​TERMS AND CONDITIONS

1.0 PLATFORM SERVICES and PROPER USE

1.1 Campus Software Platform Services

Subject to and conditioned on the Institution and its Authorized Users compliance with the terms and conditions of this Agreement, during the Term, Campus shall provide the Institution and its Authorized Users with access to the Campus Catalog Platform, twenty-four (24) hours per day, seven (7) days per week, every day of the year, except for:

1. Scheduled Downtime in accordance with this agreement;
2. service downtime or degradation due to a Force Majeure Event;
3. any other circumstances beyond Campus’ reasonable control, including the Institution’s or any Authorized User’s misuse of the Platform other than in compliance with the express terms of this Agreement; and
4. any suspension or termination of the Institution’s or any Authorized User’s access to or use of the Approved Courses or the Campus Software Platforms as permitted by this Agreement.

1.2. Scheduled Downtime

Campus will use commercially reasonable efforts to (a) schedule downtime for routine maintenance of the Campus Software Platforms between the hours of 2 a.m. and 4 a.m., EST; and (b) provide the Institution and Authorized Students at least twenty-four (24) hours prior notice of all scheduled outages of the Campus Software Platforms.

1.3 Service Disruption or Degradation

In the event the Campus Catalog Platform availability is interrupted for any reason that is not Scheduled Downtime, Campus will use commercially reasonable efforts to address and mitigate the service disruption or degradation.

1.4. Right to Suspension or Termination of Access 

Campus may, in its sole but reasonable discretion, suspend, terminate or otherwise deny any Authorized  User’s access to or use of all or any part of Campus Catalog Platform, without incurring any resulting obligation or liability, if: (a) Campus receives a judicial or other governmental demand or order, subpoena or law enforcement request that expressly or by reasonable implication requires Campus to do so; or (b) Campus believes, in its reasonable discretion, that: (i) the Institution or any Authorized Student has failed to comply with any material term of this Agreement, or accessed or used the Campus Catalog Platform beyond the scope of the rights granted herein or for a purpose not authorized under this Agreement; (ii) the Institution or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading or unlawful activities or, in Campus’s sole discretion, exhibits inappropriate behavior, relating to or in connection with or on the Campus Catalog Platform; or (iii) this Agreement expires or is terminated. This Section does not limit any of Campus’ other rights or remedies, whether at law, in equity or under this Agreement. In addition, the Institution shall have the right, in its sole discretion, to direct Campus to terminate the access to the Campus Catalog Platform of any Authorized User of its school, college or university, and Campus shall effect such termination of access within three (3) business days of such request.

1.5. Institution Restrictions on the Platform

The Institution shall not, and shall not permit any other Person (including an Authorized User) to, access or use the Campus Software Platforms or any Approved Course except as expressly permitted by this Agreement. For purposes of clarity and without limiting the generality of the foregoing, the Institution shall not and shall not permit any other Person (including an Authorized User), to:

1. copy, modify or create derivative works or improvements of the Campus Catalog Platform or it’s Courses;
2. rent, lease, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the Campus Catalog Platform to any Person except as permitted herein;
3. reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of the Campus Catalog Platform, in whole or in part;
4. bypass or breach any security device or protection used by the Campus Catalog Platform or access or use the Campus Catalog Platform for any reason other than by an Authorized User through the use of his or her own then-valid access credentials;
5. input, upload, transmit or otherwise provide to or through the Campus Catalog Platform, any information or materials that are unlawful or injurious, or contain, transmit or activate any virus, worm, malware or other malicious or harmful computer code;
6. damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Campus Catalog Platform or Campus’ provision of services to any third party, in whole or in part;
7. remove, delete, alter or obscure any trademarks, warranties or disclaimers, or any copyright, trademark, patent, other Intellectual Property Right or other proprietary rights notices from the Campus Catalog Platform, including any copy thereof;
8. access or use the Campus Catalog Platform in any manner or for any purpose that infringes, misappropriates or otherwise violates any Intellectual Property Right or other right of any third party, or that violates any applicable Law;
9. access or use the Campus Catalog Platform or the Approved Courses for purposes of competitive analysis or development, provision or use of a competing software service or product or any other purpose that is to the Campus’ detriment or commercial disadvantage; or otherwise access or use the Campus Catalog Platform or the Approved Courses beyond the scope of the authorization granted hereunder.

1.6. Records and Privacy

The parties acknowledge that their performance under this agreement is bound by the Family Educational Rights and Privacy Act (FERPA). Institutions authorize Campus to be an official school service provider under the Act under the following terms and conditions which are inherent in the work covered by this agreement:

• Home and authoring institutions will: Disclose student education records to Campus that contain personally identifiable information (PII), for the purpose of performing this agreement. 
• Home and authoring institutions will: Represent that it has obtained prior consent to disclose the education records or that it is disclosing the education records under a permissible exception under section 99.31 of the Family Educational Rights and Privacy Act (“FERPA”), 34 C.F.R. § 99.31. 
• Campus will: Use PII contained in the records only for the purpose of providing services under this agreement and will not share the PII with anyone other than those with a legitimate interest in provisioning the services. 
• Campus will: Destroy or return to the PII contained in the records that Institutions have provided to Campus for the purpose of performing the services at the termination of the agreement.
• Campus will: be permitted to disclose PII if it is required to do so in response to a validly issued subpoena or court order, or as otherwise required by law
• Campus will: Update, maintain, and make accessible the data sharing platform and all security protocols associated with protecting the data entered by students in accordance with FERPA

2.0 INDEMNIFICATION, LIABILITY, FORCE MAJEURE, LAW COMPLIANCE 

2.1 Campus 

Campus shall defend, indemnify, and hold harmless the Institution and its officers, directors, employees, agents, successors, and permitted assigns from and against all Losses arising out of or resulting from any third-party claim, suit, action, or proceeding arising out of or resulting from:

1. bodily injury, death of any person, or damage to real or tangible, personal property resulting from the willful, fraudulent, or grossly negligent acts or omissions of Campus; and
2. Campus’ material breach of any representation, warranty, or obligation of Campus set forth in this Agreement.

2.2. Institution 

The Institution shall defend, indemnify, and hold harmless Campus and Campus’s Affiliates and their respective officers, directors, employees, agents, successors, and permitted assigns from and against all Losses arising out of or resulting from any third-party Action arising out of or resulting from:

1. bodily injury, death of any person, or damage to real or tangible, personal property resulting from the grossly negligent or willful acts or omissions of the Institution or an Affiliate of the Institution; and
2. The Institution’s material breach of any representation, warranty, or obligation of the Institution or Authorized User in this Agreement.

2.3. Data Security

Campus will act upon the provided data information, as agreed upon in this agreement and the attached Schedule 3, in good faith and will not be held accountable for any cost or damages incurred from incorrect data supplied by the Institution. Campus has the right to charge back to the Institution any losses incurred as a result of incorrect or outdated data provided that and is subsequently shared with other users in the Consortium, and causes financial harm or loss to other users of Campus Software Platforms. This may include, but is not limited to, investment in course materials, enrollment, administration fees on behalf of a student enrolled in a false or outdated course as posted for use by the Campus Consortium, Conversely, the Institution will not be held accountable for any Campus cost or damages incurred from incorrect data transmitted by Campus.

1. Campus will collect, store and provide data in accordance with Campus’s then-current privacy policy. By permitting Authorized Students and users to access the Campus Catalog Platform, the Institution agrees to the terms of Campus’s privacy policy, which may be amended from time to time.

2.4 Cooperation 

The party seeking indemnification hereunder shall promptly notify the indemnifying party in writing of any Action and cooperate with the indemnifying party at the indemnifying party’s sole cost and expense. The indemnifying party shall immediately take control of the defense and investigation of such Action and shall employ counsel of its choice to handle and defend the same, at the indemnifying party’s sole cost and expense. The indemnified party’s failure to perform any obligations under this Section shall not relieve the indemnifying party of its obligations under this Section except to the extent that the indemnifying party can demonstrate that it has been materially prejudiced as a result of such failure. The indemnified party may participate in and observe the proceedings at its own cost and expense.

2.5. Obligation

Notwithstanding anything to the contrary in this Agreement, the indemnifying party is not obligated to indemnify, hold harmless, or defend the indemnified party against any claim (whether direct or indirect) to the extent such claim or corresponding losses arise out of or result from, in whole or in part, the indemnified party’s gross negligence or more culpable act or omission (including recklessness or willful misconduct), or bad faith failure to comply with any of its material obligations set forth in this Agreement.

2.6. Limitation of Liability

IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT OR LOSS OF DATA OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  CAMPUS SHALL NOT BE LIABLE TO THE ACU FOR ANY DAMAGES WHATSOEVER IN EXCESS OF THE FEES PAID TO CAMPUS BY THE ACU HEREUNDER.

2.7. Force Majeure 

No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments to the other party hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party’s reasonable control, including without limitation the following force majeure events: (a) acts of God; (b) flood, fire, earthquake, epidemic, pandemic, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (d) government order, law, or actions, including acts of quarantine; (e) embargoes or blockades in effect on or after the date of this Agreement; and (f) national or regional emergency. The Impacted Party shall give notice within ten (10) business days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue. During the Force Majeure Event, the non-affected party may similarly suspend its performance obligations until such time as the affected party resumes performance. The affected party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized and shall resume performance of its obligations as soon as reasonably practicable after the removal of the cause.

2.8. Compliance with Applicable Law 

If either party reasonably determines that fulfilling its obligations under this Agreement would violate any applicable law (including any Education Law), the parties will work together to achieve compliance with such law or Education Law in a manner that reflects the intended benefits of this Agreement. In the event that the parties, acting reasonably after consultation with counsel and their senior managements, cannot reach agreement on amendments or modifications and one party reasonably concludes that the existing arrangements would violate an applicable law or Education Law and cannot be modified in a manner that complies with such law or Education Law and reflects the intended benefits of this Agreement, such party may terminate this Agreement upon not less than one hundred eighty (180) days’ notice. In such case the parties will work diligently together to wind down the activities described by this Agreement in a manner aimed to provide the least amount of loss or inconvenience to either party, and in a manner consistent with any requirements or restrictions under applicable law or Education Law, including interpretations of applicable law or Education Law then in effect by a court or regulatory agency of competent jurisdiction.   

3.0 TERM RENEWAL & NON-RENEWAL

3.0 No Ongoing Commitment 

Participation in this Agreement in no way obligates either Party to participate in any new or additional engagement. Any such new or additional engagement must be memorialized in a separate contract signed by the Parties.