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Application License and Support Agreement Catapult CMS [and/or CMS APP]

THIS APPLICATION LICENSE AND SUPPORT AGREEMENT (“Agreement”) is entered into as of date Quote is signed (“Acceptance Date”),  by and between Client and DIVERSE NETWORK ASSOCIATES, INC., a California corporation, dba “CATAPULTK12” (“Company”), whose principal administrative address is 5098 Foothills Blvd, Ste 3-396, Roseville, CA 95747. Client and Company are sometimes hereinafter referred to individually as a “Party” and collectively as the “Parties.”

  1. Term. The term of service starts on date Quote is signed and service ends on the date defined in Signed Quote, hereinafter referred to as “Term.”
  2. Acceptance & Fees. If provided in the Signed Quote, Company shall provide Client with Website Hosting Services (“Hosting Services”) and/or the native branded Catapult CMS mobile app (“CMS APP”), as provided Client agrees to be bound by all the terms and conditions of this Agreement. Client shall pay the website hosting services fees and/or CMS APP fees described in the Signed Quote.
  3. Provision of Services and/or CMS APP. Company agrees to provide Client with its standard website hosting services and/or native branded Catapult CMS mobile app. A more detailed description of Hosting Services and/or CMS APP included in Client’s service plan is outlined in Sections 10 and 11 below. Company reserves the right to change or modify the features of Client’s service plan from time to time on 30 days’ written or e-mailed notice to Client. Client’s continued use of Company’s services after receipt of such a notice of modification shall constitute Client’s acceptance of and agreement to be bound by the Company’s modification of the terms and conditions of this agreement and the Signed Quote.
  4. Agreement Term & Termination. Unless otherwise stated in the Signed Quote, the “Initial Term” of this agreement shall be a period of twelve (12) months. At the end of the Initial Term, this Agreement shall automatically renew for a period of twelve (12) months between Company and Client (“Additional Terms”) unless either party sends the other party a written notice of termination at least thirty (30) days prior to the expiration of the then-current term. The terms of this Agreement shall apply to any Additional Terms. The sum of the Initial Term and Additional Terms shall not exceed ten (10) years except by a mutual written agreement. There is no partial refund of fees as provided in this Agreement upon an early termination by Client.In the event of a dispute between the parties as to the performance of the services, interpretation of this Agreement, or payment of nonpayment for work performed or not performed, the parties shall attempt to resolve the dispute. Pending resolution of this dispute, Company agrees not to cancel or disrupt Client’s access to, and use of the services. If the dispute is not resolved, Company shall give notice of termination and will continue to allow Client access to, and use of the services for a period of sixty (60) days from the time Client receives notice of termination. The parties may agree in writing to submit any dispute between the parties to arbitration.
  5. Payment Terms. Client agrees to pay Company the amount specified on Signed Quote for the Company’s services. Company reserves the right to change or modify its charges for Client’s plan from time to time after the Term, upon giving 30 days’ notice written or e-mailed to Client. Client’s continued use of Company’s services after receipt of such a notice shall constitute Client’s acceptance of and agreement to be bound by the Company’s modified charges for its services. Additional charges for add-on services not included in Signed Quote will be provided to Client in a separate quote or amendment to this Agreement. Service charges are payable as provided in the Signed Quote, without advanced invoice or demand. Payments can be made online or by check.After the Initial Term, the Company shall be entitled to change the ANNUAL SERVICE FEE not more than once in every successive period of twelve (12) months during any extended term of this Agreement upon giving not less than sixty (60) days’ notice thereof to Customer.Any ANNUAL SERVICE FEE not paid within sixty (60) days of the due date shall be considered late and automatically subject to a late charge equal to 2.0% of the amount of the delinquency, plus a $100 late fee charge. All payments will be first applied to past due balances.Client may elect to have payments charged to a credit or debit card or other account automatically on the first day of any payment period. Any charges for upgrading Client’s current hosting package, or performing add-on requests, will be billed in the next invoice and are due immediately.
  6. Content Management System. Company has developed a proprietary “Content Management System” or “CMS,” which allows Client to directly manage its own content. Company grants to Client a non-exclusive and non-transferable license to use the CMS for a term concurrent to the term of hosting services provided by Company to Client. Client is solely responsible for supplying, verifying, policing and monitoring its own content within the CMS and its Website.
  7. Regulated Use. Company may impose rules and regulations on the use of the Website, CMS and APP during the term of any hosting services, so as to ensure the effective, efficient, proper and lawful use of the system, which Client shall diligently abide by upon receipt of notice of such rules and regulations.
  8. Violations of Network Security. Client is prohibited from violating or attempting to violate the security of the network. Violations of system or network security may result in civil or criminal liability in addition to immediate termination of Client’s agreement. Company will investigate occurrences, which may involve such violations and may involve, and cooperate with, law enforcement authorities in prosecuting Clients who are involved in such violations.
