Terms and Conditions

Divot Assets Terms and Conditions

1. Definitions

1.1 Content means any of Customer’s data gathered through the provision of the Offering or made available by Customer to Divot Assets for use in connection with the Offering. Depending on the Offering, this data may be stored within the Customer’s environment, within the Divot Assets environment, or a combination of both.

1.2 Documentation means the documentation for the Offering generally supplied by Divot Assets to assist its customers in their use of the Offering, including user and system administrator guides, manuals, and the software functionality specifications.

1.3 Cloud-Hosted Software means the software-as-a-subscription identified on an Ordering Document.

1.4 Offering means the Software, Cloud-Hosted Software, Managed Services, Professional Services and any other products and/or services indicated on the applicable Ordering Document.

1.5 Ordering Document means Divot Assets’s order form, quote documents, or other ordering document signed or referenced by Customer and Divot Assets or its authorized partner which identifies the specific Offering ordered, term, and the price agreed upon by the parties.

1.6 Schedule means the specific terms and conditions related to the Offering that supplement this Agreement.

1.7 Software means cloud-hosted software.

1.8 Service(s) means the consulting, or other services described in a SOW or other Ordering Document that Divot Assets provides.

1.9 Term means the period of time set forth in the applicable Ordering Document during which (i) Customer is allowed to use the Software, or (ii) Services may be performed.

2. Use of Offering

2.1. Divot Assets Offering. Divot Assets retains ownership of all right, title, and interest in and to all intellectual property in and about the Offering including the Documentation, modifications and derivative works thereto including all rights to patent, copyright, trade secret, trademark, and other proprietary or intellectual property rights.

2.2. Use by Affiliates. Customer may make the Offering(s) available to its Affiliates under these terms, provided that Customer is liable for any breach of this Agreement by any of its Affiliates. “Affiliate(s)” means any entity now existing that is directly or indirectly controlled by Customer.

3. Fees; Payment Terms

3.1 If Customer purchases the Offering through a Divot Assets authorized partner, then the fees shall be as set forth between Customer and partner and the applicable fees shall be paid directly to such partner and section 3.2 shall not apply.

3.2 Customer agrees to pay the fees, charges and other amounts in accordance with the applicable Ordering Document. Divot Assets will invoice Customer upon execution of an Ordering Document or the reference to an Ordering Document in a customer’s Purchase Order, unless otherwise agreed by the parties. Unless otherwise specified, fees will be due no later than 30 days from the date of invoicing. All fees are non-refundable unless otherwise stated herein or in the applicable Ordering Document. Customer shall be responsible for remitting all taxes levied on any transaction under this Agreement, including, without limitation, all federal, state, and local sales taxes, levies and assessments, and local withholding taxes in Customer’s jurisdiction, if any, excluding, however, any taxes based on Divot Assets’ income. In the event Customer is required to withhold taxes from its payment or withholding taxes are subsequently required to be paid to a local taxing jurisdiction, Customer is obligated to pay such tax, and Divot Assets, as applicable, will receive the Ordering Document payment amount as agreed to net of any such taxes. Customer shall provide to Divot Assets written evidence that such withholding tax payment was made.

4. Confidentiality, Privacy, and Security

4.1 Confidential Information. “Confidential Information” means information provided by one party to the other party which is designated in writing as confidential or proprietary, as well as information which a reasonable person familiar with the disclosing party’s business and the industry in which it operates would know is of a confidential or proprietary nature. A party will not disclose the other party’s Confidential Information to any third party without the prior written consent of the other party, nor make use of any of the other party’s Confidential Information except in its performance under this Agreement. Each party accepts responsibility for the actions of its agents or employees and shall protect the other party’s Confidential Information in the same manner as it protects its own Confidential Information, but in no event with less than reasonable care. The parties expressly agree that the terms and pricing of this Agreement are Confidential Information. A receiving party shall promptly notify the disclosing party upon becoming aware of a breach or threatened breach hereunder and shall cooperate with any reasonable request of the disclosing party in enforcing its rights.

4.2 Exclusions. Information will not be deemed Confidential Information if such information: (i) is known prior to receipt from the disclosing party, without any obligation of confidentiality; (ii) becomes known to the receiving party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (iii) becomes publicly known or otherwise publicly available, except through a breach of this Agreement; or (iv) is independently developed by the receiving party without use of the disclosing party’s Confidential Information. The receiving party may disclose Confidential Information pursuant to the requirements of applicable law, legal process, or government regulation, provided that, unless prohibited from doing so by law enforcement or court order, the receiving party gives the disclosing party reasonable prior written notice, and such disclosure is otherwise limited to the required disclosure.

4.3 Content. To the extent that Divot Assets processes personal data about any individual in the course of providing the Offering, Customer agrees to Divot Assets’ Data Processing Agreement, located at https://www.divotassets.com/dpa/. Customer retains ownership of all rights, title, and interest in and to all Content, and Customer is solely responsible for all Content. Divot Assets does not guarantee the accuracy, integrity, or quality of such Content. Except as provided in this Agreement, Customer shall be solely responsible for providing, updating, uploading, and maintaining all Content, as applicable. Divot Assets may use Content solely as necessary to: (i) provide the Offering to Customer; (ii) generate statistics and produce reports in anonymized and aggregated form that does not or cannot be used to identify Customer or any Content,; and (iii) collect data and analytics about use of the Offering in order to continue to improve the development and delivery of the Offering.

5. Warranties

EXCEPT FOR THE WARRANTIES IN THIS AGREEMENT OR AS SET FORTH IN THE SCHEDULE(S), DIVOT ASSETS MAKES NO OTHER WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS. DIVOT ASSETS MAKES NO WARRANTY THAT ALL SECURITY RISKS, INCIDENTS, OR THREATS WILL BE DETECTED OR REMEDIATED BY USE OF THE SERVICES OR THAT THERE WILL NOT BE FALSE POSITIVES.

6. Indemnification

6.1 Intellectual Property Indemnification.  Divot Assets Inc will indemnify, defend and hold harmless Customer from and against any third-party claim brought against Customer alleging that Customer’s permitted use of the Subscription infringes any United States patent or trademark, or any copyright, or misappropriates a trade secret of a third party.  If Customer’s use of the Subscription is, or in Divot Assets Inc’s opinion is likely to be, enjoined due to the type of infringement specified above, Divot Assets Inc may, at its option and expense, obtain a license for the continued use of the Subscription or modify the Subscription to provide substantially equivalent functions and are no longer infringing, or, if neither of the foregoing alternatives are implemented, terminate Customer’s right to the allegedly infringing portion of the Subscription and refund to Customer any amounts prepaid for such Subscription for the period following such termination. This Section 6 states the entire liability of Divot Assets Inc with respect to any type of third-party infringement claim.

6.2 Mutual Indemnification. Each Party will indemnify and defend the other Party against any third party claims arising from the indemnifying Party’s gross negligence or willful misconduct.

6.3 General Indemnification Terms.  In case of any indemnified claim under this Section 6, the indemnified party will (a) give written notice to the indemnified party within thirty (30) days of becoming aware of an indemnified claim; (b) provide control of the defense of the claim to the indemnifying party, including the right to settle; provided however, that the indemnifying party will not settle any such suit or claim without the indemnified party’s prior written consent, which will not be unreasonably withheld or delayed; and (c) provide reasonable cooperation in the defense thereof.

7. Limitation of Liability

7.1 Exclusion of Certain Damages. NEITHER PARTY WILL BE LIABLE UNDER THIS AGREEMENT FOR LOST REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, EVEN IF THE PARTY KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE.

7.2 Limitation on Amount of Liability. NEITHER PARTY WILL BE LIABLE UNDER THIS AGREEMENT FOR MORE THAN THE TOTAL AMOUNT PAID OR PAYABLE BY CUSTOMER FOR THE RELEVANT OFFERING DURING THE TWELVE MONTHS IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO LIABILITY, EXCEPT THAT THE LIMITATION IN THIS SECTION 7.2 SHALL NOT APPLY TO: (I) VIOLATIONS OF A PARTY’S INTELLECTUAL PROPERTY RIGHTS BY THE OTHER PARTY; OR (II) A PARTY’S EXPRESS INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT.

8. Term and Termination

8.1 Term. The Term will automatically renew for an additional one year term at the rate listed on the applicable Ordering Document unless (i) otherwise indicated on the Ordering Document or (ii) either party provides the other with written notice of its election not to renew at least 30 days prior to the anniversary date. Any renewal will be invoiced at the rate indicated on the applicable Order Form. In connection with any renewal term, Divot Assets reserves the right to change the rates, applicable charges and usage policies and to introduce new charges for any subsequent Software Term, upon providing Customer written notice thereof (which may be provided by e-mail) at least 60 days prior to the end of the applicable term. The term of each Services order will be as set forth on the Ordering Document.

