Terms and Conditions
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Welcome to Trio Education and thank you for choosing our Device Management product. These terms and conditions (“Terms”) set forth the agreement between you, the customer (“you,” “Customer”), and SternX GmbH (“Company,” “we,” “us,” “our”) governing your use of the Trio Education Device Management Product (“Product”). By using our Product, you agree to comply with these Terms. If you do not agree, please refrain from using the Product.
We provide you with high-quality cloud-based software products and services. The specific software products and services are outlined in the purchase order (“Order”) that incorporates these terms and conditions. In the event of any conflict or ambiguity between these Terms and the Order, the terms and conditions of the Order will prevail. The Services we offer encompass a range of features, including but not limited to:
– Cloud-based web filtering
– Online activity monitoring for cyberbullying prevention
– Auditing software
– Mobile device management software
– Tablet and computer asset location tracking software
– Device control software for teacher classroom management
– Any other software or services provided by Company, along with updates and related documentation
To facilitate your access to the Services, Company will provide you with the necessary user identifications and passwords. These credentials can be utilized by your employees, agents, independent contractors, students, and parents/guardians (“Users”).
Please review the following sections for a complete understanding of your rights and responsibilities as a user of our Product.
At SternX, we prioritize the security of your data and personal information. We assure you that we maintain robust administrative, technical, and physical security measures to safeguard Customer data and personal information, including User Data. These measures are in accordance with all applicable state and federal laws and regulations.
In the unlikely event of a breach or suspected breach of our privacy or security measures, we are committed to taking prompt action. If we become aware of any such breach, we will immediately notify you, the Customer, and make every commercially reasonable effort to rectify the situation.
We understand the importance of maintaining the confidentiality and integrity of your data, and we strive to provide you with a secure environment when using our Services.
Please note that while we take all necessary precautions to protect your data, no security measure is completely foolproof. Therefore, we encourage you to also take appropriate measures to safeguard your own information and to promptly report any suspicious activities or concerns to us.
By using our Product, you acknowledge and agree to our security measures and understand that, despite our best efforts, no system can guarantee absolute security.
As part of our commitment to your satisfaction, Company will provide you with support services as outlined in the Order. Our Support Services aim to assist you in resolving any issues or concerns you may have regarding the Product.
We are dedicated to ensuring that you have a smooth and seamless experience with our Product, and our support team is ready to assist you whenever you need guidance or assistance.
Please refer to the Order for specific details regarding the scope and availability of our Support Services.
a) Ownership of the Service; Intellectual Property
We want to make it clear that SternX retains all title, ownership, and proprietary rights to the Trio Education Device Management Product (“Product”) and its associated services (“Services”). This includes all software used to provide the Services, whether incorporated into other software or used as a standalone service. Our name, logo, and product names associated with the Services are our trademarks, and no right or license is granted to you to use them. However, during the term of this Agreement, we grant you a limited, revocable license to use and install the software necessary to receive the Services (“Client Software”) on your machines and devices.
b) Ownership of User Data
While we provide the Services, any data and information gathered from your Users (“User Data”) remains your property. You retain all title, ownership, and proprietary rights to User Data, and you are solely responsible for its use. It is your responsibility to secure and back up your User Data. In the event of data loss due to a fault in our Services or Support Services, we will restore your User Data to the last backup point. We require a worldwide, royalty-free, and non-exclusive license to access and use User Data solely to provide the Services and as outlined in our Privacy Policy.
c) Data Use
We handle customer personal information with utmost care. Any personal information received from or on behalf of the customer is used solely to provide the Services or to comply with the law. We may disclose customer personal information to our service providers as necessary to deliver the Services, but we will not use or disclose it for any other purpose. We do not sell, rent, or transfer customer personal information to any third party for monetary or other valuable consideration.
d) Data Sources
In delivering the Services, we may utilize publicly available or third-party data sources. While we strive to provide accurate and reliable data, we cannot guarantee the accuracy, availability, reliability, or integrity of such data.