  9. Website Backup Policy. Company will maintain backups of Client website content for rollback when necessary. Daily Backups are performed every day at 9am PST (backups older than one week are deleted). Weekly backups are performed every Wednesday at 5am PST (backups older than one month are deleted). Monthly backups are performed every 1st and 15th at 7am PST (backups older than six months are deleted). At any given time, there are 22 backups of a website (6 backups of the previous 7 days, 4 backups of the previous 4 weeks, 6 backups of the previous 6 months on the 1st of the month and 6 backups of the previous 6 months on the 15th of the month).
  10. Web Hosting Support.  If provided in the Signed Quote, CatapultK12 will provide secure and reliable hosting on Amazon Web Services (AWS). Catapult K12 subscribes to the Amazon Elastic Compute Cloud (Amazon EC2), with a service level agreement commitment of 99.5% availability. Company has a third party Amazon Hosting Management Team that manages all web hosting servers 24 hours 7 days a week. If the servers were to go down at any time this team would immediately respond and repair what is needed to get the servers operational once again.
    Storage is unlimited, except for video storage. This includes but is not limited to class video projects, webcasts, rebroadcast of board meetings, etc. If video hosting is required, Company will provide a separate quote for these services.Web hosting trouble reporting can be submitted to Catapult K12 via phone (888.840.9901) or email (contact@catapultk12. com). If minor issues cannot be addressed with lower level support staff, the issue will be escalated to our System Administrator and Project Manager, who will then resolve any service issue or report to the client any alternative solutions Catapult K12 feels may be a viable option to resolve a service issue.Hours of operation for help and trouble reporting are 8am to 5pm Monday through Friday (excluding holidays) by phone at 888.840.9901 or email ([email protected]). On weekends and holidays, trouble requests are accepted via email only. A Project Manager will respond to all requests as quickly as possible.Catapult K12 also has software monitoring that sends status or service interruption information to our Project Manager and System Administrators’ cell phones via email, for response to issues arising outside of normal business hours.
  11. CMS Mobile App. If provided in the Signed Quote, Company shall provide Client with a district- or school-branded Catapult mobile app (“CMS APP”). Information displayed on the CMS APP will be automatically pulled from the Client’s CMS content. Client may choose items to display on the CMS APP, including Announcements, Staff Directory, Event Calendar, Push Notifications, and more. There are times when Apple or Android make updates to their operating systems (OS) that can affect or even prevent the CMS APP from functioning properly.Once Company becomes aware of how the OS update has affected the CMS APP, Company will need an unknown amount of time to fix and republish a new version of the CMS APP to the Apple and Android App Stores. These updates are out of Companies control and Company will not be held liable for any updates that may affect the performance of the CMS APP. Company will make best effort to have a fix published within a reasonable amount of time.
  12. Warranty Against Unlawful Use. Client warrants and represents that Client shall use Company’s services only for lawful purposes and in accordance with all valid federal, state, and local laws and regulations governing use of e-mail and the Internet, whether or not specifically prohibited elsewhere in this Agreement. Failure to abide by the terms of this paragraph shall be grounds for immediate termination of Client’s account for cause.
  13. Liability; No Warranty; Limitation of Damages. Client expressly agrees that use of services provided by Company is at Client’s sole risk. Company guarantees 99.5% percent uptime for its Web servers. If uptime for Client’s Web server falls below 99.5% percent during any given month, Company shall credit back a pro rata payment of the monthly service fees equal to the amount of down time. Any such credit shall be applied to future invoices. This credit shall be Client’s sole and exclusive compensation for any downtime or other unavailability of Company’s services under this Agreement. Company shall have no liability of any kind for any damages or loss arising as a consequence of such downtime or unavailability. Company, its agents, affiliates, licensors or the like, do not represent or warrant, expressly or impliedly, that their services will not be interrupted or error free; nor do they make any warranty as to the results that may be obtained from the use of their services or as to the accuracy, reliability or content of any information service or merchandise contained in or provided through their services, unless otherwise expressly stated in this agreement. Company, its officers, agents, or anyone else involved in providing services shall not be liable for any direct, indirect, special, or consequential damages that result from the use or inability to use services; or for any damages that result from mistakes, omissions, interruptions, deletion of files, errors, defects, delays in operation, or transmission, or any failure of performance, whether or not limited to acts of God, communication failure, theft, destruction, or unauthorized access to company’s records, programs, or services. Company will exercise no control over the content of the information passing through company’s website/network/app. Company makes no warranties or representations of any kind, express or implied, for the services it is providing. Company also disclaims any warranty of merchantability or fitness for a particular purpose and will not be responsible for any damages that may be suffered by client, including loss of data resulting from delays or non-deliveries.
