Standard Customer Terms & Conditions

Effective January 2, 2025

These Customer Terms apply to each Order Form that references them. The applicable Order Form and these Customer Terms together form the agreement between sideby Inc. and the Customer identified in the Order Form. If there is a conflict between an Order Form and these Customer Terms, the Order Form controls.

1. Services. 

1.1 In consideration of (and subject to) payment of the fees (the “Fees”) set forth on the applicable Order Form(s), and subject to full compliance with all the terms and conditions of the Agreement, Provider will use reasonable commercial efforts to provide Customer the software and/or services set forth in the Order Form(s) (collectively, the “Services”). 

2.2 By entering into the Agreement and using the Services, Customer accepts and agrees to be bound by the Provider’s Terms of Service and Privacy Policy, as updated from time to time on the Provider’s website https://www.sideby.ai/.

2. License, Restrictions & Responsibilities.

2.1 Subject to all terms of the Agreement, Provider hereby grants to Customer, for the Service Term (as defined below), a non-exclusive, non-sublicensable, non-transferable, non-assignable, royalty free license to use the Services for Customer’s internal use only. Customer will not (and will not allow any third party to), directly or indirectly (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services (or any underlying software, documentation or data related to the Services); (b) modify, translate, or create derivative works based on the Services or any underlying software; (c) copy (except for archival purposes), distribute, pledge, assign, or otherwise transfer or encumber rights to the Services or any underlying software; or (d) remove any proprietary notices or labels.

2.2 As part of the registration process, Customer will identify an administrative user name and password for Customer’s account (the “Account”). 

2.3 Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, server, software, operating system, networking, web servers, and telecommunications devices (collectively, “Equipment”). Customer shall be responsible for compliance with any and all applicable third party terms of service and privacy policies for platforms, networks and/or websites that they run their applications on.

2.4 Customer shall be responsible for ensuring that such Equipment is compatible with the Services. Customer shall also be responsible for maintaining the security of the Equipment, the Account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of the Account or the Equipment with or without Customer’s knowledge or consent.

2.5 Provider may create self-promotional materials such as press releases, advertisements, brochures, and website content in connection with the Services to Customer. Upon approval by Customer, Customer shall provide a mutually agreeable quote with respect to Provider and the Services, to be used for Provider’s marketing and publicity purposes.

3. Confidentiality & Proprietary Rights.

3.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical, or financial information relating to the Disclosing Party’s business or operations (the “Proprietary Information” of the Disclosing Party). Proprietary Information of the Provider includes non-public information regarding features, functionality and performance of the Services. Proprietary Information of the Customer includes non-public data provided by the Customer to the Provider to enable the provision of Services, including data generated by the Customer and its authorized users (“Customer Data”).

3.2 The Receiving Party agrees: (a) to take reasonable precautions to protect such Proprietary Information; and (b) not to use (except as expressly permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply to any information that the Receiving Party can document (i) is or becomes generally available to the public; (ii) was in its possession or known by it without restriction on disclosure prior to receipt from the Disclosing Party; (iii) was rightfully disclosed to it without restriction by a third party; (iv) was independently developed without use of any Proprietary Information of the Disclosing Party; or (v) is required by law to be disclosed.

3.3 The Customer will own all right, title and interest in and to the Customer Data, as well as any data that is directly derived from Customer Data and provided to the Customer as part of Services. 

3.4 The Provider will own and retain all right, title and interest in and to (a) the Services, including underlying software, algorithms, improvements, enhancements, and modifications thereto; (b) any software, applications, inventions or other technology developed in connection with implementation of Services or support; and (c) all intellectual property rights related to any of the foregoing. 

3.5 The Customer is responsible to put reasonable safeguards in place to prevent unauthorized use of, disclosure of, or access to critical Customer Data, including any data that is directly related to an individual student and maintained by the Customer, as defined under FERPA (Family Educational Rights and Privacy Act) or other applicable law (“Student Data”).  The Customer understands that the Services are not intended to store Student Data and will implement appropriate safeguards to protect the privacy of its students in connection with the Services and in accordance with applicable law. 

