Software as a Service Agreement

This Software as a Service Agreement is entered into as of the Effective Date (as hereafter defined) by and between GSL Solutions, Inc., a Florida corporation ("GSL"), and Cape Coral Charter School Authority (the "Client").  Throughout this Agreement, the terms "you" and "your" refer to the Client named above, the terms "we" and "our" refer to GSL, and the term "parties" refers to both the Client and GSL together.

  1. Defined Terms.  As used in this Agreement, the following terms shall have the following meanings:
    1. "Services" means system administration, system management and system monitoring activities that GSL performs for The Digital Bell and includes the right to use The Digital Bell programs and support services for such programs, as defined in the applicable Purchase Order.
    2. “The Digital Bell” means The Digital Bell learning environment management system and related software owned by GSL.
    3. “Program Documentation” means The Digital Bell user manual as well as any other materials provided by GSL as part of the Services.
    4. “Users” shall mean those individuals authorized by you or on your behalf to use the Services, as defined in the Purchase Order.
    5. “Your data” means the data provided by you that resides in your Services environment.
    6. "Purchase Order" means the ordering document signed by the parties that accompanies and incorporates this Agreement.

  2. Use of The Digital Bell Service.  For the duration of the term of the Services as established in the Purchase Order, you have the nonexclusive, non-assignable, royalty free, worldwide limited right to use the Services solely for your internal business operations and subject to the terms of this Agreement.  You may allow your Users to use the Services for this purpose and you are responsible for your Users’ compliance with this Agreement.  The Services are provided as described in, and subject to, the services policies referenced in the Purchase Order.  You acknowledge that GSL has no obligation to deliver, nor will we deliver, copies of The Digital Bell software to you as part of the Services.  You agree that you do not acquire under this Agreement any license to use The Digital Bell software in excess of the scope and duration of the Services as specified in this Agreement and the Purchase Order.  Upon the expiration or termination of this Agreement, your right to access or use The Digital Bell software and the services shall terminate.
  3. Conditions to Use Rights.  The rights granted to you under this Agreement are conditioned upon the following:

    1.  the rights of any user licensed to use the Services (e.g., on a “named user” basis) cannot be shared or used by more than one individual (unless such license is reassigned in its entirety to another authorized user, in which case the prior authorized user shall no longer have any right to access or use the license);
    2.  except as expressly provided herein, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, including but not limited to electronic, mechanical, photocopying, recording, or other means; and
    3.  you agree to make every reasonable effort to prevent unauthorized third parties from accessing the Services.

  4. Ownership Rights.  You retain all ownership and intellectual property rights in and to your data. GSL or its licensors retains all ownership and intellectual property rights to the Services and The Digital Bell software programs and Program Documentation.  GSL retains all ownership and intellectual property rights to anything developed and delivered under this Agreement.  Third party technology that may be appropriate or necessary for use with The Digital Bell is specified in the Program Documentation or the Purchase Order, as applicable.  Your right to use such third party technology is governed by the terms of the third party technology license agreement specified by GSL and not by this Agreement.  You may not:

    1.  remove or modify any program markings or any notice of GSL’s or its licensors’ proprietary rights;
    2.  make the programs or materials resulting from the Services available in any manner to any third party for use in the third party’s business operations;
    3.  modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the Services (the foregoing prohibition includes but is not limited to review of data structures or similar materials produced by programs), or access or use the Services in order to build or support, and/or assist a third party in building or supporting, products or services competitive to GSL;
    4.  disclose results of any Services or program benchmark tests without GSL's prior written consent; or
    5.  license, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose, permit timesharing or service bureau use, or otherwise commercially exploit or make the Services, The Digital Bell or the Program Documentation available to any third party other than as expressly permitted under the terms of this Agreement.

  5. Warranties, Disclaimers and Remedies.  GSL warrants that the Services will perform in all material respects in accordance with the services policies referenced in the Purchase Order.  If the Services provided to you for any given month during the term of this Agreement were not performed as warranted, you must provide written notice to GSL at GSL Solutions, Inc., 1411 N. Westshore Blvd., Ste. 204, Tampa, Florida  33607 no later than five (5) business days after the last day of that particular month or within such other period stated in the Purchase Order.

    1. GSL DOES NOT GUARANTEE THAT THE SERVICES WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, OR THAT GSL WILL CORRECT ALL SERVICES ERRORS.  YOU ACKNOWLEDGE THAT GSL DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. GSL IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
    2. FOR ANY BREACH OF THE ABOVE WARRANTIES, GSL WILL REMIT A SERVICES FEE CREDIT TO YOU CALCULATED AT TEN PERCENT (10%) OF NET MONTHLY FEES FOR THE APPLICABLE SERVICES FOR THE MONTH IN WHICH THE BREACH OCCURRED.  THE CREDIT WILL BE PROVIDED ONLY TOWARDS ANY OUTSTANDING BALANCE FOR SERVICES OWED TO GSL, AND THE REMITTANCE OF SUCH CREDIT WILL REPRESENT YOUR EXCLUSIVE REMEDY, AND GSL'S SOLE LIABILITY, FOR ALL BREACHES OF ANY WARRANTY SPECIFIED IN THIS AGREEMENT.
    3. TO THE EXTENT NOT PROHIBITED BY LAW, THESE WARRANTIES ARE EXCLUSIVE AND THERE ARE NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS INCLUDING FOR HARDWARE, SYSTEMS, NETWORKS OR ENVIRONMENTS OR FOR MERCHANTABILITY, SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE.

  6. Infringement.
    1. By GSL.  GSL represents and warrants that the Services do not infringe upon the intellectual property rights of any third party.  GSL agrees to indemnify and hold you harmless from and against any and all damages, liabilities, costs and expenses that you incur as the result of or arising from GSL's breach of the foregoing representation and warranty.  In the event of any such infringement, GSL may choose to either modify the infringing material to be non-infringing (while substantially preserving its utility or functionality) or obtain a license to allow for continued use, failing which GSL may, at its option and upon 30 days prior written notice, terminate the Purchaser Order for the infringing material.  GSL will not indemnify you to the extent that an infringement claim is based upon (i) any information, design, specification, instruction, software, data, or material not furnished by GSL, (ii) any infringing material from a third party portal or other external source that is accessible to you within or from the Service (e.g., a third party web page accessed via a hyperlink), (iii) your combination of any material provided by GSL with any products or services not provided by GSL, and (iv) your actions if the Services as delivered to you and used in accordance with the terms of this Agreement would not otherwise infringe any third party intellectual property rights.
    2. By Client.  You represent and warrant that neither your data nor any content, material, design, instruction, product, service or links to web sites that you create, furnish or enable using the Services infringe upon the intellectual property rights of any third party.  You agree to indemnify and hold GSL harmless from and against any and all damages, liabilities, costs and expenses that GSL incurs as the result of or arising from your breach of the foregoing representation and warranty.

  7. Support Services.  Support services provided under this Agreement are specified in the services policies referenced in the Purchase Order.

  8. Term of this Agreement.   The Services provided under this Agreement shall be provided for the period specified in the Purchase Order unless earlier terminated in accordance with this Agreement.  The term of the Services and any renewal years are collectively defined as the “Services Term.”  At the end of the Services Term, all rights to access or use the Services, including the GSL programs listed in the Purchase Order, shall end.
    1. If either of us breaches a material term of this Agreement and fails to correct the breach within 30 days of written specification of the breach, then the non-breaching party may terminate the Purchase Order under which the breach occurred.  If GSL terminates the Purchase Order, you must pay to GSL within 30 days after termination all amounts that have accrued prior to such termination, as well as all sums remaining unpaid for the Services specified in the Purchase Order plus related taxes and expenses.  The nonbreaching party may agree in its sole discretion to extend the 30 day period for so long as the breaching party continues reasonable efforts to cure the breach.  You agree that while you are in default under this Agreement, you may not use the Services.
    2. In addition, GSL may immediately suspend your password, account, and access to or use of the Services (i) if you fail to pay GSL as required under this Agreement and do not cure within the first ten days of the 30 day cure period, or (ii) if you violate any provision within Sections 2, 3, 6.b., 14 or 18 of this Agreement.  Any suspension by GSL of the Services under this paragraph shall not excuse you from your obligation to make payment(s) under this Agreement.
    3. At your request, and for a period of up to 60 days after the termination of the applicable Purchase Order, GSL may permit you to access the Services solely to the extent necessary for you to retrieve a file of your data then in the Services environment. GSL shall provide an archive of all data annually or at any time upon request of client.
    4. You agree and acknowledge that GSL has no obligation to retain your data and that your data may be irretrievably deleted after 60 days following the termination of the Purchase Order.

  9. Survival.  The provisions that survive the termination or expiration of this Agreement are those relating to limitation of liability, infringement indemnity, payment, and others which by their nature are intended to survive.

  10. Fees and Payment.  You agree to pay for all Services ordered as set forth in the Purchase Order. All fees due under this Agreement are non-cancelable and the sums paid nonrefundable.  You agree to pay any sales, value-added or other similar taxes imposed by applicable law that GSL must pay based on the Services you ordered, except for taxes based on GSL's income.  You agree to reimburse GSL for reasonable expenses related to providing any on-site portion of the Services.  Fees for Services listed in the Purchase Order are exclusive of taxes and expenses.  All amounts invoiced hereunder are due and payable within 30 days of the date of the invoice and shall bear interest thereafter at the rate of 1.5% per month (or such lesser rate as is required to comply with applicable law) until paid in full.  You agree that you have not relied on the future availability of any Services, programs or updates in entering into the payment obligations in the Purchase Order; however, the preceding does not relieve GSL of its obligation to deliver Services that you have ordered per the terms of this Agreement.

