CLOUD SERVICE SUBSCRIPTION GENERAL TERMS and CONDITIONS
This Winward Academy Cloud Service Subscription Terms and Conditions is part of the overall Winward Academy Subscription Agreement. Capitalized terms used below, but not defined herein, shall have the meaning ascribed to such terms in the Order Form. The Winward Academy Subscription Agreement may not be modified or amended except in a writing signed by a duly authorized representative of each party; and no other act, document, usage or custom shall be deemed to amend or modify the Winward Academy Subscription Agreement.
1.1 “Authorized User” means (a) an unlimited number of administrators working at the subscribing school or district specified in your Order Form and (b) up to the number of subscribing students and teachers set forth in your Order Form who are attending or working at such school or district.
1.2 “Data” means any Personal Data (as defined herein) and any data within the Uploaded Data Files.
1.3 “Documentation” means the installation guides, manuals and other documentation made available to You by Winward which are related to the Winward Academy Cloud Service.
1.4 “Order Form” means the ordering documents for Your purchases of any products or services from Winward.
1.5 “Term” means the applicable subscription term set forth in your Order Form.
1.6 “Uploaded Data Files” means any data files and/or test answers which have been uploaded into the Winward Academy Cloud
Service by an Authorized User for processing, placement assessment and/or test taking.
1.7 “Winward Academy Tutorials and Reports” means any and all tutorials, videos, lesson plans, reports, and/or feedback provided by Winward or otherwise generated via the Winward Academy Cloud Service.
1.8 “Winward Academy Cloud Service” means the online products, tutoring, and services that are ordered by You under an Order Form and made available to You by Winward via the Authorized User login link located at https://learn.winwardacademy.com/login and/or such other web pages designated by Winward including associated offline components found in the Documentation.
2. USE OF THE WINWARD ACADEMY CLOUD SERVICE
2.1 Subscription. You acknowledge that Your and Your Authorized Users’ use of the Winward Academy Cloud Service is subject to and limited by the terms of this Winward Academy Subscription Agreement. No additional rights are granted herein. You agree that You shall be solely responsible for any breaches of this Winward Academy Subscription Agreement by any Authorized Users to whom You provide access to the Winward Academy Cloud Service.
2.2 Subscription Grant. Subject to the terms and conditions of this Winward Academy Subscription Agreement, Winward hereby grants to You, a limited, non-exclusive, non-transferable, non-sublicensable right, during the Term, to permit Your Authorized Users to (a) access and use the Winward Academy Cloud Service; (b) print and distribute Winward Academy Reports and (c) use the Documentation in support of such Authorized Users’ permitted use of the Winward Academy Cloud Service.
2.3 Subscription Restrictions. You agree that Your subscription is subject to the following restrictions:
(a) You may not make the Winward Academy Cloud Services or Your logon credentials accessible to anyone other than Authorized Users;
(b) You may not share or transfer Your subscription for an Authorized User with or to another end user unless the original end user no longer requires, and is no longer permitted, access to the Winward Academy Cloud Service;
(c) You may not permit Your Authorized Users to use the Winward Academy Cloud Service except in accordance with the terms of this Winward Academy Subscription Agreement;
(d) You may not attempt to reverse engineer, decompile, disassemble, or extract any element of and/or otherwise discover any
source code, algorithms, methods, or techniques embodied in the Winward Academy Cloud Service, except to the extent expressly permitted by applicable law, notwithstanding contractual obligations to the contrary, and then only after (i) You have notified Winward in writing of Your intended activities and the information sought and (ii) Winward fails to provide such information within a reasonable period of time following such notice;
(e) You may not modify, transfer, assign, pledge, rent, lease, sell, resell, or create derivative works based on the Winward Academy Cloud Service or any user interfaces related to the foregoing;
(f) You may not attempt to access, upload, distribute or make available for distribution any proprietary and/or confidential
Uploaded Data Files unless You have sufficient rights and proper authorization to do so;
(g) You may not distribute nor make available for distribution any proprietary and/or confidential Winward Academy Reports to
third parties who do not themselves have sufficient rights and proper authorization to access and/or download such proprietary and/or confidential Winward Academy Reports;
(h) You may not engage in any OEM, SaaS (or service bureau), time-sharing, outsourcing, application service provider or reseller or other distribution arrangements in connection with the Winward Academy Cloud Service;
(i) You may not remove or destroy any Winward proprietary markings or proprietary legends placed upon or contained within the Winward Academy Cloud Service or any related materials, any Winward Academy, LLC Reports or any Documentation;
(j) You may not imply that the Winward Academy Cloud Service was developed, owned by, or proprietary to You or any other
third party; and
(k) You may not use the Winward Academy Cloud Service to upload, create, access, display, manipulate, store, or distribute any
Data that misappropriates or infringes the intellectual property or privacy rights of any third party.
2.4 Winward Academy Cloud Service Support.
(a) Availability. Winward will use commercially reasonable efforts to make the Winward Academy Cloud Service available 24 hours a day, 7 days a week, except for: (a) scheduled maintenance as notified in advance; (b) unplanned downtime or (c) any unavailability caused by circumstances beyond reasonable control, including without limitation, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor problems, Internet service provider failures or delays, or denial of service attacks.
(b) Support Hours For Telephone and Email. Winward offers“help desk” email support at firstname.lastname@example.org.
Such support is available from 7:00 a.m.-7:00 p.m. Eastern Standard Time, Monday through Friday, excluding holidays. Winward will use commercially reasonable efforts to make an initial response to any telephone message or email inquiry within one (1) business day of its receipt.
2.5 Third Party Equipment/Software. You acknowledge and agree that to use the Winward Academy Cloud Service you will need a personal computing device, a tablet, or other computing device which has Internet access and is in compliance with the specifications set forth in the Documentation. In addition, certain third party software which is not incorporated into the Winward Academy Cloud Service may be required to be loaded onto such computer or other device (each such device when properly installed with the required third party software to access the Winward Academy Cloud Service, herein referred to as an “Authorized Device”) for You to access, use, or enjoy the full benefit of the Winward Academy Cloud Service (including a compatible third party web browser). You shall be fully responsible for obtaining Authorized Devices for use by your Authorized Users at Your own cost. Your use of such separately acquired third party software shall be in accordance with any terms and conditions of the end user license agreement provided with such software. You acknowledge that Your access to and use of the Winward Academy Cloud Service does not carry, and You do not receive under this Winward Academy Subscription Agreement any license, covenant not to sue, or other rights under any third party intellectual property rights or other rights.
2.6 Right to Audit. You agree to keep records sufficient to demonstrate Your compliance with this Winward Academy Subscription Agreement, including the number of teachers using the Winward Academy Cloud Service. Winward may, upon reasonable advance written notice to You, audit Your use of the Winward Academy Cloud Service. If an audit reveals that You have used the Winward Academy Cloud Service beyond the scope of this Winward Academy Subscription Agreement, or You have failed to pay any associated subscription fees for such use, then, in addition to any other remedies Winward may have, You shall cure such breach within thirty (30) days of written notice from Winward by paying all applicable subscription fees which were due and payable by You at the time You exceeded the scope of Your subscription or failed to pay such fees. In the event any such audit reveals that You have underpaid Winward by an amount greater than five percent (5%) of the amounts due Winward in the period being audited, or that You have knowingly breached any material obligation hereunder, then, You shall also pay or reimburse Winward the cost of the audit.
2.7 Privacy. Your access to the Winward Academy Cloud Service may require Your Authorized Users to provide certain personal
2.9 Family Educational Rights and Privacy Act. If and to the extent applicable, Winward hereby agrees to comply with the Family Educational Rights and Privacy Act of 1974, and all requirements imposed by or pursuant to regulation of the Department of Education. Without limiting the foregoing, Winward agrees that (i) no identification of students or their parents to persons other than representatives of Winward is permitted; (ii) all Personal Data of any students will be destroyed when no longer needed for the purpose for which it was obtained; (iii) no access to Personal Data of any student shall be granted by Winward to any other person, persons, agency, or organization without the written consent of the pupil’s parent, except for sharing with other persons within the district or representatives of Winward engaged in the performance of this Agreement
2.10 Server Communication Features. You acknowledge and agree that the Winward Academy Cloud Service may contain server access restrictions, security and other technology designed to offer You features that prevent unauthorized access or use of the Winward Academy Cloud Service. You agree that You will not attempt to, or encourage or assist any other person to, circumvent or modify any security technologies included as part of the Winward Academy Cloud Service.