8.2 Termination. Either party may terminate this Agreement or any Ordering Document (i) in the event of a material breach of this Agreement or any such Ordering Document by the other party that is not cured within thirty days of written notice thereof from the other party, (ii) immediately in the event of an incurable, material breach, or (iii) immediately if the other party ceases doing business, or is the subject of a voluntary or involuntary bankruptcy, insolvency or similar proceeding that is not dismissed within sixty days of filing. All provisions of this Agreement which by their nature are intended to survive the termination of this Agreement shall survive such termination.

8.3 Effect of Termination. Upon any termination or expiration of this Agreement or any applicable Ordering Document, Divot Assets shall no longer provide the applicable Offering to Customer and Customer must cease using the Offering and send no further Content to Divot Assets. Termination of this Agreement or an Ordering Document shall not relieve Customer of its obligation to pay all fees that have accrued or have become payable by Customer hereunder. Customer agrees that following termination of Customer’s account and/or use of the Offering, Divot Assets may immediately deactivate Customer’s account and that following a reasonable period not to exceed 90 days, shall be entitled to delete Customer’s account and all Content.

9. General Provisions

9.1 Miscellaneous. (a) This agreement will be governed and interpreted in accordance with the laws of the state of Delaware without regard to the conflicts of law provisions of any state or jurisdiction; (b) this Agreement, along with the accompanying Schedules, Addenda, and Ordering Document(s) constitute the entire agreement and understanding of the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and undertakings, both written and oral; (c) this Agreement and each Ordering Document may not be modified except by a writing signed by each of the parties; (d) in case any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provisions of this Agreement but rather this Agreement shall be construed as if such invalid, illegal, or other unenforceable provision had never been contained herein; (e) Customer shall not assign its rights or obligations hereunder without Divot Assets’ advance written consent; (f) subject to the foregoing subsection (e), this Agreement shall be binding upon and shall enure to the benefit of the parties hereto and their successors and permitted assigns; (g) no waiver of any right or remedy hereunder with respect to any occurrence or event on one occasion shall be deemed a waiver of such right or remedy with respect to such occurrence or event on any other occasion; (h) nothing in this Agreement, express or implied, is intended to or shall confer upon any other person any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement, including but not limited to any of Customer’s own clients, customers, or employees; (i) the headings to the sections of this Agreement are for ease of reference only and shall not affect the interpretation or construction of this Agreement; (j) terms in an Ordering Document have precedence over conflicting terms in this Agreement or Addendum, but have applicability only to that particular Ordering Document; (k) the terms in an Addendum have precedence over conflicting terms in this Agreement, but have applicability only to that particular Addendum; and (l) this Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

9.2 Relationship of the Parties. Divot Assets and Customer are independent contractors, and nothing in this Agreement shall be construed as making them partners or creating the relationships of principal and agent between them, for any purpose whatsoever. Neither party shall make any contracts, warranties, or representations or assume or create any obligations, express or implied, in the other party’s name or on its behalf.

9.3 Force Majeure. Other than payment obligations hereunder, neither party will be liable for any inadequate performance to the extent caused by a condition that was beyond the party’s reasonable control (including, but not limited to, natural disaster, act of war or terrorism, riot, global health crisis, acts of God, or government intervention), except for mere economic hardship, so long as the party continues to use commercially reasonable efforts to resume performance.

9.4 it’s No Reliance. Customer represents that it has not relied on the availability of any future feature or version of the Offering or any future product or service in executing this Agreement or purchasing any Offering hereunder.

9.5 Publicity. Customer acknowledges that Divot Assets may use Customer’s name and logo for the purpose of identifying Customer as a customer of Divot Assets Offerings. Divot Assets will cease using Customer’s name and logo upon written request.

