Service Agreement

Service Agreement by and between Go Together, Inc. f/k/a Carpooltoschool, LLC and “Customer”

For good consideration, Go Together, Carpooltoschool, LLC (CarpooltoSchool) and Customer agree to establish a working agreement on the following terms. Customer agrees to be “School Sponsor” for CarpooltoSchool Site and Mobile App.

Effective Date: May 2020

Service Agreement

This Service Agreement (the ”Agreement”), dated as of the effective date below (the “Effective Date”), is by and between Go Together, Inc. f/k/a CarpooltoSchool, LLC (“CarpooltoSchool”), a Delaware corporation with a principal place of business at 1105 5th Street NW, Washington D.C. 20001 , and Customer, an educational institution located at (“Customer”) location, each a “Party” and collectively the “Parties”, hereby  agree to establish a binding working relationship on the following terms and conditions.

Effective Date: Date of Subscription

1. Services:

 1.1        CarpooltoSchool Services. Throughout the term of this Agreement (the “Term”) CarpooltoSchool will host and provide a secure web-based interactive, mobile application and collaborative tool with calendar management for coordinating children’s transportation to and from school (“CarpooltoSchool Software as a Service”) for authorized end users (hereinafter “Authorized End Users”) on behalf of Customer. For purposes of this Agreement, an Authorized End User is an end user of the CarpooltoSchool Software as a Service who has agreed in writing to, or otherwise accept, the Terms of Use and Privacy Policy contained on the CarpooltoSchool website at www.carpooltoschool.com, as may be amended from time to time, which end users including,  parent-drivers, parents of student riders and student drivers. During the Term of this Agreement, CarpooltoSchool or its delegate may also perform such further responsibilities such as website linking and customization, application maintenance, training, and technical support that may be necessary to support using or accessing the CarpooltoSchool website and mobile application.  CarpooltoSchool shall devote the necessary time and resources to materially fulfill its listed responsibilities and expend commercially reasonable efforts on behalf of Customer.

1.2          Subscription Orders.  Subject to the terms and conditions contained in this Agreement, Customer may purchase a CarpooltoSchool Software as a Service subscription based on the total number of enrolled attendees or anticipated enrollment for a school year through the CarpooltoSchool website or mobile application which will allow Customer and its Authorized End Users to access and use the CarpooltoSchool Software as a Service in accordance with the terms and conditions of this Agreement, the Terms of Use and the Privacy Policy (as described above).  Unless otherwise specified in the documentation or on the CarpooltoSchool website, the CarpooltoSchool Software as a Service subscriptions are purchased as tiered enrollment subscriptions and may be accessed by no more than the specified number of Authorized End Users for the tier purchased.  The Customer may add additional users at any time during the Subscription Term (as defined in Section 11.1) by moving to the next applicable tier level for the corresponding number of users and at the price level specified for the tier, which shall be prorated for the remainder of the then-current Subscription Term. 

1.3          Access and Use License.  Subject to the terms and conditions contained herein, CarpooltoSchool hereby grants to Customer, during the relevant Subscription Term, a limited, non-exclusive, non-transferable right and license for Customer and its Authorized End Users to access and use the CarpooltoSchool Software as a Service in accordance with any and all documentation, the Terms of Use, and the Privacy Policy, in each case solely for Customer’s authorized institutional purposes.  Customer’s use of the CarpooltoSchool Software as a Service may be subject to certain limitations, such as, for example, limits on storage capacity for Customer or Authorized End User data.  Any such limitations will be specified either in the documentation provided in connection herewith or on the CarpooltoSchool website.

1.4          Restrictions.  Customer shall not, directly or indirectly, and Customer shall not permit any third party to directly or indirectly: (a) reverse engineer, decompile, disassemble, or otherwise attempt to discover the object code, source code, or underlying ideas of algorithms of the CarpooltoSchool Software as a Service; (b) modify, translate, or create derivative works based on any element of the CarpooltoSchool Software as a Service or any related documentation; (c) rent, lease, distribute, sell, resell, assign, or otherwise transfer its rights to use the CarpooltoSchool Software as a Service; (d) use the CarpooltoSchool Software as a Service for timesharing purposes or otherwise for the benefit of any person or entity other than for the benefit of Customer and its Authorized End Users; (e) remove any proprietary notices from the CarpooltoSchool Software as a Service or documentation; (f) publish or disclose to third parties any evaluation of the CarpooltoSchool Software as a Service without CarpooltoSchool’s prior written consent; (g) use the CarpooltoSchool Software as a Service for any purpose other than its intended purpose; (h) interfere with or disrupt the integrity or performance of the CarpooltoSchool Software as a Service; (i) introduce any open source or harmful code or viruses into the CarpooltoSchool Software as a Service; or (j) attempt to gain unauthorized access to the CarpooltoSchool Software as  a Service or its related systems or networks.

1.5          Third Party Services.  CarpooltoSchool may use the services of one or more third parties to deliver any part of the CarpooltoSchool Software as a Service.  To the extent that CarpooltoSchool integrates with, links to, or makes use of third party applications or services including, without limitation, those offered by Stripe or other similar payment processing applications as well as cloud hosting platforms (collectively, “Third Party Services”), such Third-Party Services shall be governed by their own terms and conditions. Customer acknowledges and agrees to comply with such terms for acceptable use and any other terms of the Third-Party Services that may be necessary to receive the CarpooltoSchool Software as a Service as contemplated under this Agreement.

1.6          Background Check Services.   At Customer’s option, Customer may elect to utilize additional background check services from CarpooltoSchool for use in conjunction with the CarpooltoSchool Software as a Service.  In that event Customer may elect to purchase the background check service on behalf of each potential end user or require each potential end user to purchase the background check service as a pre-qualification condition to using the CarpooltoSchool Software as a Service at the prices as set forth in an exhibit hereto.  CarpooltoSchool utilizes a Third Party application, such as Checkr, to provide such background check services on each potential end user. Upon Customer’s or a potential end user’s purchase of any background check services, CarpooltoSchool will send a link to each potential end user’s email address provided by Customer. The potential end user will be directed to a secure website hosted by Checkr, or other substantially similar background check provider, where the individual will input his or her personal information directly into the Checkr application.   Upon completion of the registration process, Customer will receive a background check report on each potential end user. Customer will be solely responsible for reviewing the background check, determining acceptance criteria and suitability for its Authorized End Users, and accepting or rejecting each potential end user.  Customer will also be responsible for providing CarpooltoSchool a list of the verified end users for account creation for the CarpooltoSchool Software as a Service. Customer agrees to indemnify, defend and hold harmless CarpooltoSchool in connection therewith, except to the extent any such liability results from CarpooltoSchool’s gross negligence or willful misconduct performing background check services.

