InStride Program Agreement Terms and Conditions

InStride is a public benefit company and learning services enterprise which serves the public interest by working with employers to provide opportunities for their employees to earn degrees, credentials and skills through programs at high-quality academic partners. Company and InStride (each, a ‘Party’ and collectively, the ‘Parties’) desire to work together to motivate and support Eligible Learners (as defined below) to complete online degree programs and continuing education courses offered by InStride Academic Partners.

1. “Academic Partner” means a college, university or other institution of higher or continuing education that has a direct or indirect relationship with InStride to make available degree and non-degree online courses and training programs, and related enrollment and support services, to Eligible Learners.
2. “Academic Partner Support” means Academic Partner’s administrative, technology, student recruitment, financial aid, enrollment, billing, and support services to support the Online Education Programs as well as Academic Partner’s facilitation of the teaching and learning component of the curriculum, including providing faculty, teacher’s assistants, interactive lectures, webinars, individual and group lessons, grading, student support and coaching, enrollment and any related services provided by Academic Partner to students.
3. “Company InStride Agreement” means that certain agreement between Company and InStride that governs the Program through which Company has access to the InStride Services.
4. “Confidential Information” means information and materials concerning a Party’s business, plans, marketing and financial information, customers, vendors, technology and technical information, and products that are marked as “confidential” or “proprietary” or in some other manner to indicate their confidential nature, or which would otherwise reasonably be expected to be treated in a confidential manner under the circumstances of disclosure under this Agreement or by the nature of the information itself. Confidential Information shall not include information that the Receiving Party can demonstrate: (i) was known to it, without associated confidentiality obligations, prior to receipt hereunder, as demonstrated by written records; (ii) at the time of disclosure was generally available to the public, or which after disclosure becomes generally available to the public through no act or omission of the Receiving Party; (iii) is independently developed by the Receiving Party without reference to the Confidential Information, as demonstrated by the Receiving Party’s contemporaneous written records; or (iv) enters the public domain after the Effective Date other than due to some unauthorized act by or omission of a third party or the Receiving Party. For clarity, (A) InStride’s Confidential Information includes the InStride Platform and InStride Materials, and (B) “Confidential Information” does not include Personal Information.
5. “Eligible Learner” means Company employees that are eligible for the Program as set forth in the Company InStride Agreement. Eligible Learners may not include any individuals on the OFAC Specially Designated Nationals and Blocked Persons (SDN) list. Company agrees that in the selection or qualification of Eligible Learners, it will not discriminate on the basis of any legally protected class. For purposes of this Agreement, an Eligible Learner is not a third-party beneficiary.
6. “Enrollment and Progress Information” means information maintained by InStride relating to an Eligible Learner’s enrollment status and participation in an Academic Partner program, including, but not limited to, application status, tuition payments and other billing information, enrolled courses, and information regarding completed courses and associated certifications or grades received.
7. “InStride Academic Partner Network” means, collectively, the Academic Partners (which are subject to change from time to time).
8. “InStride Materials” means all instructional and other materials, in any form, provided by InStride to Company or its Eligible Learners in connection with this Agreement.
9. “InStride Platform” means InStride’s proprietary web-enabled digital experience for Eligible Learners to access in order to understand and evaluate their education options, including information and materials to help current and future Eligible Learners understand the Program.
10. “InStride Services” means the services provided by InStride to Company under this Agreement and described in the Company InStride Agreement.
11. “Intellectual Property” means all intellectual property and proprietary rights, including all trademarks, service marks, trade names, patents and patent applications, copyrights, trade secrets and domain names.
12. “Laws” means, collectively, all foreign, federal, state and local laws, regulations, ordinances and other Laws, including, but not limited to, the United States and its territories.
13. “Losses” means all losses, liabilities, damages, liens, fines, penalties, and other charges paid or payable to third parties which are finally awarded by a court of competent jurisdiction or agreed to by the Indemnitor, and, solely to the extent the Indemnitee controls the defense of the claim, any related reasonable legal fees and costs of investigation, litigation, settlement, or judgment incurred for such defense.
14. “Online Education Program” means the programs offered by an Academic Partner and made available to Eligible Learners by InStride’s Academic Partners. Academic Partners may add or remove their available online programs from time to time in their sole discretion.
15. “Person” means an individual, a sole proprietorship, a partnership, a corporation, a limited liability company, an association, a joint stock company, a trust, a joint venture, an unincorporated organization, any other business entity or any governmental authority.
16. “Program” means the framework for motivating and supporting Eligible Learners to complete degree programs and continuing education courses through the InStride Academic Partner Network.
17. “Student” means an Eligible Learner who enrolls in one or more Online Education Programs as a full or partial benefit of his or her employment or engagement with Company pursuant to the Program and this Agreement. For the avoidance of doubt, a student that is classified upon enrollment as an “online” student, shall be considered a Student, irrespective of whether his or her Online Education Programs include an in-person component.
18. “Third Party Claim” means any civil, criminal, or administrative claim, action, or proceeding (including arbitration) asserted, commenced or threatened against an Indemnitee by an unaffiliated third party (provided that for the purposes of this definition, an employee of the other Party is considered an unaffiliated third party).

