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Software as a Service Agreement
This Software as a Service Agreement (the "Agreement"), effective as of the date listed below (the "Effective Date"), is by and between College Aid Pro, LLC ("Provider") and the undersigned individual or organization ("Customer").
Provider agrees to allow Customer access to and use of the College Aid Pro website (the “Platform”) to provide financial planning services, specifically relating to the College Pre-Approval ™ process, and Customer, by accessing and using the Platform and paying the fees associated with such use, agrees to be bound by the terms contained herein:
1. System Control. Provider has and will retain sole control over the operation, provision, maintenance and management of the Platform. Provider reserves the right, in its sole discretion, to make any changes to the Platform that it deems necessary or useful.
2. Suspension or Termination of Services. Provider may, directly or indirectly, suspend, terminate or otherwise deny Customer's access to or use of all or any part of the Platform, without incurring any resulting obligation or liability, for any reason.
3. Authorization and Customer Restrictions. Customer will not, and will not permit any other Person to, access or use the Platform except as expressly permitted by this Agreement. For purposes of clarity and without limiting the generality of the foregoing, Customer will not, except as this Agreement expressly permits:
(a) copy, modify or create derivative works or improvements of the Platform;
(b) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of the Platform, in whole or in part;
(c) bypass or breach any security device or protection used by the Platform;
(d) input, upload, transmit or otherwise provide to or through the Platform, any information or materials that are unlawful or injurious;
(e) damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Platform, in whole or in part;
(f) access or use the Platform in any manner or for any purpose that infringes, misappropriates or otherwise violates any Intellectual Property Right or other right of any third party, or that violates any applicable Law;
(g) access or use the Platform for purposes of competitive analysis of the Platform, the development, provision or use of a competing software service or product or any other purpose that is to the Provider's detriment or commercial disadvantage; or
4. Customer Obligations.
4.1 Customer Inputs. Customer will be solely responsible for providing their logo, which Customer license to Provider solely for the purpose of displaying on Customer’s user-facing platform and printable reports.
4.2 Effect of Customer Failure or Delay. Provider is not responsible or liable for any delay or failure of performance caused in whole or in part by Customer's delay in performing, or failure to perform, any of its obligations under this Agreement.
5. Fees; Payment Terms.
5.1 Fees. By signing up for an account and using the Platform, Customer agrees to pay a monthly subscription fee to Provider via Stripe or an equivalent third-party payment system. If payment fails, users access to the platform will be shut down 14 days from the date of the failed payment.
5.2 No Deductions or Setoffs. All amounts payable to Provider under this Agreement will be paid by Customer to Provider in full without any setoff, recoupment, counterclaim, deduction, debit or withholding for any reason (other than any deduction or withholding of tax as may be required by applicable Law).
6. Intellectual Property Rights.
6.1 Definitions. “Intellectual Property” means any patent, copyright, trademark, trade secret, or other information subject to Intellectual Property Rights. “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
6.2 The Platform. All right, title and interest in and to the Platform, including all Intellectual Property Rights therein, are and will remain with Provider. Customer has no right, license or authorization with respect to any of the Platform.
6.3 End User Data. Customer will remain the sole and exclusive owner of all right, title, and interest to any End User Data. “End User Data” means any information, data, or other content that Customer provides to Provider.
6.4 Resultant Data. Customer unconditionally and irrevocably grants to Provider an assignment of all right, title, and interest in and to such information, data, and other content that Provider may derive by or through Customer’s use of the Platform and that is sufficiently different from such End User Data that such End User Data cannot be reverse engineered or otherwise identified from the inspection, analysis, or further processing of such information, data, or content (“Resultant Data”); provided that Provider may not identify Customer (or Customer’s clients) as the source of any specific piece of Resultant Data
7. Confidentiality. Customer acknowledges that during the term of this Agreement, they will have access to and become acquainted with various trade secrets, inventions, innovations, processes, information, records, specifications owned and licensed by Provider, and End User Data (collectively, “Confidential Information”). During the term of this Agreement and at all times thereafter, Customer agrees not to disclose any Confidential Information, directly or indirectly, or use the Confidential Information in any manner except as required in the course of this Agreement. Upon termination of this Agreement, or at any time requested by Provider, Customer will immediately deliver to Provider any Confidential Information in their possession, delete any electronic copies of any Confidential Information, and provide written certification of such deletion to Provider within seven days.
8.1 Termination. In addition to any other express termination right set forth elsewhere in this Agreement:
(a) Either party may terminate this Agreement, with or without cause, by providing 30 days’ written notice to the other party.
(b) Provider may terminate this Agreement, effective on written notice to Customer, if Customer breaches any of its obligations under this Agreement.
8.2 Effect of Expiration or Termination. Upon any expiration or termination of this Agreement, except as expressly otherwise provided in this Agreement:
(a) all rights, licenses, consents and authorizations granted by either party to the other hereunder will immediately terminate; and
(b) Customer will immediately cease all use of the Platform and Provider may disable all Customer access to the Platform.
8.3 Surviving Terms. The provisions set forth in the following sections, and any other right or obligation of the parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: Section 3, Section 8.2, this Section 8.3, Section 10, and Section 12.
