This Stride Subscription Agreement (“Agreement”) is made and entered into by and between Chart My Sport, LLC, d/b/a Stride (“CMS”) and the entity specified on the applicable Quote referencing this Agreement (“Customer”). This “Effective Date” of this Agreement is the date the Quote is executed by Customer. By executing the applicable Quote, Subscriber represents and warrants that (a) Subscriber has read this Agreement and understands its terms and conditions; and (b) the individual signing the Quote on behalf of Customer has the legal power and authority to enter into this Agreement and to legally bind the Customer to the terms of this Agreement. For good and valuable consideration, the receipt and sufficiency are hereby acknowledged, and intending to be legally bound, CMS and Customer agree as follows:
Access and Use
Subject to the terms and conditions of this Agreement and in consideration of Customer’s payment of the fees specified in the Quote (the “Fee”), CMS will use commercially reasonable efforts to provide Customer with access and use of the Stride Journaling and Learning Management Platform (the “Service”) during the Subscription Period. Subject to Customer’s and its Users’ compliance with this Agreement, CMS hereby grants Customer and its Users the non-exclusive, revocable right and license during the Subscription Period to install and use any mobile app component of the Platform on the User’s device for Customer’s and the User’s personal, non-commercial use. Customer agrees that in the event CMS introduces additional functionality or services during the Subscription Period or any Renewal Subscription Period (as defined below) (“New Service Offerings”) that such New Service Offering will only be included in the Service at CMS’s sole discretion. Customer’s use of the Service is limited to the number of Users specified in for the applicable Quote (“Usage Limitation”). CMS may condition Customer’s access to or usage of New Service Offerings or use of the Service in excess of any Usage Limitation on payment of additional fees.
Use Restrictions
Customer will not at any time, directly or indirectly, and will not permit any person (including any Users) to: (a) modify or create derivative works of the Service; (b) reverse engineer, disassemble, decompile, or otherwise attempt to derive or gain improper access to any software component of the Service; (c) sell, resell, rent or lease use of the Service to any other person, or otherwise allow any person to use the Service except for Users for the benefit of Customer; (d) use the Service to store, transmit, upload or post any infringing, libelous or otherwise unlawful or tortious material or any data for which it does not have the necessary consents or rights to store, transmit, upload or post (as applicable); (e) interfere with, or disrupt the integrity or performance of, the Service, or any data or content contained therein or transmitted thereby; or (f) use the Service in any way that exceeds any Usage Limitations. CMS may suspend Customer’s or any User’s access to the Platform and Service in the event of any violation of this Section 2.
Users
Customer’s and each User’s use of the Service will at all times be subject to and governed by CMS’ Terms of Service and Privacy Policy, as amended by Stride from time to time (the “Policies”), each of which may be found at www.mystrideapp.com and are hereby incorporated as if set forth in full herein. In the event of any conflict between the terms of this Agreement and the Policies, the Policies will control. User access and use of the Service is conditioned upon User completion of CMS’s then-current account registration procedures and compliance with the terms and conditions of this Agreement. Customer is fully responsible to CMS for any act or omission by each such User in connection with their use of the Service. Customer will, and will require all Users to, use all reasonable means to secure user names and passwords, hardware and software used to access the Service, and will promptly notify CMS if Customer or any User knows or reasonably suspects that any user name and password has been compromised. Each account for access to and use of the Service may only be accessed and used by the specific User for whom such account is created. Customer will ensure that no User misrepresents their identity or otherwise provides any deceptive or misleading profile information or images when creating an account in connection with the Service.
Subscription Period; Renewal; Termination
This Agreement will begin on the Effective Date and continue for the specified in the Quote (the “Initial Subscription Period”). The subscription may be renewed for additional periods specified in the applicable Quote for renewal (each, a “Renewal Subscription Period” and together with the Initial Subscription Period, the “Subscription Period”). Customer acknowledges and agrees that, at the end of the Initial Subscription Period, Customer’s access to the Services will be AUTOMATICALLY terminated, with or without notice, unless Customer renews its subscription to the Service. CMS will alert Customer of any change to the Fee at least one hundred twenty (120) days prior to the expiration of the Initial Subscription Period or then-current Renewal Subscription Period, as applicable, and Customer must contact CMS by written notice within thirty (30) days thereof if Customer agrees to such Fee and wishes to extend the subscription. At such time Customer will confirm to CMS the number of Users for the Renewal Subscription Period. Customer’s failure to deliver written notice and information to CMS within such thirty (30) day period will be deemed a rejection of such renewal offer and reenrollment thereafter may, at CMS’s sole discretion, require execution of a new contract by the parties. CMS reserves the right to require a higher Fee for enrollment under such circumstances.
