MONITOR TERMS

Ad Astra Monitor Terms and Conditions

These terms and conditions (“Agreement”) are effective upon commencement of access to Monitor by and between AD ASTRA INFORMATION SYSTEMS, LLC, a Kansas limited liability company located at 6900 W. 80^th Street, Suite 300, Overland Park, KS 66204 (“Ad Astra”), and Client.

Ad Astra has developed and owns a software application known as “Monitor” which is a targeted solution for monitoring registration, allowing higher education institutions to track how courses are filling and offering  easy-to-use reporting and information based on registration data to understand how their courses are filling in order to make decisions on if/when/how they need to adjust their offerings and/or schedule.   Monitor includes:

• VISIBILITY allows Clients to track how quickly courses are filling;
• ACCESS provides visualizations to view registration data and drill into specific courses to learn how sections are filling;
• THRESHOLD MONITORING tracks courses above and below certain enrollment ratio thresholds to alert which courses need attention; and
•  NOTIFICATIONS can be set by Client to monitor specific and key courses and be notified when courses have reached high enrollment. 

NOW, THEREFORE, in consideration of the promises, covenants and mutual agreements herein contained, the parties hereto agree as follows:

1. Access and Provision of Services.
   1. Access. During the term of this Agreement and subject to the terms and conditions hereof, Ad Astra will provide Client with access to and use of the Monitor software application in a hosted environment (the “Software Services”).  Accordingly, Ad Astra grants to Client, and Client accepts, a non-exclusive, non-transferable right to access the Software Services during the term of this Agreement. Upon payment of the Fees, Ad Astra shall furnish to Client access information, including appropriate IP addresses, log-on procedures, and user identification and password(s).  Access to use the Software Services may not in whole or in part be assigned or transferred to any person not covered under this Agreement.
   2. Suspension or Termination. Ad Astra may, in its sole and absolute discretion and without notice, immediately suspend or terminate Client’s or any end user’s right to use or receive the Software Services hereunder for failure to comply with Ad Astra’s policies and/or the terms set forth herein (including the failure to pay any amounts when due).
2. Connectivity. Ad Astra’s objective is to make the Software Services available twenty-four hours a day, seven days a week; provided, however, that Ad Astra will, from time to time, need to perform routine maintenance or repair, and that during such periods of maintenance or repair, the Software Services may not be available for Client's use.  In the event that Client’s access to the Software Services becomes unavailable due to connectivity issues, Client shall immediately notify Ad Astra by logging a case to the Ad Astra portal in accordance with Ad Astra’s written policies.  Customer support hours are Monday through Friday from 7:00 am to 6:00 pm (cst).  Ad Astra’s policy is to respond within two business hours of receiving the case.  Unless Client’s access to the Software Services is unavailable for reasons beyond Ad Astra’s control or as a result of routine maintenance, Ad Astra strives to resolve and restore access within eight business hours.  
3. Outsourced Services. Client acknowledges that Ad Astra may contract with a third-party provider (the “Hosting Provider”) to provide the Hosting Services.  All third-party Hosting Providers will be required to maintain currency and compliance with SOC2 audits and ISO certificates.
4. Client Hosted Data. Client retains ownership of its data.  Client’s data hosted by or on behalf of Ad Astra in connection with this Agreement may be de-identified to produce a database instance (the “De-Identified Astra Database Instance”).  The de-identification process removes or obfuscates all personally identifiable information and makes every reasonable attempt to anonymize all client identifiable information including but not limited to institution name, campus names, department names, etc.  The De-Identified Astra Database Instance may be exported from the Astra Cloud to another Ad Astra data center and used by Ad Astra for quality assurance, product and service improvements, research, and/or demonstration purposes.  Client grants Ad Astra with a world-wide, royalty-free license to use Client data in accordance with this Section and for purposes necessary to fulfill the services procured herein.
5. Client's Obligations.
   1. Use of Software Services. The Software Services must be used only for Client’s own internal business purposes.  Client must not (i) permit any third party to use the Software Services, (ii) use the Software Services in the operation of any business other than Client’s own business, (iii) allow unauthorized access to the Software Services, (iv) make any copies of application Software or 3rd party infrastructure software such as operating system software or database software or (v) alter or modify the Software in any manner without Ad Astra’s prior written consent. 
   2. Network Security. It is the responsibility of Client to maintain restricted access to any infrastructure hardware environments.  Client must ensure proper security is in place and when its users are accessing the Software Services including maintaining strong passwords, employing proper firewalls, and other industry standard technological security best practices. Client acknowledges and agrees that Software Services and other data or services which are made available over the Internet are inherently insecure against motivated individuals, and Ad Astra has no obligation or liability to Client for any unauthorized access to Client Information provided that such unauthorized access to Client Information is not due to a breach of the Agreement.
   3. Compliance with Laws. Client shall comply with all applicable local, state, federal and foreign laws in connection with its use of the Software Services, include those laws related to data privacy and the transmission of technical or personal data. Client acknowledges that Ad Astra exercise no control over the content of the information transmitted by Client or end users through the Software Services. Client shall not upload, reproduce or distribute any information, software or other material protected by copyright, privacy rights, or any other intellectual property right without first obtaining the permission of the owner of such rights.
6. Fees and Payment.
   

   Client must pay to Ad Astra $[amount as quoted] upon the execution of this Agreement.  Beginning on the first anniversary of the Effective Date, Client must pay to Ad Astra an annual subscription fee (the “Subscription Fee”) in the initial amount of $[amount as quoted] , which shall be invoiced by Ad Astra each year for access to the Software Services. Subscription Fees include access to Ad Astra’s technical support team and standard releases of the licensed product. 

   Beginning on the second anniversary of the Effective Date, the Subscription Fees may be subject to an increase from the then effective amount as determined by Ad Astra.  Ad Astra will notify Client of the amount of any such increase at least forty-five (45) days prior to the effective date of such increase. 

   Payment of each invoice will be due, without deduction or setoff, Net 30.  Any payment received more than thirty (30) days after the due date of the relevant invoice will be subject to interest at the rate of 3% per month or the maximum legal rate, whichever is lower, from the date of the invoice through the date payment is received.  Taxes. 

   Client is responsible for reporting and paying all applicable sales and use or other taxes, impositions or charges with respect to any and all fees. If Client is exempt from taxes, a copy of a valid tax exemption certificate must be provided to Ad Astra. Client will indemnify, defend, and hold harmless Ad Astra from and against all claims arising out of or resulting from Ad Astra’s failure or alleged failure to pay taxes due.

7. Term, Termination and Effect of Termination.
   1. Term. Unless earlier terminated as provided herein, the initial term shall be one year (the “Initial Term”).  After the Initial Term, the term of this Agreement will be automatically renewed for successive additional one-year terms (each, a “Renewal Term” and together with the Initial Term, the “Term”) unless terminated by either party by written notice to the other party given at least sixty (60) days prior to the expiration of the Term.
   2. Termination. Ad Astra may terminate the Term for cause immediately upon written notice to Client if (i) Client fails to pay any amount when due as provided in this Agreement; or (ii) Client defaults in the performance of its obligations under this Agreement in any other manner and such default is not or cannot be remedied within thirty (30) days after notice thereof by Ad Astra.
   3. Effect of Termination. Upon valid termination of this Agreement, pursuant to any cause whatsoever, Client must immediately pay to Ad Astra all monies due for the remainder of the then current term and must deliver to Ad Astra all materials and documents pertaining to the Software Services, all of which are the sole and exclusive property of Ad Astra.  Upon such termination all licenses, access, authorities, rights and privileges granted hereunder will terminate automatically and immediately, and Client must cease to use, as hereinbefore provided, any Intellectual Property of Ad Astra.  Upon expiration or termination of this Agreement, Ad Astra will work with Client in good faith to transition a copy of the Client Data to Client.
8. Warranty; Disclaimer of Warranties; Limited Liability.
   1. Ad Astra hereby warrants to Client that the Software Services will perform substantially in accordance with Ad Astra’s written documentation (not, however, that the Software Services are error-free, since all software contains some programming errors) provided that this warranty does not apply to performance problems caused by (i) events beyond Ad Astra’s reasonable control, including vandalism, civil disturbance, fire, flood, storm, or other exposures to the elements or to temperature extremes; (ii) unavailability or malfunctioning of telecommunication services; (iii) tampering, failure of electric power, abuse, or misuse; (iv) operator mistakes; (v) equipment, software, or other items (whether or not included within the Software) not developed, manufactured, created, or produced by Ad Astra; (vi) a failure to comply with Ad Astra’s written policies or documentation or this Agreement or to use the Software Services in accordance with their intended purpose; (vii) modifications of the Software not performed by Ad Astra or its authorized representatives; (viii) combinations or integrations of the Software with devices or software not provided by Ad Astra or its authorized representatives; or (ix) Client’s use of the Software Services as part of an invention by Client or as part of a new configuration, which, in either case, includes materials or methods not supplied or approved by Ad Astra.
   2. EXCEPT AS STATED IN SECTION 13(a), Ad Astra hereby disclaims any and all warranties, conditions, or representations (express or implied, oral or written), with respect to the SOFTWARE SERVICES AND ANY OTHER SERVICES PROVIDED BY AD ASTRA UNDER THIS AGREEMENT, including any and all implied warranties or conditions of title, NON-InFRINGEMENT, merchantability, or fitness or suitability for any purpose (whether or not Ad Astra knows, has reason to know, has been advised, or otherwise in fact aware of any such purpose), whether alleged to arise by law, by reason of custom or usage in the trade, or by course of dealing, including any warranty that (a) the SOFTWARE SERVICES will be error-free; or (b) the quality of the SOFTWARE SERVICES will meet Client’s expectations or requirements. EXCEPT AS STATED IN SECTION 13(a), The SOFTWARE SERVICES, SUPPORT SERVICES AND/OR ANY OTHER SERVICES PROVIDED BY AD ASTRA UNDER THIS AGREEMENT ARE being provided “as is” and “with all faults” and the entire risk as to satisfactory quality or accuracy thereof is with Client.
   3. Client’s exclusive remedy for any cause of action arising out of this Agreement shall be for Ad Astra to use reasonable business efforts to provide or restore Client’s access to the Software Services. Client acknowledges, understands, and agrees that Ad Astra will not be liable for any indirect, incidental, punitive, special, loss of data, data recovery or reconstruction, resulting delays, service interruption, business interruption, loss of privacy, loss of profits, lost savings, expenses, costs of substitute software, work products or services, or losses resulting from erasure, damage, destruction or other loss of files, data or programs or the cost of recovering such information, even if such party has been advised of the possibility of such damages, losses expenses or costs or consequential damages arising out of or related to this Agreement or the Software Services, Support Services and/or any other Services provided hereunder, whether such damages are alleged as a result of tortious conduct, breach of contract or otherwise, even if Ad Astra has been advised of the possibility of such damages. Client acknowledges, understands, and agrees that the maximum total liability of Ad Astra under this Agreement will not exceed the fees received by Ad Astra under this Agreement during the twelve (12) month period immediately preceding the occurrence of the event giving rise to such liability. 
9. Indemnification. To the extent allowable by law, Client will indemnify, defend, and hold Ad Astra, including its affiliates, managers, officers, employees, agents, successors and assigns, harmless from and against any and all claims, actions, causes of action, orders, arbitrations, proceedings, losses, damages, liabilities, judgments, and expenses (including, without limitation, reasonable attorneys’ fees and costs) arising, directly or indirectly, from or in connection with: (a) any breach of this Agreement by Client or any of its affiliates, employees or agents; (b) any violation of the rights of another by Client or any of its affiliates, employees or agents; or (c) any negligent or intentional acts or omissions by Client or any of its affiliates, employees or agents.  This Section will survive the termination of this Agreement.
10. Force Majeure. Except for the obligation to make payments hereunder, neither party shall be liable for any failure or delay in its performance due to any cause beyond its reasonable control, including acts of war, acts of God, earthquake, flood, embargo, riot, terrorism, sabotage, labor shortage or dispute, governmental act, criminal conduct, computer hacking or failure of the Internet, provided that the delayed party (a) gives the other party prompt notice of such cause, (b) uses its reasonable commercial efforts to promptly correct such failure of delay in performance.  If Ad Astra is unable to provide the contracted software and service as outlined in Exhibit A for a period of sixty (60) consecutive days due to a continuing force majeure event, Client may terminate this Agreement.
11. Media Release. Client hereby gives and grants permission unto Ad Astra to publicize non-confidential information about Client in print or electronic forms of public relations, training, or marketing productions. The information and images may be used for any purpose without limitation or reservation, in such manner as determined by Ad Astra. 
12. General.
    1. Entire Agreement and Amendment. This Agreement cancels and supersedes all previous agreements, written or oral, between the parties hereto relating to the subject matter hereof and constitutes the entire agreement between the parties hereto, and there are no understandings, representations or warranties expressed or implied not specifically set forth herein.  This Agreement may be amended only by a writing executed by the party against which such amendment is sought to be enforced. This Agreement shall not be supplemented or modified by any course of performance, course of dealing or trade usage.  Client and Ad Astra specifically acknowledge and agree that any other terms varying from or adding to the terms of this Agreement, whether contained in any purchase order or other electronic, written or oral communication made from Client to Ad Astra are rejected and shall be null and void and of no force or effect, unless expressly agreed to in writing by both parties.  This Agreement will prevail over any conflicting stipulations contained or referenced in any other document.
    2. Controlling Law. This Agreement is governed by and will be construed and interpreted in all respects in accordance with the laws of the State of Kansas (without application of principles of conflicts of law).  The parties hereto agree that any claim or cause of action between the parties arising out of or in connection with this Agreement will have exclusive jurisdiction and venue in state court in Johnson County, Kansas, or the United States District Court for the District of Kansas, whichever is proper.
    3. Counterparts. This Agreement may be executed simultaneously in one or more counterparts, each of which will be deemed to be an original, but all of which together will constitute one and the same instrument.
    4. Waiver. The failure of either party to require performance by the other party of any provision hereof, or to enforce any remedies it may have against the other party, will in no way affect the right thereafter to enforce this Agreement and require full performance by the other party.  The waiver by either party of any breach of any provision of this Agreement will not constitute a waiver of any succeeding breach of that provision or of any other provision.
    5. Severability. If any provision of this Agreement or the application thereof to any person or circumstance is invalid or unenforceable to any extent, the remainder of this Agreement and the application of such provision to other persons or circumstances will not be affected thereby and will be enforced to the greatest extent permitted by law, but only as long as the continued validity, legality and enforceability of such provision or application does not materially alter the terms of this Agreement or diminish the benefits or burdens of this Agreement.
    6. Independent Contractor. The parties are independent contractors, and nothing in this Agreement nor the conduct of the parties will be deemed to place the parties in any other relationship.  Under no circumstances will either party be considered to be an agent, employee, partner or representative of the other party or otherwise attempt to bind the other party.
    7. Audit Rights. Upon reasonable notice to Customer, Ad Astra shall be permitted access to audit Customer’s use of the Software solely in order to determine Customer’s compliance with the use of the software and pricing terms this Agreement.  Customer shall reasonably cooperate with Ad Astra with respect to its performance of such audit.  Customer acknowledges and agrees that Customer is prohibited from publishing the results of any benchmark test using the Software to any third party without Ad Astra’s prior written approval.