K12 Insight

2. THE SERVICES:

The Services allow you to send surveys to certain individuals (the "Survey Participants") and to analyze responses. Subject to the terms of this Agreement, K12 Insight hereby grants you a license to use the Services only for the Duration, number of responses and the Purpose listed in any Sales Order Exhibit. You will have access to the Services and the Site solely for the Duration listed in any Sales Order Form. Accordingly, please distribute all surveys in a manner that allows for the timely collection of responses and download all information prior to the termination of your subscription. You agree to fulfill the Client responsibilities outlined in this Agreement including the responsibility to administer, create and distribute the Surveys and to ensure that your use of the K12 Insight Services does not violate any law, including any law against spamming.

If you have ordered education services, you will be provided course materials ("Course Materials"). The course materials are K12 Insight Confidential Information and the intellectual and personal property of K12 Insight. The course materials are licensed to you for your internal use. You must use the Course Materials as required by paragraph 9. You may not: (a) reproduce, display, resell, distribute or (b) otherwise use the Course Materials for the benefit of any third party.

Notwithstanding any other provision of this Agreement, if K12 Insight provides any sample surveys to you directly or through use of the Survey Bank, those surveys are provided "AS IS." K12 Insight makes no representations or warranties of any kind concerning the surveys or their use, and Customer's use of the surveys is at its own risk. K12 Insight hereby grants you a license to modify, alter, or copy surveys clearly marked as K12 Insight's intellectual property for your own internal business purposes. You agree to use all of the surveys in accordance with all relevant copyright laws and notices.

3. CREATIVE CONTROL RESPONSIBILITIES:

The K12 Insight platform is designed to allow you flexibility and creative control of the surveys and the survey process. Accordingly, you are responsible to perform at least the following functions:

create and administer the surveys through the Site.
create a distribution list of email recipients for each survey (a "Distribution List") and upload the Distribution List onto the K12 Insight platform either manually or through a pointer to your own database;
ensure that you have the right to send emails to each address on the Distribution List;
maintain the Distribution List including the obligation to remove from the Distribution List all names and email addresses as requested by Survey Participants;
provide: (a) the name of one of your employees or (b) a company e-mail address that will appear in the "Sender" column of any Survey Participant's email message. The email messages sent from the Services are delivered from K12 Insight servers, but the "Sender" name or email address will make it appear that the email comes from you;
ensure that you are authorized to use the name and/or the email address of the "Sender", and
provide and maintain an accurate company profile on the Site, including up-to-date contact information.

4. PROHIBITED USES:

You agree that neither you nor your Survey Participants will:

transmit pornographic, obscene, offensive, threatening, harassing, hate-oriented, harmful, defamatory, racist, illegal or otherwise objectionable material or content through the Services.
hide the identity of the Sender
use the Services for the benefit of a third party including as part of its business of providing marketing, consulting or other services to your own clients.
engage in any activity that violates any law, including the Children's Online Privacy Protection Act, or any third party right, including any intellectual property right, privacy right or publicity right.
upload, download or distribute files that contain viruses, corrupted files or any similar software or programs
frame the Site, reverse assemble, reverse engineer, decompile or otherwise attempt to derive the source code for the Services, nor create any derivative work of the Services.

YOU REPRESENT AND WARRANT THAT NEITHER YOU NOR YOUR SURVEY PARTICIPANTS WILL BREACH THE OBLIGATIONS UNDER PARAGRAPHS 3 AND 4 OF THIS AGREEMENT. You agree to defend, indemnify and hold harmless K12 Insight, our subsidiaries, affiliates, officers, and employees, from any and all claims, demands and damages (including reasonable attorneys' fees), due to or arising out of this Agreement including: (a) your breach of any representation, warranty, covenant or obligation under this Agreement, (b) your acts or omissions related to the Agreement and (c) any Survey Participant act or omission.

Without accepting the obligation to do so, K12 Insight reserves the right to remove any content from the Services and report any suspicious behavior to the appropriate legal authorities.

7. WARRANTIES:

K12 Insight represents and warrants that the Services will be provided in a workmanlike manner that conforms to industry standards. EXCEPT FOR THE WARRANTY ABOVE, K12 Insight EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND QUIET ENJOYMENT. YOU UNDERSTAND THAT K12 Insight IS DEPENDENT ON CERTAIN THIRD PARTIES AND ON MATTERS OUTSIDE OUR CONTROL WHEN DELIVERING THE SERVICES. K12 Insight MAKES NO WARRANTY THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, VIRUSFREE, ERROR-FREE, ACCURATE OR RELIABLE. ANY MATERIAL AND/OR DATA OBTAINED OR DOWNLOADED THROUGH THE SERVICES, INCLUDING SURVEY RESPONSES, IS DONE AT YOUR OWN RISK AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE CAUSED BY SUCH MATERIAL, INCLUDING ANY LOSS OF DATA OR DAMAGE TO YOUR COMPUTER SYSTEM.