Fees; Payment; Taxes
Customer will pay CMS all fees set forth on the applicable Quote. Unless otherwise stated on a Quote all fees are payable annually in advance by the due date specified in the applicable invoice and are non-cancellable and non-refundable. CMS may change Fees in any Renewal Subscription Period by providing written notice to Customer as provided in Section 4. Any amounts due to CMS hereunder and not paid when due will accrue late charges at the greater of a rate of 1.5% per month or the highest rate permitted by applicable law. Customer will reimburse CMS for all reasonable costs and expenses incurred (including reasonable attorneys’ fees) in collecting overdue amounts hereunder. Without limitation as to any other rights or remedies of CMS under this Agreement, CMS reserves the right to immediately suspend Customer’s access to and use of the Service without notice to Client, if any amounts payable to CMS are past due. Customer will be responsible for all sales, use, ad valorem and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental regulatory authority on any amount payable by Customer to CMS hereunder, other than any taxes imposed on CMS’s income. If Customer is a tax-exempt organization, Customer will provide CMS with all applicable tax exemption certificates and documentation
Updates
CMS reserves the right to make changes, modifications, and enhancements to the Service, including a reduction in functionality, at any time, and from time to time without prior notice (“Updates”). Customer will promptly install (and will require its Users to install) all updates and agrees to the automatic installation of Updates if performed by or on behalf of CMS.
Customer Data
The Services may allow for Customer to enter Customer Data. To the extent Customer enters any Customer Data into the Service, Customer, not CMS, will have sole responsibility for the accuracy, quality, integrity, legality, and intellectual property ownership or right to use all Customer Data, and CMS will not be responsible or liable for the deletion, correction, destruction, damage, or loss of such Customer Data. CMS’s may use Customer Data solely to provide the Service to the Customer.
Intellectual Property Ownership
The Platform is licensed, not sold. CMS and its licensors will own all right, title and interest in and to all Intellectual Property Rights in or relating to the CMS Technology, the Content, the Service, the CMS Marks, and Deliverables, including any and all enhancements, enhancement requests, suggestions, modifications, extensions, and derivative works thereof (collectively, “CMS IP”). This Agreement is not a sale and does not convey to Customer any rights of ownership in or related to the CMS IP. From time to time Customer or its Users may provide CMS with suggestions, comments and feedback with regard to the Service CMS Technology, the Content, the Service, and Deliverables (collectively, “Feedback”). Customer, on behalf of itself and its Users, hereby irrevocably assigns to CMS all of its and their right, title and interest (if any) in and to any Feedback. Without limitation, CMS may use and exploit all Feedback without restriction in connection with CMS’s business purposes, including the testing, development, maintenance and improvement of the Services. All rights not expressly granted to Customer are reserved by CMS and its licensors.
Termination; Suspension
Either party may terminate this Agreement, effective on written notice to the other party, if the other party materially breaches this Agreement and such breach remains uncured thirty (30) days after the non-breaching party provides the breaching party with written notice of such breach. CMS reserves the right to suspend or terminate this Agreement and the Service, with or without cause, at any time, with or without notice. No termination of this Agreement by Customer will entitle Customer to any refund of the Fee. In the event of termination of this Agreement by CMS without cause, Customer will be entitled to a refund of prepaid Fees attributable to periods following the effective date of termination.
Disclaimer of Warranty
THE CMS TECHNOLOGY, CONTENT, SERVICE, AND DELIVERABLES ARE PROVIDED “AS IS” AND CMS MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE RELATING TO THE CMS TECHNOLOGY, CONTENT, SERVICE, OR DELIVERABLES. WITHOUT LIMITATION AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CMS SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE OR ANY IMPLIED WARRANTIES ARISING OUT OF THE COURSE OF DEALING OR THE USAGE OF TRADE. CMS DOES NOT WARRANT THAT THE CMS TECHNOLOGY, CONTENT, SERVICE, OR DELIVERABLES ARE OR WILL BE ERROR-FREE, WILL MEET CUSTOMER’S REQUIREMENTS, OR BE TIMELY OR SECURE. THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. CMS IS NOT RESPONSIBLE FOR DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS NOT CAUSED BY CMS.
