Last Updated: November 30, 2020
BY AGREEING TO A DOCUMENT INCORPORATING THIS MASTER SUBSCRIPTION AGREEMENT (MSA), WATERMARK AND ORGANIZATION AGREE THAT THESE TERMS SHALL GOVERN THE RELATIONSHIP BETWEEN THE PARTIES AS TO ANY SERVICES PROVIDED OR TO BE PROVIDED TO ORGANIZATION AS SET FORTH IN SUCH ORDER FORM. AS TO ANY PARTICULAR ORDER FORM, THE ORDER FORM AND THESE TERMS TOGETHER CONSTITUTE THE AGREEMENT OF THE PARTIES AND ARE REFERRED TO COLLECTIVELY HEREIN AS THE “AGREEMENT.” IN THE EVENT OF ANY CONFLICT BETWEEN THE ORDER FORM AND THESE TERMS, THESE TERMS SHALL PREVAIL UNLESS THE ORDER FORM EXPRESSLY PROVIDES IT IS MODIFYING THESE TERMS WITH RESPECT TO SUCH AGREEMENT.
1. The Service
1.1 Introduction. Watermark owns the rights in and to an educational tools website, the URL address of which is www.watermarkinsights.com, and related technology as described in the Order Form, and Watermark has agreed to provide: (i) access to certain of such technologies to Organization (“Subscription Service”); and (ii) if applicable, Professional Services, including Implementation (“Professional Service”), as indicated in the Order Form, and which may be updated by the parties from time to time to add or remove additional Subscription or Professional Services (collectively, “the Service”). Organization wishes to enter into this Agreement with Watermark to enable its employees, and, as applicable, its administrators, faculty and students (“End Users”) to make use of the Service.
1.2 Subscription. Subject to and conditioned on Organization’s payment of the fees for Subscription Services and compliance with all other terms and conditions of this Agreement, Watermark grants to Organization a limited, non-exclusive, non-transferable, non-sublicensable, revocable right to access and use the Subscription Service solely for the purpose of enabling access and use of the Service by its End Users during the Term of this Agreement, and in accordance with the Order Form.
1.3 Customer Restrictions and Responsibilities. Organization is solely responsible for (i) the content of Organization Data; and (ii) its use of the Services, including by and between its End Users. Each End User’s access to the Subscription Service is conditioned upon the End User’s acceptance of the Terms of Service (“ToS”); provided that Watermark agrees that Organization and its employees shall be bound by the terms and conditions of this Agreement and therefore Watermark waives compliance by Organization and its employees with any conflicting provisions of the ToS. Watermark shall make the accounts available to Organization, and Organization shall be responsible for providing the access codes to its End Users and informing them that they may register for the Subscription Service. Organization shall be responsible for maintaining the confidentiality of the access codes. Organization shall not, directly or indirectly: (a) attempt to gain access to Watermark’s software code for any purpose, including without limitation, to modify, disassemble, de-compile, reverse engineer, or otherwise attempt to determine the source code or protocols from the object code of the Service or knowingly permit or encourage any third party to do so; (b) use the Service in any manner to provide service bureau, time-sharing or other computer services to third parties; (c) use the Service in any manner to assist or take part in the development, marketing, or sale of a product potentially competitive with the Service; (d) remove or modify any proprietary marking or restrictive legends placed on the Subscription Service; or (e) use the Service, or allow the transfer, transmission, export, or re-export of the Service or portion thereof in violation of any applicable law, including, without limitation, export control laws or regulations administered by a government agency of competent jurisdiction. Organization shall: (a) provide access to Organization’s premises and such other facilities as may reasonably be required for purposes of performing the Service; (b) respond promptly to any Watermark request to provide direction, information, approvals, authorizations or decisions that are reasonably necessary for Watermark to perform Services in accordance with the requirements of any Order Form; and (c) provide such information as Watermark may reasonably request, in order to carry out the Services, in a timely matter, and ensure that it is complete and accurate in all respects. If Watermark’s performance of its obligations under the Agreement is prevented or delayed by any act or omission of Organization or its agents, subcontractors, consultants or employees, Watermark shall not be deemed in breach of its obligations under this Agreement or any Order Form or otherwise liable for any costs, charges or losses sustained or incurred by Organization, in each case, to the extent arising directly or indirectly from such prevention or delay.