2. Passwords and Security:

2.1          Passwords.  For schools that select to pre-register users, CarpooltoSchool will issue to Customer and each Authorized End User a temporary password to be used, along with the Authorized End User’s email address (the “User Id”), for Customer and each Authorized End User to access and use the CarpooltoSchool Software as Service.  Upon initial login, Customer and each Authorized End User will be required to choose a new password to access the CarpooltoSchool Software as a Service.   Customer shall be responsible for maintaining the confidentiality of all User Ids and passwords issued to Customer. Each Authorized End User will be responsible for maintaining the confidentiality of his or her own User Id and password. Customer will be responsible for any and all access and use of the CarpooltoSchool Software as a Service that occurs using the Customer’s User Ids and passwords issued by CarpooltoSchool.  Customer agrees to immediately notify CarpooltoSchool of any unauthorized use of any account, User Id, or password issued to Customer or its Authorized End Users, or any other security breach known to Customer.  CarpooltoSchool shall have no liability for any loss or damage arising from Customer’s failure to comply with the terms set forth in this Section.

2.2          No Circumvention of Security.  Neither Customer nor any of Customer’s affiliates may circumvent or otherwise interfere with any user authentication or security of the CarpooltoSchool Software as a Service.  Customer will immediately notify CarpooltoSchool of any breach, or attempted breach, of security known to Customer.

2.3          Security.  CarpooltoSchool will use commercially reasonable efforts to maintain appropriate administrative, physical, and technical safeguards for protection of the security and confidentiality of Customer and Authorized End User Data (collectively, “Customer Data”) in a manner consistent with what CarpooltoSchool supplies generally to its other Customers. Notwithstanding the foregoing, Customer acknowledges that, notwithstanding any security precautions deployed by CarpooltoSchool, the use of, or connection to, the internet provides the opportunity for unauthorized third parties to circumvent such precautions and illegally gain access to the CarpooltoSchool Software as a Service and Customer Data.  CarpooltoSchool cannot and does not guarantee the privacy, security, integrity, or authenticity of any information transmitted over or stored in any system connected to or accessible via the internet or otherwise or that any such security precautions will be adequate or sufficient.  CarpooltoSchool shall not (a) disclose Customer Data except as compelled by law or expressly permitted in writing by Customer, or (b) access Customer Data except to provide the CarpooltoSchool Software as a Service, monitor compliance with the Acceptable Use Policy in 3.2 below, and prevent or address service or technical problems.

3. Customer Obligations:

3.1          Customer and Authorized End User Devices.  Customer and its Authorized End Users are responsible for (a) obtaining, deploying, and maintaining all computers, mobile devices, tablets, modems, routers, software, and other communication equipment necessary for Customer and Authorized End Users to access and use CarpooltoSchool via the internet; (b) contracting with third party ISP, telecommunications, and other service providers to access and use CarpooltoSchool via the internet; and (c) paying all third party fees and access charges incurred in connection with the foregoing.  CarpooltoSchool shall not be responsible for supplying any hardware, software, or other equipment to Customer under this Agreement.

3.2          Acceptable Use Policy.  Customer shall be solely responsible for its actions while using the CarpooltoSchool Software as a Service.  Customer acknowledges and agrees:  (a) to abide by all local, state, national, and international laws and regulations applicable for Customer’s use of the CarpooltoSchool Software as a Service, including without limitation the provision and storage of Customer Data; (b) not to send or store data on or to the CarpooltoSchool Software as a Service which violates the rights of any individual or entity established in any jurisdiction; (c) not to upload in any way any information or content that contains harmful code or data that may damage the operation of the CarpooltoSchool Software as a Service or another’s computer or mobile device; (d) not to upload in any way any data regarding an individual’s financial or economic identity, sexual orientation, religious beliefs, medical or physical identity, including any information comprised of either “Protected Health Information” subject to and defined by the Health Insurance Portability and Accountability Act, (e) not to use the CarpooltoSchool Software as Service for illegal, fraudulent, unethical or inappropriate purposes; (f) not to interfere or disrupt networks connected to the CarpooltoSchool Software as a Service or interfere with other ability to access or use the CarpooltoSchool Software as a Service; (g) not to distribute, promote or transmit through the CarpooltoSchool Software as a Service any unlawful, harmful, obscene, pornographic or otherwise objectionable material of any kind or nature; (h) not to transmit or post any material that encourages conduct that could constitute a criminal offense or give rise to civil liability; (i) not to interfere with, or impair, another Customer’s use and enjoyment of the CarpooltoSchool Software as a Service, including without limitation the servers and networks on which CarpooltoSchool is provided; (j) to comply with all regulations, policies and procedures of networks connected to the CarpooltoSchool Software as a Service and Third Party Services; and (k) to use the CarpooltoSchool Software as a Service only in accordance with the Terms of Use, Privacy Policy, and any applicable documentation provided by CarpooltoSchool.  Customer acknowledges and agrees that CarpooltoSchool neither endorses the contents of any Customer communication, Customer Data, or Other Information (as defined in Section 12.2 below), nor assumes any responsibility for any offensive material contained therein, any infringement of third party Intellectual Property Rights arising therefrom, or any crime facilitated thereby.  CarpooltoSchool may remove any violating content posted or stored using the CarpooltoSchool Software as a Service or transmitted through the CarpooltoSchool Software as a Service, without notice to Customer.  Notwithstanding the foregoing, CarpooltoSchool does not guarantee, and does not and is not obligated to verify, authenticate, monitor or edit the Customer Data or Other Information input into or stored in the CarpooltoSchool Software as a Service for completeness, integrity, quality, accuracy or otherwise.  Customer shall be responsible and liable for the completeness, integrity, quality and accuracy of Customer Data and Other Information input into the CarpooltoSchool Software as a Service.  CarpooltoSchool reserves the right to amend, alter, or modify Customer’s and its Authorized End Users’ conduct requirements as set forth in this Agreement at any time.  CarpooltoSchool may deliver notice of such updated requirements to Customer and its Authorized End Users via the website, e-mail, or through the CarpooltoSchool Software as a Service.  Customer’s and Authorized End Users’ continued access to and use of the CarpooltoSchool Software as a Service following issuance of such updated requirements shall constitute acceptance thereof.

3.3         Accuracy of Customer Contact Information.  Customer agrees to provide accurate, current and complete information as necessary for CarpooltoSchool to communicate with Customer from time to time regarding CarpooltoSchool, issue invoices or accept payment, or contact Customer for other account-related purposes. Customer agrees to keep any online account information current and inform CarpooltoSchool of any changes in Customer’s legal business name, address, email address and phone number. Customer agrees to accept emails from CarpooltoSchool at the e-mail addresses specified by Customer.

