This Customer Agreement – Schools K-12 (this “Agreement”) is entered into as of the date of online acceptance by the authorized signatory of the kindergarten, elementary school or secondary school (“School”) set forth in the online registration to which this Agreement is [attached][hyper-linked], and is by and between School and Resiligence, Inc., a California corporation (“Resiligence”) (each of School and Resiligence, a “Party” and collectively, the “Parties”). By clicking “I accept” you are agreeing to all the terms and conditions set forth herein.
WHEREAS, Resiligence has developed an anonymous text based tipline capability known as “TipNow™-Basic” which is intended for use in non-emergency situations and is more fully described in Appendix A below; and
WHEREAS, School wishes to utilize TipNow™-Basic in connection with security for its premises and students; and
WHEREAS, the Parties hereto wish to provide for the terms and conditions under which Resiligence will make TipNow™ and associated services available to School.
NOW, THEREFORE, in consideration of the mutual covenants and undertakings herein contained, Resiligence and School intending to be legally bound, covenant and agree as follows:
1. DUTIES OF THE PARTIES
1.1 Resiligence Product and Services. Subject to the terms and conditions set forth herein, Resiligence agrees to provide to School TipNow™-Basic and the support services set forth on Appendix A hereto during the term of this Agreement. In connection with the foregoing, School hereby acknowledges and agrees that the intended purpose and use of TipNow™-Basic is to facilitate notification to School security personnel of suspicious occurrences or activities that occur on the School’s premises but are non-emergency in nature, and it is the responsibility of School to address whatever activities or occurrences arise, including without limitation alerting students, faculty members, employees, visitors and any and all uninvited guests of School to any perceived or impending threat of danger. School hereby acknowledges and agrees that it shall be solely responsible for, and shall indemnify and hold Resiligence free and harmless from, any and all claims, damages or lawsuits (including attorneys’ fees) arising out of any actions taken or not taken by School personnel or its agents in connection with the foregoing. For the avoidance of doubt, the Parties acknowledge and agree that TipNow™-Basic is not intended to replace or supersede any emergency services that School currently has in place or may implement in the future, such as 911 or other police or protective service emergency hotlines.
1.2 School Obligations. In consideration of its receipt of the TipNow™-Basic product and services, School agrees as follows:
(a) School will serve as a reference customer for Resiligence and in such capacity its designated representatives will diligently and truthfully respond to calls and inquiries received from prospective customers of Resiligence and will report all such calls to Resiligence.
(b) Designated representatives of School will assist Resiligence to create: (i) a sample case study regarding the use of TipNow™-Basic to enhance School security, (ii) a press release with respect to the foregoing, and (iii) a written testimonial for use by Resiligence in its marketing efforts.
(c) Representatives of School will provide Resiligence with feedback, comments, suggestions and ideas which may be used by Resiligence to modify and/or further develop the capabilities of TipNow™-Basic, and such individuals will be available for telephone interviews with Resiligence staff members upon reasonable notice.
(d) School hereby grants Resiligence the right to use and reproduce the School logo on Resiligence’s website for the sole purpose of identifying School as a customer and user of TipNow™-Basic
2. PAYMENT TERMS
2.1 Compensation. During the Term, Resiligence shall make TipNow™-Basic available to School without payment of an annual fee.
2.2 Expense Reimbursement. School agrees to reimburse Resiligence for all costs and expenses incurred in its performance of services requested by School above and beyond those set forth on Appendix A hereto. Resiligence agrees to provide reasonable documentation of all such expenses upon request of School.
2.3 Manner of Payment. Expense reimbursements shall be made by School to Resiligence via the designated online credit card or Paypal options as such expenses are incurred, or alternatively payment may be made using any other means mutually acceptable to the parties.
2.4 Advertising and Sponsors. School acknowledges and understands that Resiligence is providing TipNow™-Basic to School free of charge, and therefore TipNow™-Basic will be supported by and available as a platform for paid advertising and sponsorships.