Indemnification
Customer will defend, indemnify, and hold harmless CMS and its Affiliates, and its and their directors, officers, employees, agents, successors, and assigns from and against any demand, claim, suit, action or allegation made or brought by a third party, and all related costs, losses, damages, and expenses, including reasonable attorneys’ fees and court costs, arising out of or relating to: (a) any Customer Data, including (i) any claim that the Customer Data infringes, misappropriates or otherwise violates any third party Intellectual Property Rights; (ii) any claim that the use, provision, transmission, display or storage of Customer Data violates any applicable law, rule or regulation; and (b) use of the Service by Customer or its Users. CCMS will promptly notify Customer of any and all such claims and will reasonably cooperate with Customer in the defense and/or settlement thereof. Customer will have the sole right to conduct the defense of any claim for which Customer is responsible under this Section; provided that Customer may not settle any claim without the CMS’s prior written approval, which will not be unreasonably withheld. CMS may participate in the defense or settlement of any such claim at its own expense and with its own choice of counsel or, if Customer refuses to fulfill its obligation of defense, CMS may defend itself and seek reimbursement from the Customer.
Limitation of Liability
IN NO EVENT WILL CMS OR ITS LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS AGREEMENT OR USE OF THE SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICES, OR FOR ANY INTERRUPTION, INACCURACY, ERROR, OR OMISSION, REGARDLESS OF CAUSE, EVEN IF CMS OR CMS’S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL CMS’S OR ITS LICENSORS’ TOTAL LIABILITY TO CUSTOMER, ITS USERS OR ANY THIRD PARTY IN CONNECTION WITH THIS AGREEMENT OR THE PROVISION OF THE SERVICE EXCEED THE FEES ACTUALLY PAID BY CUSTOMER TO CMS IN THE ONE (1) MONTH PERIOD PRECEDING THE CLAIM OR ACTION GIVING RISE TO SUCH LIABILITY, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT CMS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THE PARTIES ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS OF LIABILITY AND DISCLAIMERS IN THIS SECTION ARE AN ESSENTIAL PART OF THE BASIS OF THE BARGIN BETWEEN CMS AND CUSTOMER, AND WILL APPLY EVEN IF THE REMEDIES AVAILABLE HEREUNDER ARE FOUND TO FAIL THEIR ESSENTIAL PURPOSE
Assignment
Customer may not assign this Agreement to any third party except upon CMS’s prior written consent. Any purported assignment in violation of this Section will be void. This Agreement and each and all of the provisions hereof bind and benefit the parties and their respective heirs, executors, administrators, legal representatives, successors and assigns.
Confidentiality
Each party (as a “Receiving Party”) will not disclose to any third party, any Confidential Information of the other party (as a “Disclosing Party”) provided to such Receiving Party in anticipation of, or in connection with the performance of this Agreement. For the avoidance of doubt, this includes Confidential Information provided to the Receiving Party prior to the Effective Date of this Agreement. The parties agree that a Disclosing Party is not required to, in any manner, designate information as “Confidential” and that Confidential Information includes but is not limited to all information that a reasonable person would understand to be confidential based on its content. The Receiving Party will not use Confidential Information for any purpose other than carrying out its obligations as set forth in this Agreement and will not disclose Confidential Information to any third party without the prior written consent of the Disclosing Party and an agreement in writing from the third party that it will adhere to the confidentiality obligations imposed herein. Third parties will not include employees, affiliates of the Receiving Party, or attorneys, accountants, and other professional advisors of the Receiving Party, provided, that in each case such person must have a legitimate reason to have access to such Confidential Information and must be under a duty to protect such Confidential information, which duty is substantially equivalent to the obligations contained herein. Each Receiving Party’s confidentiality obligations with respect to such Confidential Information, will remain in effect for the term of this Agreement for a period of three (3) years after the termination or expiration of this Agreement; except with regard to Confidential Information that constitutes a trade secret under applicable law, with respect to which a party’s confidentiality obligations shall survive in perpetuity until, if ever, such Confidential Information no longer qualifies as a trade secret under applicable law other than as a result of an act or omission of the Receiving Party.