3.4          Temporary Suspension.  At its discretion, CarpooltoSchool may temporarily suspend Customer’s or any respective Authorized End Users’ access to the CarpooltoSchool Software as a Service in the event that either Customer or any Authorized End Users are engaged in, or CarpooltoSchool in good faith suspects are engaged in, any unauthorized conduct (including, but not limited to any violation of these terms). CarpooltoSchool will attempt to contact Customer prior to or contemporaneously with such suspension; provided, however, that CarpooltoSchool’s exercise of the suspension rights herein shall not be conditioned upon Customer’s receipt of any notification. A suspension may take effect for Customer’s entire account or any Authorized End User sub-accounts, whichever is applicable. Customer agrees that CarpooltoSchool shall not be liable to Customer, Authorized End Users, or any other third party if CarpooltoSchool exercises its suspension rights as permitted by this Section.  Upon determining that Customer or any Authorized End User has ceased the unauthorized conduct leading to the temporary suspension to CarpooltoSchool’s reasonable satisfaction, CarpooltoSchool shall reinstate Customer’s or its Authorized End Users’ access and use of the CarpooltoSchool Software as a Service.  Notwithstanding anything in this Section to the contrary, CarpooltoSchool’s suspension of the CarpooltoSchool Software as a Service is in addition to any other remedies that CarpooltoSchool may have under these terms or otherwise, including but not limited to, termination of this Agreement for cause.  Additionally, if there are repeated incidences of suspension for a Customer account, regardless of the same or different cause and even if the cause or conduct is ultimately cured or corrected, CarpooltoSchool may, in its reasonable discretion, determine that such circumstances, taken together, constitute a material breach of this Agreement.

3.5          Designation of Administrator of Customer’s CarpooltoSchool.  Customer agrees to be a “Customer” for the CarpooltoSchool web and mobile applications. Customer is responsible for designating an administrator and a secondary point of contact to manage its school’s CarpooltoSchool administrative dashboard to approve or deny users, review user accounts, view and access pools created by users, send announcements and review user metrics, and shall provide accurate contact information for such points of contact to CarpooltoSchool.  Upon the reasonable request of CarpooltoSchool, the Customer will make its designated personnel available and provide files and other pertinent information for account and web and mobile application updates and maintenance.  Customer acknowledges and agrees that CarpooltoSchool will take direction only from the administrator or a secondary point of contact to ensure stability of Customer’s account, web and mobile application access and a good experience for Authorized End Users.  Customer will promptly notify CarpooltoSchool of any staffing changes that affect the web and mobile applications’ administration.  Customer will only use approved CarpooltoSchool Trademarks, as defined in Section 8 below, when referencing CarpooltoSchool on Customer’s website. Customer’s designated personnel will given access to CarpooltoSchool’s School Marketing folder. The designated personnel

4. Availability; Support Services:

4.1          Availability. Subject to the terms and conditions of this Agreement, CarpooltoSchool will use commercially reasonable efforts to make the CarpooltoSchool Software as a Service available with minimal downtime, 24 hours a day, 7 days per week, and 365 days per year; provided, however, that the following are excepted from availability commitments: (a) any planned downtime or routine maintenance (with regard to which CarpooltoSchool will use commercially reasonable efforts to provide at least 24 hours advance notice), or (b) any unavailability caused by circumstances beyond CarpooltoSchool’s control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or labor problems, Internet service provider failures or delays, or the unavailability or modification by third parties of any Third Party Services integrated into or linked by CarpooltoSchool (collectively “Force Majeure Events”).   Certain enhancements to the CarpooltoSchool Software as a Service made generally available at no cost to all subscribing Customers during the applicable Subscription Term will be made available to Customer at no additional charge. However, the availability of some new enhancements to the CarpooltoSchool Software as a Service may require the payment of additional fees, and CarpooltoSchool will determine at its sole discretion whether access to any other such new enhancements will require an additional fee. These terms will apply to, and CarpooltoSchool includes, any enhancements, updates, upgrades and new modules to the CarpooltoSchool Software as a Service subsequently provided by CarpooltoSchool to Customer hereunder.

4.2          Support Requests.   CarpooltoSchool’s standard technical support is available from 8:30am to 8:30pm EST by contacting the LiveChat support on the web app or by contacting 1-800-514-3808, or by email at custserv@CarpooltoSchool. During the continued COVID-19 epidemic, our support will be from 9:00-6:00PM.

5. Payment Term and Conditions:

5.1          Subscription Fees.  Initial subscriptions for the CarpooltoSchool Software as Service are purchased through the CarpooltoSchool website at www.CarpooltoSchool.com.  Upon Customer’s specific request, CarpooltoSchool will provide a purchase order for any subscription fees.  Subscriptions for subsequent Renewal Terms will be auto-drafted using the Customer’s payment method on file with CarpooltoSchool, or other payment method as may be specified by Customer, on the first date of the Renewal Term, unless Customer provides notice of cancellation at least 30 days prior to the then-current subscription end date. Customer agrees to pay all subscription fees for the CarpooltoSchool Software as a Service by one of the payment methods CarpooltoSchool supports. Any checks provided must be made payable to “Go Together, Inc.”  Except as otherwise specified in these terms or on the web or mobile application, (a) fees are quoted and payable in United States dollars, (b) fees are based on the CarpooltoSchool subscription tier level purchased, (c) fees include a one-time set up fee required to launch the Customer’s web and mobile application with CarpooltoSchool, included with the first initial invoice, and (d) fees are based on a twelve month Subscription Term that begins on the subscription start date.  The subscription tier level purchased cannot be decreased during the relevant Subscription Term, but Customer may increase the subscription tier level to accommodate additional Authorized End Users at a prorated amount for the remaining Subscription Term. Customer may cancel the Subscription Term at any time for any reason; however, the cancellation fee is 100% of the value of the remaining Subscription Term from the effective date of cancellation.  CarpooltoSchool reserves the right to increase the annual subscription fee for any subsequent Renewal Terms. In the event of any price increase, CarpooltoSchool shall notify Customer thirty (30) days in advance of such price increase for the Renewal Term. All amounts payable under these terms will be made without setoff or counterclaim, and without any deduction or withholding.

5.2         Invoices and Payment.  If Customer is unable to purchase a subscription through the CarpooltoSchool website for any reason or specifically requests a purchase order, CarpooltoSchool will issue an invoice to Customer for the subscription fees. Customer agrees to pay all invoiced amounts within seven (7) calendar days after receipt of the invoice.  Subsequent renewal subscription fees will be invoiced prior to the renewal date, and payment will be due within seven (7) calendar days of Customer’s receipt of the renewal invoice for the following year’s subscription fees.  Invoices may be sent by CarpooltoSchool via email to the email address provided by Customer, and, for purposes of this Agreement, such invoice shall be as effective as if it had been delivered by first-class mail.

5.3          Overdue Fees. If CarpooltoSchool does not receive fees by the due date, then at CarpooltoSchool’s discretion, (a) such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid; and (b) CarpooltoSchool may delay making CarpooltoSchool available to Customer and its Authorized End Users until payment has been received.

5.4          Suspension of Service. If any amounts owed by Customer for CarpooltoSchool are ninety (90) or more days overdue, CarpooltoSchool may, without limiting any other rights and remedies, suspend Customer’s and its Authorized End Users’ access to CarpooltoSchool until such amounts are paid in full.

