Terms of Service
“Cloud-Based Solution” means the software-as-a-service offering provided by EDULOG to Customer as described in the Order Form.
“Customer Data” means all data or information submitted by Customer to EDULOG under this Agreement.
“Documentation” means EDULOG’s user manuals, handbooks, installation guides, or any other documentation relating to the Software and Hardware provided by EDULOG to Customer under this Agreement.
“Hardware” means the tablet(s), GPS device(s), or other hardware provided by EDULOG to Customer as described in the Order Form.
“Implementation Activities” means certain initial system setup and configuration activities, and unless otherwise specified in the relevant Order Form, do not include hardware install services or onsite work. Implementation Activities for routing products include a one-time build of Customer’s system data in the routing software (to be completed within the initial build cycle time frame) from information to be provided by the Customer in an acceptable electronic format (does not include handwritten notes or scanned paper). Implementation Activities do not include network configuration, port forwarding, SQL licensing, hardware acquisition, run building (e.g., entering bus run or bus route information) or any run/route revision, design or optimization services of any kind. These optional services are available for an additional fee.
“IP Rights” means copyrights, patents, trademarks, service marks, trade secrets, know-how, trade dress, trade names, logos, corporate names, domain names, and all other intellectual property rights.
“Products” means the Software, Cloud-Based Solution, and Hardware.
“Services” means the consulting or other professional services provided by EDULOG to Customer as described in the Order Form.
“Software” means the software provided by EDULOG to Customer under this Agreement, including software hosted on Customer’s server, software hosted on a server controlled by EDULOG (“Cloud-Based Software”), and software pre-installed on the Hardware, as described in the Order Form.
“Users” means users authorized by Customer to use the Products and/or Services.
Additional terms and conditions concerning the Products and Services are set forth in the applicable addenda indicated on the cover page of the Agreement (each, an “Addendum” and collectively, the “Addenda”). Following the Effective Date, the parties may incorporate new Addenda for additional Products and/or Services by expressly referencing such Addenda in the applicable Order Form.
- ORDER FORMS
Customer may order Products and/or Services from EDULOG pursuant to order forms executed by the parties referencing and incorporating this Agreement (“Order Form(s)”). EDULOG will provide all Products and Services specified in one or more Order Forms to Customer in accordance with the terms and conditions of this Agreement.
- FEES AND PAYMENT
- License and/or User Fees. Customer shall pay all fees specified in the Order Form. Fees are quoted and payable in U.S. dollars and, unless specified otherwise in an Order Form, are based on Products and Services purchased and not actual usage. Customer’s payment obligations are non-cancelable, and fees paid are non-refundable.
- Invoicing and Payment. Unless otherwise specified, EDULOG will invoice Customer for all amounts due in the first year, including license fees, upon signature of the associated Order Form. Invoiced charges are due net thirty (30) days from the invoice date. Customer is responsible for maintaining complete and accurate billing and contact information with EDULOG. EDULOG will order hardware only upon receipt of payment from Customer for hardware. License fees are deemed earned and non-refundable irrespective of software usage.
- Overdue Charges. If any charges are not received from Customer by the due date, then at EDULOG’s discretion: (i) such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or, if lower, the maximum rate permitted by law, from the date such payment was due until the date paid; and/or (ii) EDULOG may condition future renewals on payment terms shorter than those specified in Section 4b (Invoicing and Payment).
- Suspension of License/Access and Acceleration. If any amount owing by Customer under this or any other agreement for EDULOG’s Products or Services is thirty (30) or more days overdue, EDULOG may, without limiting its other rights and remedies, accelerate Customer’s unpaid fee obligations so that all such obligations become immediately due and payable, and suspend Customer’s license to Software and/or access to Cloud-Based Solution, Hardware, or Services until such amounts are paid in
- Taxes. Unless otherwise stated, fees do not include any taxes, levies, duties (including customs duties) or similar governmental assessments of any nature, including, but not limited to, value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with fees paid hereunder. If EDULOG has the legal obligation to pay or collect Taxes for which Customer is responsible hereunder, the appropriate amount shall be invoiced to and paid by Customer, unless it provides EDULOG with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, EDULOG is solely responsible for Taxes assessable against it based on its income, property and employees.
- Annual Fee Increases. Fees will be increased each year and the amount of such increase will be based on the percentage rate of increase for the immediately preceding 12-month period in the Consumer Price Index, All Urban Consumers, United States, All Items (1982 - 1984 = 100) ((“CPI”), as published by the Bureau of Labor Statistics of the United States Department of Labor. This adjustment will take place on the anniversary date of the Agreement each year. The base for the adjustment will be the CPI figure last published by the U.S. Department of Labor prior to the adjustment date. For each succeeding year, the same procedure will be applied.
