Chinese School Management System (CSMS®)
Software as a Service (SaaS) Agreement
These license terms establish a binding agreement between Practical Software Studio (hereinafter referred to as "Service Provider" or “Provider”) and you (hereinafter referred to as "Customer" or "School"). By clicking on the “accept” button during the setup of the Chinese School Management System (CSMS®) for your school, you acknowledge that (1) you are authorized to enter this Agreement for and on behalf of your organization, and are doing so, and (2) you have read and understand and agree that you and the company shall to be bound by the terms and conditions of this Software as a Service (SaaS) Agreement (hereinafter referred to as “Agreement”).
This Agreement incorporates the terms and conditions of the Quotation previously provided to you by Practical Software Studio, which identified the type of license you sought, the fees for your initial license, your annual renewal fee, and your cost for customization, installation and training services (hereinafter, “Quotation”). The terms and conditions set forth in the Quotation are hereby incorporated herein and made a part hereof into this Agreement.
BY ACCESSING AND/OR USING THE SERVICE, YOU ACCEPT AND AGREE TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT ACCEPT THEM, DO NOT ACCESS OR USE THE SERVICE.
a. The Service Provider has developed the Chinese School Management System (CSMS®) software application and has made it available to Customer Schools via the internet for the purpose of school management.
b. The Customer wishes to use the Provider's service in its business operations.
c. The Service Provider has agreed to provide and the Customer has agreed to take and pay for the Provider’s service subject to the terms and conditions of this agreement.
a. Services means the generally available services provided by Practical Software Studio to Customers. Practical Software Studio may update the Services at any time in its sole discretion and all Services set forth in the Services Descriptions may not be available to all Customers.
b. Software means the online software applications provided by the Service Provider as part of the Services.
c. Customer or School means the legal entity or individual School that has ordered a Service from Practical Software Studio by executing an Order and has the right to use the Services subject to the terms of this Agreement. A Customer or School may have only one (1) Executive Committee, one (1) Business Identity, and one (1) IRS Tax ID on file.
d. Customer Data. Customer Data shall mean the data that Customer or Customer’s users enter or upload to Customer’s Service account for the Customer’s business operations.
e. Effective Date means the date of Services activation by Practical Software Studio.
f. Subscription Fee or Service Fee means the fee for Customer’s use of and access to the Services provided by Practical Software Studio during the Service Term.
g. Subscription Term or Service Term means the term for the services as subscribed by Customer.
h. Small School means a School that has less than eighty (80) active students enrolled in any semester. Small Schools may be permitted to use the CSMS® Online Services free of charge until the school grows to have eighty (80) or more active students.
3. CUSTOMER RIGHTS AND RESTRICTIONS.
a. Customer Access. During the Subscription Term of this Agreement, and upon payment of all applicable Subscription Fees, Customer may access and use the Services pursuant to and in accordance with the provisions of this Agreement. If Customer is required to install and download software from Practical Software Studio in connection with the Services, Practical Software Studio provides Customer with a limited, personal, non-exclusive, non-transferable, non-sublicensable right to use the software in accordance with the provisions of this Agreement.
b. Reverse Engineering. Except to the extent permitted by law, Customer may not modify, distribute, prepare derivative works of, reverse engineer, reverse assemble, disassemble, decompile or otherwise attempt to decipher any software provided in connection with the Services and/or any other aspect of Practical Software Studio’s technology.
c. Account Information and Data. Customer retains all rights to any and all of its Customer Data. Practical Software Studio shall not own any Customer Data which is entered by Customer or Customer’s users onto the Online Service. Practical Software Studio shall not view, access or process any Customer Data, except as necessary for the sole purpose of providing the Services to Customer and its users, as directed or instructed by Customer or ites users (e.g. in the context of support requests) or as required by this Agreement and/or applicable law. Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data. Practical Software Studio shall apply reasonable technical, organizational and administrative security measures to keep Customer Data protected in accordance with industry standards. Customer shall retain a current copy of Customer Data outside the Services. Customer shall not store any Protected Health Information (PHI) or Credit Card information without Service Provider's prior written consent.