2.11 Logon Credentials. You acknowledge and agree that, if the necessary functionality is made available as part of the Winward
Academy Cloud Service, You shall require each Authorized User to create a user account, including a user name, I.D. number and password, or other logon credentials (altogether, “Logon Credentials”) to access and use the Winward Academy Cloud Service. Any I.D. number provided to Winward as part of the Logon Credentials need not be an employee I.D. number but must be unique to the individual Authorized User. Each Authorized User is solely responsible for maintaining the confidentiality of his or her Logon Credentials and for all activities on the Winward Academy Cloud Service that occur through the use of such Logon Credentials.
3.1 Fees. You shall pay all fees specified in Your Order Form. Except as otherwise specified herein or in an Order Form, (i) fees are quoted and payable in United States dollars, (ii) fees are based on products and/or services purchased and not actual usage; (iii) payment obligations are non-cancelable and fees paid are non-refundable; and (iv) the number of Authorized User subscriptions purchased cannot be decreased during the relevant Term stated on the Order Form. Authorized User subscription fees are based on the number of students and teachers in Your school or district (as applicable) and the duration of Your Term, as specified in the Order Form.
3.2 Invoicing and Payment. Winward will invoice You in advance and otherwise in accordance with Your Order Form(s). Unless otherwise stated in Your Order Form(s), invoiced charges are due thirty (30) days after the invoice date. You are responsible for maintaining complete and accurate billing and contact information on file with Winward. If You fail to make payments when due, then in addition to its other rights and remedies, Winward will have the right to terminate this Agreement, suspend service in accordance with Section 3.4 and/or to recover our reasonable costs and expenses, including reasonable attorneys’ fees, expended in collection of such amounts due.
3.3 Disputes. Winward must receive written notice of any disputed charges from You within fifteen (15) days after the invoice date or You shall be deemed to have waived Your right to dispute charges. Notwithstanding any dispute, You shall pay any undisputed amount of the invoice on or before the due date. The dispute notice shall set forth in reasonable detail the information concerning the disputed charges. The parties shall use best efforts to promptly resolve any disputed charges.
3.4 Suspension of Service and Acceleration. If any amount owed by You under this or any other agreement for any Winward products and/or services is thirty (30) or more days overdue (or ten (10) or more days overdue in the case of amounts You have authorized Winward to charge to Your credit card), Winward may, without limiting its other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and/or disable Your Logon Credentials and suspend Your and Your Authorized Users’ access to any services, including the Winward Academy Cloud Services, until such amounts are paid in full.
3.5 Overdue Charges. Any fees not paid when due shall accrue interest at the rate of 3% per annum, or the maximum rate permitted by law, whichever is lower.
3.6 Taxes. Unless otherwise stated, Winward’s fees and pricing do not include any taxes, levies, duties or similar governmental
assessments of any nature, including but not limited to value-added, sales, use, or withholding taxes, assessable by any local, state, provincial, federal, or foreign jurisdiction (collectively, “Taxes”). You are responsible for paying all Taxes associated with Your purchases hereunder. If Winward has the legal obligation to pay or collect Taxes for which You are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by You, unless You provide Winward with a valid tax exemption certificate authorized by the appropriate taxing authority. You shall indemnify and hold Winward harmless from and against any penalties, interest, or other tax liability arising from (a) any failure by You to pay any applicable Taxes, and/or (b) any tax exemption certificate provided by You under this Section 3.6. For clarity, Winward is solely responsible for taxes assessable against it based on Winward’s income, property, and employees.