  11. Public records compliance. In addition to other contract requirements provided by law, GSL must comply with public records laws, and specifically agrees to:
    1. Keep and maintain public records that ordinarily and necessarily would be required in order to perform the service under this agreement;
    2. Ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed except as authorized by law; and
    3. Meet all requirements for retaining public records and transfer, at no cost, to all public records in possession of the contractor upon termination of the contract and destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements.

  12. Entire Agreement.  You agree that this Agreement (including the information which is incorporated into this Agreement by written reference (including reference to information contained in a URL or referenced policy), is the complete agreement for the services ordered by you, and that this Agreement supersedes all prior or contemporaneous agreements or representations, written or oral, regarding such services.  If any term of this Agreement is found to be invalid or unenforceable, the remaining provisions will remain effective and such term shall be replaced with a term consistent with the purpose and intent of this Agreement.  It is expressly agreed that the terms of this Agreement, including the Purchase Order, shall supersede the terms in any non-GSL document and no terms included in any such other non-GSL document shall apply to the services ordered.  This Agreement may not be modified and the rights and restrictions may not be altered or waived except in a writing signed or by authorized representatives of you and of GSL.

  13. LIMITATION ON LIABILITY.  NEITHER PARTY SHALL BE LIABLE FOR AN  INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE OR PROFITS (EXCLUDING FEES UNDER THE AGREEMENT), DATA, OR DATA USE.  GSL'S MAXIMUM LIABILITY FOR ANY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR YOUR ORDER, WHETHER IN CONTRACT OR TORT, OR OTHERWISE, SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNTS ACTUALLY PAID TO GSL FOR THE SERVICES UNDER THE PURCHASE ORDER THAT IS THE SUBJECT OF THE CLAIM IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.  ANY DAMAGE IN YOUR FAVOR AGAINST GSL SHALL BE REDUCED BY ANY REFUND OR CREDIT RECEIVED BY YOU UNDER THE AGREEMENT AND ANY SUCH REFUND AND CREDIT SHALL APPLY TOWARDS THE LIMITATION OF LIABILITY.

  14. Export.  Export laws and regulations of the United States and any other relevant local export laws and regulations apply to the services.  You agree that such export control laws govern your use of the Services (including technical data) and any Services deliverables provided under this Agreement, and you agree to comply with all such export laws and regulations (including “deemed export” and  “deemed re-export” regulations).  You agree that no data, information, software programs and/or materials resulting from the Services (or direct product thereof) will be exported, directly or indirectly, in violation of these laws, or will be used for any purpose prohibited by these laws including, without limitation, nuclear, chemical, or biological weapons proliferation, or development of missile technology.

  15. Miscellaneous.
    1. GSL is an independent contractor and we agree that no partnership, joint venture, or agency relationship exists between us.  We each will be responsible for paying our own employees, including employment related taxes and insurance.
    2. You shall obtain at your sole expense any rights and consents from third parties necessary for GSL and its subcontractors to perform the services under the agreement.
    3. This Agreement is governed by the substantive and procedural laws of the State of Florida and you and GSL agree to submit to the exclusive jurisdiction of, and venue in, the state courts of Hillsborough County, Florida, in any dispute arising out of or relating to this Agreement.
    4. If you have a dispute with GSL or if you wish to provide a notice under the Indemnification section of this Agreement, or if you become subject to insolvency or other similar legal proceedings, you will promptly send written notice to:  GSL Solutions, Inc., 1411 N. Westshore Blvd., Ste. 204, Tampa, Florida  33607.  GSL may give notice applicable to GSL's software as a service customer base by means of a general notice on the GSL portal for the Services, and notices specific to you by electronic mail to your e-mail address on record in GSL's account information or by written communication sent by first class mail or pre-paid post to your address on record in GSL's account information.
    5. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.  You may not assign this Agreement or give or transfer the Services or an interest in them to another individual or entity.  If you grant a security interest in any portion of the Services, the secured party has no right to use or transfer the Services or any deliverables.
    6. Except for actions for nonpayment or breach of GSL's proprietary rights, no action, regardless of form, arising out of or relating to this Agreement may be brought by either party more than two years after the cause of action has accrued.
    7. GSL may audit your use of the Services.  You agree to cooperate with GSL's audit and provide reasonable assistance and access to information.  Any such audit shall not unreasonably interfere with your normal business operations.  You agree to pay within 30 days of written notification any fees applicable to your use of the Services in excess of your rights.  If you do not pay, GSL can terminate your Services and/or this Agreement.  You agree that GSL shall not be responsible for any of your costs incurred in cooperating with the audit.
    8. The Uniform Computer Information Transactions Act does not apply to this Agreement or orders placed under it.  You understand that GSL's business partners, including any third party firms retained by you to provide computer consulting services, are independent of GSL and are not GSL's agents.  GSL is not liable for nor bound by any acts of any such business partner, unless the business partner is providing services as an GSL subcontractor on an engagement ordered under this Agreement.
    9. Should either of us institute legal action concerning this Agreement, the prevailing party will be entitled, in addition to such other relief as may be granted, to recover reasonable attorneys’ fees and all other related court costs.
    10. The parties may execute this Agreement and any Purchase Order, including by means of facsimile signature pages, in two or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument.

