This Master Services Agreement (“Agreement”) consists of (i) one or more Order Forms and (ii) the following Terms & Conditions. To the extent of any conflict between the Order Form(s) and the Terms & Conditions, the Order Form(s) shall prevail.

Terms & Conditions.  These Terms & Conditions are incorporated in and made part of the Master Services Agreement between Bullseye, LLC (“Company”) and the applicable customer (“Customer”), and govern the Company’s services that are expressly identified in one or more order forms (each, an “Order Form”) executed by both parties (“Services”).

Services.  Subject to the terms and conditions herein, Company will provide to Customer the Services during the Term.  Customer may use the Services solely for its internal business and educational purposes and Customer will permit access and use of the Services only by Customer’s authorized representatives and students expressly permitted under the applicable Order Form (“Permitted Users”).  Customer is solely responsible for (a) configuring the Services, (b) internet access, hardware and third party software necessary to use the Services, (c) acts and omissions of Permitted Users, (d) granting and managing access to the Services, and (e) all Customer Data, curriculum, frameworks, materials, technology, documents, content and any other information uploaded, installed, stored, transmitted, communicated through or otherwise used in connection with the Services.

Restrictions. Neither Customer nor Permitted Users will (a) modify, make derivative works of, reverse engineer, disassemble, decompile, or otherwise attempt to discover the source code for the Services, (b) copy the Services or use the Services to create a competitive or similar service, (c) sell, rent, lease, sublicense, loan, or otherwise transfer rights to or allow any use of the Services by any third party, (d) remove or alter any trademark, copyright or other proprietary notices in the Services; or (e) upload, install, store, transmit or communicate through the Services any information, data or content that violates any law, rule, regulation or policy, any agreement or license or any third party’s privacy or intellectual property rights.

Customer Data.  All Customer data and information, including any school, parent, student, administrator, teacher, professional and other Customer information (“Customer Data”) shall remain the property of Customer,and Customer grants to Company a license to use Customer Data solely for (a) providing the Services, (b) performing this Agreement and (c) anonymizing and aggregating Customer Data with other customer data solely to analyze use of the Services.

Intellectual Property. Company exclusively owns and retains all intellectual property rights and all other rights, titles and interests in and to the Services, including, without limitation, all software, content, designs and documentation incorporated and provided through the Services.  Nothing herein is an assignment or transfer of rights to Customer. Customer agrees that any intellectual property rights arising from feedback regarding the features and functionality of the Services hereby are assigned to Company. Customer agrees that Company may reference Customer as a customer of the Services.

Confidentiality.  Each party will keep the other party’s non-public information confidential and not use such information for any purpose other than performance of this Agreement. Information already lawfully in the receiving party’s possession from another source or developed independently by such receiving party is not restricted under this Agreement. If, by governmental order or rule, a party is required to disclose information of the other party, the parties will cooperate to restrict disclosure to the extent permitted by law.

Laws. Each party will comply with all applicable laws, rules and regulations in performing its obligations and exercising its rights under this Agreement.

Fees; Payment.  Customer agrees to pay the fees associated with the Services set forth on the applicable Order Form (“Fees”), as well as any taxes arising from the provision or use of the Services, except for taxes based on the Company’s income.  If Customer is exempt from such taxes, Customer shall provide relevant documentation to Company. Customer shall pay all such Fees on or before the applicable due date set forth in the Order Form. Customer will pay interest on overdue payments at rate of the lesser of 1% per month or the maximum amount permitted by law. Company may suspend access and use of Services if any payment is overdue.

Term. The term of this Agreement continues so long as any Order Form remains in effect, however, this Agreement may be terminated earlier (a) by Company, if any Customer payment is overdue by more than twenty (20) days, or (b) by either party, if the other party is in material breach of this Agreement and does not cure such breach within thirty (30) days following receipt of written notice from the non-breaching party (collectively, the “Term”). Each Order Form will have an initial term of twelve (12) months, and will automatically renew for successive twelve (12) month periods, unless either party provides written notice of non-renewal at least thirty (30) days in advance of the end of the then-current annual period.  At the end of the Term, Customer shall discontinue access and use of the Service and pay all amounts due to Company. No refunds will be made, and nothing herein prevents a party from pursuing any rights and remedies. Sections 3-5 and Sections 7-12 will survive the end of the Term.