1. Fees.
   1. Company is solely responsible for payment of all tuition and fees as set forth in the Company InStride Agreement, other than fees payable directly by Students under the Program. Company shall timely pay to InStride the tuition and fees (collectively, the “Fees“), as set forth in each invoice.
   2. Company acknowledges that Students are responsible for any tuition and fees not covered by Company or that exceed the Company’s financial coverage caps, including admissions fees, books and materials, class fees, technology fees, laptops, financial aid trust fees, etc. Company further acknowledges that all Students must apply for federal student financial aid (FAFSA) for qualifying programs.
2. Invoices. Company shall comply with InStride’s invoicing and client management system, acknowledging that any special billing requests or suggested unique requirements of Company with respect to billing and payments will not be honored by InStride. Company understands and agrees that each Academic Partner calculates and determines the tuition and fees payable for each Student. Tuition and fees are not refundable once a Student has enrolled in an Academic Partner’s program and the applicable refund date with the Academic Partner has passed, regardless if that Student subsequently becomes ineligible for benefits under the Program or elects to unenroll or not attend for any reason. All invoices submitted to Company must be paid within thirty (30) days of receipt. To the extent permitted by applicable Law, Company agrees to pay to InStride a late fee in an amount not to exceed one percent (1%) per month on any amounts not paid within thirty (30) days of the invoice being received. In addition, Company is responsible for any late penalties or fees charged by Academic Partners due to Company’s failure to timely pay Fees, and any fees that InStride may incur based on Company having insufficient funds when InStride attempts to debit Company’s account, if applicable. Company understands that Academic Partners also have the right to take certain actions in accordance with its policies for late or non-payment, including but not limited to: cancelling a Student’s registration, holding transcripts and charging a re-enrollment fee. Company will raise all billing disputes with InStride within five (5) business days of receipt of the invoice. A failure to object within this time period will be deemed an acceptance of the invoice. InStride will use its commercially reasonable efforts to escalate and resolve all billing discrepancies with the applicable Academic Partner. All payments made hereunder will be made in US Dollars.
3. Generally. Company shall:
   1. Comply with the Company InStride Agreement.
   2. In cooperation with InStride, support the execution of an internal communications and marketing plan for promoting the Program to existing and future Eligible Learners (the “Communications Plan“). The Communications Plan may include the following components (i) the Program will have a reasonable presence on the Company internal network, (ii) Program messaging will be integrated into Company social media communications, (iii) an internal announcement by Company leadership of the Program (could be by email, video or other format), (v) internal communication of Program benefits and details to all current Eligible Learners at launch and on a regular basis thereafter, and (vi) internal communication of Program benefits and details to new hires who may become Eligible Learners.
   3. Company acknowledges and agrees that InStride may, without input or consent of Company, send communications and marketing materials to Eligible Learners and potential Eligible Learners regarding the Program.

1. Eligibility File.
   1. Throughout the Term, Company will continuously maintain a list of Eligible Learners and new hires who may become eligible, with relevant employee data (including first and last name, date of birth, email address, employee ID and hire date) in a digital file (the “Eligibility File“), and Company will share the Eligibility File with InStride or a relevant third party upon request. This information will enable (and Company approves) InStride to contact Eligible Learners and new hires regarding their benefit, promote the Program internally and verify eligibility.
2. Reliance. InStride is not responsible for inaccurate or outdated Eligibility Files, and Company will be required to pay the Fees for anyone who enrolls in an Academic Partner’s program and is shown as eligible in InStride’s most current files. InStride may rely on the reports and information provided to InStride without further investigation.