e. Resale. Customer shall not market, offer to sell, sell and/or otherwise resell the Services or any software provided in connection with the Services to any third party.
f. No Representation by Customer. Neither Customer nor any of its employees, representatives or authorized users of the Services under Customer’s account shall make any representations with respect to Practical Software Studio, the Services or this Agreement (including, without limitation, that Practical Software Studio is a warrantor or co-seller of any of Customer’s products and/or services).
g. Limited Grant of Rights. No other rights are granted hereunder to Customer except as expressly set forth in this Agreement.
4. TERMS AND CONDITIONS.
a. Initial Service Fee. In consideration for the Services grant to Customer, as set forth in Section 2(a) under this Agreement, Customer shall pay to Service Provider the Initial Service Fee, as set forth in the Quotation previously provided to Customer, the terms and conditions of which are incorporated herein as part of this Agreement. Upon payment of the Initial Service Fee, Customer shall be granted a one (1) year of Service Term from the Effective Date.
b. Import of Customer Data, Customization, and Training. In the event Customer desires to import the pre-existing Customer data, further customization, or training of the CSMS® system, Customer will be charged the hourly rate for such services, as set forth in the Quotation previously provided to Customer, the terms and conditions of which are incorporated herein as part of this Agreement.
c. Extensions of Service Term. The Service Term will be automatically extended for an additional period of one (1) year, and shall be renewed each year thereafter for an additional period of one (1) year, absent notice of non-extension as provided herein. Each extension shall require payment of an Annual Service Renewal Fee, at the then-existing renewal fee in effect for Practical Software Studio. Either Party may decline to extend the Service Term for any reason or no reason by providing the other Party with at least 60 days prior written notice of nonextension.
d. Telephone Support. With paid Initial Service and Annual Service Renewal, Practical Software Studio provides twelve (12) cumulative hours per year telephone support free of charge. Should total support hours extends twelve (12) hours, Customer shall pay the hourly rate for Customization, as set forth in the Quotation previously provided to Customer, the terms and conditions of which are incorporated herein as part of this Agreement.
e. Online Configuration Only; No Downloading of Software Allowed. Customer may only use the internet-based service of Chinese School Management System (CSMS®) provided by Practical Software Studio. The School resources managed by the CSMS® Service are limited to the licensed School only.
f. Internet Delays. ONLINE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. PRACTICAL SOFTWARE STUDIO IS NOT RESPONSIBLE FOR ANY SUCH DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
g. Free Service for Small Schools. Customer School that has less than eighty (80) active students may be permitted to use the CSMS® Services free of Service Fee. As soon as the School has eighty (80) or more active students, the Customer School must pay the Initial Service Fee within thirty (30) days and the Annual Service Renewal Fee as set forth in Section 4a and Section 4c.
h. Advertisement with Free Service. When a Small School uses the free CSMS® Service, the Customer School understands and agrees that the Service may include communications from advertisers or sponsors promoting their goods and/or services through the CSMS® Online Service web pages or elsewhere. Practical Software Studio will not share any of Customer’s personal information to our advertisers or third parties, but Service Provider’s computers may analyze your School information in order to improve the relevance of the advertisements. Any activity by Customer in response to the advertisers or sponsors, and any terms, conditions, warranties, or representations associated with such activity, is solely between Customer and the applicable third party. Practical Software Studio shall have no liability, obligation or responsibility for any such correspondence, purchase or promotion between Customer and any such third party. Practical Software Studio does not endorse any sites on the Internet that are linked through the CSMS® Online Service. Practical Software Studio provides these links to Customer only as a matter of convenience, and in no event shall Practical Software Studio be responsible for any content, products, or other materials on or available from such sites.
i. English Language. The parties have required that this Agreement and all documents relating thereto be drawn up in English.