    Limitation of Liability. For valuable consideration, and notwithstanding anything to the contrary in this Agreement, Client agrees that Company’s liability, if any, arising out of or in connection with the access to, use, or performance of the PRODUCT, or this Agreement, shall be limited to recovery of any ANNUAL SERVICE FEES paid under this Agreement, and that Client acknowledges and accepts these limitations as they are a material inducement to Company in agreeing to enter into this Agreement and to offer the price and other terms herein. In the event of any breach of this Agreement by Company, Client agrees that it shall issue a notice to Company with facts sufficient to show the breach and matters required to cure the breach (if such breach is curable), at which time Company shall have 15 business days to cure the breach (if such breach is curable), and only if Company does not cure the breach, then Client may seek recovery as provided in this Agreement, always limited to the cap on liability and damages under this Section 13.
  14. Patents, Copyrights, Trademarks, and Other Intellectual and Proprietary Rights. Except for rights expressly granted herein, this Agreement does not transfer any intellectual or other property or proprietary right to Client. Client agrees that all right, title, and interest in any product or service provided to Client belongs to Company. These products and services are only for Client’s use in connection with services provided to Client as outlined in this Agreement. Client expressly warrants to Company that Client has the right to use any patented, copyrighted, or trademarked material which Client uses, posts, or otherwise transfers to Company servers.
  15. Hardware, Equipment, and Software. Client is responsible for and must provide all phones, phone services, computers, software, hardware, and other services necessary to access Company servers. Company makes no representations, warranties, or assurances that Client’s equipment will be compatible with Company services. Company will provide testing upon request.
  16. Age. Client expressly represents and warrants that Client and any person to whom Client grants access to Client’s Company account are at least 18 years of age.
  17. Indemnification. Client agrees to defend, indemnify, and hold harmless Company from any and all claims, damages, liabilities, losses, and expenses, including actual attorneys’ fees and costs, arising out of or in any way resulting from acts or omissions of Client, its agents, employees, contractors, subcontractors, servants, invitees in conjunction with this Agreement, which Company may sustain from any cause including, but not limited to, bodily injury, including death, sustained by any person or persons, including employees of Client, or on account of damage to property of others, including loss of use thereof, whether such injuries to person or damage to property are due, or claimed to be due, to any negligence of the Client, whether active or passive, its or their agents, employees, contractors, subcontractors, or other persons, except for liability resulting from the sole or active negligence, or willful misconduct of Company, its agents, employees, contractors, subcontractors, servants, invitees in conjunction with this Agreement. Client’s agreement and obligation under this paragraph include, but are not limited to, defense and indemnity for any claim, suit, complaint, or cross-complaint which may be brought against Company by any person or organization in conjunction with this Agreement.
  18. Representation and Warranty as to Ownership of Content. Client represents and warrants to Company, which shall continue throughout the use of the Website, that it has the full legal and other rights and approvals to use all photos, videos, logos, links, documents, social media content, and other content featured on the Website. Client shall hold Company free and harmless from any costs, claims, fines, attorneys’ fees, lawsuits, and expenses arising from any breach of this representation and warranty.
  19. Software Support. For the period defined in the Term following delivery of the Website, or a period equal to the Website Hosting (if applicable), Company will apply commercially reasonable efforts to assist Client with “bugs” that stop the software from functioning at no additional cost. This does not include “bugs” that are caused by the releases of new browsers or any unforeseen changes in the Internet, new security methods, or development standards that Company is unaware of prior to the signing of this Agreement. Company phone support hours are 8am to 5pm Monday through Friday (excluding holidays) at 888.840.9901.
  20. Illustration Rights. Company retains the right to show its name, logo, brand and/or identity at the footer of the Website and on the CMS APP for marketing purposes.
  21. Miscellaneous. If any legal action is necessary to enforce the terms of this Agreement, the prevailing party shall be entitled to reasonable attorneys’ fees in addition to any other relief to which that party may be entitled. This provision shall be construed as applicable to the entire Agreement. Client agrees to keep Company informed of all current contact information for Client’s account. Changes in Client’s account information may be reported to Company by e- mail at [email protected]. Failure to maintain or keep current all contact information shall be a ground for Company to terminate Client’s account for cause. This Agreement shall be governed by and construed in accordance with the laws of the State of California. In case any one or more of the provisions of this Agreement be held for any reason to be invalid, illegal, or unenforceable in any respect, that invalidity, illegality, or unenforceability shall not affect any other provisions of this Agreement, and this Agreement shall be construed as if the invalid provision(s) had never been contained in this Agreement, provided that those provision(s) shall be curtailed, limited, or eliminated only to the extent necessary to remove the invalidity, illegality, or unenforceability.