1. Term. This Agreement commences on the date that Company accepts this Agreement through InStride’s website or by executing an order form (the “Effective Date“) and shall continue for the term set forth in the Company InStride Agreement (the “Initial Term“). Thereafter, unless otherwise specified in the Company InStride Agreement, this Agreement will automatically renew for additional one year terms (each, a “Renewal Term“) (the Initial Term and any Renewal Terms collectively, the “Term“). Either Party may terminate this Agreement at the end of the Initial Term or any Renewal Term by providing the other Party with written notice one hundred and eighty (180) days prior to the end of such Term.
2. Termination for default. If either Party defaults in the performance of any material provision of this Agreement, then the non-defaulting Party may give written notice to the defaulting Party. If the default is not cured within thirty (30) days of the defaulting Party’s receipt of such notice, then the non-defaulting Party may terminate this Agreement by written notice effective immediately.
3. Termination for Insolvency. Each Party shall have the right to terminate this Agreement immediately upon written notice in the event that the other Party makes a general assignment for the benefit of its creditors, commences a voluntary bankruptcy case, or fails to controvert in a timely and appropriate manner, or acquiesce in writing to, any petition filed against it in an involuntary bankruptcy proceeding.
4. Return of Materials. All Confidential Information and all trademarks, designs, drawings, formulas or other data, financial information, business plans, literature, and marketing aids of every kind provided by or on behalf of a Disclosing Party will remain the property of such Disclosing Party. No later than ninety (90) days after the termination or expiration of this Agreement, the Receiving Party shall return or destroy all Confidential Information of the Disclosing Party in its possession, upon request of the Disclosing Party, except for one (1) copy which a Receiving Party has the right to retain in accordance with its document retention policy or applicable Law, provided that such copy shall remain subject to the terms of this Agreement. For the avoidance of doubt, upon termination, InStride shall retain Enrollment and Progress Information in connection with its legal and accounting obligations, and for purposes of allowing Eligible Learners to maintain access to such data.
5. Effect of Expiration or Termination. In the event of any expiration or termination of this Agreement, Company shall inform each Student of the termination of the Program, and Company will continue to provide financial support for each existing Student through the end of the then-current semester or academic term, as applicable.
6. Survival. All provisions of this Agreement that by their terms anticipate performance after the termination or expiration of this Agreement, and all provisions necessary or appropriate to interpret and enforce such provisions, will survive termination or expiration of this Agreement and remain in full force and effect.

1. Protection of Confidential Information. Each Party (as the “Receiving Party“) acknowledges that by reason of its relationship to the other Party hereunder, it will have access to certain Confidential Information of the other Party (the “Disclosing Party”). The Receiving Party shall not use in any way for its own account or the account of any third party except to fulfill its obligations or exercise its rights under this Agreement, nor disclose to any third party, any Confidential Information of the Disclosing Party except disclosure of this Agreement and related business and financial information in connection with a prospective lending transaction or acquisition of the Disclosing Party (provided that the prospective lender or acquirer agrees to be bound by confidentiality restrictions which are at least as restrictive as the provisions of this Section 7) and except to their respective directors, affiliates, representatives and advisors under obligation of confidentiality. The Receiving Party shall protect such Confidential Information using the same measures it employs to protect its own confidential information, but not less than a reasonable degree of care. The Receiving Party may disclose Confidential Information that is required to be disclosed by law, governmental rule or regulation or order of a court with competent jurisdiction; provided that the Receiving Party, to the extent permitted by applicable Law, provides the Disclosing Party with prompt notice thereof and a reasonable time to obtain a protective order or other protection, and provided that any information so disclosed retains its confidentiality protections for all other purposes. Each Party will own, or retain, all of its rights in its Confidential Information.
2. Survival of Confidentiality Obligations. The obligations of confidentiality set forth herein shall remain in effect for the Term of this Agreement and a period of five (5) years thereafter, unless such Confidential Information is a “trade secret,” in which case the obligations shall survive until such trade secret no longer satisfies the definition therefor under applicable Law.

1. InStride and Company each represent that it has developed, implemented and currently maintains, and covenants that it will maintain and monitor at all times during the term of this Agreement, Reasonable Security Procedures and Practices to protect all Personal Information of Company’s Eligible Learners received by the other Party on or after the Effective Date of this Agreement, in accordance with all applicable Laws.
2. Without limiting the foregoing, with respect to Personal Information of Eligible Learners, InStride and Company will each comply at all times with: (i) California Civil Code § 1798.81.5 (as may be amended); and (ii) to the extent InStride or Company receives student educational records, the Family Educational Rights and Privacy Act (“FERPA“). InStride and Company will each provide the other with: (a) any Student consents required by applicable Laws in order to share such Student’s Personal Information with the other Party, as reasonably requested by such Party, or as required by applicable Laws; and (b) prompt written notice of any unauthorized access, destruction, use, modification or disclosure of Personal Information shared by the other Party or any of the other Party’s Confidential Information. If any applicable Laws relating to the security or protection of Personal Information require that such laws or regulations be cited or referred to in this Agreement, then this Agreement will be deemed to automatically include a citation or reference to such laws or regulations to the extent required. Company (including its affiliates and contractors) shall comply with all Laws for the safeguarding of personal data; further Company shall obtain and/or assist InStride in obtaining the appropriate consents from employees to allow sharing of school records and personal information, including assisting and facilitating the provision of the InStride privacy policy and terms of use to employees for review and assent.
3. Except to provide the Services or otherwise as permitted pursuant to this Agreement, neither Party will disclose the names, addresses (including e-mail addresses), telephone or facsimile numbers or any other Personal Information of Eligible Learners received by the other Party to any third party or solicit, or permit any third party to solicit, any of such Persons for the purpose of offering any goods or services.
4. With respect to the Personal Information of Eligible Learners that InStride processes on behalf of Company for purposes related to providing the InStride Services pursuant to the Agreement (“Customer Personal Information“), the Parties agree that the Data Processing Addendum at https://www.instride.com/data-processing-addendum/ shall govern. For the avoidance of doubt, Customer Personal Information does not include Personal Information of any individuals with which InStride has a direct business relationship, or Enrollment and Progress Information.
5. For the purposes of this Section:
   1. “Personal Information,” which includes “personal data” and “personally identifiable information” and similar terms as defined under applicable Laws, means (i) any information that identifies, or could be used to identify, a particular person, including any person’s name, address, telephone number, e-mail address, social security number, driver’s license or other identifying information and credit card and financial information, and (ii) any other information considered personal identifying information under then-existing Laws.
   2. “Reasonable Security Procedures and Practices” shall include data privacy procedures and practices that are reasonably necessary to protect Personal Information of Eligible Learners, which standards apply to the extent relevant to the nature of such Personal Information in such Party’s possession and in accordance with any applicable Laws governing the processing of such Personal Information.

1. InStride Platform and InStride Materials. Subject to the terms of this Agreement (including payment of all Fees), InStride hereby grants to Company a limited, revocable, non-exclusive, non-transferable, non-sublicensable license to use and access the InStride Platform and InStride Materials for the purposes stated in this Agreement. InStride agrees to use commercial reasonable efforts to make the InStride Platform available in accordance with the Company InStride Agreement. Company is responsible for Eligible Learners’ use of the InStride Platform and InStride Materials and will ensure that all Eligible Learners comply with the InStride Platform Terms of Use (https://www.instride.com/terms-of-use/), as may be updated from time to time. If Company becomes aware of any violation of its obligations under this Agreement (including violations of InStride policies and/or terms of use), including any caused by an Eligible Learner, Company will immediately contact InStride and without limiting its other rights and remedies, InStride reserves the right to limit access to such Eligible Learners.
2. License Restrictions. Neither Company nor any Eligible Learner will use the InStride Platform or InStride Materials in any manner or for any purpose other than in connection with the Program as expressly permitted by this Agreement. Neither Company nor any Eligible Learner will, or will attempt to: (i) modify, distribute, alter, tamper with, repair, or otherwise create derivative works of the InStride Platform or InStride Materials, (ii) reverse engineer, disassemble, or decompile the InStride Platform or InStride Materials or apply any other process or procedure to derive the source code of any software included in the InStride Platform or InStride Materials (except to the extent limited by applicable Laws), or (iii) resell or sublicense the InStride Platform or InStride Materials.
3. Feedback. If Company or its Eligible Learners provide any feedback or suggestions to InStride or its affiliates, InStride and its affiliates will be entitled to use such feedback and suggestions without restriction. Company hereby irrevocably assigns to InStride all right, title, and interest in and to the feedback and suggestions and agrees to provide InStride with any assistance (at InStride’s expense) that may be required to document, perfect, and maintain InStride’s rights in the feedback or suggestions.
4. Company License. Company hereby grants to InStride a non-exclusive, worldwide, royalty-free, fully paid-up, non-transferable (except as set forth in Section 12(a)), non-sublicensable license to use any materials provided by the Company (collectively, “Company Materials”), during the Term in order for InStride to (1) perform the InStride Services, consistent with the terms of this Agreement, and (2) for any other purpose approved by Company in writing. Except as specifically set forth in this Section, InStride has no right, title or interest in or other rights to use the Company Materials.
5. Intellectual Property Ownership; Retained Rights. This Agreement shall not cause the assignment of any Party’s Intellectual Property to the other Party. Except as expressly set forth in this Agreement, neither Party grants any rights or licenses, express, implied, or otherwise, each Party reserves all rights not expressly granted in this Agreement and each Party retains all right, title, and interest in and to such Party’s Intellectual Property. Notwithstanding anything to the contrary, upon termination or expiration of this Agreement, all rights granted by Company to InStride under subsection (d) above shall revert back to Company and all rights granted by InStride to Company under subsection (a) above shall revert back to InStride.

1. Company Representations and Warranties.
   1. Consents. Company represents and warrants that 1) it has obtained appropriate consents from employees prior to sharing any employee Personal Information with InStride, and 2) it has obtained appropriate consents in accordance with applicable Law from employees to allow InStride and Academic Partners to contact employees in connection with this Agreement.
   2. Company shall ensure that all communications with its employees will be in compliance with all applicable Laws, including but not limited to the Telephone Consumer Protection Act (“TCPA“), 47 U.S.C. § 227, and the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (“CAN-SPAM“), 15 U.S.C. § 7701-7713.
   3. Company shall market and communicate information about the Academic Partners, the Program and other benefits only as approved by InStride and/or the applicable Academic Partner, and, to Company’s knowledge, all such communications will be accurate and not misleading.
2. DISCLAIMER. THE INSTRIDE SERVICES (INCLUDING THE INSTRIDE PLATFORM AND INSTRIDE MATERIALS) ARE PROVIDED “AS IS”. EXCEPT AS SET FORTH IN THIS SECTION, INSTRIDE MAKES NO WARRANTIES TO COMPANY, EXPRESS, STATUTORY, IMPLIED, OR OTHERWISE, AND INSTRIDE SPECIFICALLY DISCLAIMS ALL SUCH WARRANTIES, INCLUDING THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE AND THAT THE OPERATION OR USE OF THE INSTRIDE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, INCLUDING, WITHOUT LIMITATION, WITH RESPECT TO THE INSTRIDE SERVICES, INSTRIDE PLATFORM AND MATERIALS AND THE ONLINE EDUCATION PROGRAMS. COMPANY UNDERSTANDS AND AGREES THAT IT IS THE SOLE RESPONSIBILITY OF EACH ACADEMIC PARTNER, AND NOT INSTRIDE, FOR THE SECURITY OF PERSONAL INFORMATION IN SUCH ACADEMIC PARTNER’S CONTROL, ACADEMIC PARTNERS’ COMPLIANCE WITH APPLICABLE LAWS AND MAINTAINING ANY LICENSE, APPROVAL, ACCREDITATION OR AUTHORIZATION NECESSARY FOR SUCH ACADEMIC PARTNER TO OFFER AND PROVIDE THE ONLINE EDUCATION PROGRAMS.

1. Insurance Coverage. Each Party will carry liability insurance at limits that are reasonable, adequate and customary for entities within its line of business and for its performance of the Agreement.
2. Company Indemnity. Company will defend, indemnify, and hold harmless InStride, its affiliates, employees, officers, and directors, from and against any Losses arising out of or relating to any Third Party Claim arising out of or relating to: (i) Company’s or any Eligible Learner’s use of the InStride Platform or InStride Materials in breach of this Agreement, Company policy or InStride policy or instruction; or (ii) a dispute between or among Company, any Eligible Learner, and/or any Employee.
3. Mechanics of Indemnity. InStride will promptly notify Company when it has knowledge of circumstances likely to result in an indemnification obligation or when any claim is pending or threatened that is covered by this Section 11. Upon request, and to the extent permitted by applicable Law, Company shall have the right, in its discretion, to defend, settle, or compromise any such suit or proceeding, at its own expense, provided that no settlement shall be made which imposes any obligations on InStride (other than the payment of money which is made by the Company on behalf of InStride), or is prejudicial to, InStride, without the prior written consent of InStride. InStride shall reasonably cooperate with Company in the defense of any such suit or proceeding. Failure by InStride to promptly notify Company as required herein shall not invalidate the claim for indemnification.
4. LIMITATION ON LIABILITY. EXCEPT FOR CLAIMS ARISING FROM A PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR INTENTIONAL BREACH OF THIS AGREEMENT (“LIABILITY EXCEPTIONS”), NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR LOST PROFITS OR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR INDIRECT DAMAGES, HOWEVER CAUSED, AND WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCTS LIABILITY OR ANY OTHER THEORY OF LIABILITY, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. INSTRIDE’S TOTAL LIABILITY FOR ANY AND ALL CLAIMS (INCLUDING TORT CLAIMS) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED THE TOTAL AMOUNT OF ALL PAYMENTS ACTUALLY PAID BY COMPANY TO INSTRIDE UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT(S) GIVING RISE TO THE CLAIM, NET OF TUITION AND FEES PAYMENTS MADE BY INSTRIDE TO ACADEMIC PARTNERS ON COMPANY’S BEHALF.
5. Waiver. Except for cases of fraud or where Company alleges that InStride was grossly negligent in protecting or maintaining personal data or personal information, COMPANY AND INSTRIDE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN THEIR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both Parties agree otherwise in writing, neither will request that a judge or arbitrator consolidate more than one person’s claims with a Party’s claims, nor request that a judge or arbiter otherwise preside over any form of a representative or class proceeding.