1.4 Watermark Responsibilities. In the event that End Users will be paying for their accounts directly, Watermark shall inform Organization when Organization may advise its End Users to begin purchasing accounts and self-registering on the Subscription Service. Watermark shall: (a) provide support as specified in any Order Form; and (b) perform the Service using personnel of required skill, experience and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and shall devote adequate resources to meet its obligations under this Agreement.
1.5 Service Availability. Watermark shall endeavor to ensure that the Subscription Service is available, except for scheduled downtime for maintenance or in the event of a force majeure event (as defined in Section 9). In the event of unexpected downtime, Watermark’s sole obligation will be to use commercially reasonable efforts to resolve the issue as soon as reasonably practicable under the circumstances. Notwithstanding anything to the contrary in this Agreement, Watermark may temporarily suspend Organization’s and any End User’s access to any portion or all of the Subscription Service if: (i) Watermark reasonably determines that (A) there is a threat or attack on any of Watermark’s IP; (B) Organization’s or any End User’s use of Watermark’s IP disrupts or poses a security risk to Watermark’s IP or to any other customer or vendor of Watermark; (C) Organization, or any End User, is using Watermark’s IP for fraudulent or illegal activities; (D) subject to applicable law, Organization has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) Watermark’s provision of the Subscription Service to Organization or any End User is enjoined or otherwise prohibited by applicable law, or threatened to be enjoined or prohibited; or (ii) any vendor of Watermark has suspended or terminated Watermark’s access to or use of any third- party or products required to enable Organization to access the Subscription Service; (any such suspension described in subclause (i), or (ii), a “Service Suspension”). Watermark shall use commercially reasonable efforts to provide written notice of any Service Suspension to Organization and to provide updates regarding resumption of access to the Subscription Service following any Service Suspension. Watermark shall use commercially reasonable efforts to resume providing access to the Subscription Service as soon as reasonably possible after the event giving rise to the Service Suspension is cured.
1.6 Additional Terms for Professional Services. If either party wishes to change the scope or performance of any applicable Professional Services, it shall submit details of the requested change to the other party in writing. Watermark shall, within a reasonable time after receiving an Organization-initiated request, or at the same time that it sends a Watermark-initiated request, provide a written estimate to Organization of: (i) the likely time required to implement the change; (ii) any necessary variations to the fees and other charges arising from the change; (iii) the likely effect of the change on the Professional Services; and (iv) any other impact the change might have on the performance of the Agreement. Promptly after receipt of the written estimate, the parties shall negotiate and agree in writing on the terms of such change (a “Change Order”). In addition to any other responsibilities or duties described in this Agreement, the following is a list of obligations for which Organization is responsible, conditions on Watermark’s performance, and assumptions upon which Watermark has relied in agreeing to perform the Professional Services (if any Organization obligations are unfulfilled or inaccurate, Change Orders and increased fees may be required in order to proceed): (i) Organization holds primary responsibility for data quality of sufficient standards in order to meet Organization goals; (ii) Organization will provide all data, systems and connectivity necessary for Watermark to perform its obligations; (iii) Organization will provide a resource(s) that is knowledgeable of their data, data mapping and data flow; (iv) all data is assumed to be in a usable state which does not require additional aggregations or manipulations within Watermark; and (v) Organization will not require any additional security, policy or onboarding requirements of Watermark personnel in order to kick off or continue performance of the Services. Organization’s purchase of Implementation Services shall expire six (6) months from the date of execution of the applicable Order Form, unless within thirty (30) days prior to the expiration date Organization requests an extension by written request. “Cohort Implementation” shall mean implementation for Subscription Service upgrades with waived fees in conjunction with Organization participation in a Watermark cohort. Should customer subsequently decline to participate in a Watermark cohort, the Implementation fee shall no longer be waived and will be invoiced to Organization. Organization’s purchase of Professional Services, other than Implementation Services, shall expire twelve (12) months from the date of execution of the applicable Order Form. Neither party shall be bound by any Change Order unless mutually agreed upon in writing. Notwithstanding this provision, Watermark may, from time to time change the Professional Services without the consent of Organization provided that such changes do not materially affect the nature or scope of the Professional Services, or the fees or performance duties set forth in the Agreement.