e) Ownership of Reports and Analyses
Any reports and analyses provided as part of the Services (“Reports”) remain our property. We grant you a non-exclusive, non-sublicensable, and non-transferable license to use the Reports strictly for your own internal, legitimate, non-commercial, educational purposes during the term of this Agreement.
f) Mobile App and Parent/Guardian Usage
For your convenience, our mobile application can be downloaded from major mobile device provider app stores (Apple’s App Store or Google’s Play Store). Please note that the usage of our mobile application or website by parents/guardians is subject to our terms of service and Privacy Policy.
g) Feedback
We value your input and appreciate any ideas, suggestions, or recommendations you may provide regarding our software, products, services, or technology (“Feedback”). Please understand that any Feedback you provide is non-confidential, and we are free to use, disclose, and incorporate it into our products and services without any obligation to compensate you. You have no right to compel the use, display, reproduction, or distribution of your Feedback.
Please note that this section does not impose an obligation on you to provide Feedback to us.
a) Consent for Collection and Use of Minor User Data
As an educational institution, Customer acknowledges that Company acts as a service provider and collects personally identifiable User Data of children under the age of 18 (“Minor User Data”) on Customer’s behalf and with Customer’s authorization. This data collection is necessary to provide the requested Services. Customer has received and reviewed Company’s Privacy Policy, including its Children’s Privacy Policy and Notice of Privacy Practices, as required by the Children’s Online Privacy Protection Act Rule (COPPA). By consenting to these Terms, Customer expressly agrees to the collection, use, and disclosure of Minor User Data in accordance with the applicable Privacy Policy. Customer acknowledges its role as an educational institution and authorizes Company to collect, use, and disclose Minor User Data to provide the Services. Customer is granted an opportunity to review the Minor User Data and request its deletion or cessation of collection or use, which may affect the availability of the Services. By executing this Agreement, Customer confirms that it has received and reviewed the Privacy Policy and grants consent to Company’s collection, use, and disclosure of Minor User Data in accordance with the Privacy Policy, with notice provided for any material changes.
b) De-identification and Use of Aggregate Data
Notwithstanding the provisions of Section 5(b), Customer agrees that Company may de-identify or aggregate User Data and Minor User Data to remove individual identification, creating “Aggregate Data.” Company may maintain and use this Aggregate Data for its own purposes as outlined in the Privacy Policy, provided reasonable safeguards are implemented to prevent re-identification of the data.
a) Prohibited Actions
Customer agrees not to engage in the following actions:
(i) Modifying, disassembling, or reverse engineering any part of the Services, including the Client Software, or attempting to access underlying source code or algorithms.
(ii) Using the Services to develop a similar or competitive product or service or for intellectual property infringement claims against the Company.
(iii) Reproducing, distributing, downloading, or transmitting any part of the Services, except as expressly permitted.
(iv) Unauthorized access or attempts to gain unauthorized access to the Services, with efforts to prevent unauthorized access by third parties.
(v) Exceeding the permitted number of devices, active users, or users within a school or district, as specified in the Order.
b) Prohibited Activities
Customer shall not:
(i) Access the administrative interface of the Services through unauthorized means, unless otherwise agreed in writing.
(ii) Intentionally engage in activities that interfere with or disrupt the Services or connected servers and networks.
c) Account and User Activity
Customer is responsible for all activity conducted under its user accounts for the Services. Customer must promptly notify the Company of any unauthorized use or access to user accounts or the Services. Customer shall not access the Services in a manner to avoid fees or provide false information to reduce amounts payable to the Company.
d) Compliance with Laws and Regulations
Customer warrants that it will use the Services in compliance with this Agreement and all applicable laws and regulations. While Company has no obligation to monitor Customer’s use of the Services, Company reserves the right to do so and prohibit any use that violates this Agreement or applicable laws and regulations.