5.5          Taxes. Customer shall be responsible for the payment of all taxes to the appropriate taxing authority, including without limitation sales, use, or other similar state or local taxes, arising from or in relation to this Agreement, or CarpooltoSchool or services rendered under this Agreement, other than taxes based on CarpooltoSchool’s income.

6. Representations and Warranties:

6.1          Mutual Representations and Warranties.  Each Party represents, warrants and covenants that: (a) it has the full power and authority to enter into this Agreement and to perform its obligations hereunder, without the need for any consents, approvals or immunities not yet obtained; and (b) its acceptance of and performance under this Agreement shall not breach any oral or written agreement with any third party or any obligation owed by it to any third party to keep any information or materials in confidence or in trust.

6.2          Disclaimer.  EXCEPT FOR THE WARRANTIES SET FORTH IN THIS SECTION 6, CARPOOLTOSCHOOL’S SERVICES, THIRD PARTY SERVICES, AND THE CARPOOLTOSCHOOL SOFTWARE AS A SERVICE ARE PROVIDED ON AN AS-IS BASIS.  CUSTOMER’S USE OF THE CARPOOLTOSCHOOL SOFTWARE AS A SERVICE, INCLUDING ANY THIRD-PARTY SERVICE AND SUPPORT SERVICES, IS AT ITS OWN RISK.  CARPOOLTOSCHOOL DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS, STATUTORY AND IMPLIED REPRESENTATIONS AND WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE, QUALITY, SUITABILITY, OPERABILITY, CONDITION, SYSTEM INTEGRATION, NON-INTERFERENCE, WORKMANSHIP, TRUTH, ACCURACY, VALIDITY, OR COMPLETENESS (OF DATA OR ANY OTHER INFORMATION OR CONTENT), ABSENCE OF DEFECTS, WHETHER LATENT OR PATENT, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. ANY SOFTWARE PROVIDED THROUGH CARPOOLTOSCHOOL IS LICENSED AND NOT SOLD.

CARPOOLTOSCHOOL DOES NOT WARRANT THAT: (A) THE USE OF THE CARPOOLTOSCHOOL SOFTWARE AS A SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA; (B) THE CARPOOLTOSCHOOL SOFTWARE AS A SERVICE WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS; (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE; (D) THE QUALITY OF ANY INFORMATION OR OTHER MATERIAL OBTAINED BY CUSTOMER THROUGH THE CARPOOLTOSCHOOL SOFTWARE AS A SERVICE WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS; (E) THE CARPOOLTOSCHOOL SOFTWARE AS A SERVICE WILL BE ERROR-FREE OR THAT ERRORS OR DEFECTS WILL BE CORRECTED; OR (F) THE SERVER(S) THAT MAKE THE CARPOOLTOSCHOOL SOFTWARE AS A SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE CARPOOLTOSCHOOL SOFTWARE AS A SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. CARPOOLTOSCHOOL IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGES RESULTING FROM SUCH PROBLEMS.

CUSTOMER ACCEPTS FULL RESPONSIBILITY FOR ANY AND ALL DECISIONS OR TRANSACTIONS MADE BY CUSTOMER IN USING THE CARPOOLTOSCHOOL SOFTWARE AS A SERVICE.  CUSTOMER ACKNOWLEDGES AND AGREES THAT (A) USE OF THE CARPOOLTOSCHOOL SOFTWARE AS A SERVICE IS AT THE SOLE RISK OF CUSTOMER; (B) CARPOOLTOSCHOOL SHALL NOT BE RESPONSIBLE FOR ANY INTERRUPTION IN USE OF THE CARPOOLTOSCHOOL SOFTWARE AS A SERVICE, DELAYS OR ERRORS CAUSED BY CUSTOMER’S OR ITS AUTHORIZED END USER’S USE OF THE CARPOOLTOSCHOOL SOFTWARE AS A SERVICE, OR ANY PART THEREOF; AND (C) CARPOOLTOSCHOOL SHALL NOT BE RESPONSIBLE FOR (i) THE PROPER EXECUTION OF ANY TRANSACTION SENT USING THE CARPOOLTOSCHOOL SOFTWARE AS A SERVICE OR (ii) THE MANAGEMENT AND OVERSIGHT OF ANY DATA SUBMITTED BY CUSTOMER OR AUTHORIZED END USERS, INCLUDING, WITHOUT LIMITATION, THE CANCELLATION OF ANY SUCH TRANSACTIONS.  CUSTOMER SHALL HOLD CARPOOLTOSCHOOL AND ITS AFFILIATES, DIRECTORS, MEMBERS, SHAREHOLDERS, OFFICERS, EMPLOYEES AND AGENTS HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, DAMAGES, LIABILITIES, COSTS AND/OR EXPENSES (INCLUDING REASONABLE LEGAL FEES) ARISING OUT OF CUSTOMER’S OR ITS AUTHORIZED END USER’S USE OF THE CARPOOLTOSCHOOL SOFTWARE AS A SERVICE INCLUDING, WITHOUT LIMITATION, THE TRANSMISSION OF ANY TRANSACTIONS OR DATA USING THE CARPOOLTOSCHOOL SOFTWARE AS A SERVICE.

 

7. Indemnification:

7.1       CarpooltoSchool Indemnity.  During the Subscription Term, CarpooltoSchool, at its expense, shall defend Customer and its affiliates, and their respective officers, directors and employees (the “Customer Indemnified Parties”) from and against all actions, proceedings, claims and demands by a third party (a “Third-Party Claim”) alleging that CarpooltoSchool infringes any copyright or misappropriates any trade secret and shall pay all damages, costs and expenses, including attorneys’ fees and costs (whether by settlement or award of by a final judicial judgment) paid to the third party bringing any such Third-Party Claim.  CarpooltoSchool’s obligations under this Section are conditioned upon (i) CarpooltoSchool being promptly notified in writing of any claim under this Section, (ii) CarpooltoSchool having the sole and exclusive right to control the defense and settlement of the claim, and (iii) Customer providing all reasonable assistance (at CarpooltoSchool’s expense and reasonable request) in the defense of such claim.  In no event shall Customer settle any claim without CarpooltoSchool’s prior written approval.  Customer may, at its own expense, engage separate counsel to advise Customer regarding a Claim and to participate in the defense of the claim, subject to CarpooltoSchool’s right to control the defense and settlement.

7.2         Mitigation.  If any claim which CarpooltoSchool is obligated to defend has occurred, or in CarpooltoSchool’s determination is likely to occur, CarpooltoSchool may, in its sole discretion and at its option and expense (a) obtain for Customer the right to use the CarpooltoSchool Software as a Service, (b) substitute a functionality equivalent, non-infringing replacement for the CarpooltoSchool Software as a Service, (c) modify the CarpooltoSchool Software as a Service to make it non-infringing and functionally equivalent, or (d) terminate this Agreement and refund to Customer any prepaid amounts attributable for the period of time between the date Customer was unable to use the CarpooltoSchool Software as a Service due to such claim and the remaining days in the then-current Subscription Term.

7.3        Exclusions.  Notwithstanding anything to the contrary in this Agreement, the foregoing obligations shall not apply with respect to a claim of infringement if such claim arises out of (i) Customer’s use of infringing Customer Data; (ii) use of the CarpooltoSchool Software as a Service in combination with any software, hardware, network or system not supplied by CarpooltoSchool where the alleged infringement relates to such combination, (iii) any modification or alteration of the CarpooltoSchool Software as a Service other than by CarpooltoSchool, (iv) Customer’s continued use of the CarpooltoSchool Software as a Service after CarpooltoSchool notifies Customer to discontinue use because of an infringement claim, or (v) Customer’s violation of applicable law.

7.4         Sole Remedy.  THE FOREGOING STATES THE ENTIRE LIABILITY OF CARPOOLTOSCHOOL WITH RESPECT TO THE INFRINGEMENT OF ANY INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS BY CARPOOLTOSCHOOL OR OTHERWISE, AND CUSTOMER HEREBY EXPRESSLY WAIVES ANY OTHER LIABILITIES OR OBLIGATIONS OF CARPOOLTOSCHOOL WITH RESPECT THERETO.

7.5      Customer Indemnity.  Customer shall defend CarpooltoSchool and its affiliates, licensors, third party service providers, and the respective officers, directors and employees of CarpooltoSchool, its affiliates, licensors, and third party service providers (“CarpooltoSchool Indemnified Parties”)  from and against any and all Third-Party Claims which arise out of or relate to: (a) a claim or threat that the Customer Data or Customer system infringes, misappropriates, or violates any third party’s Intellectual Property Rights; (b) Customer’s use or alleged use of the CarpooltoSchool Software as a Service other than as permitted under this Agreement, including any violations of Section 3.2; (c) Customer’s use of background check services or results of background check reports; or (d) arising from the occurrence of any of the exclusions set forth in Section 7.3.  Customer shall pay all damages, costs and expenses, including attorneys’ fees and costs (whether by settlement or award of by a final judicial judgment) paid to the third party bringing such Third-Party Claim.  Customer’s obligations under this Section are conditioned upon (x) Customer being promptly notified in writing of any claim under this Section, (y) Customer having the sole and exclusive right to control the defense and settlement of the claim, and (z) CarpooltoSchool providing all reasonable assistance (at Customer’s expense and reasonable request) in the defense of such claim.  In no event shall Customer settle any claim without CarpooltoSchool’s prior written approval.  CarpooltoSchool may, at its own expense, engage separate counsel to advise CarpooltoSchool regarding a Third-Party Claim and to participate in the defense of the claim, subject to Customer’s right to control the defense and settlement.

 

8. Confidentiality:

8.1          Confidential Information.  “Confidential Information” means any and all non-public technical and non-technical information disclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) in any form or medium, whether oral, written, graphical or electronic, pursuant to the terms and conditions in this Agreement, that is marked confidential and proprietary, or that the Disclosing Party identifies as confidential and proprietary, or that by the nature of the circumstances surrounding the disclosure or receipt ought to be treated as confidential and proprietary information, including but not limited to: (a) techniques, sketches, drawings, models, inventions (whether or not patented or patentable), know-how, processes, technology, equipment, algorithms, software programs and documentation, APIs, and other creative works (whether or not copyrighted or copyrightable); (b) information concerning research, experimental work, development, features, design details and specifications, engineering, financial information, Customer information, procurement requirements, purchasing, manufacturing, Customer lists, business forecasts, sales and merchandising, marketing plans and information; (c) proprietary or confidential information of any third party who may disclose such information to Disclosing Party in the course of Disclosing Party’s business; and (d) this Agreement and any Purchase Order(s). For avoidance of doubt, the Confidential Information of CarpooltoSchool shall include, without limitation, the CarpooltoSchool Software as a Service, the software documentation, and the terms and conditions of this Agreement.

8.2          Non-Disclosure. Each Party acknowledges that in the course of the performance under this Agreement, it may obtain the Confidential Information of the other Party.  The Receiving Party shall, at all times, both during the Term and thereafter, keep in confidence and trust all of the Disclosing Party’s Confidential Information received by it.  The Receiving Party shall not use the Confidential Information of the Disclosing Party other than as necessary to fulfill the Receiving Party’s obligations or to exercise the Receiving Party’s rights under this Agreement.  Each Party agrees to secure and protect the other Party’s Confidential Information with the same degree of care and in a manner consistent with the maintenance of such Party’s own Confidential Information (but in no event less than reasonable care), and to take appropriate action by instruction or agreement with its employees, affiliates or other agents who are permitted access to the other Party’s Confidential Information to satisfy its obligations under this Section.  The Receiving Party shall not disclose Confidential Information of the Disclosing Party to any person or entity other than its officers, employees, affiliates and agents who need access to such Confidential Information in order to effect the intent of this Agreement and who are subject to confidentiality obligations at least as stringent as the obligations set forth herein.

8.3       Exceptions to Confidential Information.  The obligations set forth in Section 8.2 (Non-Disclosure) shall not apply to the extent that Confidential Information includes information which:  (a) was known by the Receiving Party prior to receipt from the Disclosing Party either itself or through receipt directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (b) was developed by the Receiving Party without use of the Disclosing Party’s Confidential Information; or (c) becomes publicly known or otherwise ceases to be secret or confidential, except as a result of a breach of this Agreement or any obligation of confidentiality by the Receiving Party.  Nothing in this Agreement shall prevent the Receiving Party from disclosing Confidential Information to the extent the Receiving Party is legally compelled to do so by any governmental investigative or judicial agency pursuant to proceedings over which such agency has jurisdiction; provided, however, that prior to any such disclosure, the Receiving Party shall (x) assert the confidential nature of the Confidential Information to the agency; (y) immediately notify the Disclosing Party in writing of the agency’s order or request to disclose; and (z) cooperate fully with the Disclosing Party in protecting against any such disclosure and in obtaining a protective order narrowing the scope of the compelled disclosure and protecting its confidentiality.

8.4          Injunctive Relief.  The Parties agree that any unauthorized disclosure of Confidential Information or misuse of CarpooltoSchool intellectual property may cause immediate and irreparable injury to the Disclosing Party and that, in the event of such breach, the Disclosing Party will be entitled, in addition to any other available remedies, to seek immediate injunctive and other equitable relief, without bond and without the necessity of showing actual monetary damages.

 

9. Proprietary Rights:

9.1          CarpooltoSchool.  As between CarpooltoSchool and Customer, all right, title and interest in the CarpooltoSchool Software as a Service and any other CarpooltoSchool materials furnished or made available hereunder, all modifications, suggestions, ideas, updates, upgrades, and enhancements thereof, including all copyright rights, patent rights and other intellectual property rights (the “Intellectual Property Rights”) in each of the foregoing, belong to and are retained solely by CarpooltoSchool or CarpooltoSchool’s licensors and providers, as applicable.  All right, title, and interest to any Customer feedback regarding Customer’s use of the CarpooltoSchool Software as a Service, the functionality of the CarpooltoSchool Software as a Service, any bugs, errors or deficiencies that Customer encounters regarding the operation and functionality of the CarpooltoSchool Software as a Service, and any suggestions that Customer may have regarding improvement of such operation and functionality (“Feedback”) shall belong to CarpooltoSchool. Customer hereby does and will irrevocably assign to CarpooltoSchool all Feedback and all Intellectual Property Rights in the Feedback.

9.2        Customer Data.  As between CarpooltoSchool and Customer, all right, title and interest in (a) the Customer data (“Customer Data”), (b) other information input into CarpooltoSchool by Customer (collectively, “Other Information”) and (c) all Intellectual Property Rights in each of the foregoing, belong to and are retained solely by Customer.  Customer hereby grants to CarpooltoSchool a limited, non-exclusive, royalty-free, worldwide license to use the Customer Data and perform all acts with respect to the Customer Data as may be necessary for CarpooltoSchool to provide the CarpooltoSchool Software as a Service to Customer, and a non-exclusive, perpetual, irrevocable, worldwide, royalty-free, fully paid license to use, reproduce, modify and distribute the Other Information as a part of the Aggregated Statistics (as defined in Section 9.3 below).  To the extent that receipt of the Customer Data requires CarpooltoSchool to utilize any account information from a third party service provider, Customer shall be responsible for obtaining and providing relevant account information and passwords, and CarpooltoSchool hereby agrees to access and use the Customer Data solely for Customer’s benefit and as set forth in this Agreement.

9.3      Aggregated Statistics.  Notwithstanding anything else in this Agreement or otherwise, CarpooltoSchool may monitor Customer’s use of the CarpooltoSchool Software as a Service and use data and information related to such use, Customer Data, and Other Information in an aggregate and anonymous manner, including to compile statistical and performance information related to the provision and operation of the CarpooltoSchool Software as a Service (“Aggregated Statistics”).  As between CarpooltoSchool and Customer, all right, title and interest in the Aggregated Statistics and all Intellectual Property Rights therein, belong to and are retained solely by CarpooltoSchool.  Customer acknowledges that CarpooltoSchool will be compiling Aggregated Statistics based on Customer Data, Other Information, and information input by other Customers into the CarpooltoSchool Software as a Service, and Customer agrees that CarpooltoSchool may (a) make such Aggregated Statistics publicly available, and (b) use such information to the extent and in the manner required by applicable law or regulation and for purposes of data gathering, analysis, service enhancement and marketing, provided that such data and information does not identify Customer, any Authorized End Users, or any Confidential Information. 

9.4       CarpooltoSchool Developments.  All inventions, works of authorship and developments conceived, created, written, or generated by or on behalf of CarpooltoSchool, whether solely or jointly, including without limitation all deliverables created under this Agreement (“CarpooltoSchool Developments”) and all Intellectual Property Rights therein, shall be the sole and exclusive property of CarpooltoSchool.  Customer agrees that, except for Customer Confidential Information, to the extent that the ownership of any contribution by Customer or its employees to the creation of the CarpooltoSchool Developments is not, by operation of law or otherwise, vested in CarpooltoSchool, Customer hereby assigns and agrees to assign to CarpooltoSchool all right, title and interest in and to such CarpooltoSchool Developments, including without limitation all the Intellectual Property Rights therein, without the necessity of any further consideration.

9.5     Further Assurances.  To the extent any of the rights, title and interest in and to Feedback or CarpooltoSchool Developments or Intellectual Property Rights therein cannot be assigned by Customer to CarpooltoSchool, Customer hereby grants to CarpooltoSchool an exclusive, royalty-free, transferable, irrevocable, worldwide, fully paid-up license (with rights to sublicense through multiple tiers of sublicensees) to fully use, practice and exploit those non-assignable rights, title and interest.  If the foregoing assignment and license are not enforceable, Customer agrees to waive and never assert against CarpooltoSchool those non-assignable and non-licensable rights, title and interest.  Customer agrees to execute any documents or take any actions as may reasonably be necessary, or as CarpooltoSchool may reasonably request, to perfect ownership of the Feedback and CarpooltoSchool Developments.  If Customer is unable or unwilling to execute any such document or take any such action, CarpooltoSchool may execute such document and take such action on Customer’s behalf as Customer’s agent and attorney-in-fact.  The foregoing appointment is deemed a power coupled with an interest and is irrevocable.

9.6       License to Deliverables.  Subject to Customer’s compliance with these terms and conditions, CarpooltoSchool hereby grants Customer a limited, non-exclusive, non-transferable license during the Term to use any deliverables provided by CarpooltoSchool solely in connection with Customer’s authorized use of the CarpooltoSchool Software as a Service. Notwithstanding any other provision of these Terms: (i) nothing herein shall be construed to assign or transfer any Intellectual Property Rights in the proprietary tools, source code samples, templates, libraries, know-how, techniques and expertise (“Tools”) used by CarpooltoSchool to develop the deliverables, and to the extent such Tools are delivered with or as part of the deliverables, they are licensed, not assigned, to Customer, on the same terms as the deliverables; and (ii) the term “deliverables” shall not include the Tools.

9.7       Use of Customer Trademarks. Customer hereby grants CarpooltoSchool during the Term of this Agreement, the non-exclusive, non-transferable, worldwide right and license to: (i)  provide, display, and link the Customer website to the CarpooltoSchool website to facilitate and provide access to CarpooltoSchool for Customer and its Authorized End Users; and (ii)  use, modify, and display Customer trademarks, tradenames, and logos (collectively “Trademarks”) for marketing, business development, and promotion of CarpooltoSchool and availability of CarpooltoSchool on Customer’s website.  Any use of the Customer Trademarks by CarpooltoSchool not set forth herein shall be subject to Customer’s prior approval, which shall not be unreasonably withheld or delayed.

9.8     Use of CarpooltoSchool Trademarks.  CarpooltoSchool hereby grants to Customer during the Term of this Agreement, the non-exclusive, non-transferable, worldwide right and license to: (i) display and link the CarpooltoSchool website to Customer’s website to facilitate access to CarpooltoSchool for Customer and its Authorized End Users; and (ii) to utilize and display CarpooltoSchool Trademarks on Customer’s website or other media to advertise the availability of CarpooltoSchool and for such other purposes as CarpooltoSchool may authorize in writing.  Customer will not take or authorize any activity inconsistent with CarpooltoSchool’s rights to the CarpooltoSchool Trademarks. Any use of the CarpooltoSchool Trademarks by Customer not set forth herein shall be subject to CarpooltoSchool’s prior approval.

9.9     Use of Trademarks.  During the Term of this Agreement, each Party shall use the trademark symbol ™, or if so notified by the other Party, the trademark registration symbol®, when using the other Party’s Trademark(s) in all media, websites, deliverables, or other materials.  Each Party shall use the Trademarks of the other Party in accordance with the owning Party’s trademark usage guidelines and quality control standards as specified by such Party or otherwise approved from time-to-time by such Party. 

9.10      Trademark License Restrictions. The Parties shall not alter, modify, or remove any of the Trademarks or proprietary notices from any media, deliverables, or materials furnished by the other Party. Each Party shall retain the right, from time­ to-time, and in its sole discretion, to modify, amend, alter, add, or discontinue any of its own Trademarks.  Upon reasonable prior written notice thereof to the other Party, such Party  shall  promptly  conform  or discontinue, as applicable, its use of the Trademark(s) as so modified, altered, amended, added or discontinued by the owner of the Trademark. Neither Party shall use, register, or attempt to register in any jurisdiction any Trademark that is confusingly similar to or incorporates any of the Trademarks of the other Party.

9.11       Ownership and Goodwill.  Each Party acknowledges that all right, title, and ownership of the Trademark(s) of the other Party, except for the limited license granted herein, and the goodwill associated therewith, are and shall at all times remain with the owner of the Trademark. All uses of the Trademark(s), and all goodwill generated thereby, shall inure exclusively and completely to the benefit of the respective owner and its successors and assigns.  Each Party acknowledges the validity and enforceability of the other Party’s rights and title in the Trademark(s) and shall not contest or challenge the validity thereof.

9.12        Reservation of Rights. Except for the limited licenses expressly granted in this Agreement, all right, title, and interest in and to CarpooltoSchool and any documentation or deliverables provided under this Agreement is reserved by CarpooltoSchool.  All right, title, and interest in and to the Trademarks are and will remain with the respective owner of such content. There are no other licenses or rights granted to Customer under this Agreement, whether express, implied, or by way of estoppel. 

9.13        Effect upon Termination. Upon the termination of this Agreement, the licenses and all other rights granted in this Agreement to Customer shall automatically (and without any further action or documentation by any Party) terminate as of the effective date of termination.

 

10. Limitation of Liability:

10.1     No Consequential Damages.  NEITHER CUSTOMER NOR CARPOOLTOSCHOOL NOR ITS LICENSORS SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY DAMAGES FOR LOST DATA, BUSINESS INTERRUPTION, LOST PROFITS, LOST REVENUE OR LOST BUSINESS, ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, EVEN IF CUSTOMER, CARPOOLTOSCHOOL OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING WITHOUT LIMITATION, ANY SUCH DAMAGES ARISING OUT OF THE LICENSING, PROVISION OR USE OF CARPOOLTOSCHOOL, INCLUDING ANY THIRD PARTY SERVICE, SUPPORT SERVICES, OR THE RESULTS THEREOF.

10.2     Limits on Liability.  NEITHER CARPOOLTOSCHOOL NOR ITS LICENSORS SHALL BE LIABLE FOR CUMULATIVE, AGGREGATE DAMAGES GREATER THAN AN AMOUNT EQUAL TO THE LESSER OF (a) THE AMOUNTS PAID BY CUSTOMER TO CARPOOLTOSCHOOL UNDER THESE TERMS DURING THE PERIOD OF SIX (6) MONTHS PRECEDING THE DATE ON WHICH THE CLAIM FIRST ACCRUED, AND (b) THE AMOUNT OF FEES PAID BY CUSTOMER IN A SINGLE SUBSCRIPTION TERM.

10.3     Essential Purpose.  CUSTOMER ACKNOWLEDGES THAT THE TERMS IN THIS SECTION 10 (LIMITATION OF LIABILITY) SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND SHALL APPLY EVEN IF AN EXCLUSIVE OR LIMITED REMEDY STATED HEREIN FAILS OF ITS ESSENTIAL PURPOSE WITHOUT REGARD TO WHETHER SUCH CLAIM IS BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE.

 

11. Term and Termination

11.1       Term. The “Subscription Term” commences on the subscription start date and continues for twelve months thereafter unless otherwise specified on the invoice or other documentation (the first Subscription Term is the “Initial Term”) unless earlier terminated as provided under this Agreement.  Each Subscription Term shall automatically renew for additional periods equal to the expiring Subscription Term (each a “Renewal Term”) unless one Party gives the other written notice of non-renewal at least thirty (30) days prior to the expiration of the then-current Subscription Term (the Initial Term along with any Renewal Term(s) constitutes the entire “Term”).  The pricing during any automatic Renewal Term shall be the same as the then-current Subscription Term unless CarpooltoSchool provides Customer written notice of a price increase at least thirty (30) days before the end of the Subscription Term, in which case the pricing increase shall be effective upon renewal and thereafter; provided however that no such pricing increase shall occur until after expiration of the then current Initial or Renewal Term.  CarpooltoSchool may change or discontinue the CarpooltoSchool Software as a Service or the terms and conditions under which the CarpooltoSchool Software as a Service is offered at any time upon providing thirty (30) days’ advance written notice to Customer; provided, however, that if such changes are unacceptable to Customer, Customer may terminate this Agreement effective on the date the unacceptable changes were to take effect.  Customer’s continued use of the CarpooltoSchool Software as a Service after the effective date of the change will be deemed an acceptance of the new terms and conditions by Customer. In the event that Customer terminates this Agreement as a result of the new changes, Customer’s then-current Subscription fee shall be prorated up to the date of termination, and any pre-paid amounts for the CarpooltoSchool Software as a Service past the termination date will be refunded to Customer.

11.2      Termination for Cause.  A Party may terminate these Terms (and any Subscription Term(s)) upon written notice to the other Party in the event the other Party (a) files a petition for bankruptcy or has a petition for bankruptcy filed against it that is not dismissed within sixty (60) days after filing  or admits its inability to pay its debts as they mature, makes an assignment for the benefit of its creditors or ceases to function as a going concern or to conduct its operations in the normal course of business and such termination shall occur immediately upon notice; or  (b) commits a material breach of any provision of this Agreement and does not remedy such breach within fifteen (15) days after receipt of notice from the other Party.  Customer may also terminate this Agreement for cause upon the death, illness, or incapacity of a CarpooltoSchool associate that prevents CarpooltoSchool from substantially performing its obligations under this Agreement for a period of thirty (30) days or longer.   Upon any termination for cause by Customer, CarpooltoSchool shall refund Customer any prepaid fees for the remainder of the terminated Subscription Term after the effective termination date.  Upon any termination for cause by CarpooltoSchool, Customer shall promptly pay any unpaid fees covering the remainder of the Subscription Term, if applicable.  In no event shall any termination relieve Customer of the obligation to pay any fees payable to CarpooltoSchool for the period prior to the effective date of termination.

11.3     Effects of Termination.  Upon expiration or termination of this Agreement, (a) Customer’s use of and access to the CarpooltoSchool Software as a Service and CarpooltoSchool’s performance of all support services shall cease; (b) all licenses shall terminate; and (c) all fees and other amounts owed to CarpooltoSchool shall be immediately due and payable by Customer. CarpooltoSchool will not be responsible in any fashion for transition services or Customer’s access to alternative services.  CarpooltoSchool shall have no obligation to maintain or provide any Customer Data and may thereafter, unless legally prohibited, delete all Customer Data in its systems or otherwise in its possession or under its control.  In addition, within ten (10) days of the effective date of termination each Receiving Party shall: (a) return to the Disclosing Party, or at the Disclosing Party’s option, the Receiving Party shall destroy, all items of Confidential Information then in the Receiving Party’s possession or control, including any copies, extracts or portions thereof, and (b) upon request shall certify in writing to Disclosing Party that it has complied with the foregoing.