  16. Force Majeure.  Neither of us shall be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions (including the denial or cancellation of any export or other license); other event outside the reasonable control of the obligated party.  We both will use reasonable efforts to mitigate the effect of a force majeure event.  If such event continues for more than 30 days, either of us may cancel unperformed services upon written notice.  This section does not excuse either party’s obligation to take reasonable steps to follow its normal disaster recovery procedures or your obligation to pay for the Services.

  17. Your Data.  In performing the Services, GSL will comply with the GSL Services Privacy Policy, which is available at http://thedigitalbell.com/privacypolicy and incorporated herein by reference.  The GSL Services Privacy Policy is subject to change at GSL's discretion; however, GSL policy changes will not result in a material reduction in the level of protection provided for your data during the period for which fees for the Services have been paid.  The services policies referenced in Purchase Order specifies our respective responsibilities for maintaining the security of your data in connection with the Services.  GSL reserves the right to provide the Services from locations, and/or through use of subcontractors, worldwide.  You agree to provide any notices and obtain any consents related to your use of the Services and GSL's provision of the services, including those related to the collection, use, processing, transfer and disclosure of personal information.  You shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and ownership of all of your data.

  18. Restrictions on Use of the Services.  You agree not to use or permit use of the Services, including by uploading, emailing, posting, publishing or otherwise transmitting any material, for any purpose that may (a) menace or harass any person or cause damage or injury to any person or property, (b) involve the publication of any material that is false, defamatory, harassing or obscene, (c) violate privacy rights or promote bigotry, racism, hatred or harm, (d) constitute unsolicited bulk e-mail, “junk mail”, “spam” or chain letters; (e) constitute an infringement of intellectual property or other proprietary rights, or (f) otherwise violate applicable laws, ordinances or regulations.  In addition to any other rights afforded to GSL under this Agreement, GSL reserves the right to remove or disable access to any material that violates the foregoing restrictions.  GSL shall have no liability to you in the event that GSL takes such action.  You agree to defend and indemnify GSL against any claim arising out of a violation of your obligations under this section.

  19. Services Tools.  GSL may use tools, scripts, software, and utilities (collectively, the “Tools”) to monitor and administer the Services and to help resolve your service requests.  The Tools will not collect, report or store any of your data residing in the Service production environment, except as necessary to troubleshoot service requests or other problems in the Service.  Data collected by the Tools (excluding production data) may also be used to assist in managing GSL's product and service portfolio and for license management.  You agree that (a) except as set forth in the following paragraph, you may not access or use the Tools, and (b) you will not use or restore the Tools from any tape backup at any time following termination of this Agreement.

    1. If GSL provides you with access to or use of any Tools in connection with the Services, your right to use such Tools is governed by the license terms that GSL specifies for such Tools; however, if GSL does not specify license terms for such Tools, you shall have a non-transferable, non-exclusive, limited right to use such Tools solely to facilitate your administration and monitoring of your Services environment, subject to the terms of this Agreement.  Any such Tools are provided by GSL on an “as is” basis and GSL does not provide technical support or offer any warranties for such Tools.  Your right to use such Tools will terminate upon the earlier of GSL's notice (which may be through posting on such URL as is designated by GSL), the end of the Services Term, or the date that the license to use such Tools ends under the license terms specified for such Tools.

  20. Statistical Information.  GSL may compile statistical information related to the performance of the Services, and may make such information publicly available, provided that such information does not incorporate your data and/or identify your confidential information or include your company’s name.  GSL retains all intellectual property rights in such information.

  21. Third Party Web Sites, Content, Products and Services.  The Services may enable you to add links to web sites and access to content, products and services of third parties, including users, advertisers, affiliates and sponsors of such third parties.  GSL is not responsible for any third party web sites or third party content provided on or through the Services and you bear all risks associated with the access and use of such web sites and third party content, products and services.

  22. References.  You agree (i) that GSL may identify you as a recipient of services and use your logo in sales presentations, marketing materials and press releases, and (ii) to develop a brief customer profile for use by GSL for promotional purposes.

The parties have executed this Agreement as of the latest date you signed up via the website (the "Effective Date").