e) Government Entities
If Customer is a government entity, Customer represents and warrants that it has fulfilled all necessary requirements and obtained consents to enter into and perform this Agreement in accordance with its terms and conditions.
f) Emergency Notifications and Electronic Communications
(f) Emergency Notifications and Electronic Communications
If Customer uses the Services to send emergency notifications, alerts, or other messages to recipients through various means such as text/SMS, phone, prerecorded message, email, or other electronic communication (“Electronic Communication”), Customer represents, warrants, and covenants the following:
(i) Adequate Notices and Permissions: Customer has provided and will continue to provide sufficient notices and has obtained and will continue to obtain the necessary permissions and consents from each recipient to receive such Electronic Communications from or on behalf of the Company. This includes compliance with the requirements of the Telephone Consumer Protection Act (“TCPA”), the CAN-SPAM Act, and related regulations, guidance, and orders.
(ii) Consent of Recipients: Customer will not send any Electronic Communication to recipients who have not consented to receive such communications from Customer.
(iii) Opt-Out Requests: Customer will not send any Electronic Communication to recipients who have specifically opted out of receiving Electronic Communications from the Company.
(iv) Compliance with Laws and Agreement: Customer will not send, direct the Company to send, or cause to be sent any Electronic Communication that violates applicable law or the provisions of this Section 6(f).
(v) Records and Compliance: Customer will maintain adequate records of consents and its compliance with this Section 6(f). Upon request, Customer will provide these records to the Company for inspection.
(vi) Authorized Recipients and Emergency Purposes: Customer will only send, direct to be sent, or cause to be sent Electronic Communications to authorized parties, including students, parents, guardians, personnel, and other authorized individuals, and only for emergency purposes as defined in accordance with the TCPA.
g) Visitor Management Services (VMS)
(g) Where Customer’s use of the Services includes visitor management, verification, tracking of visitors, and other individuals, as well as related services or applications (“VMS”), the following provisions apply:
Customer’s Responsibilities:
Customer represents, warrants, and covenants that:
(i) It is responsible for ensuring that its collection, use, and disclosure of all information, including personal information, and its instructions to SternX comply with applicable laws.
(ii) Customer has provided and will continue to provide adequate notices to relevant individuals and has obtained and will continue to obtain necessary permissions and consents for the collection, use, disclosure, and storage of their information.
(iii) Customer will not use the VMS (or any other of the Services) for purposes such as obtaining or conducting background checks, employment verification, hiring, promotion, retention, termination, or reassignment decisions, including but not limited to vendors, employees, contractors, providers, volunteers, or other personnel. Moreover, Customer agrees not to engage in any activities regulated by the Fair Credit Reporting Act (FCRA) or other state or federal laws or regulations related to consumer credit reports and background checks.
h) Legal Compliance and Software Classification
Customer affirms that there are no legal restrictions or governmental requirements that prevent it from fulfilling its obligations under this Agreement. The software provided by the Company is considered “commercial computer software” and “commercial computer software documentation” under applicable laws.
i) United States Government Use
If the software or documentation is acquired for or on behalf of a United States Government unit or agency, Customer agrees that it is considered “commercial computer software” or “commercial computer software documentation.” Customer’s rights are limited as specified by the agreement, including Restricted Rights for civilian agency use and limitations under DFARS for DoD use.
a) “Confidential Information” refers to any non-public information provided or disclosed by one party (“Discloser”) to the other party (“Recipient”) or learned during the performance of this Agreement. This includes, but is not limited to, software, programs, prices, processes, documentation, financial and marketing information, and other business-related material or information that is identified as confidential or would reasonably be expected to be kept confidential. Confidential Information also encompasses the Discloser’s computer systems and architecture, customer lists, sales, profits, organizational structure, new business initiatives, services, products, product designs, and User Data. Recipient agrees to maintain the confidentiality of such information and not to disclose it to third parties, except as expressly permitted under this Agreement.
Recipient’s obligations of confidentiality do not extend to information that:
(1) Becomes publicly available without any fault or breach by the Recipient.