9. Disclaimer of Warranties. The Platform is provided “as is” and Provider hereby disclaims all warranties, whether express, implied, statutory, or other, and Provider specifically disclaims all implied warranties of merchantability, fitness for a particular purpose, title and non-infringement, and all warranties arising from course of dealing, usage, or trade practice. Without limiting the foregoing, Provider makes no warranty of any kind that the Platform, 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 except if and to the extent expressly set forth in this Agreement, be secure, accurate, complete, free of harmful code, or error free.
10. Limitations of Liability.
10.1 Exclusion of Damages. In no event will Provider be liable under or in connection with this Agreement or its subject matter under any legal or equitable theory, including breach of contract, tort (including negligence), strict liability, and otherwise, for any: (a) loss of production, use, business, revenue, or profit or diminution in value; (b) impairment, inability to use or loss, interruption, or delay of use of the Platform; (c) loss, damage, corruption, or recovery of data, or breach of data or system security; or (d) consequential, incidental, indirect, exemplary, special, enhanced, or punitive damages, regardless of whether such persons were advised of the possibility of such losses or damages or such losses or damages were otherwise foreseeable, and notwithstanding the failure of any agreed or other remedy of its essential purpose.
10.2 Cap on Monetary Liability. In no event will the collective aggregate liability of Provider and its licensors, service providers, and suppliers under or in connection with this Agreement or its subject matter, under any legal or equitable theory, including breach of contract, tort (including negligence), strict liability, and otherwise, exceed the total fees paid by Customer under this Agreement. The foregoing limitation applies notwithstanding the failure of any agreed or other remedy of its essential purpose.
11. Force Majeure.
11.1 No Breach or Default. In no event will either party be liable or responsible to the other party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, (except for any payment obligation), when and to the extent such failure or delay is caused by any circumstances beyond such party's reasonable control (a "Force Majeure Event"), including acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the date of this Agreement, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of Law or any action taken by a governmental or public authority, including imposing an embargo, export or import restriction, quota or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation. Either party may terminate this Agreement if a Force Majeure Event continues substantially uninterrupted for a period of 30 days or more.
11.2 Affected Party Obligations. In the event of any failure or delay caused by a Force Majeure Event, the affected party will give prompt written notice to the other party stating the period of time the occurrence is expected to continue and use commercially reasonable efforts to end the failure or delay and minimize the effects of such Force Majeure Event.
12.1 Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement will be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party will have authority to contract for or bind the other party in any manner whatsoever.
12.2 Notices. All notices, requests, consents, claims, demands, waivers and other communications under this Agreement have binding legal effect only if in writing and addressed to the designated service manager of the receiving party. Notices sent in accordance with this Section 12.2 will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; (c) when sent, if by facsimile or e-mail, (in each case, with confirmation of transmission), if sent during the addressee's normal business hours, and on the next business day, if sent after the addressee's normal business hours; and (d) on the third day after the date mailed by certified or registered mail, return receipt requested, postage prepaid.
12.3 Interpretation. For purposes of this Agreement: (a) the words "include," "includes" and "including" are deemed to be followed by the words "without limitation"; (b) the word "or" is not exclusive; (c) the words "herein," "hereof," "hereby," "hereto" and "hereunder" refer to this Agreement as a whole; (d) words denoting the singular have a comparable meaning when used in the plural, and vice-versa; and (e) words denoting any gender include all genders. Unless the context otherwise requires, references in this Agreement: (x) to sections, exhibits, schedules, attachments and appendices mean the sections of, and exhibits, schedules, attachments and appendices attached to, this Agreement; (y) to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof; and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. The parties intend this Agreement to be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The exhibits, schedules, attachments and appendices referred to herein are an integral part of this Agreement to the same extent as if they were set forth verbatim herein.
12.4 Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
12.6 Assignment. Customer will not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without Provider's prior written consent. No delegation or other transfer will relieve Customer of any of its obligations or performance under this Agreement. Any purported assignment, delegation or transfer in violation of this Section 12.6 is void. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
12.7 No Third-party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective permitted successors and permitted assigns and nothing herein, express or implied, is intended to or will confer upon any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
12.8 Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each party. No waiver by any party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement will operate or be construed as a waiver thereof; nor will any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
12.9 Severability. If any provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the parties hereto will negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
12.10 Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of Ohio without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Ohio. Any legal suit, action or proceeding arising out of this Agreement or the licenses granted hereunder may be instituted exclusively in the federal courts of the United States or the courts of the State of Ohio, in each case located in the city of Columbus and County of Franklin, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. Service of process, summons, notice or other document by mail to such party's address set forth herein will be effective service of process for any suit, action or other proceeding brought in any such court.
12.11 Waiver of Jury Trial. Each party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby.
12.12 Equitable Relief. Each party acknowledges and agrees that a breach or threatened breach by such party of any of its obligations under Section 3 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.
12.13 Attorneys' Fees. In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either party hereto against the other party arising out of or related to this Agreement, the prevailing party will be entitled to recover its actual attorneys' fees and court costs from the non-prevailing party.