4.1 “Confidential Information” means all confidential information in oral, written, graphic, electronic, or other form including, but not limited to, past, present, and future business, financial and commercial information, business concepts, prices and pricing methods, marketing and customer information, financial forecasts and projections, technical data and information, formulae, analyses, trade secrets, ideas, inventions, discoveries, methods, processes, know-how, computer programs, source code, products, equipment, product road maps, prototypes, samples, designs, data sheets, schematics, configurations, specifications, techniques, drawings, and any other data or information disclosed, whether orally, visually, or in writing. Among other things, Winward regards the source and object code for the Winward Academy Cloud Service as Confidential Information. Confidential Information shall not include data or information which (i) was in the public domain at the time it was disclosed or falls within the public domain, except through the fault of the receiving party; (ii) was known to the receiving party at the time of disclosure without an obligation of confidentiality, as evidenced by the receiving party’s written records; (iii) is disclosed after written approval of the disclosing party; (iv) becomes known to the receiving party from a source other than the disclosing party without an obligation of confidentiality; or (v) is developed by the receiving party independently of the disclosing party’s confidential information as demonstrated by written records.
4.3 Neither party will disclose to the other party any third party confidential information without first obtaining the written consent of such third party.
4.4 All Confidential Information disclosed hereunder shall remain the sole property of the disclosing party and the receiving party shall have no interest in or rights with respect thereto except as expressly set forth in this Winward Academy Subscription Agreement.
4.5 Winward may contract with third parties to perform services, including marketing assistance, e-mail delivery, hosting, back-up and recovery services, customer service, and data analysis and shall have the right to disclose Your Confidential Information to such third party in connection with their performance of services on Winward’s behalf. Winward requires any third party service providers to maintain the confidentiality of the information disclosed to them and such third parties are not permitted to use Confidential Information for any purpose other than to provide services to Winward.
4.6 The provisions in this Section 4 shall survive for seven (7) years after termination of this Winward Academy Subscription Agreement.
5. OWNERSHIP; FEEDBACK
5.1 Winward Ownership. As between Winward and You, Winward retains all rights, title, and interest (including all intellectual
property rights and other rights) in and to the Winward Academy Cloud Service, including any updates of any of the foregoing, and any feedback submitted by You in accordance with Section 5.3 regarding Winward’s current or future products or services, subject only to the limited rights expressly set forth in Section 2.2 of this Winward Academy Subscription Agreement. You do not acquire any other rights, express or implied, in the Winward Academy Cloud Service other than those rights expressly granted under this Winward Academy Subscription Agreement.
5.2 Ownership of Your Data. Winward does not claim any ownership rights to any Uploaded Data Files created by Authorized Users.
5.3 Feedback. If You elect to provide any feedback or comments to Winward related to the Winward Academy Cloud Service
(“Feedback”), all of Your Feedback shall be the sole and exclusive property of Winward, and Winward shall have the right to use and disclose such Feedback in any manner and for any purpose in Winward’s discretion without remuneration, compensation or attribution to You, provided that Winward is under no obligation to use such Feedback.
6. LIMITED WARRANTY; LIMITATION OF LIABILITY
6.1 Limited Warranty. During the Term, Winward warrants that the Winward Academy Cloud Service will function in substantial
accordance with its written specifications and Documentation. In addition, Winward warrants that any services to be provided under any Professional Services Addendum will be provided in a professional and workmanlike manner. In the event of a breach of Winward’s warranty of this Section 6.1, Winward agrees to use commercially reasonable efforts to cause the Winward Academy Cloud Service to function in substantial accordance with its specifications and Documentation and/or to re-perform the professional services, as applicable. If Winward notifies You that it is unable to remedy any material breach of this warranty, You or Winward shall have the right to terminate the effected service and, upon such termination, Winward will refund to You a pro rata portion of any fees You Prepaid for the canceled service based on the remaining unused portion of the Term for the canceled service. For any breach of the warranty above, Your sole and exclusive remedy shall be as provided in this Section 6.1. THE FOREGOING WARRANTY SHALL NOT APPLY TO WINWARD ACADEMY CLOUD SERVICE PROVIDED UNDER A PILOT/EVALUATION SUBSCRIPTION. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS SECTION 6.1, THE WINWARD ACADEMY CLOUD SERVICE AND SERVICES PROVIDED HEREUNDER (INCLUDING ANY SERVICES PROVIDED UNDER ANY SCHEDULES OR ADDENDUMS TO THE WINWARD ACADEMY SUBSCRIPTION AGREEMENT) ARE PROVIDED “AS IS”, “AS-AVAILABLE”, WITH ALL FAULTS, AND WINWARD MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS, AND ANY WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY WINWARD OR ITS REPRESENTATIVES SHALL CREATE A WARRANTY. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS SECTION 6.1, YOUR USE OF THE WINWARD ACADEMY CLOUD SERVICE IS ENTIRELY AT YOUR OWN RISK AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU.
6.2 Limitation of Liability. EXCEPT TO THE EXTENT THE FOLLOWING LIMITATION OF LIABILITY IS PROHIBITED BY
LAW, WINWARD’S TOTAL LIABILITY TO YOU SHALL BE LIMITED TO DIRECT DAMAGES SUSTAINED BY YOU UP TO A MAXIMUM AMOUNT OF THE FEES PAID BY YOU TO WINWARD UNDER THIS WINWARD ACADEMY SUBSCRIPTION AGREEMENT FOR THE THEN CURRENT SUBSCRIPTION TERM; PROVIDED THAT, REGARDLESS OF ANY STATUTE OR LAW, NO CLAIM OR CAUSE OF ACTION, REGARDLESS OF FORM, ARISING OUT OF OR IN CONNECTION WITH THIS WINWARD ACADEMY SUBSCRIPTION AGREEMENT MAY BE BROUGHT BY YOU MORE THAN TWELVE (12) MONTHS AFTER THE FACTS GIVING RISE TO THE CAUSE OF ACTION HAVE OCCURRED, REGARDLESS OF WHETHER THOSE FACTS BY THAT TIME ARE KNOWN TO, OR REASONABLY OUGHT TO HAVE BEEN DISCOVERED BY YOU; FURTHERMORE, NEITHER WINWARD NOR ANY OF ITS LICENSORS SHALL BE LIABLE TO YOU FOR PERSONAL INJURY, OR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE, OR OTHER DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OR INTERRUPTION OF BUSINESS, LOSS OF DATA, LOSS OF GOODWILL OR LOST PROFITS), UNDER ANY THEORY OF LIABILITY, INCLUDING WITHOUT LIMITATION CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER THEORY ARISING OUT OF OR RELATING IN ANY WAY TO THIS WINWARD ACADEMY SUBSCRIPTION AGREEMENT (INCLUSIVE OF ANY SCHEDULES AND/OR ADDENDUMS HEREUNDER), EVEN IF WINWARD HAS BEEN ADVISED OF THE RISK OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE. THE PARTIES ACKNOWLEDGE THAT THE LIMITATIONS OF LIABILITY IN THIS SECTION 6.2 AND IN THE OTHER PROVISIONS OF THIS WINWARD ACADEMY SUBSCRIPTION AGREEMENT AND THE ALLOCATION OF RISK HEREIN ARE ESSENTIAL ELEMENTS OF THE BARGAIN BETWEEN THE PARTIES, WITHOUT WHICH WINWARD WOULD NOT HAVE ENTERED INTO THIS WINWARD ACADEMY SUBSCRIPTION AGREEMENT.
7.1 Your Indemnity Obligations. You agree to defend Winward, its affiliates, employees, agents, assigns, and licensors against any third party suits, actions, claims, or proceedings (“Claim”) (i) alleging that the content and/or Data (including Personal Data) in any Uploaded Data Files uploaded by You or Your Authorized Users infringe or misappropriate a third party’s intellectual property, privacy or other rights; or (ii) resulting from Your or Your Authorized Users’ breach of or failure to comply with any term, condition, representation, or covenant under this Winward Academy Subscription Agreement, and You agree to indemnify and hold Winward its affiliates, employees, agents, assigns, and licensors harmless from all damages, liabilities, costs and expenses, including reasonable attorneys’ fees, incurred by or awarded against Winward or its affiliates, employees, agents, assigns, and licensors that may result from any such third party claim.