(2) Was already known to the Recipient without any obligation of confidentiality, either directly or through a reliable third party.
(3) Is independently developed by the Recipient without reference to or use of the Discloser’s Confidential Information.
Please note that the Recipient is bound to uphold the confidentiality of the disclosed information and may only disclose it under specific circumstances outlined in this Agreement.
b) During the Term of this Agreement and for a period of five (5) years following its termination or expiration, or for as long as the Discloser’s Confidential Information qualifies as a trade secret, Recipient agrees to maintain the confidentiality of the Discloser’s Confidential Information. Recipient will not disclose or disseminate the Confidential Information to any third party, except to its authorized personnel as described herein, and only to the extent required by applicable law. Recipient will handle and safeguard the Confidential Information with a level of care no less than what it uses for protecting its own confidential information of a similar nature.
Recipient will use the Discloser’s Confidential Information solely for the purpose of fulfilling its rights and obligations under this Agreement. Recipient will ensure that only its employees, contractors, and personnel (collectively referred to as “Personnel”) with a genuine need to know the Confidential Information are granted access. These Personnel shall be bound by written confidentiality obligations consistent with the terms of this Agreement, and Recipient will be held responsible for any breaches committed by its Personnel.
Furthermore, Recipient will implement and maintain appropriate technical and organizational measures to safeguard the Confidential Information against accidental or unlawful destruction, loss, alteration, unauthorized disclosure, or access. These measures will be designed to provide a level of security appropriate to the nature of the Confidential Information and the risks associated with its processing.
Recipient may disclose the Confidential Information if compelled to do so by a court order, administrative agency, or other governmental body. However, Recipient will notify the Discloser in writing in advance of such disclosure (unless prohibited by law) and provide the Discloser with copies of any relevant information to allow the Discloser to take necessary actions to protect its Confidential Information.
(c) All Confidential Information disclosed by the Discloser shall remain the exclusive property of the Discloser, and the Recipient shall not obtain any rights or licenses to such Confidential Information except as expressly provided in this Agreement. Upon the Discloser’s written request or upon termination of this Agreement, the Recipient shall promptly return or, at the Discloser’s option, destroy all Confidential Information and any materials containing such Confidential Information (including all copies in any form). Within ten (10) days of receiving the Discloser’s written request, the Recipient shall provide a written certification, signed by an officer or executive-level employee, confirming compliance with this Section 7.
(d) The Recipient acknowledges that any unauthorized disclosure of Confidential Information may cause irreparable harm and damages to the Discloser that may be difficult to quantify. Therefore, in the event of an actual or threatened breach of this Section 7 by the Recipient or its personnel, the Discloser shall be entitled to seek injunctive relief without the requirement of posting a bond. This relief may include, but is not limited to, obtaining a preliminary injunction through an ex parte application to protect and recover its Confidential Information. The Recipient shall not object to the entry of an injunction or other equitable relief sought by the Discloser on the grounds of an adequate remedy at law, lack of irreparable harm, or any other reason. Furthermore, the Recipient shall promptly notify the Discloser upon becoming aware or having reason to believe that any person or entity, directly or indirectly through the Recipient, has violated or intends to violate the terms of this Agreement. This provision shall not limit any other remedies available to the Discloser, whether under this Agreement, at law, or in equity.