3. LIMITATION OF LIABILITY AND INDEMNIFICATION.
3.1 No Warranties. School hereby acknowledges and agrees that Resiligence is providing TipNow™-Basic and the related services on an “as is” basis and makes no representation or warranty whatsoever regarding the effectiveness thereof or the outcome of any situation which may arise in which TipNow™-Basic is used by any person associated in any way with School, including as a student, faculty member, employee, visitor or uninvited guest to the School campus. In addition, School understands that Resiligence cannot and does not guaranty uninterrupted server connectivity with respect to the tipster’s own communication device, the TipNow™-Basic administrator or School’s designated security personnel, and Resiligence specifically disclaims any and all liability that may be caused by any delay in transmitting a tip due to server downtime or otherwise.
3.2 Limitation of Liability. IN NO EVENT WILL RESILIGENCE, OR ITS DIRECTORS, OFFICERS, SHAREHOLDERS, EMPLOYEES OR AFFILIATES, HAVE ANY LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXAMPLARY OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO, PRODUCT LIABILITY, LOSS OF ANTICIPATED PROFITS OR REVENUES, OR LOSS OF USE, EVEN IF AN AUTHORIZED REPRESENTATIVE OF RESILIGENCE HAS BEEN ADVISED OF THE POSSIBILITY OR LIKELIHOOD THEREOF OR SHALL HAVE OTHER REASON TO KNOW, OR IN FACT SHALL KNOW OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES.
3.3 Indemnification. School agrees that it shall be solely responsible for, and shall indemnify, defend and hold Resiligence free and harmless from any and all damages, costs (including attorneys’ fees and costs related to lawsuits) or other liability or losses arising from claims by any third party arising out of or resulting from School’s use of TipNow™-Basic or any modification by School thereof, including without limitation any and all actions taken or not taken by School personnel or its agents in response to any tip received through the TipNow™-Basic product; and School further acknowledges and agrees that Resiligence shall have the right to participate, at its expense, in the defense against any such claims or any dispute based on or pertaining to such claims.
4. CONFIDENTIAL INFORMATION
4.1 General Obligations of the Parties. The Parties acknowledge that, from time to time, one Party (the “Disclosing Party”) may disclose to the other Party (the “Receiving Party”) information which is marked as “proprietary” or “confidential” or which would, under the circumstances, be understood by a reasonable person to be proprietary and nonpublic (“Confidential Information”). The Receiving Party shall retain such Confidential Information in confidence and shall not disclose it to any third party without the Disclosing Party’s written consent. Each Party shall use at least the same procedures and degree of care which it uses to protect its own Confidential Information of like importance, and in no event less than reasonable care.
4.2 Resiligence Obligations. Resiligence hereby acknowledges and agrees that it will not sell, trade, license, or otherwise distribute for gain any student contact or personnel information provided or made available to Resiligence by representatives of School as part of the School database, and it will maintain the privacy of all such data in accordance with Section 4.1 above.
4.3 School Obligations. School hereby acknowledges and agrees that Resiligence has expended considerable time, effort and expense to create and develop TipNow™-Basic, and that the technology and architecture embodied therein are trade secrets of Resiligence. School hereby agrees to take all reasonable measures to ensure that none of its employees, students, alumni or other affiliates shall reverse engineer or otherwise misappropriate, broadcast, disclose or use for personal gain any trade secrets or proprietary information of Resiligence which may be embodied in TipNow™-Basic or are otherwise disclosed to representatives of School in the course of Resiligence providing services to School hereunder.
4.4 Exceptions. Notwithstanding Sections 4.1 through 4.3 above, Confidential Information will not include information to the extent that such information:
(a) was already known by the Receiving Party without an obligation of confidentiality at the time of disclosure hereunder;
(b) was generally available to the public at the time of its disclosure to the Receiving Party hereunder;
(c) became generally available to the public after its disclosure other than through an act or omission of the Receiving Party in breach of this Agreement;
(d) was subsequently lawfully and independently disclosed to the Receiving Party by a person other than the Disclosing Party;
(e) was independently developed by the Receiving Party; or is disclosed pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided, however, that the Receiving Party shall provide prompt notice thereof to enable the Disclosing Party to seek a protective order or otherwise prevent such disclosure.
5. TERM AND TERMINATION
5.1 Term of the Agreement. The initial term of this Agreement shall be for one (1) year from the Effective Date, but may be renewed for successive one (1) year periods.