3.6 Notwithstanding anything to the contrary, the Provider will have the right to collect, store and analyze data and other information relating to the provision, use and performance of various aspects of Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and the Provider will be free to use such information and data to improve and enhance its software and services for development, research, diagnostic, and corrective purposes in connection with Provider’s business. The Provider may use and disclose Customer Data in accordance with its Privacy Policy, including to trusted third-party entities and individuals to help the Provider provide and improve the Services. Provider will disclose such data solely in aggregate or other de-identified form in connection with its business. 

3.7 Provider may utilize artificial intelligence (AI) or machine learning (ML) within the Services (such as in content creation, adaptive learning, analytics, or support tools). Provider shall not use Student Data for training AI or ML models except as expressly authorized in writing by Customer. Provider will use commercially reasonable measures designed to ensure that AI-generated content or recommendations made available through the Services are age-appropriate, comply with applicable law, and do not contain discriminatory, materially biased, or otherwise inappropriate content.

4. Payment of Fees.

4.1 Customer will pay Provider the Fees for the Services, as set forth on the applicable Order Form. The fees for any renewal term shall be at Provider’s then standard rates currently in effect, or if applicable, as otherwise stated in the Order Form.

4.2 If Customer believes that Provider has billed Customer incorrectly, Customer must contact Provider no later than sixty (60) days after the closing date on the first billing statement in which the error or problem appeared in order to receive an adjustment or credit. 

4.3 Provider may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Provider thirty (30) days after the mailing date of the invoice, or the Services may be terminated. Unpaid invoices are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection. Customer shall be responsible for all taxes associated with Services, other than U.S. taxes based on Provider’s net income.

5. Term & Termination.

5.1 The Agreement shall commence on the Effective Date and continue for the duration of the service term specified in any applicable Order Form (the “Service Term”). 

5.2 Either party may terminate the Agreement at will, for any reason, with ninety (90) days’ advance written notice to the other party.

5.3 In addition to any other remedies it may have, either party may also terminate the Agreement upon ten (10) days’ notice if the other party materially breaches any of the terms or conditions of the Agreement, and if the breach is capable of remedy, such breaching party fails to promptly remedy that breach within five (5) business days of notice. If this Agreement is terminated due to a material breach by Customer during the Service Term, Customer will pay in full all remaining Fees payable through the remainder of the Service Term.

5.4 Termination (which includes expiration or non-renewal) of the Agreement shall not limit either party from pursuing other remedies available to it, including injunctive relief, nor shall such termination relieve Customer’s obligation to pay all Fees that have accrued or are otherwise owed by Customer under any Order Form.

5.5 The parties’ rights and obligations under Sections 2 (License, Restrictions & Responsibilities), 3 (Confidentiality & Proprietary Rights), 4 (Payment of Fees), 6 (Indemnification), 7 (Warranty and Disclaimer), 8 (Limitation of Liability), and 9 (Miscellaneous) shall survive termination.

6. Indemnification.

6.1 Provider shall indemnify, defend, and hold Customer harmless against any suit, claim, or proceeding brought against Customer by a third party alleging that the use of Services in accordance with the Agreement infringes or misappropriates such third party’s valid intellectual property rights, provided that (a) Customer promptly notifies Provider in writing of any such suit, claim or proceeding; (b) Provider, at Provider’s own expense, retains sole and exclusive control to direct the defense of such suit, claim or proceeding; and (c) Customer fully cooperates with Provider as necessary to defend such suit, claim or proceeding. If the use of Services by Customer has become, or is likely to become, the subject of any intellectual property claim, Provider may, at its option and expense (x) procure for Customer the right to continue using the Services; (y) replace or modify the Services to make them non-infringing; or (z) terminate the Services and/or Agreement. The foregoing indemnification obligations shall not apply if any claim arises out of (i) compliance with designs, data, instructions or specifications provided by Customer; (ii) modification of the Services by anyone other than Provider; or (iii) the combination, operation or use of the Services with other hardware or software, where the Services would not otherwise be infringing. The foregoing indemnification provisions state the sole, exclusive and entire liability of Provider to Customer and Customer’s sole remedy with respect to any intellectual property claim brought by reason of access to or use of the Services by Customer.