(a) The recurring fees for using the Services and Support Services by Customer will be as specified in the Order (“Fees”). These Fees may be based on factors such as the number of devices or active Users, the number of students in a school or district, or the total number of students, teachers, faculty, and staff in a school or district, as indicated in the Order. Other criteria for calculating the Fees may also be specified in the Order. Please note that the Fees do not include applicable sales, use, or other taxes, fees, duties, or similar charges (“Taxes”), which are the responsibility of the Customer (except for taxes based on Company’s income). Additionally, any late payment or non-payment of Taxes may result in penalties or charges, for which Customer will be liable, along with any reasonable expenses and attorneys’ fees incurred by the Company to collect late amounts. All payments under this Agreement shall be made in U.S. Dollars within thirty (30) days of receiving the invoice, unless otherwise specified in the Order or if Customer is purchasing the Services and Support Services through an authorized reseller, in which case the payment terms will be agreed upon with the authorized reseller. Payment should be made prior to receiving the Services and can be made by check or wire transfer. In the case of late payments, interest may be charged at the rate of 1.5% per month (or the highest rate permitted by law, if less). To the maximum extent permitted by law, Customer waives all claims related to charges unless made within sixty (60) days after invoicing, and refunds will only be provided as contemplated in this Agreement. Any modifications to the Fees will be governed by the “Modification; Waiver” section of this Agreement, and fees posted on Company’s website or other publications are subject to this provision.
(b) Company may assign its rights, title, and interest in the Fees to a third party (“Assignee”) at any time. In such a case, Company will provide Customer with a written notice of the assignment (“Notice of Assignment”). The Notice of Assignment will contain the name and contact information of the Assignee and instructions for making payments to the Assignee. Upon receiving the Notice of Assignment, Customer shall sign the acknowledgment provision and make all payments of the assigned Fees to the Assignee, regardless of the payment instructions in the Order for such Fees.
(c) If Customer is purchasing the Services or Support Services through an authorized reseller, all fees for the Services and Support Services should be paid directly to the authorized reseller in a timely manner. Failure to make timely payments to the authorized reseller may result in the suspension of the Services or Support Services, or the termination of this Agreement, at the Company’s discretion, regardless of the reason.
(a) These Terms and Conditions shall become effective on the date of acceptance by the Customer and shall remain in effect for the duration specified in the Order (or, if no period is specified in the Order, then for an initial period of twelve (12) months) (the “Initial Term”). After the Initial Term, these Terms and Conditions will automatically renew for successive twelve (12) month periods (each, a “Renewal Term”), unless either party provides written notice of non-renewal at least 30 days before the end of the then-current term. The Initial Term and all Renewal Terms together constitute the “Term.”
(b) Either party may terminate these Terms and Conditions by giving written notice to the other party in the event of a material breach of any representation, warranty, or obligation under these Terms and Conditions by the other party. The breaching party shall have thirty (30) days from receipt of the written notice to remedy the breach. If the breach is not cured within the specified time, the non-breaching party may terminate these Terms and Conditions.
(c) Any provisions in these Terms and Conditions that would reasonably be expected to be performed after termination or expiration shall survive and remain enforceable, including but not limited to provisions relating to confidentiality, ownership of materials, payment, taxes, representations and warranties, indemnification, limitations of liability, effects of termination, and governing law.
(a) SternX warrants to the Customer that it will provide the Trio Education Services with due diligence and in accordance with the descriptions outlined in the applicable end-user documentation, if any, while adhering to industry best practices. If the Trio Education Services fail to meet the warranted standards, the Customer agrees to promptly notify SternX in writing, detailing the specific deficiencies observed.
(b) STERNX DOES NOT GUARANTEE THAT (A) THE TRIO EDUCATION SERVICES WILL OPERATE ERROR-FREE OR WITHOUT INTERRUPTIONS, OR THAT ALL ERRORS WILL BE CORRECTED, (B) THE TRIO EDUCATION SERVICES WILL INTEGRATE SEAMLESSLY WITH CUSTOMER’S CONTENT, APPLICATIONS, OR EXTERNAL HARDWARE, SOFTWARE, SYSTEMS, SERVICES, OR DATA NOT PROVIDED BY STERNX, AND (C) THE TRIO EDUCATION SERVICES WILL FULLY SATISFY CUSTOMER’S OR ITS USERS’ NEEDS, REQUIREMENTS, SPECIFICATIONS, OR EXPECTATIONS. THE CUSTOMER ACKNOWLEDGES THAT STERNX HAS NO CONTROL OVER DATA TRANSFER THROUGH COMMUNICATION FACILITIES, INCLUDING THE INTERNET, AND THE TRIO EDUCATION SERVICES MAY BE SUBJECT TO INHERENT LIMITATIONS, DELAYS, AND OTHER COMMUNICATION ISSUES. STERNX IS NOT LIABLE FOR ISSUES RELATED TO THE PERFORMANCE, OPERATION, OR SECURITY OF THE TRIO EDUCATION SERVICES ARISING FROM CUSTOMER’S CONTENT, APPLICATIONS, OR THIRD-PARTY CONTENT (INCLUDING PUBLICLY AVAILABLE DATA OR OTHER THIRD-PARTY DATA) OR SERVICES. STERNX DISCLAIMS ALL LIABILITY ARISING FROM OR RELATED TO THIRD-PARTY CONTENT OR SERVICES.