5. NO TRANSFER OF SERVICE. Customer may not transfer CSMS® Service to a third party without Service Provider's prior written consent.
6. BUG REPORTS. At any time during Service Term, Customer may provide Service Provider with a report (“Bug Report”) of any actual or potential defect (“Bug”) in the Software, by notice or by other reasonable means. During the Service Term, each Bug Report will include and Customer will continue to provide all information reasonably requested by Practical Software Studio from time to time to assist Service Provider in identifying and correcting the Bug. If Customer regards or comes to regard a Bug as being potentially Material and/or a potential Breach of any Warranty, then Customer will use its best efforts to provide Service Provider with a Bug Report within twenty-four (24) hours of first becoming aware of any Bug.
a. Termination by mutual consent. Either Customer or Service Provider may terminate this Agreement by mutual consent upon such terms as they may agree in writing. Service Provider is not obligated to return any Service Fees to Customer in the event of termination by mutual consent.
b. Unilateral Termination by Customer. Customer may unilaterally terminate this Agreement at any time, effective immediately upon notice to Service Provider in accordance herewith. Service Provider is not obligated to return any license fees to Customer in the event of Customer’s unilateral termination.
c. Termination for Breach. Service Provider may terminate this Agreement in the event of a material breach of the terms of this Agreement by Customer, in the event Customer fails to remedy any such breach capable of being cured within fifteen (15) days after being provided written notice thereof. If the breach is not cured that period, the Service Term shall automatically terminate. Customer will be deemed to have cured such Breach if within the cure period it takes steps reasonably adequate to alleviate any damage to the Service Provider resulting from the Breach and to prevent a similar future Breach.
d. Other Terminations. This Agreement Term shall terminate automatically, to the extent permitted by applicable law in the jurisdiction or jurisdictions in question (e.g., bankruptcy law), in any of the following events:
i. If Customer files a petition in bankruptcy (or is the subject of an involuntary petition in bankruptcy that is not dismissed within 60 days after the effective filing date thereof); or is or becomes insolvent; or admits of a general inability to pay its debts as they become due; then this Agreement shall immediately terminate automatically and without notice.
ii. Either Party may terminate this Agreement upon the de facto or de jure nationalization or expropriation of the other Party by governmental or military action, whether or not with valid authority.
e. Effect of Termination. Upon termination of this Agreement, Customer will immediately discontinue (i) all access to and use of the Services and any software provided in connection with the Services, and (ii) representing that Customer is a user of the Services. Practical Studio will immediately disable Customer’s CSMS® Services upon termination. Neither party shall be liable for any damages resulting from a termination of this Agreement in accordance with this Section 3; provided, however, the termination of this Agreement shall not affect any claim arising prior to such termination. The applicable definitions, use restrictions, intellectual property rights, warranty disclaimer, limitation of liability, contracting parties, and applicable additional terms set forth in this Agreement shall survive termination or expiration of this Agreement.
8. LIMITED WARRANTY.
a. General Warranties. PRACTICAL SOFTWARE STUDIO WARRANTS THAT ANY SERVICES PROVIDED HEREUNDER WILL BE PERFORMED IN A PROFESSIONAL MANNER IN ACCORDANCE WITH INDUSTRY STANDARDS. PRACTICAL SOFTWARE STUDIO WARRANTS THAT ANY SOFTWARE PROVIDED HEREUNDER WILL PERFORM SUBSTANTIALLY IN ACCORDANCE WITH THE DOCUMENTATION PUBLISHED BY PRACTICAL SOFTWARE STUDIO AND INCLUDED WITH THE SOFTWARE OR SERVICES. PRACTICAL SOFTWARE STUDIO’S ENTIRE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDY UNDER THIS WARRANTY WILL BE, AT THE SOLE OPTION OF PRACTICAL SOFTWARE STUDIO AND SUBJECT TO APPLICABLE LAW, TO PROVIDE RESTORED SERVICE AND/OR REPLACEMENT SOFTWARE WHICH CONFORMS TO THESE WARRANTIES OR TO TERMINATE THE SERVICE(S) AND THIS AGREEMENT AND PROVIDE A PRO-RATED REFUND OF ANY PREPAID SUBSCRIPTION FEES FROM THE PERIOD OF NON-CONFORMANCE THROUGH TO THE END OF THE SUBSCRIPTION TERM. TO THE EXTENT PERMITTED BY APPLICABLE LAW, PRACTICAL SOFTWARE STUDIO DISCLAIMS ALL OTHER WARRANTIES AND CONDITIONS, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING THOSE OF MERCHANTABILITY, SATISFACTORY QUALITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. PRACTICAL SOFTWARE STUDIO MAKES NO WARRANTY THAT ANY OF THE SERVICES (INCLUDING SOFTWARE) WILL MEET THE REQUIREMENTS OF CUSTOMER OR THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY OR ERROR-FREE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES AND CONDITIONS, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO CUSTOMER.