5.2 Termination After Failure to Cure for Default. If either Party shall fail to perform any of its obligations set forth herein, and shall fail to cure such default within thirty (30) days after receipt of a notice from the non-defaulting Party, the non-defaulting Party shall have the right to terminate this Agreement immediately by giving written notice to the defaulting Party, provided however, that all unreimbursed expenses incurred by Resiligence through any such termination date shall continue to be due and payable by School in accordance with Section 2.2.
5.3 Termination for Convenience. Either Party may terminate this Agreement for convenience upon delivery of a written termination notice to the other Party at least ninety (90) days prior to such termination, provided however, that all unreimbursed expenses incurred by Resiligence through any such termination date shall continue to be due and payable by School in accordance with Section 2.2.
5.4 Survival. The terms and conditions of Articles 3, 4, 5 and 6 shall survive termination or expiration of this Agreement. In addition, the termination or expiration of this Agreement shall not relieve either Party of any liability under this Agreement that accrued prior to such termination or expiration.
6.1 Governing Law; Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without giving effect to conflict of laws principles. The Parties hereby consent to the personal and exclusive jurisdiction of California federal and state courts, as applicable, located in Santa Clara County, California.
6.2 Waiver. Any waiver of the provisions of this Agreement or of a Party’s rights or remedies under this Agreement must be in writing to be effective. Failure, neglect, or delay by a Party to enforce the provisions of this Agreement or its rights or remedies at any time will not be construed and will not be deemed to be a waiver of such party’s rights under this Agreement and will not in any way affect the validity of the whole or any part of this Agreement or prejudice such Party’s right to take subsequent action.
6.3 Amendments. This Agreement may not be altered or amended except by a written agreement signed by both Parties.
6.4 Successors and Assignees. This Agreement shall be binding upon and inure to the benefit of any entity that is the successor to substantially all of the assets and businesses of either Party. Neither Party may otherwise assign this Agreement without the other Party’s written authorization.
6.5 Severability. If any provision in this Agreement shall be found or be held to be invalid or unenforceable, then the meaning of said provision shall be construed, to the extent feasible, so as to render the provision enforceable, and if no feasible interpretation would save such provision, it shall be severed from the remainder of this Agreement which shall remain in full force and effect unless the severed provision is essential and material to the rights or benefits received by any party. In such event, the Parties shall use best efforts to negotiate, in good faith, a substitute, valid and enforceable provision or agreement which most nearly affects the Parties’ intent in entering into this Agreement.
6.6 Entire Agreement. This Agreement (including Appendix A and any addenda hereto signed by both Parties) contain the entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all previous communications, representations, understandings and agreements, either oral or written, between the Parties with respect to the subject matter.
6.7 Relationship Between Parties. The Parties shall at all times and for all purposes be deemed to be independent contractors and neither Party, nor either Party’s employees, representatives, subcontractors or agents, shall have the right or power to bind the other Party. This Agreement by itself, or in conjunction with other agreements with the same Effective Date, shall not create or be deemed to create a joint venture, partnership or similar association between the Parties or either Party’s employees, subcontractors or agents.
6.8 Notices. Any notices required or permitted hereunder shall be given via email delivery to the email address for each party indicated for each such party in the online registration process for TipNow™-Basic by Schools on the Resiligence website. All notices shall be deemed given or made on the date received, if delivered by electronic medium.
6.10 Force Majeure. In the event either Party hereto is prevented from or delayed in the performance of any of its obligations hereunder by reason of acts of God, war, strikes, riots, storms, fires, or any other cause whatsoever beyond the reasonable control of such Party (including without limitation if transmission of a tip or information through use of TipNow™ is delayed due to server downtime or otherwise), the Party so prevented or delayed shall be excused from the performance of any such obligation to the extent and during the period of such prevention or delay.
TipNow™-Basic is a text based anonymous tipline that facilitates notification of School security personnel regarding suspicious activity which occurs on the School premises. The tips will be collected via the TipNow mobile app.
Features of the TipNow™ solution include:
Easy to implement, deploy and use
Tips can be submitted quickly through TipNow mobile app
Transmits the information directly to one designated senior safety personnel email address
The tips will not be stored on TipNow servers.
will be assigned a new email
Resiligence will provide email support for School’s use of TipNow™. Support questions can be emailed to firstname.lastname@example.org
Resiligence will provide access to an online training video for School security personnel, students, faculty and other employees on use and operation of the TipNow™ system.