material changes to the terms of this Agreement, and (b) for clarity, will not apply retroactively.
14.7 Assignment.
Neither party may assign this Agreement to any third party without the prior written consent of the other party, except that Ruvna may assign this Agreement to an affiliate or in connection with a merger, acquisition, reorganization, sale of all or substantially all assets to which this Agreement relates, or other similar corporate transaction. Any purported assignment in violation of the foregoing shall be null and void. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties and their respective successors, and permitted assigns, if any.
14.8 Notices.
Except as otherwise set forth in this Agreement, any notice required under this Agreement shall be in writing and effective when (a) delivered personally against receipt; (b) sent to the address specified in the Sales Order or such other address as may be provided by the recipient in accordance with this Section via (i) registered or certified mail with return receipt requested, postage prepaid or (ii) recognized courier service; or (c) delivered by email to an email address designated by the recipient. Any notices to Subscriber may be sent by email to the email address associated with Subscriber’s account or may be posted in the Ruvna System, and any such notices shall be effective when delivered in accordance with the foregoing. Subscriber hereby consents, on behalf of itself and its users, to receiving notices and communications from Ruvna electronically.
14.9 Controlling Law and Venue.
This Agreement shall be construed and controlled by the laws of set forth in the Sales Order, without giving effect to principles of conflict of laws. The United Nations Convention on Contracts for the International Sale of Goods is specifically disclaimed and shall not apply to this Agreement.
14.10 Counterparts.
This Agreement may be executed in counterparts, each of which shall be deemed an original, and the counterparts shall together constitute one and the same instrument, notwithstanding that all of the parties are not signatory to a single original or the same counterpart. The parties may also deliver and accept facsimile or electronically scanned signatures, which shall be binding upon the parties as if the signature were an original.
14.11 Independent Contractor.
The parties are acting and shall act as independent contractors. Neither party is, nor will be deemed to be, an agent, legal representative, joint venturer or partner of the other party for any purpose. Neither party will be entitled to (a) enter into any contracts in the name of or on behalf of the other party; (b) pledge the credit of the other party in any way or hold itself out as having authority to do so; or (c) make commitments or incur any charges or expenses for or in the name of the other party. Neither party's personnel are, nor shall they be deemed to be at any time during the term of this Agreement, employees of the other party.