Warranties; Disclaimer.  Company and Customer represent and warrant to each other that (a) such party has the full authority and right to enter into and perform this Agreement, and (b) this Agreement does not violate, breach or contravene any agreement, license, order or law to which such party is a party or subject.

THE SERVICES ARE PROVIDED “AS IS”, AND EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, COMPANY DOES NOT MAKE, AND TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, EXPRESSLY DISCLAIMS, AND CUSTOMER HEREBY WAIVES, ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, AND ANY WARRANTY REGARDING THE SERVICES BEING ERROR-FREE, CUSTOMER’S USE OR RESULTS OF THE SERVICES, THAT SERVICES DEFECTS WILL BE CORRECTED OR SERVICES BEING FREE OF VIRUSES, MALICIOUS CODE, OR OTHER HARMFUL CODE.

Indemnification.  Company will defend Customer in the event of a third-party claim, demand, suit, action or proceeding (“Claim”) that alleges that the Services infringe, misappropriate or violate the intellectual property rights of such third party, and Company will pay all costs of the defense and all damages finally awarded or paid in settlement of any such Claim. Customer will defend Company in the event of a Claim that alleges that Customer has breached this Agreement or violated any third party’s rights, and Customer will pay all costs of defense and all damages finally awarded or paid in settlement of any such Claim.  To exercise its right hereunder, an indemnified party must give prompt notice of any Claim to the indemnifying party and permit the indemnifying party to defend and settle the Claim, provided the indemnified party has the right to consent to any settlement that admits any liability of such indemnified party.Notwithstanding the foregoing, Company shall have no obligation under this Section if a Claim would not have arisen but for Customer’s unauthorized use of the Services or combination or use of the Services with a third party’s technology or intellectual property rights.

Limitation of Liability.  COMPANY WILL NOT BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSS OF PROFITS OR DATA OR BUSINESS INTERRUPTION, REGARDLESS OF WHETHER UNDER CONTRACT, TORT, STATUTE OR OTHERWISE, AND IN NO EVENT WILL COMPANY’S LIABILITY UNDER OR IN RESPECT OF THIS AGREEMENT EXCEED THE AMOUNT ACTUALLY PAID BY CUSTOMER TO COMPANY DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE APPLICABLE CLAIM.

General. The parties are independent contractors, not agents or partners. To be effective, any waiver or amendment must be in writing and executed by the applicable party or parties. If any provision of this Agreement is held invalid or unenforceable, the remaining provisions will continue in effect and the parties will replace the invalid provision with a new provision that matches the original intent. Neither party will be responsible for performance of its obligations hereunder when hindered by events beyond its reasonable control. Any notice under this Agreement must be in writing and transmitted to the applicable party as set forth on the applicable Order Form and will be effective upon personal delivery, the following business day, if sent by reputable overnight courier, or if sent by email or fax, only if and when the receiving party acknowledges receipt. This Agreement will be governed and construed in accordance with the laws of the State of Colorado without giving effect to conflict of laws principles, and for any claim, dispute or controversy, each party irrevocably submits and consents to the exclusive jurisdiction and convenient forum of the state and federal courts located in Denver, Colorado. Neither party may assign this Agreement or any right, interest or benefit under this Agreement without the prior written consent of the other party; provided, Company may assign this Agreement to a successor or third party that acquires substantially all of the assets or equity of Company. This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes all prior and contemporaneous agreements and communications, whether oral or written, between the parties relating to the subject matter hereof, and all past courses of dealing or industry custom. This Agreement may be executed in counterparts, each of which shall be deemed an original, and together shall constitute one legal instrument. Facsimile, scanned-.pdf or other electronic signature will be accepted as an original signature.