- Expenses. Unless otherwise specified in an Order Form, all travel, accommodation and out-of-pocket expenses incurred by EDULOG in connection with the provision of Products and/or Services (including installation, implementation, training, maintenance) shall be paid by Customer. Expenses for meals will be charged at a rate not to exceed Federal Travel Regulations (FTA) Sec. 301. If Customer’s staff travels to Montana for training, all travel and lodging expenses will be the responsibility of the Customer.
- Definition. “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. EDULOG’s Confidential Information shall include, without limitation, the Software and the Cloud-Based Solution; and Confidential Information of each party shall include the terms and conditions of this Agreement, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by the Disclosing Party. Confidential Information does not include any information that (i) without breach of any obligation owed to the Disclosing Party (a) is or becomes generally known to the public; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party; (c) is received from a third party by the Receiving Party; or (ii) was independently developed by the Receiving Party without use of the Disclosing Party’s Confidential Information.
- Protection of Confidential Information. Except as otherwise permitted in writing by the Disclosing Party, (i) the Receiving Party shall use the same degree of care not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care); and (ii) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, contractors, and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those
- Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party reasonably prompt prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential
- Suggestions. If Customer provides ideas or feedback to EDULOG about any Products and/or Services, then regardless of what Customer’s submission states, the following terms shall apply: Customer agrees that (i) Customer’s ideas will automatically become the property of EDULOG, without compensation to Customer, and Customer hereby assigns and agrees to assign all its right, title and interest in and to such to EDULOG; and (ii) EDULOG can use the ideas for any purpose and in any way without future liability to Customer.
- LIMITED WARRANTIES AND DISCLAIMERS
- Limited Warranties. EDULOG warrants that (i) the Software and Cloud-Based Solution will perform materially in accordance with the Documentation, and the functionality of the Software and Cloud-Based Solution will not be materially decreased during the Term, except that EDULOG shall not be responsible for performance issues relating to slow data speeds and/or poor data connectivity; and (ii) EDULOG will perform the Services in a professional and workmanlike manner in accordance with industry standards. For any breach of either such limited warranty, Customer’s exclusive remedy shall be as provided in Section 9b (Termination) below.
- Mutual Warranties. Each party represents and warrants that (i) it is duly organized and in good standing as a corporation or other entity as represented herein; and (ii) it has the legal power to enter into this Agreement.
- Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, EDULOG MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EDULOG SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE
- Third-Party Products and Services. Other than as specifically provided in a Scope of Work or Order Form, EDULOG does not warrant or support third-party products or services. EDULOG is not responsible for the performance of any hardware, software or other materials provided by third parties. Product warranties for third-party products, if any, are provided by the respective manufacturers and not by EDULOG.
- Server and other Equipment Specifications. Customer may receive, from time to time, advisory guidance regarding server and other Customer-owned/provided equipment. Operating conditions vary a great deal from site to site and Edulog does not warrant hardware performance. In particular, server guidance provided to self-hosted clients is advisory only.
- Customer Indemnity. Customer shall indemnify, defend, and hold EDULOG, its directors, officers, employees, and agents harmless from and against any and all losses, damages, liabilities, and costs (including reasonable attorneys’ fees) (“Losses”) resulting from any third-party claim (“Claim”) based on Customer’s use of the Products or Services, its breach of this Agreement, claims that Customer Data or Customer’s other materials infringe or misappropriate the IP Rights of a third party, or its violation of applicable law.
- EDULOG Indemnity. EDULOG shall indemnify, defend, and hold Customer harmless from and against any and all Losses incurred by Customer resulting from any Claim alleging that the Software or Cloud-Based Solution infringes or misappropriates such third party’s U.S. patents, copyrights, or trade secrets, provided that Customer promptly notifies EDULOG in writing of the claim, cooperates with EDULOG, and allows EDULOG sole authority to control the defense and settlement of such claim.
If such a Claim is made or appears possible, EDULOG may, at its sole discretion, (i) modify or replace the Software or Cloud-Based Solution, or component or part thereof, to make it non-infringing, or (ii) obtain the right for Customer to continue use. If EDULOG determines that none of these alternatives is reasonably available, EDULOG may terminate this Agreement, in its entirety or with respect to the affected part, effective immediately on written notice to Customer.