Government Agencies
The CMS IP, including any related documentation, are commercial items, as that term is defined in 48 CFR 2.101, consisting of commercial computer software and commercial computer software documentation, as those terms are used in 48 CFR 12.212. If the CMS IP or any related documentation is acquired by or on behalf of the U.S. government or by a U.S. government contractor (including without limitation prime contractors and subcontractors at any tier), then in accordance with 48 CFR 227.7202-4 (for Department of Defense licenses only) and 48 CFR 12.212 (for licenses with all federal government agencies), the government’s rights to the CMS IP and such documentation are limited to the commercial rights specifically granted in this Agreement, as restricted by this Agreement. The rights limited by the preceding sentence include, without limitation, any rights to reproduce, modify, perform, display, disclose, release, or otherwise use the CMS IP or Documentation. This Section 15 does not grant Customer any rights not specifically set forth in this Agreement.
General/Notices
This Agreement will be governed by Connecticut law, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service will be subject to the exclusive jurisdiction of the state and federal courts located in New London County, Connecticut. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) will 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. Each party is an independent contractor to the other and has no authority to act on behalf of or bind the other, and this Agreement does not create any other relationship between the parties, including any joint venture, partnership, employment, or agency relationship. The failure of either party to enforce any right or provision in this Agreement will not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing. This Agreement, (including any other documents referenced herein), comprises the entire agreement between Customer and CMS regarding the subject matter contained herein and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding such subject matter. All notices from Customer to CMS may be made by emailing syd@mystrideapp.com and CMS may give notice by emailing Customer’s contact as specified in the applicable Quote. No different or additional terms or conditions provided or supplied by Customer (including electronically) in connection with this Agreement or a Quote (“Additional Terms”) will be binding on CMS. All such Additional Terms will be of no force or effect and will be deemed rejected by CMS in their entirety.
Certain Definitions
As used in this Agreement and/or in any Subscription Service materials associated herewith:
“CMS Marks” means CMS’s names, logos, and the product names associated with the Service, including specifically but not limited to the name “Stride;”
“CMS Technology” means all of CMS’s proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to Customer by CMS in the course of providing the Service;
“Confidential Information” refers to any and all financial, technical, commercial, or other information concerning the business and affairs of the Disclosing Party, including, without limitation, any cost or pricing information, contractual terms and conditions, marketing or distribution data, business methods or plans. CMS Confidential Information will include all of CMS’s proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to Customer by CMS in providing the Service and all pricing terms offered to Customer. Notwithstanding the foregoing, Confidential Information does not include information that (a) becomes generally available to the public other than as a result of a disclosure by the Receiving Party, (b) was available to a party on a non-confidential basis prior to its disclosure by the other party or in connection with the performance by such party of its obligations under this Agreement, or (c) becomes lawfully available to a party on a non-confidential basis from an independent third party.
“Content” means the data, information, material, documents, software, products, and services contained in or made available via the Service, other than Customer Data;
“Customer Data” means any data, information, or material that Customer or Users input, upload or otherwise submit to the Service;
“Deliverables” means any copyrightable works, products, discoveries, developments, designs, work product, deliverables, improvements, inventions, processes, techniques and know-how made, conceived, reduced to practice or learned by CMS (either alone or jointly with Customer or others) that result from professional services (if any) provided in connection with the Subscription Services;
“Intellectual Property Rights” means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world;
“Quote” means a quote, order form, online order (including click-thru terms) or similar agreement for the provision of the Platform entered into by the parties that references, incorporates, or is incorporated into, and governed by, this Agreement.
“Service” means CMS’s Learning Experience Plartform to which Customer is being granted access to under this Agreement, including the CMS Technology, and the Content;
“Subscription Services” means access to the Services and functionality for the purpose of enabling Customer to evaluate the Services during the Subscription Period;
“User(s)” means Customer’s employees, representatives, consultants, contractors, agents and students who are authorized by Customer to use the Service in the role of athlete, coach, supervisor or other role supported by the Service, as applicable, and have been supplied temporary user identifications and passwords by Customer (or by CMS at Customer’s request).