1.7 End User Polls. Watermark may, from time to time (but no more than quarterly), conduct optional polls of End Users to ascertain and measure the use and enjoyment of the Service by End Users. All right, title and interest in poll inquiries and responses will belong to Watermark.
1.8 Compliance. Each party shall comply with all applicable laws and regulations with respect to its activities under this Agreement, including but not limited to the Family Educational Rights and Privacy Act (“FERPA”). Watermark shall implement reasonable administrative, technical and physical safeguards in an effort to secure its facilities and systems from unauthorized access and to secure Organization Data. Each party agrees to comply with the Data Protection Addendum (“DPA”), posted here, as updated from time to time.
1.9 Subcontractors and Sub-Vendors. Watermark may use subcontractors or other third parties in carrying out obligations under this Agreement. Watermark remains responsible to Organization for the performance of the Services that are subcontracted under this Agreement. Organization’s purchase of EDA Service(s) constitutes Organization’s approval of and consent to Watermark’s use of Educational Dispositional Assessment Consultants, LLC as a sub-vendor under this Agreement to provide the EDA Service(s), including without limitation as necessary, the processing and transfer of Organization Data. Organization’s purchase of Text Analytics or Content Analysis for EvaluationKIT constitutes Organization’s approval of and consent to Watermark’s use of Lexalytics, Inc. as a sub-vendor under this Agreement to provide the Text Analytics Service, including without limitation as necessary, the processing and transfer of Organization Data. As between Watermark and Organization, Watermark grants Organization the right to view and use the Text Analytics derived data product (“Derived Data Product”), and Watermark retains all other rights in the Text Analytics Derived Data Product.
2. Intellectual Property; Ownership
2.2 Watermark IP. Watermark retains ownership of the Subscription Service, including its technological components, and developments and derivatives thereof, including all intellectual property rights therein. To the extent of the proprietary information of Watermark contained in the Subscription Service, Organization agrees to protect the Subscription Service using the same standard of care it uses to protect its similar information but not less than a reasonable person standard of care.
2.3 Organization Data. Watermark acknowledges that, as between Watermark and Organization, to the extent of Organization’s rights in and to Organization Data, Organization owns all right, title, and interest, including all intellectual property rights, in and to Organization Data. Watermark and its service providers and its affiliates may use Organization Data to provide and improve the Services in accordance with this Agreement. Watermark may delete any inappropriate Organization Data posted on the Subscription Service, and reserves the right (but not the obligation) to take any action which Watermark deems appropriate in its sole discretion with respect to any Organization Data posted on the Subscription Service; provided that Watermark shall use reasonable efforts to consult with Organization in advance as practicable. Organization hereby authorizes Watermark to use the name of Organization within a list of other users of the Subscription Service in any media, solely to identify the Organization as a user of the Subscription Service and without any indication of sponsorship or affiliation. Watermark shall not use the Organization’s name publicly in any other manner without the prior permission of the Organization.
2.4 Feedback. If Organization or any of its employees or contractors and/or agents or other End Users sends or transmits any communications or materials to Watermark suggesting or recommending changes to Watermark’s IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Watermark is free to use such Feedback irrespective of any other obligation or limitation between the parties governing such Feedback. Organization hereby assigns to Watermark on Organization’s behalf, and on behalf of its employees, contractors and/or agents or other End Users, all right, title, and interest in, and Watermark is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Watermark is not required to use any Feedback.
3.1 Organization Indemnification. Organization shall, at its sole cost and expense, indemnify, defend and hold harmless Watermark and its affiliates, and their respective employees, officers, directors, shareholders, agents, insurers or third party providers, from and against all actual or threatened claims by third parties (including its End Users) and pay all costs, including reasonable attorneys’ fees, and damages resulting from such claims arising out of: (i) the use of the Service by Organization or its End Users, (ii) any breach of this Agreement by Organization, including, without limitation, any unauthorized use or disclosure of the Service, (iii) if applicable, any breach of the ToS by an End User, (iv) violation of any law or regulation by Organization or its End Users, or (v) the infringement, misappropriation or violation by Organization, its End Users or Organization Data of any patent, copyright, trademark, trade secret or other proprietary or privacy right of a third party.
3.2 Watermark Indemnification. Watermark shall, at its sole cost and expense, indemnify, defend and hold harmless Organization and its employees, officers, directors, Board of Trustees and agents from and against all claims by third parties and pay all costs, including reasonable attorneys’ fees, and damages resulting from such claims to the extent arising out of the infringement, misappropriation or violation of the Subscription Service of any United States patent, copyright, trademark or trade secret, and excluding any claims and damages covered by the indemnification by Organization under Section 3.1. In any such event, Organization shall promptly give written notice of the claim to Watermark and give Watermark the opportunity to assume sole control of the defense and settlement of the claim. If the Service or a portion thereof becomes, or in Watermark’s opinion is likely to become, the subject of an infringement claim, Watermark may, at its option and expense, either (a) procure the right to continue using the Subscription Service or portion thereof, or (b) replace or modify the Subscription Service or portion thereof so that it becomes non-infringing. Notwithstanding the foregoing, Watermark will have no obligation under this Section or otherwise with respect to any infringement claim based upon (i) any use of the Subscription Service by Organization in breach of this Agreement, or (ii) any use of the Subscription Service that is not an intended use of the Subscription Service.
The term “Confidential Information” shall mean any and all information which is disclosed by either party to the other verbally, electronically, visually, or in a written or other tangible form which is either identified by the disclosing party (“Discloser”) as confidential or proprietary or should be reasonably understood to be confidential or proprietary, based on the circumstances of disclosure or content of the information; provided that Confidential Information shall not include any information which: (a) was in the possession of, or was rightfully known by the receiving party (“Recipient”) without an obligation to Discloser or others to maintain its confidentiality prior to receipt from Discloser; (b) is or becomes generally known to the public without violation of this Agreement; (c) is obtained by Recipient in good faith from a third party having the right to disclose it without an obligation of confidentiality to Discloser; or (d) is independently developed by Recipient without access to or reliance upon the Confidential Information. Recipient shall protect and safeguard the confidentiality of all such Confidential Information with at least the same degree of care as the Recipient would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care. Recipient shall not use Discloser’s Confidential Information, or permit it to be accessed or used, for any purpose other than fulfilling its obligations and exercising its rights hereunder, or otherwise in any manner to Discloser’s detriment, including without limitation, to reverse engineer, disassemble, decompile, copy, export or design around Discloser’s proprietary services, products, and/or confidential intellectual property. Recipient shall keep Conﬁdential Information in strict conﬁdence and shall not disclose it to any third party except such party’s ofﬁcers, directors, employees, advisors, attorneys, accountants, agents or other representatives having a need to know such information in connection with this Agreement and who have been advised of Recipient’s obligations under this Agreement. Recipient shall be fully responsible for any breach of the terms of this Agreement by any of its representatives.
5. Warranties; Disclaimer
5.2 Disclaimer. Except as expressly provided in this Agreement: (a) use of the Service is at the sole risk of Organization and End Users; and (b) Watermark makes no express or implied warranty that the Service will be uninterrupted or error free, nor does it make any warranty as to the results that may be obtained from use of the Service, or as to the accuracy, reliability, completeness, or content of any information or Organization Data, software or merchandise that may be provided through the Service. No statement, information or advice, including, but not limited to statements regarding capacity, suitability for use or performance, whether made by a Watermark employee, reseller or other representative or otherwise, which is not contained in this Agreement shall be deemed to be a warranty by Watermark for any purpose or give rise to any liability of Watermark whatsoever, and Organization agrees that it will not rely on any such statement, information or advice.
5.3 No Editorial Control. Organization acknowledges that Watermark exercises no editorial control over Organization Data posted by users of the Subscription Service. The views and opinions expressed in such information do not necessarily reflect those of Watermark or its content providers or licensors. Neither Watermark nor its content providers or licensors make any warranties or representations regarding the accuracy, adequacy, truthfulness, completeness, or usefulness of such information.
5.4 Third Party Websites. Any links provided from the Subscription Service are to websites not under control of Watermark, and Watermark in no way endorses or shall have any liability arising from such sites or the products or services offered therein. Watermark does not endorse any such linked websites.
5.5 DISCLAIMER OF WARRANTIES. EXCEPT AS OTHERWISE PROVIDED HEREIN, THE SERVICE, SUPPORT, TRAINING AND ALL INFORMATION, MATERIALS AND SOFTWARE ACCESSIBLE THROUGH THE SERVICE ARE PROVIDED ON AN “AS-IS,” “AS- AVAILABLE” BASIS. THERE IS NO EXPRESS OR IMPLIED WARRANTY MADE AGAINST INTERFERENCE WITH THE ENJOYMENT OF ACCESS TO THE SERVICE OR THE INFORMATION CONTAINED THEREIN. WATERMARK HEREBY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, USAGE, FITNESS FOR ANY PARTICULAR PURPOSE OR NON-INFRINGEMENT.
6. Limitation of Liability
6.1 LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES AND UNDER NO THEORY OF LIABILITY (INCLUDING NEGLIGENCE, CONTRACT, TORT, BREACH OF WARRANTY, STRICT LIABILITY OR OTHERWISE) SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR END USERS OR ANY OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES THAT ARISE FROM LOSS OF ANTICIPATED REVENUE, LOSS OF INFORMATION OR MATERIAL OF ANY KIND, LOST PROFITS, LOSS OF BUSINESS AND INJURY TO PROPERTY OR PERSON), EVEN IF THE FIRST PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER ARISING IN CONNECTION WITH OR RESULTING FROM THE USE OF OR INABILITY TO USE THE SERVICE, INCLUDING BUT NOT LIMITED TO RELIANCE ON ANY MATERIALS, CONTENT, INFORMATION, SERVICES, SOFTWARE OR PRODUCTS OBTAINED ON THE SERVICE, OR MISTAKES, OMISSIONS, INTERRUPTIONS, COMMUNICATION FAILURES, DELETION OF FILES OR E-MAIL, ERRORS, DEFECTS, VIRUSES, TROJAN HORSES, DELAYS IN OPERATION OR TRANSMISSION, OR ANY FAILURE OF PERFORMANCE, OR THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO RECORDS, PROGRAMS OR WEB SITES. ORGANIZATION ACKNOWLEDGES THAT WATERMARK IS NOT RESPONSIBLE FOR THIRD-PARTY SERVICES OR CONTENT MADE AVAILABLE THROUGH THE SERVICE. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, AND IN SUCH STATES WATERMARK’S LIABILITY IS LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
6.2 Maximum Liability. If, notwithstanding the foregoing, Watermark is held liable for damages to Organization, End Users or third parties in connection with this Agreement, then regardless of the theory of liability (including negligence, contract, tort, breach of warranty, strict liability or otherwise), in no event shall the maximum liability of Watermark or its affiliates, and respective directors, officers, shareholders, employees, agents, insurers or third party providers exceed the aggregate dollar amount paid by Organization for subscriptions to Watermark in the twelve (12) month period preceding the date of the claimed breach, injury or damage. THIS SECTION LIMITS AND ALLOCATES THE RISK AND ORGANIZATION ACKNOWLEDGES THAT THE PRICING PROVIDED UNDER THIS AGREEMENT REFLECTS THIS LIMITATION AND ALLOCATION OF LIABILITY.
7. Payment of Fees
Organization shall pay Watermark the applicable fees as set forth on the Order Form(s). Except as otherwise specified herein, fees are based on Services purchased and not actual usage, payment obligations are non-cancelable, payment terms are quoted from the date of invoice and fees paid are non-refundable.
8. Term and Termination
8.1 Term. The term of the Agreement commences on and continues from the Effective Date of the initial Order Form executed by Organization and Watermark. Completion of any specific Services or termination of any specific Order Form will not terminate the Agreement, it being the intent of the parties to leave this Agreement in effect for any future Order Form between the parties. (“Term”). Subscription Services commence on the date and are for the period set forth in the applicable Order Form.
8.2 Termination for Breach; Dispute Resolution. Either party may terminate this Agreement by written notice in the event of material breach by the other party, should such breach remain uncured for thirty (30) days after the receipt of notice describing such breach in reasonable detail (or if not subject to cure, immediately upon written notice). If a dispute arises out of or relates to this Agreement, or the breach thereof, the parties shall consult and negotiate with each other in good faith for a period of no less than 30 days to reach a solution prior to terminating this Agreement.
8.3 Effects of Termination. Upon termination of this Agreement for any reason: (a) all subscriptions granted to Organization hereunder shall immediately terminate, (b) Organization shall immediately cease (and cause End Users to cease) using the Service and associated materials, and Watermark may disable Access Codes and remove access of Organization and End Users to the Service, and (c) in the event that such termination was by Organization under Section 7.2 (“Termination for Breach”), then Watermark shall refund to Organization any prepaid Fees on a pro-rata basis reflecting the unused remainder of the term. Any such termination shall not relieve either party from any obligations hereunder accrued at or prior to the effective date of termination or waive any right of the non-breaching Party hereunder or at law or in equity.
9. Suspension of Service
Watermark may monitor the Service for a violation of this Agreement or any applicable law or third party rights and may suspend access to the Subscription Service for the duration of any such violation. Watermark will use commercially reasonable efforts to provide notice to Organization in advance of any suspension to the extent practicable under the circumstances. In the event that Organization is thirty (30) days or more overdue in payment of fees to Watermark (except with respect to fees then under reasonable and good faith dispute), Watermark reserves the right to suspend the Services until Organization is paid in full. Organization agrees that Watermark will not be liable to Organization or End Users if Watermark exercises its suspension rights as permitted by this Section.
10. Force Majeure
If any party to this Agreement is rendered unable, wholly or in part, by force majeure to carry out its obligations under this Agreement (other than Organization’s obligation to make payment), that party shall give to the other party prompt written notice of the force majeure event; thereupon the obligations of the party giving the notice, so far as they are affected by the force majeure, shall be suspended during, but no longer than, the continuance of the force majeure. The affected party shall use all reasonable diligence to remove the force majeure situation as quickly as practicable, provided that resolution of a force majeure event shall be at the sole discretion of the affected party. The term “force majeure” as herein contemplated, shall mean an act of God, strike, lockout, or other industrial disturbance, act of the public enemy, war, blockade, public riot, plague, pandemic, lightening, fire, storm, flood, earthquake, explosion, governmental action, governmental delay, restraint or inaction, unavailability of equipment, service or supplies and any other cause, whether of a kind specifically enumerated above or otherwise which is not reasonably within the control of the party claiming suspension.
Any right or obligation hereunder which creates a right of action or which by its terms continues beyond the expiration or termination of this Agreement shall survive any termination or expiration of this Agreement.