GENERAL TERMS AND CONDITIONS FOR VITALYST ADAPTIVE LEARNING FOR MICROSOFT 365 SERVICES

PLEASE READ THIS PROGRAM SERVICES AGREEMENT CAREFULLY.   BY DOWNLOADING, INSTALLING, OR USING THE ADAPTIVE LEARNING FOR MICROSOFT 365 SERVICES OFFERED TO YOU BY VITALYST, YOU ACCEPT AND AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT.  IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, YOU MAY NOT DOWNLOAD, INSTALL AND/OR USE THE ADAPTIVE LEARNING SERVICES. YOU HEREBY AGREE TO THE USE OF ELECTRONIC COMMUNICATION TO ENTER INTO BINDING CONTRACTS.  TO THE EXTENT PERMITTED BY APPLICABLE MANDATORY LAW, YOU HEREBY WAIVE ANY RIGHTS OR REQUIREMENTS UNDER THE LAWS OR REGULATONS OF ANY JURISDUCTION WHICH REQUIRES AN ORIGINAL (NON-ELECTRONIC) SIGNATURE OR DELIVERY OR RETENTION OF NON-ELECTRONIC RECORDS.

  1. General Requirements.   Vitalyst has obtained and will stay current to ISO/IEC 27001 Certification including the ISO/IEC 27002 Code of Best Practice.  Vitalyst will also comply with General Data Protection Regulation and EU Model Clauses.
  1. Charges. Various Support and Training Services provided by Vitalyst will be at no cost to client for up to 90 days unless agreed upon in a separate agreement.  Vitalyst may adjust or suspend service deliver should you route support requests improperly to Vitalyst, route over 15% of out-of-scope support requests to Vitalyst, or should support request volume otherwise exceed commercially reasonable expectations.
  1. Confidential Information. Confidential Information is non-public information of a party which is provided to the other party hereunder and which is maintained as confidential by the disclosing party. A party receiving Confidential Information may use it only for the purposes for which it was provided and may not disclose it to any third party unless such third party has “a need to know” the information and is bound by the confidentiality and limited use restrictions set forth in this Agreement (including the licensing restrictions and other requirements in Section 8 which apply to Deliverables).  Without limitation, Confidential Information of Vitalyst includes the Company Information (defined in Section 8 below), the Company’s other intellectual property, any and all pricing information and metrics related to its services and offerings, information about employees and customers, information about business, product or marketing strategy, and information regarding the company’s practices and methodologies utilized in the delivery of Support Services.  Confidential Information of Client includes non-public information regarding Client’s employees, customers and contractors (including “Client PII” as defined in Section 7 below) and non-public information regarding its financial health and its business, marketing and product strategies. Confidential information does not include information that:  (i) is or becomes known to the public without fault or breach of this provision; or (ii) the owning party regularly discloses to third parties without restriction on disclosure; or (iii) the is received from a party other than a party to this Agreement without restriction on disclosure and without breach of a non-disclosure obligation.  The obligations of this provision shall survive termination of this Agreement for so long as the owning party treats the item at issue as confidential. 
  1. Personally Identifiable Information. In the course of the provision of Support Services, Client may from time to time provide Vitalyst with certain personal identifiable information of Client’s employees, contractors and/or customers that is regulated by various state and/or federal laws and regulations (“Client PII”).   Vitalyst represents that it maintains appropriate data security measures, including a written information security policy, to protect Client PII in a manner consistent with the requirements of all state and federal laws and regulations which apply to Vitalyst’s handling of Client PII in the course of providing Support Services hereunder (“Applicable Laws”).  Further, consistent with the requirements of Applicable Laws, Vitalyst shall, for so long as it retains Client PII: (i) maintain the confidentiality of Client PII as set forth in Section 6 (Confidential Information) of this Agreement; (ii) limit access to Client PII to Vitalyst’s employees, agents and subcontractors who need access to Client PII to fulfill Vitalyst’s obligations hereunder and who agree to abide by the same restrictions that apply to Vitalyst with regard to such Client PII; and (iii) implement appropriate administrative, technical and physical safeguards designed to ensure the security or integrity of such Client PII and help protect against unauthorized access to or use of such Client PII.