11.4     Survival.  This Section and Sections 5 (Payment), , Section 7 (Indemnification), Section 8 (Confidentiality), Section 9 (Proprietary Rights), Section 10 (Limitation of Liability), Section 11.3 (Effect of Termination), and 12 (Miscellaneous) shall survive any termination or expiration of this Agreement.

12. Miscellaneous:

12.1     Publicity and Trademark Use.

CarpooltoSchool has the right to reference and use Customer’s name and Trademarks and disclose the use of the CarpooltoSchool Software as a Service provided hereunder in each case in CarpooltoSchool’s business development and marketing efforts, including without limitation CarpooltoSchool’s website and social media (e.g. Facebook and Twitter).  Customer shall retain all right, title, and license to its Trademarks.  CarpooltoSchool will obtain the Customer’s prior written approval before using any new presentation of the Trademark.  Customer may request in writing to see any marketing materials, whether in print or digital format, to monitor the usage of its Trademarks for quality control and adherence to the Customer’s quality standards.  Customer may, in its sole discretion, rescind its permission in writing at any time and for any reason.

12.2        Notices.  CarpooltoSchool may give notice to Customer by means of a general notice through the CarpooltoSchool Service interface, electronic mail to Customer’s e-mail address on record with CarpooltoSchool, or by written communication sent by first class postage prepaid mail or nationally recognized overnight delivery service to Customer’s address on record with CarpooltoSchool. Customer may give notice to CarpooltoSchool by written communication sent by first class postage prepaid mail or nationally recognized overnight delivery service addressed to: CarpooltoSchool, P.O. Box 15830, Washington, D.C. 20003, Attn: Kimberly Moore.  Notice shall be deemed to have been given upon receipt or, if earlier, two (2) business days after mailing, as applicable. All communications and notices to be made or given pursuant to this Agreement shall be in the English language.

12.3       Governing Law.  This Agreement and the rights and obligations of the Parties to and under this Agreement shall be governed by and construed under the laws of the United States and the State of Maryland as applied to agreements entered into and to be performed in such State without giving effect to conflicts of laws rules or principles.  The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement.  The Parties further agree to waive and opt-out of any application of the Uniform Computer Information Transactions Act (UCITA), or any version thereof, adopted by any state of the United States in any form.  Any dispute arising out of or in connection with this Agreement, including but not limited to any question regarding its existence, interpretation, validity, performance, or termination, or any dispute between the Parties arising from the Parties’ relationship created by this Agreement, shall be referred to and finally resolved by arbitration administered by the American Arbitration Association under its rules.  The number of arbitrators shall be one (1).  The Parties shall endeavor to agree upon the sole arbitrator and jointly nominate the arbitrator.  If the Parties cannot agree upon the sole arbitrator within a time prescribed by AAA, the Parties shall request the AAA to propose five (5) arbitrators and each Party shall rank the proposed arbitrators.  The AAA shall appoint an arbitrator from the list of five (5), based upon the Parties’ rankings.  The seat, or legal place of arbitration shall be Maryland, United States.  Notwithstanding the foregoing, CarpooltoSchool has the right to pursue equitable relief in the state and federal courts located in Maryland, and Customer agrees to the exclusive jurisdiction and venue of such courts.

12.4        No Solicitation of Employees.  Customer agrees that, so long as the Subscription Term remains in effect, and for a period of one (1) year following the last Subscription Term hereunder to terminate or expire, it will not directly solicit for employment the employees of CarpooltoSchool without CarpooltoSchool’s prior written consent; provided, however, that the foregoing prohibition shall not preclude the hiring by Customer of any individual who responds to a general solicitation or advertisement, whether in print or electronic form, only job postings and social networking sites.

12.5        Export.  The CarpooltoSchool Software as a Service utilizes software and technology that may be subject to United States and foreign export controls. Customer acknowledges and agrees that the CarpooltoSchool Software as a Service shall not be used, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using the CarpooltoSchool Software as a Service, Customer represents and warrants that it is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. CarpooltoSchool may use encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774 and Council Regulation (EC) No. 1334/2000. Customer agrees to comply strictly with all applicable export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required. CarpooltoSchool and its licensors make no representation that the CarpooltoSchool Software as a Service is appropriate or available for use in other locations. Any diversion of the Customer Data contrary to law is prohibited. None of the Customer Data, nor any information acquired through the use of the CarpooltoSchool Software as a Service, is or will be used for nuclear activities, chemical or biological weapons, or missile projects.

12.6       Waiver.  No term or provision of this Agreement shall be considered waived by either Party, and no breach excused by either Party, unless such waiver or consent is in writing signed on behalf of the Party against whom the waiver is asserted.  No consent by either Party to, or waiver of, a breach by either Party, whether express or implied, shall constitute consent to, waiver of, or excuse of any other, different, or subsequent breach by either Party.

12.7        Severability.  If any provision of this Agreement is held invalid or unenforceable for any reason, the remainder of the provision shall be amended to achieve as closely as possible the economic effect of the original term and all other provisions shall continue in full force and effect.

12.8     Assignment.  Customer may not assign its rights or delegate its obligations under this Agreement to any third party, whether voluntarily or by operation of law or otherwise (including in connection with any merger or acquisition involving Customer), without the prior written consent of CarpooltoSchool, such consent not to be unreasonably withheld, and subject to Customer paying any applicable transfer or set-up fees. Any purported assignment or transfer in violation of this section shall be void. Subject to the foregoing restrictions, this Agreement will bind and benefit the Parties and their successors and permitted assigns.

12.9      Relationship of the Parties.  CarpooltoSchool is an independent contractor to Customer. There is no relationship of agency, partnership, joint venture, employment, or franchise between the Parties.  Neither Party has the authority to bind the other or to incur any obligation on its behalf.

12.10      Attorneys’ Fees.  In any action to enforce this Agreement, the prevailing Party shall be awarded all court costs and reasonable attorneys’ fees incurred, including such costs and attorneys’ fees incurred in enforcing and collecting any judgment.

12.11    Headings.  The headings in this Agreement are for purposes of reference only and shall not limit or otherwise affect the meaning hereof.

12.12    Entire Agreement.  This Agreement, including all applicable purchase orders, constitute the entire agreement between the Parties relating to this subject matter and supersedes all prior or simultaneous understandings, representations, discussions, negotiations, and agreements, whether written or oral.  Any modification to this Agreement must be in writing and signed by an authorized representative of each Party.

IN WITNESS WHEREOF, the Parties have signed this Agreement as of the Effective Date hereof.