7.2 Winward’s Indemnity Obligations. Winward agrees to indemnify and defend You from and against any Claim initiated by a third party alleging that Your use of the Winward Academy Cloud Service in accordance with the terms of this Winward Academy Subscription Agreement infringes any United States patents of which Winward is aware, any copyrights of any third party or trade secret rights, provided, however, that Winward shall not be obligated to indemnify and defend You from and against any Claim to the extent arising from (i) any matter for which You are obligated to indemnify Winward pursuant to Section 7.1 above; (ii) use of the Winward Academy Cloud Service with any other software or service not provided by Winward, if, but for such combination, the use of the Winward Academy Cloud Service would not have been infringing; and/or (iii) use of the Winward Academy Cloud Service under a Pilot/Evaluation Subscription. In addition, You shall be obligated to notify Winward promptly upon learning of any Claim for which You are seeking indemnification pursuant to this Section 7.2, and You must provide Winward with sole control and authority over the defense and/or settlement of the Claim, subject to Your provision of reasonable assistance at the request of Winward and at Winward’s expense. Should the Winward Academy Cloud Service become or, in Winward’s reasonable opinion is likely to become, the subject of any Claim, Winward may, at its option and expense, either: (a) procure for You the right to continue to use the Winward Academy Cloud Service as contemplated by this Winward Academy Subscription Agreement, (b) replace or modify the Winward Academy Cloud Service to make its use in accordance with this Winward Academy Subscription Agreement non-infringing, or (c) with thirty (30) days’ notice to You, terminate this Winward Academy Subscription Agreement and refund to You any prepaid subscription fees covering the remainder of the Term after the effective date of termination.
7.3 Exclusive Remedy. This Section 7 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of Claim described in this Section 7.
8.1 Term of Agreement. This Winward Academy Subscription Agreement shall remain in effect for the period specified in Your Order Form unless terminated sooner in accordance with this Winward Academy Subscription Agreement.
8.2 Renewal. Except as otherwise specified in the applicable Order Form, all subscriptions shall automatically renew for additional periods equal to the expiring Term or one (1) year (whichever is longer), unless either party gives the other notice of non-renewal at least thirty (30) days before the end of the relevant Term. If You have a Pilot/Evaluation Subscription, then at the time of such renewal your Subscription will automatically convert into a paid subscription. The per-unit pricing for any renewal term shall be at the then-current list price unless otherwise agreed by the Parties in writing at least thirty (30) days before the expiration of the then current Term.
8.3 Termination. You may terminate this Winward Academy Subscription Agreement at any time by notifying Winward in writing (or electronically) upon thirty (30) days advance written notice. Winward may terminate this Winward Academy Subscription Agreement (or any applicable Schedule or Addendum) at any time by notifying You in writing (or electronically) if You have committed a material breach of this Winward Academy Subscription Agreement (or such applicable Schedule or Addendum) which has not been remedied within thirty (30) days after the provision of notice specifying the nature of the breach.
8.4 Effects of Termination. Upon termination of this Winward Academy Subscription Agreement, all subscriptions granted to You
hereunder shall terminate and Your Authorized Users shall cease all use of the Winward Academy Cloud Service. Except as otherwise expressly set forth in Section 6.1, in the event of termination of this Winward Academy Subscription Agreement for any reason, all fees paid in advance are non-refundable and You will not be entitled to a pro rata refund of any portion of such fees.
8.5 Surviving Provisions. Sections 2.6, 3.2, 3.5, 3.6, 4, 5, 6, 7, 8 and 9 will survive any termination of this Winward Academy
Subscription Agreement, together with any payment obligations owed by You to Winward for Winward Academy Cloud Service and/or services under any Schedules or Addendums received prior to the effective date of termination.
9. GENERAL TERMS
9.1 Governing Law. This Winward Academy Subscription Agreement and all matters arising out of or relating to this Winward Academy Subscription Agreement shall be governed by the internal laws of the State of California without giving effect to any choice of law rule. This Winward Academy Subscription Agreement shall not be governed by the United Nations Convention on Contracts for the International Sales of Goods, the application of which is expressly excluded. Each party hereby irrevocably consents to the exclusive jurisdiction and venue of the state and federal courts located in Los Angeles County, California in connection with any claim, action, suit, or proceeding relating to this Winward Academy Subscription Agreement, except that either party may seek injunctive, equitable or similar relief from any court of competent jurisdiction.