    Client will maintain appropriate data security measures, and implement security policies and practices, as necessary to protect Client PII in a manner consistent with the requirements of all state and federal laws and regulations which apply to Client.  Client will implement practices and policies designed to limit the provision of Client PII to Vitalyst to those instances where such Client PII is necessary for the effective provision of Support Services from Vitalyst and, in such instances, Client shall ensure that the Client PII is transmitted or made available in a form or manner which complies with all applicable laws and regulations

  1. Intellectual Property Rights; License Granted to Client.

    Intellectual Property Rights. Each party shall own all rights in and to: (i) its proprietary intellectual property which it developed or otherwise owned prior to the execution of this Agreement; (ii) any proprietary intellectual property which it develops independently of the Support Services and Deliverables provided hereunder; and (iii) its proprietary data. Client agrees that, except for proprietary information rightfully owned by a third party, Vitalyst shall own all rights in and to any methodologies, deliverables, work product and other intellectual property (“Company Information”) created or provided by Vitalyst in the course of, or in connection with, the delivery of Support Services under this Agreement.  

    License Granted to Client. Company Information which provided by Vitalyst as a deliverable for Client’s use as part of the Support Services provided hereunder shall be referred to as a “Deliverable”.  Vitalyst grants Client a non-exclusive, non-transferable license to allow use of each Deliverable by employees, Affiliates and Authorized Agents (defined below) of Client solely in support of Client’s (or, where applicable, its Affiliates’) internal business operations. This license is perpetual, except that third-party owned Deliverables or portions thereof are licensed for use for the Term hereof.  Client, its employees, Affiliates and Authorized Agents are prohibited from: (i) distributing or disclosing any Deliverable to any third party or using any Deliverable to provide services to, or for the benefit of, a third party; or (ii) using or relying upon a Deliverable to develop any service or product similar to those then offered by Vitalyst.  All rights not expressly granted herein are reserved by Vitalyst. 

  1. Non-interference with Employees. Client and Vitalyst agree that neither party (nor any Affiliate) shall directly or indirectly solicit for employment, hire, employ or retain (as an employee, independent contractor, consultant, subcontractor or otherwise) any person employed by the other party during the term of this Agreement or within a period of one (1) years following expiration or termination of this Agreement without the prior written consent of the other party. Notwithstanding the above, it shall not be a violation of this provision for a party to hire a former employee of the other party whose employment terminated more than six (6) months prior to being hired.
  1. DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY

    WITHOUT LIMITING its OBLIGATIONS TO PERFORM SUPPORT SERVICES as required HEREUNDER, VITALYST DISCLAIMS ALL WARRANTIES OF ANY KIND, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTIBILITY OR FITNESS FOR A PARTICULAR PURPOSE.

    NEITHER PARTY SHALL BE HAVE LIABILITY TO THE OTHER FOR ANY SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS OR LOSS OF DATA, REGARDLESS OF THE CAUSE OF ACTION OR EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
  1. Force Majeure. Neither party will be liable to the other for any failure or delay in performance under this Agreement due to circumstances beyond its reasonable control, including Acts of God, acts of war, accident, labor disruption, acts, omissions and defaults of third parties and official, governmental and judicial action not the fault of the party failing or delaying in performance. Force Majeure events shall include power outages, delays caused by the unavailability of telephone or other telecommunication systems and failures or defects in third party software, hardware, multi-media work product, equipment or other items.
  1. Contract in Entirety. This Support Services Agreement (including these General Terms and Conditions) sets forth the entire understanding and Agreement between Vitalyst and Client and supersedes any prior or contemporaneous oral or written communications, understandings, agreements or representations. This Agreement may be modified only by a written amendment duly signed by both parties. 

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