6.2 Customer hereby agrees, at its own expense, to indemnify, defend and hold harmless Provider against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any demand, claim, action, suit or proceeding that arises from Customer’s material breach of the Agreement, gross negligence or willful misconduct, or use of Services except as expressly permitted under the Agreement.

7. Warranty and Disclaimer.

THE SERVICES, INCLUDING ALL SOFTWARE, SERVER, AND NETWORK COMPONENTS, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY LAW, AND PROVIDER EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. CUSTOMER ACKNOWLEDGES THAT PROVIDER DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR FREE FROM VIRUSES OR OTHER MALICIOUS SOFTWARE, AND NO INFORMATION OBTAINED BY CUSTOMER FROM PROVIDER OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.

8. Limitation of Liability.

EXCEPT FOR BODILY INJURY OF A PERSON, NEITHER PARTY SHALL BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS OR PROFITS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND A PARTY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES ACTUALLY PAID BY CUSTOMER TO PROVIDER FOR THE APPLICABLE SERVICES UNDER THIS AGREEMENT OR RELATING TO ANY SUBJECT MATTER OF THIS AGREEMENT IN THE TWELVE (12) MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF ANY OF THE FOREGOING TYPES OF LOSSES OR DAMAGES. 

9. Service Availability, Maintenance, and Support

9.1 Up-Time and Reliability. Provider will use reasonable commercial efforts with the intent that Services will be available and operational to Customer for 98% of all Scheduled Availability Time. “Scheduled Availability Time” shall be defined as twenty-four (24) hours a day, seven (7) days a week, excluding: (i) scheduled maintenance downtime; (ii) maintenance downtime for specific critical Service issues; and (iii) any downtime due to defects caused by Customer, one of its vendors, third party connections, utilities, or caused by other forces beyond the control of Provider (such as internet outages or outages with respect to Customer’s network or internet access). Provider shall use reasonable efforts to provide advance notice in writing or by email of any scheduled service disruption.

9.2 Maintenance. Service Provider will make available to Customer as part of the Services, all generally available enhancements, updates and bug fixes to the Services. 

9.3 Customer Responsibility. In addition to other responsibilities contained herein, Customer will be responsible for ongoing maintenance, management and accuracy of their community profile data. Additionally, Customer will be responsible for communicating and managing the community registration, community training, and change management process. 

9.4 Support.  Product support inquiries should be submitted by Customer to Provider via email (support@sideby.ai) or the Provider website. Provider Standard Support Hours are 08:30 to 15:30 Central Time Monday through Friday for technical information, technical advice and technical consultation regarding Customer’s use of the Services. 

9.5 Customer Support List. Customer shall provide to Provider, and keep current, a list of designated contacts and contact information (the “Support List”) for Provider to contact for support services. Such Support List shall include (i) the first person to contact for the answer or assistance desired, and (ii) the persons in successively more responsible or qualified positions to provide the answer or assistance desired. 

10. Miscellaneous.

9.1 If any provision of the Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that the Agreement will otherwise remain in full force and effect and enforceable. 

9.2 The Agreement is not assignable, transferable or sublicensable by Customer, except with Provider’s prior written consent. 

9.3 The parties agree that the Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes all previous written and oral agreements, communications and other understandings relating to the subject matter of the Agreement, and that all waivers and modifications must be in a writing signed on behalf of both parties by their duly authorized representatives. 

9.4 No agency, partnership, joint venture, or employment is created as a result of the Agreement and Customer does not have any authority of any kind to bind or attempt to bind Provider in any respect whatsoever. 

9.5 In any action or proceeding to enforce rights under the Agreement, the prevailing party will be entitled to recover reasonable out-of-pocket costs and attorneys’ fees. 

9.6 All notices under the Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. 

9.7 The parties agree that any material breach of the license in Section 2 and confidentiality/rights related to proprietary information in Section 3 will cause irreparable injury and that injunctive relief in a court of competent jurisdiction will be appropriate to prevent an initial or continuing breach of such provisions in additional to any other relief to which the owner of such Proprietary Information may be entitled. 

9.8 The Agreement shall be governed by the laws of the State of Delaware without regard to its conflict of laws provisions. Any action or proceeding arising from or relating to this Agreement must be brought in a federal court or in a state court in Delaware, and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement.