Terms of Service

This Services Agreement (this “Agreement”) is a binding contract between you (“Customer,” “you,” or “your”) and Mosaic Learning, Inc. (“Provider,” “we,” or “us”). This Agreement governs your access to and use of the Services (as defined below).

THIS AGREEMENT TAKES EFFECT AS OF THE DATE YOU ACCEPT THIS AGREEMENT (the “Effective Date”). YOU ACCEPT THIS AGREEMENT BY EXECUTING THE ASSOCIATED ORDER FORM. By accepting this Agreement, you agree to all of the terms and conditions of this Agreement. Individuals accepting this Agreement represent that they are accepting on behalf of themselves or on behalf of a company or other legal entity that has authorized them to bind such entity to this Agreement and to use the Services on such entity’s behalf as its authorized user. For purposes of this Agreement, “Customer” and “Authorized User” refer to the individual or entity on whose behalf this Agreement is accepted, the individual accepting this Agreement, and any other individuals authorized by the applicable Customer to access and use the Services for Customer’s benefit hereunder, as further defined below. Individuals or entities who are not Customers or Authorized Users may not access, use, or authorize access to or use of the Services without the prior written approval of Provider.

1. Definitions

• “Aggregated Statistics” means data and information related to Customer’s use of the SaaS that is used by Provider in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the SaaS.
• “Authorized User” means Customer’s employees, consultants, contractors, and agents (i) who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement; and (ii) for whom access to the Services has been purchased hereunder.
• “Customer Data” means, other than Aggregated Statistics, information, data, and other content, in any form or medium, that is submitted by an Authorized User through the SaaS.
• “Documentation” means Provider’s user manuals, handbooks, and guides relating to the Services provided by Provider to Customer, whether electronically, in hard copy form, or as end-user documentation relating to the Services.
• “Law” means any applicable federal, state, local, or foreign law, rule, regulation, ordinance, code, order, judgment, decree, or other requirement of a governmental authority.
• “Modifications” means modifications, improvements, customizations, updates, enhancements, aggregations, compilations, derivative works, translations, and adaptations, and “Modify” has a corresponding meaning.
• “Order Form” means the associated order form executed by the Customer that identifies details regarding Customer’s use of the Services.
• “Professional Services” means training, consulting, or other professional services ordered by Customer for provision by Provider, as described in an Order Form. The term “Professional Services” does not include the SaaS or any support services.
• “Provider IP” means (i) the Services, the Documentation, (ii) anything developed, provided, or made available by or on behalf of Provider under this Agreement; and (iii) any Modifications to any or all of the foregoing. Provider IP includes Aggregated Statistics and any information, data, or other content derived from Provider’s monitoring of Customer’s access to or use of the Services. Provider IP does not include Customer Data.
• “SaaS” means the software-as-a-service offering, as described in an Order Form.
• “Services” means the SaaS, the Professional Services, and any support services described in Section 4.
• “Third-Party Products” means any third-party products provided with or incorporated into the SaaS, including any software.

2. Access and Use

2.1 SaaS and Documentation Rights

Subject to Customer’s compliance with the terms and conditions of this Agreement, Provider grants to Customer the limited, non-exclusive, non-sublicensable, non-assignable (except in compliance with Section 12.6), non-transferable (except in compliance with Section 12.6) right, during the applicable Order Form Term (as defined in Section 11(a)), solely for Customer’s internal business purposes, to: (i) access and use the SaaS ordered by Customer pursuant to an Order Form, and (ii) use the Documentation applicable to the Services ordered by Customer pursuant to an Order Form, in each case on the terms and conditions set out in this Agreement.

2.2 Restrictions

Customer shall not use the Services or Documentation for any purposes beyond the scope of the license and rights granted in this Agreement. Without limiting the foregoing and except as otherwise expressly set forth in this Agreement, Customer shall not itself, and shall not permit others to: (1) copy, Modify (except user configurable functionality), or create derivative works of any of the Services or the Documentation; (2) rent, lease, lend, sell, sublicense, assign, transfer, distribute, publish, or otherwise make available the Services or the Documentation; (3) use the Services to permit timesharing, service bureau use or commercially exploit the Services; (4) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of any of the Services; (5) remove or obscure any proprietary notices or labels on the Services or the Documentation; (6) access or use the Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable Law; (7) use or access the Services in a manner that threatens the security, integrity, availability, or functionality of the Services; (8) access or use the Services for the purpose of building a similar or competitive product or service; (9) perform any vulnerability, penetration or similar testing of the Services without Provider’s prior written consent; (10) access or use the Services to transmit spam, unlawful, harassing, defamatory, obscene, infringing, or fraudulent content, or to engage in phishing or other deceptive practices; (11) introduce any virus, worm, Trojan horse, malware, or other malicious code into the Services; (12) circumvent or breach any security device, rate limit, access control, or usage restriction of the Services; (13) use any robot, scraper, crawler, or other automated means to access the Services except as expressly permitted by Provider; or (14) access or use the Services in, by, or for the benefit of any country, person, or entity embargoed, blocked, or sanctioned by the United States, or in any manner that would cause Provider to violate applicable export control or economic sanctions Laws.

Customer Data Restrictions. Customer shall not itself, and shall not permit others to, use the Services to create, collect, transmit, store, use or process any Customer Data: (i) that contains any computer viruses, worms, malicious code, or any software intended to damage or alter a computer system or data; (ii) that Customer does not have the lawful right to create, collect, transmit, store, use or process; (iii) that violates any applicable Laws, or infringes, violates or otherwise misappropriates the intellectual property or other rights of any third party; (iv) that includes sensitive personal information, including payment card information, bank account information, government-issued identification numbers, protected health information, or other special-category or highly sensitive data, except to the extent expressly authorized in writing by Provider; or (v) that is subject to export control restrictions inconsistent with Customer’s permitted use of the Services or that would cause Provider to violate applicable export control or economic sanctions Laws.

Authorized User Restrictions. The total number of Authorized Users will not exceed the number set forth in the applicable Order Form, except as expressly agreed to in writing by the Parties and subject to any appropriate adjustment of the license fees payable hereunder.

2.3 Reservation of Rights

Provider reserves all rights not expressly granted to Customer in this Agreement.

2.4 Suspension; Modification

Notwithstanding anything to the contrary in this Agreement, Provider may, at its discretion: (i) suspend Customer’s or any Authorized User’s access to or use of the SaaS, or Provider’s provision of support services: (A) for scheduled maintenance in accordance with this Agreement; (B) to address any actual or threatened security concerns or harm to Provider, Customer Data, the Services, or Provider’s other customers; (C) if Customer or any Authorized User violates any provision of this Agreement; or (D) as necessary to comply with applicable Law or a request of a governmental authority (any such suspension described in this Section 2.4(i), a “Service Suspension”); and (ii) Modify the Services. Provider will use commercially reasonable efforts to provide prior notice of any Service Suspension where practicable and to limit any Service Suspension to the affected portion of the Services. Provider will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension implemented in accordance with this Agreement. Customer is required to accept all patches, bug fixes, and updates made by or on behalf of Provider to the Services.

3. Customer Responsibilities

General. Customer is responsible and liable for (i) all uses of the Services and Documentation resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement; and (ii) identifying and authenticating all Authorized Users. Without limiting the generality of the foregoing, Customer is responsible for any Authorized Users’ breach of this Agreement, as if by Customer.

Third-Party Products. Provider may distribute certain Third-Party Products with the Services. For purposes of this Agreement, such Third-Party Products are subject to their own license terms and the applicable flow-through provisions referred to in the Order Form. If Customer does not agree to abide by the applicable terms for such Third-Party Product, then Customer should not install or use such Third-Party Products.

Passwords and Access Credentials. Customer shall keep all passwords and access credentials associated with the Services confidential and secure. Customer will not sell or transfer them to any other person or entity. No Authorized User may share them with any other person. Customer will promptly notify Provider about any unauthorized access to the Services or Customer’s passwords or access credentials. Provider shall provide to Customer the necessary network links or connections to allow Customer to access the SaaS.

Privacy Policy. Provider complies with its privacy policy, available at https://www.mosaiclearning.com/privacy/ (“Privacy Policy”), as updated from time to time, in providing the Services. By accessing or using the Services, Customer acknowledges that Provider may process personal information in accordance with the Privacy Policy. To the extent Provider processes personal information on Customer’s behalf in a manner requiring a data processing agreement under applicable data privacy Laws, the Parties will enter into a Data Processing Addendum (“DPA”) containing appropriate terms to comply with such applicable Laws. Customer is responsible for providing all notices and obtaining all consents and other rights necessary for Provider to lawfully process personal information submitted by or on behalf of Customer in connection with the Services.

4. Service and Support

Service Levels. Subject to the terms and conditions of this Agreement, Provider shall use commercially reasonable efforts to make the Services available in accordance with the service levels set out in Exhibit A.

The access rights granted hereunder entitle Customer to the support services described in Exhibit B.

5. Fees and Payment

Fees; Payment; Late Payment; Modification. Customer shall pay Provider the fees (“Fees”) set forth in the Order Form, without offset or deduction. Provider will prepare and send to the Customer, at the then-current contact information on file with Provider, one or more invoices for any Fees that have become due and payable. Unless otherwise expressly stipulated in an invoice, Customer will pay all invoiced amounts in U.S. dollars within 30 calendar days of the invoice date. If Customer’s use of the Services exceeds the service capacity set forth on an Order Form or otherwise requires the payment of additional fees (pursuant to the terms of this Agreement), Customer will be billed for such usage and Customer will pay the additional fees in accordance with this Agreement. If Customer fails to make any payment when due, Provider may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law, plus all expenses of collection, until fully paid.

Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Provider’s income.

6. Confidential Information

From time to time during the Term, either party may disclose or make available to the other party information marked or otherwise identified in writing by a party as proprietary or confidential, or information that, under the circumstances surrounding the disclosure, the recipient should recognize as being confidential (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure: (a) is generally publicly available; (b) is known to the receiving party at the time of disclosure; (c) is rightfully obtained by the receiving party on a non-confidential basis from a third party; or (d) is independently developed by the receiving party. The receiving party shall not disclose the disclosing party’s Confidential Information to any person or entity, except to the receiving party’s employees who have a need to know the Confidential Information for the receiving party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law; (ii) to establish a party’s rights under this Agreement, including to make required court filings; or (iii) to its affiliates and its and their respective officers, directors, employees, shareholders, prospective investors, agents, and consultants (“Representatives”), provided that the receiving party shall take all necessary precautions to prevent improper access to or use or disclosure of the Confidential Information by its Representatives and shall be responsible for any breach of the obligations of this Agreement by any of its Representatives. On the expiration or termination of the Agreement, the receiving party shall promptly return to the disclosing party all copies of the disclosing party’s Confidential Information, or destroy all such copies and, on request, certify in writing that such Confidential Information has been destroyed; provided, however, that the receiving party and its Representatives may retain copies for legal or archival purposes, or if stored on backup and disaster recovery systems until their ordinary course deletion. Any such retention shall continue to be governed by this Agreement. Each party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five years from the termination or expiration of this Agreement; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations will survive for as long as such Confidential Information remains subject to trade secret protection under applicable law.

7. Intellectual Property Ownership and Feedback

Provider IP; Third-Party Products. As between the parties, (i) Provider owns all rights, title, and interests in and to the Provider IP; and (ii) the applicable third-party providers own all rights, title, and interests in and to the Third-Party Products.

Customer Data. As between the parties, Customer owns all right, title, and interest in and to the Customer Data. Customer hereby grants to Provider a non-exclusive, royalty-free, worldwide license to access, store, transmit, use, and otherwise process the Customer Data to provide the Services to Customer.

Warranty. Customer represents and warrants to Provider that Customer has all the rights, power, and authority necessary to grant the above Customer Data license and that use of the Customer Data in the manner contemplated will not breach the rights of any third party or violate applicable Law. Customer is solely responsible for obtaining all rights, consents, and permissions from Authorized Users, and making all requisite disclosures, as required under applicable Laws, for: (a) its use of Authorized Users in connection with the Services; and (b) for Provider to perform the Services and the obligations under this Agreement, including to collect, procure, gather, store, process, and access Customer Data. Customer agrees that it will not submit through the Services any payment card information, bank account information, protected health information, or other sensitive personal information unless expressly authorized by Provider in writing and subject to any additional terms, security requirements, or technical limitations specified by Provider. Customer agrees to identify to Provider any data privacy or data security Laws specifically applicable to Customer’s use of the Services to the extent reasonably necessary for Provider to perform the Services in compliance with applicable Law.

Content Responsibilities. Customer is responsible for any and all Customer Data provided hereunder and for compliance with this Agreement, including obtaining all necessary licenses, permissions, and consents to enable all material comprising Customer Data to be made available to Provider for Provider to transmit, host, and store. Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data. Customer shall make any disclosures in its privacy notices, or as otherwise required under Law, regarding Customer’s use of the Services to collect and process Customer Data.

Feedback. Customer or any Authorized User or other personnel may from time to time provide suggestions, comments, or other feedback (“Feedback”) with regard to the Services. All Feedback is and shall be given entirely voluntarily. Feedback, even if designated as confidential, shall not, absent a separate written agreement, create any confidentiality obligation for Provider. Provider is free to use and exploit the Feedback without obligation.

8. Limited Warranties and Warranty Disclaimer

To the extent applicable, Provider warrants that the SaaS will perform materially as described in the Documentation for the applicable Order Form Term. The warranties set forth in this Section 8 do not apply and become null and void if Customer or any Authorized User: (1) breaches any provision of this Agreement; (2) does not promptly notify Provider in writing of any non-conformance regarding the warranty; (3) installs or uses the Services on or in connection with any hardware or software not specified in the Documentation or expressly authorized by Provider in writing; or (4) misuses the SaaS. In the event of a breach of a warranty in Section 8(a), Provider shall, at its sole option, either: (i) repair or replace the applicable SaaS, provided that Customer provides Provider with all information Provider reasonably requests to resolve the reported failure; or (ii) terminate this Agreement or the applicable Order Form(s) and refund the pro rata unused portion of any Fees paid for such SaaS, subject to Customer’s ceasing all use of the terminating SaaS. The remedies set forth in this Section 8(a) are Customer’s sole remedies and Provider’s sole liability under the limited warranties set forth in this Section 8(a). THE FOREGOING WARRANTIES DO NOT APPLY, AND PROVIDER STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY PRODUCTS.

EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 8(A), THE PROVIDER IP IS PROVIDED “AS IS” AND “AS AVAILABLE” AND PROVIDER HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. PROVIDER MAKES NO WARRANTY THAT THE PROVIDER IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.

9. Indemnification

9.1 Provider Indemnification

Provider shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, and costs (including reasonable lawyers’ fees) (“Losses”) incurred by Customer resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”) that the SaaS or Documentation, or any use thereof, infringes or misappropriates such third party’s U.S. intellectual property rights, provided that Customer promptly notifies Provider in writing of the claim, cooperates with Provider, and allows Provider sole authority to control the defense and settlement of such claim. If such a claim is made or appears possible, Provider may, at its option: (A) modify or replace the SaaS or Documentation, or component or part thereof, to make it non-infringing; or (B) obtain the right for Customer to continue use. If Provider determines that none of these alternatives is reasonably available, Provider may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer, provided it refunds the pro rata unused portion of any Fees paid for such SaaS, subject to Customer’s ceasing all use of the terminating SaaS. This Section 9.1 will not apply to the extent that the alleged infringement arises from: (A) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Provider or authorized by Provider in writing; (B) modifications to the Services not made by Provider; (C) Customer Data; (D) Third-Party Products; or (E) Customer’s breach of this Agreement. SECTION 9.1 SETS FORTH CUSTOMER’S SOLE REMEDIES AND PROVIDER’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES OR DOCUMENTATION INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.

9.2 Customer Indemnification

Customer shall indemnify, hold harmless, and, at Provider’s option, defend Provider from and against any Losses resulting from any Third-Party Claim based on Customer’s, or any Authorized User’s: (i) Customer Data; (ii) breach of this Agreement; or (iii) use of the Services by Customer or any Authorized User in combination with any third-party software, application, or service; provided that Customer may not settle any Third-Party Claim against Provider unless such settlement completely and forever releases Provider from all liability with respect to such Third-Party Claim or unless Provider consents to such settlement, and further provided that Provider will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.

10. Limitations of Liability

IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) LOST SAVINGS, PROFIT, REVENUES, DATA, USE, OR GOODWILL; (c) BUSINESS INTERRUPTION; (d) COSTS FOR THE PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, EVEN IF SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES WERE FORESEEABLE. EXCEPT FOR LIABILITY ARISING FROM A PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, BREACH OF SECTION 6, OR INDEMNIFICATION OBLIGATIONS HEREUNDER, IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNTS PAID TO PROVIDER UNDER THE APPLICABLE ORDER FORM IN THE 12-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. LIABILITY ARISING FROM A PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER SHALL BE DEEMED TO BE DIRECT DAMAGES. FOR LIABILITY ARISING FROM A PARTY’S BREACH OF SECTION 6 OR PROVIDER’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT IN CONNECTION WITH ITS SECURITY OBLIGATIONS, EACH PARTY’S AGGREGATE LIABILITY SHALL NOT EXCEED TWO TIMES (2×) THE TOTAL AMOUNTS PAID TO PROVIDER UNDER THE APPLICABLE ORDER FORM IN THE 12-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THIS SECTION 10 APPLIES TO ALL LIABILITIES AND DAMAGES REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE.

11. Term and Termination

11.1 Term

This Agreement shall continue in full force and effect until terminated in accordance with the terms of this Agreement (“Term”). Either party may terminate this Agreement upon written notice to the other party when all Order Forms have expired or been terminated. The initial term of each Order Form will be specified in the Order Form or, if no initial term is specified, the initial term begins on the Order Form effective date and will continue in effect until one year from such date (the “Initial Order Form Term”). Each Order Form will automatically renew for additional successive one (1) year terms unless either Party gives the other Party written notice of non-renewal at least sixty (60) days prior to the expiration of the then-current term (each a “Renewal Order Form Term” and together with the Initial Order Form Term, the “Order Form Term”). After the expiration of the Initial Order Form Term or any subsequent Renewal Order Form Term, Provider is authorized to adjust the Fees.

11.2 Termination

In addition to any other express termination right set forth in this Agreement: (i) either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure (including any Customer payment obligation hereunder), remains uncured 30 days after the non-breaching Party provides the breaching Party with written notice of such breach; or (ii) either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it a petition for voluntary or involuntary bankruptcy or otherwise becomes subject to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.

11.3 Effect of Expiration or Termination

For the provision of SaaS, upon expiration or earlier termination of this Agreement, Customer shall immediately discontinue use of the Provider IP and, without limiting Customer’s obligations under Section 6, Customer shall delete, destroy, or return all copies of the Provider IP and certify in writing to the Provider that the Provider IP has been deleted or destroyed. Subject to any applicable Order Form, Provider will make Customer Data available for export or retrieval for up to 30 days following expiration or termination, after which Provider may delete Customer Data from its active systems in accordance with its standard retention practices, subject to any legal obligation or reasonable backup and archival requirements. No expiration or termination will affect Customer’s obligation to pay all Fees that may have become due before such expiration or entitle Customer to any refund.

11.4 Survival

The obligations and rights of the parties that may have arisen or accrued under the Agreement will survive the termination or expiration of the Agreement without prejudice. All provisions of this Agreement which by their nature should survive in order to give effect to this Agreement shall survive termination or expiration.

12. Miscellaneous

12.1 Entire Agreement. This Agreement, the Order Form(s), together with any other documents incorporated herein by reference, constitutes the sole and entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement and any other documents incorporated herein by reference, the following order of precedence governs: (a) the Order Form (if there is more than one active Order Form, then whichever is most recently signed, followed by earlier Order Forms); (b) this Agreement, excluding exhibits, schedules, attachments, and appendices; (c) the exhibits, schedules, attachments, and appendices to this Agreement as of the Effective Date; and (d) any other documents incorporated herein by reference.

12.2 Publicity. Provider may publicly identify Customer as a customer of Provider, including using Customer’s name and logo in marketing materials, only with Customer’s prior written consent. Notwithstanding the foregoing, Provider may identify Customer as a customer in confidential communications with Provider’s advisors, investors, financing sources, or prospective acquirers, subject to customary confidentiality obligations.

12.3 Notices. Notices sent to either party under this Agreement will be effective when delivered in person, one day after being sent by overnight courier, or, except for notices of termination, material breach, indemnifiable claims, or other legal process, when sent by email to the applicable notice address. Notices must be in writing and sent: (i) if to Provider, to: Mosaic Learning, Inc., 7055 Samuel Morse Drive, Suite 210, Columbia, MD 21046, Attention: Chief Executive Officer, Email: info@mosaiclearning.com; and (ii) if to Customer, to the current postal or email address that Provider has on file with respect to Customer. Provider may change its contact information by posting the new contact information on Provider’s website or by giving notice thereof to Customer. Customer is solely responsible for keeping its contact information on file with Provider current at all times during the Term. Provider may send operational notices and other account-related communications electronically, including through the Services or to Customer’s account or administrator email address on file.

12.4 Force Majeure. Neither party will be liable for delays caused by any event or circumstance beyond such party’s reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving such party’s employees), Internet service failures or delays, or the unavailability or Modification by third parties of telecommunications or hosting infrastructure or third-party websites.

12.5 Amendment and Modification. Provider may amend this Agreement by providing notice to Customer, including by updating this Agreement on this website. Any such amendment will apply prospectively. Unless an amendment is required by applicable Law or relates to new functionality, a materially adverse amendment will become effective upon Customer’s next renewal of the applicable Order Form or earlier acceptance by Customer. Customer’s continued use of the Services after the effective date of a non-material amendment constitutes acceptance of the amended Agreement.

12.6 Severability; Waiver. Any provision of this Agreement found by a tribunal or court of competent jurisdiction to be illegal or unenforceable will be severed from this Agreement and all other provisions will remain in full force and effect. A waiver of any provision of this Agreement must be in writing and a waiver in one instance will not preclude enforcement of such provision on other occasions.

12.7 Governing Law; Choice of Forum. This Agreement and all related matters shall be interpreted and construed in accordance with the laws of the State of Maryland and the applicable federal laws of the United States, without giving effect to any choice or conflict of law provision or rule. Each party irrevocably submits to the exclusive jurisdiction of the state and federal courts located in Maryland for any action or proceeding arising out of or relating to this Agreement.

12.8 Assignment. Customer may not assign or transfer any of its rights or delegate any of its obligations hereunder, by operation of law or otherwise, without the prior written consent of Provider. Any assignment, transfer, or delegation in violation of this Section is null and void. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.

12.9 Equitable Relief. Each party acknowledges and agrees that a breach or threatened breach by such party of any of its obligations under this Agreement would cause the other party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.

12.10 Construction. Except as otherwise provided in this Agreement, the parties’ rights and remedies under this Agreement are cumulative. The terms “include” and “including” mean, respectively, “include without limitation” and “including without limitation.” The headings of sections of this Agreement are for reference purposes only and have no substantive effect.

12.11 Independent Contractors. Provider’s relationship to Customer is that of an independent contractor, and neither party is an agent or partner of the other. Neither party will have, and will not represent to any third party that it has, any authority to act on behalf of the other party.

13. End-User SMS / Text Message Communications

This Section 13 applies directly to any individual end user (including Authorized Users and members of Customer’s organization) who elects to receive SMS text messages from Provider for account-security purposes through the Forge platform or any other Provider Service that offers SMS-based two-factor authentication (“2FA”).

By providing a mobile phone number and enabling SMS as your 2FA delivery channel, you expressly consent to receive transactional account-security text (SMS) messages from Provider at that mobile number for account-security purposes, including one-time passcodes (“OTPs”) used to verify your identity when you sign in or take a sensitive action. Consent to receive these SMS messages is not a condition of purchase of any goods or services.

• Purpose. SMS messages from us are strictly transactional. We use SMS only to deliver verification codes you have requested by initiating a sign-in attempt or by enabling SMS 2FA in your account settings. We do not use SMS for marketing, promotional, or bulk-communication purposes.
• Message frequency. Message frequency varies; you will receive SMS messages only in direct response to a sign-in or other identity-verification action you initiate. Typical frequency is 1–4 messages per month per user, but actual frequency depends on sign-in activity.
• Message and data rates. Message and data rates may apply. Provider does not charge for the messages, but your mobile carrier may.
• Supported carriers. SMS is supported on major U.S. and Canadian carriers. Carriers are not liable for delayed or undelivered messages.
• Opt-out. You may opt out of SMS at any time by replying STOP, STOPALL, UNSUBSCRIBE, CANCEL, END, or QUIT to any SMS message we send you, or by removing your phone number or changing your 2FA delivery channel in your account settings. After you opt out, you will receive a single SMS confirming the opt-out, and no further SMS messages will be sent to that mobile number unless you later opt back in. If you opt out and SMS was your enabled 2FA delivery method, you must select another 2FA method to continue receiving sign-in verification codes.
• Help. Reply HELP to any SMS message for help, or contact privacy@mosaiclearning.com.
• Privacy. Provider’s handling of your mobile phone number is governed by the Privacy Policy. We share your mobile phone number and related SMS messaging data, including opt-in and consent records as necessary, only with our SMS delivery provider (currently Amazon Web Services, Inc., via the AWS SNS service), strictly for the purpose of transmitting verification messages and supporting the SMS services on our behalf. Mobile information will not be shared with third parties or affiliates for marketing or promotional purposes.
• Eligibility. You must be the account holder of, or authorized to use, the mobile phone number you provide.
• Changes. Provider may update this Section 13 from time to time by posting an updated version and, where required by applicable Law or carrier requirements, providing additional notice. Continued use of SMS 2FA after the effective date of the updated terms constitutes acceptance of the updated terms to the extent permitted by applicable Law.

Retention. We retain your mobile phone number and related opt-in and consent records for as long as necessary to provide and support SMS-based 2FA for your account, including while you keep SMS 2FA enabled. If you remove your number or close your account, your mobile phone number is deleted from active systems within 30 days, subject to backup-retention schedules, legal-hold requirements, and our general retention practices described in the Privacy Policy. We may retain opt-in and consent records for an additional period as reasonably necessary to demonstrate consent and comply with legal, regulatory, and compliance obligations.

14. End-User SMS / Text Message Communications: Union Messaging

This Section 14 applies directly to any individual end user (an Authorized User who is a member of one of Customer’s affiliated union locals and an end user of one of Customer’s branded portals operated on the Forge platform) who, separately from the account-security SMS described in Section 13, chooses to opt in to “Union messaging” through the Forge platform.

By providing a mobile phone number and affirmatively opting in to “Union messaging” in your Forge account settings, you expressly consent to receive informational text (SMS) messages at that mobile number from your union local, sent by an authorized administrator of that local (a “Sub-Tenant Administrator”) through the Forge platform, such as contract-vote reminders, urgent worksite notices, meeting reminders, and member action alerts. Consent to receive these SMS messages is not a condition of purchase of any goods or services.

• Sender. Each Union messaging SMS is composed and initiated by a Sub-Tenant Administrator of the union local you belong to and is sent on behalf of that union local through the Forge platform. It is sent only by an authorized administrator of your union local, never by Provider directly and never by any other party.
• Audience. Union messaging SMS are sent only to members of your union local who have separately and affirmatively opted in to Union messaging using the in-product opt-in described below. They are not sent to any other audience.
• Purpose. Union messaging SMS is informational and is sent only to members of your union who have affirmatively opted in. It is not used for marketing of third-party products or services.
• Message frequency. Frequency is set by your union local and varies. Typical expected frequency is 0–8 messages per month per user; actual frequency depends on your union local’s communication cadence and current events.
• Message and data rates. Message and data rates may apply. Neither Provider nor your union local charges you for the messages, but your mobile carrier may.
• Opt-in. You opt in to Union messaging in Account Settings → Notifications in your Forge account by checking a separate, unchecked consent box adjacent to a clear inline disclosure of purpose, frequency, “Message and data rates may apply”, opt-out instructions, and links to this Agreement and the Privacy Policy. Opting in to account-security SMS does not opt you in to Union messaging, and vice versa; the two are captured separately. Provider retains your opt-in record, including the user, timestamp, IP address, user agent, and the exact disclosure text and policy version shown at the time of opt-in, for compliance purposes.
• Opt-out (two-tier).
  • (a) Granular (recommended). Uncheck “Receive text messages from my union” in Account Settings → Notifications at any time. This stops Union messaging SMS but leaves your account-security SMS active, so you do not lose your sign-in second factor.
  • (b) All SMS. Reply STOP, STOPALL, UNSUBSCRIBE, CANCEL, END, or QUIT to any SMS message we send you. Per CTIA and carrier requirements, this stops all SMS from us to that mobile number, including account-security SMS, because the STOP keyword is processed at the mobile-number level by the carrier and our SMS provider. If you wish to keep receiving account-security SMS while stopping Union messaging, please use the granular Account Settings option above instead of replying STOP.
  After you opt out, you will receive a single SMS confirming the opt-out and will not receive further SMS messages of the type you opted out of unless you opt back in. Opting out of Union messaging through Account Settings does not affect account-security SMS. Opting out of all SMS by reply keyword stops account-security SMS as well, and if SMS was your enabled 2FA delivery method, you must select another 2FA method to continue receiving sign-in verification codes.
• Help. Reply HELP to any SMS message for help, or contact privacy@mosaiclearning.com.
• Receipt visibility. When a Union messaging SMS is sent, the Sub-Tenant Administrator who sent it can see, within the Forge platform, which members the message was sent to, which members did not receive it (for example, because they had not opted in or had opted out), and aggregate delivery and engagement information for the message. Sub-Tenant Administrators do not receive the content of any reply to a Union messaging SMS. Replies are processed only for keyword opt-out and HELP handling.
• Privacy. Provider’s handling of your mobile phone number is governed by the Privacy Policy. We share your mobile phone number and related SMS messaging data, including opt-in and consent records as necessary, only with our SMS delivery provider (currently Amazon Web Services, Inc., via the AWS SNS service), strictly for the purpose of transmitting messages and supporting the SMS services on our behalf. Mobile information will not be shared with third parties or affiliates for marketing or promotional purposes.
• Eligibility. You must be the account holder of, or authorized to use, the mobile phone number you provide.
• Changes. Provider may update this Section 14 from time to time by posting an updated version and, where required by applicable Law or carrier requirements, providing additional notice. Continued use of the Union messaging SMS feature after the effective date of the updated terms constitutes acceptance of the updated terms to the extent permitted by applicable Law.

Retention. We retain your Union messaging opt-in record, including timestamp, IP address, user agent, and the exact disclosure text and policy version presented at the time of opt-in, for as long as necessary to provide and support Union messaging and, after you opt out, for an additional period as reasonably necessary to demonstrate consent and comply with legal, regulatory, and compliance obligations. Your mobile phone number is deleted from active systems within 30 days after you remove it or close your account, subject to backup-retention schedules, legal-hold requirements, and our general retention practices described in the Privacy Policy.