9.2 Severability and Waiver. If any provision of this Winward Academy Subscription Agreement is held to be illegal, invalid, or
otherwise unenforceable, such provision will be enforced to the extent possible consistent with the stated intention of the parties, or, if incapable of such enforcement, will be deemed to be severed and deleted from this Winward Academy Subscription Agreement, while the remainder of this Winward Academy Subscription Agreement will continue in full force and effect. The waiver by either party of any default or breach of this Winward Academy Subscription Agreement will not constitute a waiver of any other or subsequent default or breach.
9.3 No Assignment. You may not assign, sell, transfer, delegate, or otherwise dispose of, whether voluntarily or involuntarily, by
operation of law or otherwise, this Winward Academy Subscription Agreement or any rights or obligations under this Winward Academy Subscription Agreement without the prior written consent of Winward which may be withheld at Winward’s discretion. Any purported assignment, transfer or delegation by You shall be null and void. Winward shall have the right to assign this Winward Academy Subscription Agreement without Your consent and without prior notice to You. Subject to the foregoing, this Winward Academy Subscription Agreement shall be binding upon and shall inure to the benefit of the parties and their respective successors and assigns.
9.4 Legal Compliance; Export Administration; and Government Users. By accepting this Winward Academy Subscription
Agreement You represent and warrant that You and Your Authorized Users (i) are not located in a jurisdiction that is subject to a U.S. government embargo, or that has been designated by the U.S. government as a “terrorist supporting” country, and will not use the Winward Academy Tutorials and Reports or the Winward Academy Cloud Service in such jurisdictions; (ii) are not listed on any U.S. government list of prohibited or restricted parties; and (iii) will comply fully with all relevant export laws and regulations of the United States, including, without limitation, the U.S. Export Administration Regulations (collectively “Export Controls”). If You are an agency or instrumentality of the United States Government, the Winward Academy Cloud Service and the software accessed there through constitutes “commercial computer software” and the Documentation constitutes “commercial computer software documentation”, and pursuant to FAR 12.212 or DFARS 227.7202, and their successors, as applicable, use, reproduction, and disclosure of the Winward Academy Cloud Service, the software accessed there through and Documentation are governed by the terms of this Winward Academy Subscription Agreement. The manufacturer of the software accessed through the Winward Academy Cloud Service is Winward Academy, LLC with an address at 7676 Hazard Center Drive, Suite 500, San Diego, CA 92108.
9.5 Conflicts. In the event of any conflict or inconsistency between this Winward Academy Subscription Agreement and any online Winward Academy Cloud Service End User License Agreements, the terms of this Winward Academy Subscription Agreement shall control and prevail to the extent of such conflict or inconsistency.
9.6 Injunctive Relief. You acknowledge and agree that a breach or threatened breach of any covenant contained in this Winward
Academy Subscription Agreement would cause irreparable injury, that money damages would be an inadequate remedy and that Winward shall be entitled to temporary and permanent injunctive relief, without the posting of any bond or other security, to restrain You, from such breach or threatened breach. Nothing in this Section 9.6 shall be construed as preventing Winward from pursuing any and all remedies available to it, including the recovery of money damages from You.
9.7 Independent Contractor. Winward’s relationship with You will be that of an independent contractor. It is agreed and understood that neither party is the agent, representative, nor partner of the other and neither party has any authority or power to bind or contract in the name of or to create any liability against the other in any way or for any purpose pursuant to this Winward Academy Subscription Agreement. Nothing contained in this Winward Academy Subscription Agreement shall be construed to give either party the power to direct and control the day-to-day activities of the other, constitute the parties as partners, joint venturers, principal and agent, employer and employee, co-owners, or otherwise as participants in a joint undertaking, or allow either party to create or assume any obligation on behalf of the other party for any purpose whatsoever.
9.8 Language. English is the language of this Winward Academy Subscription Agreement, and all communications and proceedings must be conducted in English. If this Winward Academy Subscription Agreement is translated, then the English language version will control.