FINALLY, YOU ACKNOWLEDGE THAT K12 Insight PROVIDES A PLATFORM FROM WHICH YOU MAY COMMUNICATE WITH YOUR CUSTOMERS, EMPLOYEES AND OTHER CONSTITUENTS. WE DO NOT CONTROL WHAT AND HOW YOUR SURVEY PARTICIPANTS COMMUNICATE. YOU ARE SOLELY RESPONSIBLE TO EVALUATE THE ACCURACY, RELIABILITY, COMPLETENESS AND USEFULNESS OF ANY SURVEYS, SURVEY RESPONSES, SURVEY RESULTS AND SIMILAR MATERIALS.

8. LIMITATION OF LIABILITY:

K12 Insight's LIABILITY FOR DAMAGES UNDER THIS AGREEMENT IS LIMITED TO DIRECT MONETARY DAMAGES, AND THE AGGREGATE AMOUNT OF SUCH DAMAGES WILL IN NO EVENT EXCEED AN AMOUNT EQUAL TO THE AGGREGATE FEES PAID BY CLIENT RELATED TO THE SURVEY THAT GAVE RISE TO THE DAMAGE. IN NO EVENT WILL K12 Insight BE LIABLE FOR THE PROCUREMENT OF SUBSTITUTE SERVICES OR ANY INDIRECT, CONSEQUENTIAL OR SPECIAL DAMAGES INCLUDING, WITHOUT LIMITATION, LOST PROFITS, REVENUE, DATA, OR USE WHETHER IN AN ACTION IN CONTRACT OR TORT, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE. CLIENT ACKNOWLEDGES THAT K12 Insight HAS SET ITS PRICES AND ENTERED INTO THIS AGREEMENT IN RELIANCE ON THE DISCLAIMERS OF WARRANTIES AND LIMITATION OF LIABILITY AND THAT THE SAME FORM AN ESSENTIAL BASIS FOR THE BARGAIN BETWEEN THE PARTIES.

9. PROPRIETARY RIGHTS:

As between K12 Insight and you, K12 Insight owns all right, title and interest in the Services, and K12 Insight logos, trademarks, template, tutorial, sample questions and questionnaires, and other materials created by K12 Insight ("K12 Insight intellectual Property"). You may use the K12 Insight Intellectual Property only with the Services and not in any other way. As between K12 Insight and you, you own all right, title and interest in your logos and trademarks, the survey responses, and the survey questions so long as they are not derived from K12 Insight Intellectual Property. You grant K12 Insight a limited, nonexclusive license to reproduce, distribute, display and use any Client Content and Client intellectual property as necessary to perform its obligations under this Agreement. You also grant K12 Insight a license to use your company name and logo in K12 Insight marketing materials and Client lists, including on the K12 Insight website. You agree not to remove and to always include any and all copyright and property notices attached to K12 Insight Intellectual Property, including all templates. No one may copy, reproduce, transmit, post, distribute or create derivative works from the Services without prior express authorization from K12 Insight.

If a third party makes a claim against either you or K12 Insight ("Recipient") that any information, design, specification, instruction, software, date, hardware, or material ("Material") furnished by either you or K12 Insight ("Provider") and used by the Recipient infringes its intellectual property rights, the Provider will indemnify the Recipient against the claim if the Recipient notifies the Provider in writing not later than thirty (30) days after the recipient receives notice of the claim (or sooner if required by applicable law); gives the Provider sole control of the defense and any settlement negotiations; and gives the Provider the information, authority, and assistance the Provider needs to defend against or settle the claim. If the Provider believes or a determination is made that any of the Material may have violated a third party's intellectual property rights, the Provider may choose to obtain for Recipient the right to continue using the Material, replace or modify the Material to be non-infringing (while substantially preserving its utility or function), or if such remedies are not commercially reasonable, remove all infringing portions of the Material. If you are the Recipient and such removal materially affects the Recipient's ability to meet its obligations under this Agreement, Recipient may at its option terminate this Agreement and shall be entitled to recover the fees paid by Recipient for the infringing Material. If K12 Insight is the Recipient and such removal materially affects its ability to meet its obligations under this Agreement, K12 Insight, at its option, may terminate this Agreement upon thirty (30) days written notice. Provider shall have no liability if the alleged infringement is based on (a) Material altered by anyone other than Provider; (b) use of the Material outside the intended scope of use; (c) use of a superseded version of the Material if the infringement claim could have been avoided by using a current version available to the Recipient; or (d) continued use of the Material after Recipient's receipt of a notice of alleged or actual infringement from Provider or any appropriate authority. The Provider will not indemnify the Recipient to the extent that an infringement claim is based upon any information, design, specification, instruction, software, data, or material not furnished by the Provider. K12 Insight will not indemnify you to the extent that an infringement claim is based upon the combination of any Material with any products or services not provided by K12 Insight. THIS SECTION STATES THE PARTIES' SOLE AND EXCLUSIVE REMEDIES AND LIABILITY FOR ANY INTELLECTUAL PROPERTY RIGHTS INFRINGEMENT OR MISAPPROPRIATION CLAIMS OR DAMAGES.

10. CONFIDENTIAL INFORMATION:

We both acknowledge that in the course of this agreement, each of us may be provided the Confidential Information of the other. Unless required by law, we both agree that we will not make each other's Confidential Information available in any form to any third party or use each other's Confidential Information for any purpose other than the implementation of this Agreement. Notwithstanding the above, K12 Insight may share Client Confidential Information with agents acting on our behalf in the fulfillment of our obligations under this Agreement, so long as such agent has executed a confidentiality agreement protecting your Confidential Information with at least the protections outlined in this Agreement. If any party is required by law to disclose the Confidential Information of the other Party, the party making such a disclosure will provide the disclosing party with reasonable notice of its intent to comply and provide all reasonable cooperation in assisting the owner of the Confidential Information to minimize the disclosure.

"Confidential Information" means any information disclosed by one party to the other marked "confidential" or disclosed under circumstances that would lead a reasonable person to conclude that the information is confidential. The following types of information will be considered Confidential Information: the terms and pricing in this Agreement, any software or documentation related to the Services, K12 Insight sample questions and templates, trade secrets, technical know-how, inventions, educational materials, product development plans, pricing, marketing plans, client lists, your Distribution Lists and all survey responses from your surveys. Confidential Information does not include information that: (a) is or becomes generally available through no act or omission of the receiving party; (ii) was in the receiving party's lawful possession prior to the disclosure or (iii) is lawfully disclosed to the other party by a third party without restriction on disclosure.

11. TERMINATION:

K12 Insight may immediately terminate this Agreement in response to any Client breach or any action that in K12 Insight's sole discretion constitutes a violation of paragraph 4 of this Agreement or any other abuse of the Services. K12 Insight may also terminate this Agreement for convenience with thirty (30) days written notice. In the event K12 Insight terminates this Agreement for convenience, K12 Insight will refund to you any pre-paid but unused fees on a pro-rata (monthly) basis.

This Agreement will be in effect from the Effective Date through the Initial Term as specified in the Sales Order Exhibit. At the expiration of the Initial Term, this Agreement will automatically renew for additional one (1) year periods at K12 Insight's then current rates unless you provide written notice to K12 Insight of your intent to terminate at least sixty (60) days before the expiration of the Initial Term or any renewal. Upon termination of this Agreement, you will immediately cease use of the Services, (including use of the Site). Upon termination, we will have no obligation to make available or provide you access to any surveys, survey responses or survey results. Accordingly, please download all desired information prior to the termination date of any Sales Order Form or the Agreement. The following paragraphs will survive termination: any payment obligation set forth in any Sales Order Exhibit, and paragraphs 5 to 13 of this Agreement.

13. MISCELLANEOUS:

The Agreement is the entire and only agreement between us and supersedes any prior or other understandings. The terms of the Agreement may be changed only by a written document referencing this one and signed by both you and K12 Insight (an "Amendment"). The failure by K12 Insight to enforce any right or provision of the Agreement will not constitute a waiver of that provision or any other provision of the Agreement. If any provision of the Agreement is determined to be invalid or unenforceable by a court of competent jurisdiction, the other provisions of the Agreement shall remain in full force and effect. K12 Insight will not be liable for any delay or failure under this Agreement if the delay or failure is due to any cause beyond our control including restrictions of law or regulations, labor disputes, acts of God, if you have insufficient or inadequate bandwidth or technology, general Internet brown-outs, black-outs or slowdowns, emergency and ordinary maintenance of the Site, any "hacking" or any "denial of service" activity. You may not assign or otherwise transfer this Agreement by operation of law or otherwise without K12 Insight' prior written consent. Any entity that acquires, merges with, or otherwise combines in any manner with your company or that your company acquires, merges with or otherwise combines with in any manner acquires no rights under this Agreement including the right to use the Services in any way directly or indirectly.

Terms of Services