(c) NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, STERNX DOES NOT GUARANTEE OR WARRANT (A) THAT THE TRIO EDUCATION SERVICES WILL BE IN FULL COMPLIANCE WITH THE CHILDREN’S INTERNET PROTECTION ACT, (B) THAT THE TRIO EDUCATION SERVICES WILL ELIMINATE MINORS’ EXPOSURE TO INAPPROPRIATE, HARMFUL, UNSAFE, OR OBSCENE ONLINE CONTENT, (C) THAT THE TRIO EDUCATION SERVICES WILL COMPLETELY PREVENT OR DISCOURAGE CYBERBULLYING OR SELF-HARM AMONG STUDENTS, (D) THAT THE TRIO EDUCATION SERVICES WILL DETECT ALL CASES OF CYBERBULLYING AND SELF-HARM AMONG STUDENTS, OR (E) THAT ALL SOCIAL MEDIA SITES, STREAMING MEDIA, WEB-BASED EMAIL SERVICES, CLOUD STORAGE SITES, AND OTHER INTERNET SITES (INCLUDING PORN, GAMBLING, AND OTHER INAPPROPRIATE SITES FOR MINORS), DIRECT MESSAGES, AND ELECTRONIC DOCUMENTS AND FILES WILL BE ENTIRELY BLOCKED OR MONITORED. ADDITIONALLY, STERNX DOES NOT WARRANT (F) THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE TRIO EDUCATION SERVICES, INCLUDING THIRD-PARTY DATA, OR THE RESULTS OF ANY QUERIES OR SEARCHES SUBMITTED BY THE CUSTOMER FOR THE PURPOSE OF SCREENING VISITORS, OR (G) THAT THE TRIO EDUCATION SERVICES WILL DETECT OR PREVENT UNAUTHORIZED INDIVIDUALS FROM ENTERING SCHOOL PREMISES, AS PROHIBITED BY APPLICABLE LAW OR CUSTOMER POLICY.
(d) FOR ANY BREACH OF THE SERVICES WARRANTY, THE CUSTOMER’S SOLE REMEDY AND STERNX’S TOTAL LIABILITY SHALL BE THE CORRECTION OF THE DEFICIENT SERVICES THAT CAUSED THE BREACH OF WARRANTY. IF STERNX IS UNABLE TO SUBSTANTIALLY CORRECT THE DEFICIENCY IN A COMMERCIAL REASONABLE MANNER (AS DETERMINED SOLELY BY STERNX IN ITS REASONABLE DISCRETION), THEN THE CUSTOMER MAY TERMINATE THE SERVICES. IN SUCH CASE, STERNX SHALL REFUND TO THE CUSTOMER THE FEES FOR THE TERMINATED SERVICES THAT THE CUSTOMER PREPAID TO STERNX FOR THE PERIOD FOLLOWING THE EFFECTIVE DATE OF TERMINATION. STERNX WILL ALSO MAKE COMMERCIALLY REASONABLE EFFORTS TO GRANT THE CUSTOMER REASONABLE OPPORTUNITY TO ACCESS THE SERVICES FOR THE PURPOSE OF SECURING AND BACKING UP THE CUSTOMER’S USER DATA.
(e) TO THE FULLEST EXTENT PERMITTED BY LAW, THESE WARRANTIES ARE EXCLUSIVE, AND NO OTHER WARRANTIES, WHETHER STATUTORY, EXPRESS, OR IMPLIED, ARE OFFERED. STERNX HEREBY DISCLAIMS AND EXCLUDES ALL OTHER WARRANTIES, INCLUDING IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.
BOTH PARTIES EXPRESSLY ACKNOWLEDGE AND AGREE THAT NEITHER STERNX NOR THE CUSTOMER SHALL BE LIABLE TO THE OTHER PARTY UNDER THIS AGREEMENT FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES OF ANY NATURE (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, LOSS OF TIME, OR LOST PROFITS) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS AGREEMENT, EVEN IF THE PARTY HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNLESS RESULTING FROM WILLFUL OR GROSSLY NEGLIGENT BREACHES OF SECTION 7 AND WITHOUT AFFECTING THE LIMITATIONS OF LIABILITY SET FORTH IN SECTION 10, IN NO EVENT SHALL STERNX’S AGGREGATE LIABILITY OF ANY KIND UNDER THIS AGREEMENT EXCEED THE AMOUNTS ACTUALLY PAID BY OR DUE FROM THE CUSTOMER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM, REGARDLESS OF THE FORM OF ACTION, WHETHER BASED ON CONTRACT, TORT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, PRODUCTS LIABILITY, OR OTHERWISE. THIS PARAGRAPH SHALL NOT APPLY TO THE CUSTOMER’S VIOLATION OF STERNX’S INTELLECTUAL PROPERTY RIGHTS.
(a) Customer’s Obligations
Customer shall defend SternX against any claim, cause of action, suit, or proceeding (each a “Claim”) made or brought by a third party arising out of or related to the Customer’s use of the Safe Schools Parental Control Product (“Product”) (other than as expressly set forth in Section 12(b) below). The Customer shall indemnify SternX for any damages finally awarded against, and for reasonable attorney’s fees incurred by, SternX in connection with the Claim. This obligation is conditioned upon SternX:
1. Receiving prompt written notice of the Claim from the Customer.
2. Granting the Customer sole control of the defense and settlement of the Claim (provided that the Customer may not settle any Claim unless the settlement unconditionally releases SternX from all liability).
3. Providing reasonable assistance in connection with the defense at the Customer’s reasonable expense.
(b) SternX’s Obligations
SternX shall defend the Customer against any Claim made or brought against the Customer by a third party alleging that the Customer’s use of the Product infringes or misappropriates the intellectual property rights of a third party. SternX shall indemnify the Customer for any damages finally awarded against, and for reasonable attorney’s fees incurred by, the Customer in connection with the Claim. This obligation is conditioned upon the Customer:
1. Providing prompt written notice of the Claim to SternX.
2. Granting SternX sole control of the defense and settlement of the Claim (provided that SternX may not settle any Claim unless the settlement unconditionally releases the Customer from all liability).
3. Providing reasonable assistance in connection with the defense at SternX’s reasonable expense.
If a Claim is brought or threatened, or SternX believes is likely to occur, SternX may, at its option:
1. Procure for the Customer the right to use the Product.
2. Replace the Product with other suitable products.
3. Refund any prepaid fees that have not been earned and terminate this Agreement upon notice.
SternX shall have no liability under this Agreement or otherwise to the extent a Claim is based upon:
1. Use of the Product in combination with software, hardware, or technology not provided by SternX if infringement would have been avoided in the absence of the combination.
2. Modifications to the Product not made by SternX, if infringement would have been avoided by the absence of the modifications.
3. Use of any version other than a current release of the Product if infringement would have been avoided by the use of a current release.
4. Any action or omission of the Customer for which the Customer is obligated to indemnify SternX under this Agreement.
This Section 12(b) states SternX’s sole liability to, and the Customer’s exclusive remedy against, SternX for any type of intellectual property infringement claim.