EDULOG will have no obligations under this Section 7b to the extent that any Claim is based upon (i) Customer’s, Users’, Customer’s agents’ or any third party’s modification of or addition to the Products, or combination of the Products with another product; (ii) Customer’s failure to obtain any required third-party consents or licenses; or (iii) EDULOG’s compliance with design documentation or specifications provided or developed by Customer.
- LIMITATION OF LIABILITY
IN NO EVENT WILL EDULOG HAVE ANY LIABILITY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT EDULOG HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL EDULOG’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER IN THE twelve (12) MONTHS PRECEDING THE INCIDENT GIVING RISE TO THE CLAIM.
- TERM AND TERMINATION
- Term of Agreement. The initial term of this Agreement commences on the Effective Date and, unless terminated earlier pursuant to the applicable terms of this Agreement, will continue in effect until the end of the initial term specified in the applicable Order Form (the “Initial Term”). It will automatically renew for additional successive one (1) year terms unless earlier terminated pursuant to the applicable terms of this Agreement or either party gives the other party written notice of non-renewal at least sixty (60) days prior to the expiration of the then-current term (each a “Renewal Term,” and together with the Initial Term, the “Term”). If there is any outstanding Order Form(s) at the time of the expiration of the Term, the terms of this Agreement (including applicable Addenda) will survive and apply to such Order Form(s) until their expiration or termination.
- Termination. Either party may terminate this Agreement and/or an Order Form for cause (i) upon 30-days’ written notice to the other party of a material breach if such breach remains uncured at the expiration of such period; or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
- Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, the license to the Software, access to the Cloud-Based Solution, and any EDULOG warranty granted or provided under this Agreement will also terminate, and without limiting Customer’s obligations under Section 5 (Confidentiality), Customer shall (i) cease accessing or using, and delete, destroy, or return all copies of EDULOG’S Confidential Information, Software and Documentation; and (ii) certify in writing to EDULOG its compliance with (i) and (ii). No expiration or termination 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.
- Surviving Provisions. In no event shall any termination relieve Customer of the obligation to pay any fees payable to EDULOG for the period prior to the effective date of termination. Customer’s continuing obligation to pay fees in the event of a termination may be specifically modified in a Scope of Work and/or Order Form. Sections 4 (Fees and Payment), 5 (Confidentiality), 6c (Disclaimer), 6d (Third-Party Products and Services), 7 (Indemnification), 8 (Limitation of Liability), 9d (Surviving Provisions), 10 (Miscellaneous), and any other provisions identified in an Addendum shall survive any termination or expiration of this
- Governing Law. The parties agree that the substantive laws of the state of Montana, exclusive of its choice of law provisions, will apply to the construction and interpretation of this Agreement and also with respect to any lawsuit or dispute arising out of or in connection with this Agreement. Customer further agrees that the state or federal courts located in Missoula County, Montana, USA, shall have exclusive jurisdiction of, and shall be the exclusive and correct venue for, the resolution of any dispute arising out of or related to this Agreement.
- Notices. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing to the party’s address set forth below the signatures on the Cover Page and shall be deemed to have been given upon (i) receipt if by personal delivery; (ii) upon receipt if sent by certified or registered U.S. Mail (return receipt requested); or (iii) the second business day after sending by a major commercial delivery service.
- Force Majeure. In no event shall EDULOG be liable to Customer, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, if and to the extent such failure or delay is caused by any circumstances beyond EDULOG’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
- Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the There are no third-party beneficiaries to this Agreement.
- Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Any waivers are effective only if recorded in a writing signed by the party granting the waiver. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in
- Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
- Attorneys’ Fees. Customer shall pay on demand all of EDULOG’s reasonable attorneys’ fees and other costs incurred by EDULOG to collect any fees or charges due under this Agreement following Customer’s breach of Section 4b (Invoicing and Payment). Moreover, in any action arising out of or related to this Agreement, the prevailing party shall be entitled to an award of its reasonable attorneys’ fees and costs of
- Assignment. Customer may not assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without EDULOG’s prior written consent. EDULOG may, without Customer’s prior written consent, assign its right to payment. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted
- Entire Agreement. This Agreement constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals, or representations, written or oral, concerning its subject matter. No modification or amendment of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification or amendment is to be asserted.
Order of Precedence. If there is a conflict or inconsistency between or among the General Terms, an Addendum, or an Order Form, then the order of precedence is as follows: (i) the General Terms; (ii) the Addendum, and (iii) the Order Form, unless the lower priority document explicitly states that it is intended to modify the conflicting terms of the higher priority document. In the event of a conflict or inconsistency between Order Forms, the terms of the later executed Order Form will govern.
Last Updated: 9/19/2023