b. Warranty Claims. Any claim for breach of a warranty set forth in this Agreement must be made, in writing, to Service Provider within thirty (30) days of the date Customer knew or had reason to know of the first event giving rise to the warranty.
c. Remedies. In the event of any breach of the warranties set forth in this Agreement, Service Provider’s sole and exclusive responsibility, and Customer’s sole and exclusive remedy, shall be for Service Provider to correct or replace, at no additional charge to Customer, any portion of the Software or Services found to be defective; provided, however, that if within a commercially reasonable period Service Provider neither corrects such defects nor replaces the defective Software or Services, then Customer’s sole and exclusive remedy shall be to receive direct damages not to exceed the license fees paid to Service Provider for use of the defective Software or Services.
9. LIMITATION OF LIABILITY. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, IN NO EVENT SHALL PRACTICAL SOFTWARE STUDIO (INCLUDING ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES OR AGENTS) BE LIABLE TO THE CUSTOMER (NOR TO ANY PERSON CLAIMING RIGHTS DERIVED FROM THE OTHER PARTY’S RIGHTS) FOR DIRECT, SPECIAL, INDIRECT, COLLATERAL, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING LOST PROFITS, LOSS OF BUSINESS, ECONOMIC DAMAGE, INJURY TO PROPETY, LOST REVENUE, LOSS OF DATA, LOSS OF USE TO ANY TECHNOLOGIES, INTERRUPTION OF BUSINESS IN CONNECTION WITH ANY CLAIMS, LOSSES OR DAMAGES OR INJURIES ARISING OUT OF THIS AGREEMENT, OR RESULTING FROM OR IN CONNECTION WITH THE USE OF OR INABILITY TO USE, OR THE PERFORMANCE OF THE LICENSED MATERIALS, OR ANY PORTION THEREOF OR ANY DERIVATIVE WORKS, (INCLUDING ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR PRODUCTS LIABILITY), REGARDLESS OF WHETHER THE PARTY LIABLE OR ALLEGEDLY LIABLE WAS ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF.
10. Customer Indemnification of Service Provider. Customer shall indemnify and hold Practical Software Studio, its owners, licensors, and each such party’s parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys, and agents harmless from and against any and all claims, costs, damages, losses, liabilities, and expenses (including attorneys’ fees and costs) arising out of or in connection with: (i) a claim alleging that Customer’s use of the Online Services or Customer-supplied data or intellectual property infringes the rights of, or has caused harm to, a third party; (ii) a claim, which if true, would constitute a violation by Customer of Customer’s representations and warranties; (iii) a claim arising from the breach by Customer or Customer’s authorized users of this Agreement, or (iv) a claim arising from Customer’s transaction of business through the use of Practical Software Studio web page or website, provided in any such case that Service Provider (a) gives written notice of the claim promptly to Customer; (b) gives Customer sole control of the defense and settlement of the claim (provided that Customer may not settle or defend any claim unless Customer unconditionally release Service Provider of all liability and such settlement does not affect Service Provider’s business or Service); (c) provides to Customer all available information and assistance; and (d) has not compromised or settled such claim.