Neither party shall use the name or trademarks of the other party or refer to or identify the other party in any advertising, publicity releases, or marketing correspondence to third parties without obtaining the written approval of the other party. However, SternX may include Customer’s name as part of a publicly-available list of SternX’s customers.
The parties acknowledge that they are independent contractors and nothing in this Agreement shall create an employer-employee relationship, partnership, fiduciary duty, agency relationship, association, or joint venture between the parties.
In the event of any delay or failure in performance by either party due to circumstances beyond its reasonable control, such as acts of nature, war, terrorism, strikes, or other unforeseeable events (excluding payment obligations), such party shall be excused from its obligations under this Agreement to the extent caused by such occurrence. The affected party shall provide immediate written notice to the other party and shall resume performance as soon as practicable after the event has abated. If the event continues for thirty (30) days or more, the non-performing party may terminate this Agreement with written notice to the other party. In such a case, SternX shall refund any pre-paid fees for terminated services, and reasonable efforts will be made to allow Customer to access the Services for the purpose of retrieving User Data. However, in instances where Customer is unable to terminate this Agreement under this section, no service credit or refund shall be granted. Acts or omissions of SternX’s service providers are also included as events beyond SternX’s reasonable control.
This Agreement and its terms and conditions shall be binding upon the parties and their respective successors and permitted assigns. Customer may not assign, transfer, or delegate its rights or obligations under this Agreement (in whole or in part) without prior written consent from SternX. On the other hand, SternX may freely assign, transfer, or delegate its rights or obligations under this Agreement (in whole or in part) without requiring Customer’s consent. SternX is also permitted to engage qualified subcontractors to perform any of the Services or Support Services as stipulated in this Agreement. Any attempted assignment, transfer, or delegation in violation of these provisions shall be deemed null and void. It is explicitly agreed that this Agreement is intended solely for the benefit of the parties and does not grant any rights to third parties. Only the parties involved are entitled to enforce the terms of this Agreement.
All modifications or waivers of any terms and conditions of this Agreement, including any exhibits, must be made in writing and signed by both parties, explicitly referencing this Agreement. No waiver of any breach of any provision of this Agreement shall be deemed to be a waiver of any prior, concurrent, or subsequent breach of the same or any other provisions of this Agreement. Waivers shall only be effective when made in writing and signed by an authorized representative of the waiving party.
This Agreement, along with any actions arising from or relating to it, shall be construed under, governed by, and interpreted in accordance with the laws of the State of California, without considering its conflicts of law provisions.
Should any provision of this Agreement be held invalid, illegal, or unenforceable by a court with jurisdiction over the parties, such invalid, illegal, or unenforceable provision shall be removed from the Agreement. The remaining provisions of the Agreement shall continue to be given full effect.
All notices, consents, and approvals under this Agreement must be delivered in writing via personal delivery, courier, express mail service, or certified/registered mail (postage prepaid and return receipt requested), or by email with reasonable confirmation of receipt, to the other party at the addresses provided at the beginning of this Agreement (in the case of SternX) or the Order (in the case of Customer), or any other address designated by written notice. Notice given by mail shall be effective five (5) days after the date of mailing, postage prepaid and return receipt requested. Notice by personal delivery, courier service, or express mail service shall be effective upon delivery.
This Agreement may be executed in multiple counterparts, with each counterpart considered an original, and together they will constitute one agreement. The section headings and captions in this Agreement are included for convenience and reference purposes only and do not carry any legal effect.
This Agreement, along with the Privacy Policy, constitutes the entire understanding and agreement between the parties concerning the subject matter herein and supersedes all previous and contemporaneous oral or written representations, agreements, or communications. This includes any quotations or proposals provided by SternX that are not reflected in the Order or any policies or terms for the Services displayed on www.safes.so and www.sternx.de, apart from the Privacy Policy.