9.6 Notices. Unless specified otherwise herein, (i) all notices must be in writing and addressed to the attention of the other party’s legal department and primary point of contact and (ii) notice will be deemed given: (a) when verified by written receipt if sent by personal courier, overnight courier; or (b) when verified by automated receipt or electronic logs if sent by email. When sent by email, notices to Divot Assets must be sent to notices@divotassets.com

Schedule A: K12 Asset Pro Software

This Software Schedule governs the terms and conditions in connection with the subscription to and use of Divot Assets cloud-based K12 Asset Pro software (“Software”) as defined herein. In the event of a conflict between this Software Addendum and another Agreement, this Software Addendum will prevail with respect to the Software only.

1. License. Divot Assets hereby grants to Customer, during the Term, a non-exclusive, non-transferable, non-sublicensable right to use and access the Software (in object code only): (i) solely for Customer’s internal business purposes; (ii) within the Volume Limitations; and (iii) as described in this Agreement. The parties also agree to be bound by any further license restrictions set forth on the Scope of Work. If applicable, Customer must allow the software to integrate with such programs and devices necessary to provide data to the Software.

2. Restrictions. Except as may be expressly permitted by applicable law, Customer will not, and will not permit or authorize third parties to: (i) reproduce, modify, translate, enhance, decompile, disassemble, reverse engineer, create derivative works of the Service, or merge the Software into another program; (ii) resell, rent, lease, or sublicense the Software or access to it including use of the Software for timesharing or service bureau purposes; (iii) circumvent or disable any security or technological features or measures in the Software; nor (iv) access the Software in order to build a competitive product or service, for competitive analysis, or to copy any ideas, features, functions, or graphics of the Software. Customer is responsible for its employees’ compliance with this Agreement. If Customer identifies a vulnerability in the Software, all information and analysis regarding the vulnerability must be disclosed through the Divot Assets contact form, found at www.divotassets.com. Customer shall not: (i) upload or otherwise transmit, display, or distribute any Content to the Software that infringes any trademark, trade secret, copyright, or other proprietary or intellectual property rights of any person; (ii) upload or otherwise transmit to the Software any material that contains software viruses or any other computer code, files, or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; or (iii) interfere with or disrupt the Software.

3. Warranty. Divot Assets warrants that, during the Term: (i) the Software will conform, in all material respects, with the applicable Documentation; and (ii) it will not materially decrease the overall functionality of the Software. For any breach of the above warranty, Divot Assets will, at no additional cost to Customer, use commercially reasonable efforts to provide remedial services necessary to enable the Software to conform to the warranty. Customer will provide Divot Assets with a reasonable opportunity to remedy any breach and reasonable assistance in remedying any defects. If Divot Assets is unable to restore such functionality, Customer may terminate the applicable Ordering Document and receive a pro rata refund of the fees paid for the terminated portion of the then-current Term. Divot Assets makes no warranty regarding third party features or services. The remedies set out in this subsection are Customer’s sole remedies for breach of the above warranties.

4. Suspension of Service. Divot Assets reserves the right to suspend Customer’s access to the Software upon notification, if Customer is more than thirty days late with respect to any payments due hereunder. Upon such suspension, Customer shall still be liable for all payments that have accrued prior to the date of suspension and that will accrue throughout the remainder of the Term. Divot Assets will not be obligated to restore access to the Software until Customer has paid all fees owed to Divot Assets.

5. Availability. Subject to this Agreement Divot Assets shall use commercially reasonable efforts to provide the Software twenty-four hours a day, seven days a week throughout the Term. Customer agrees that from time to time the Software may be inaccessible or inoperable for various reasons, including: (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs which Divot Assets may undertake from time to time; or (iii) causes beyond the control of Divot Assets or which are not reasonably foreseeable by Divot Assets, including interruption or failure of telecommunication or digital transmission links, hostile network attacks or network congestion, or other failures (collectively “Downtime”). Divot Assets shall use commercially reasonable efforts to provide twenty-four hour advance notice to Customer in the event of any scheduled Downtime. Divot Assets shall have no obligation during performance of such operations to mirror Content or to transfer Content. Divot Assets shall use commercially reasonable efforts to minimize any disruption, inaccessibility, and/or inoperability of the Software in connection with Downtime, whether scheduled or not.

6. Support Services. Divot Assets shall provide support during any Term, or else as otherwise set forth on the applicable Scope of Work subject to Divot Assets’ support policy. Divot Assets support team is available during normal business hours for technical and strategic support. Support may be reached at support@divotassets.com, 978-693-4858, or https://divotassets.com/knowledge-base/, or through your assigned customer support representative.