11. APPLICABLE LAW. This Agreement shall be governed by, interpreted and enforced in accordance with the law of the State of Illinois applicable to agreements made and performed entirely in that state by Persons domiciled therein, without regard to the choice or conflicts of law provisions of any jurisdiction. Any action arising from Customer’s failure to pay the agreed-upon Service Fees or Annual Service Renewal Fees in accordance with the Quotation, which is incorporated herein and made a part to this Agreement, shall be subject to the exclusive jurisdiction of the state and federal courts located in Illinois. Customer and Service Provider agree to the selection of Illinois state and federal courts, to the exclusion of all other courts and venues, for the actions referenced in the previous sentence. All other matters shall be subject to binding Alternative Dispute Resolution, as set forth in the next Section.
12. DISPUTE RESOLUTION. The Parties agree to perform all reasonable efforts to resolve any and all disputes between them in connection with this Agreement in an amicable manner. Any dispute that arises in connection with this Agreement and which cannot be amicably resolved by the Parties shall be resolved by binding Alternative Dispute Resolution (ADR) with a single arbitrator to be chosen by agreement of the parties. ADR shall take place in Chicago, Illinois, and all costs incurred for a hearing room shall be shared equally between the Parties. The neutral shall be paid a reasonable fee plus expenses, which fees and expenses shall be shared equally by the Parties. The ruling shall be binding on the Parties and may be entered as an enforceable judgment by a state or federal court having jurisdiction over the Parties.
13. NO CONSTRUCTION AGAINST DRAFTER. Customer and Service Provider agree that any principle of construction or rule of law that provides that an agreement shall be construed against the drafter of the agreement in the event of any inconsistency or ambiguity in such agreement shall not apply to the terms and conditions of this Agreement.
14. NOTICES. All notices, demands or other communications herein provided to be given or that may be given by any party to the other must be made in writing and in accordance with this Section. Service Provider may give notice by means of a general notice on the Practical Software Studio Online Service (http://www.localchineseschool.com), email to Customer address on record in Service Provider’s account information, or by written communication sent by first class mail or pre-paid post to Customer address on record in Service Provider’s account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting, or 12 hours after sending by e-mail. Any notices to be or that may be given to Service Provider by Customer shall be deemed to have been given when received by Service Provider. Customer may give notice by delivery in person, by a letter sent by nationally recognized overnight delivery service or first class postage prepaid mail to Service Provider at the following address:
Practical Software Studio
Attention: Licensing Notices
1 Northfield Plaza, Suite 300
Northfield, IL 60093-1214
15. ENTIRE AGREEMENT. This Agreement, and the Quotation previously provided to you by Practical Software Studio, are the entire Agreement for the Software as a Service, Support Services and Licensed Materials. No text or other information set forth on any other purchase order (whether provided by Customer or any other person or entity), preprinted form, or document shall add to or vary the terms and conditions of this Agreement. This Agreement, together with any applicable Quotation form, comprises the entire agreement between Customer and Service Provider and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein.
16. GENERAL PROVISIONS. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment or agency relationship exists between Customer and Service Provider as a result of this Agreement or use of the Licensed Software or Online Service. The failure of Service Provider to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Service Provider in writing. The headings contained in this Agreement are for reference purposes only and shall not in any way control the meaning or interpretation of this Agreement.
BY ACCESSING AND/OR USING THE CHINESE SCHOOL MANAGEMENT SYSTEM (CSMS®), YOU ACCEPT AND AGREE TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT ACCEPT THEM, DO NOT ACCESS OR USE THE CSMS® ONLINE SERVICE.
I HEREBY AGREE TO THE TERMS OF SERVICE AND SOFTWARE LICENSE AGREEMENT FOR CHINESE SCHOOL MANAGEMENT SYSTEM (CSMS®) SOFTWARE AND LICENSED MATERIALS DESCRIBED HEREIN