1. Assignment. Neither Party shall assign, transfer, or pledge this Agreement or any provision of this Agreement to a third party without the prior written consent of the other Party; provided that InStride shall be permitted to (i) assign, transfer, or pledge this Agreement and its rights, interests, and obligations hereunder to any Person in connection with a reorganization, restructuring, merger, acquisition, or sale of all or substantially all of the assets and/or equity of InStride, or (ii) collaterally assign or pledge this Agreement in connection with a bona fide lending transaction with a bank.
2. Independent Contractors. Both Parties acknowledge that they are independent contractors, and nothing contained in this Agreement shall be deemed to create an agency, joint venture, employment or partnership relationship between the Parties, and neither Party shall so hold itself out.
3. Consent; No Waiver. No term or provision hereof shall be deemed waived and no breach excused unless such waiver or consent shall be in writing and signed by the Party claimed to have waived or consented. The failure of either Party to exercise any right or remedy hereunder shall not be deemed to be a waiver of such right or remedy or other right or remedy hereunder.
4. Force Majeure. Except with respect to payment obligations, neither Party shall be responsible for any failure to perform any obligation or provide service hereunder where such failure arises from or in connection with any event beyond such Party’s reasonable control, including any (i) act of God, (ii) flood, extreme weather, fire, earthquake, explosion, pandemic event or other calamity, (iii) war, riot, mass shooting, terrorist threat or act, national or regional emergency, or civil commotion, (iv) government embargo, order, act, or directive, or (v) strike, protest, work stoppage, campus shut-down (with respect to an Academic Partner), or equipment or facilities shortages or failures not in the reasonable control of such Party.
5. Third-Party Beneficiaries. Only with respect to Company’s payment obligations hereunder to an Academic Partner, such Academic Partner is a third party beneficiary under this Agreement and will be entitled to enforce this Agreement directly against Company to the extent necessary to enforce its rights to receive payment. Other than with respect to the foregoing, this Agreement is not intended to benefit any third party, nor shall any Person who is not now or in the future a Party hereto be entitled to enforce any of the rights or obligations of a Party under this Agreement.
6. Informal Dispute Resolution. In the event of any dispute, claim, question, or disagreement arising from or relating to this Agreement or the breach thereof, the Parties hereto will use their reasonable efforts to resolve and settle the dispute, claim, question, or disagreement. To this effect, they will consult and negotiate with each other in good faith and, recognizing their mutual interests, attempt to reach a just and equitable solution satisfactory to both Parties. In the event a dispute is not resolved in accordance with the foregoing process, which may include mediation or nonbinding arbitration, any remaining contract claim or controversy is subject to Section 11(i).
7. Export Controls. Each Party represents that it is not named on any United States government denied-party list nor is a Party owned by entities or individuals named to any United States government denied party list. Company agrees that it shall not access or use the InStride Services in any United States embargoed country or in breach of United States export laws or regulations.
8. Entire Agreement. This document, together with all referenced documents and the Company InStride Agreement constitutes the entire agreement between the Parties and supersedes any and all prior negotiations, commitments, agreements, or understandings between the Parties regarding the subject matter of this Agreement. No modification of this Agreement by Company shall be valid unless made in writing and formally approved and signed by authorized representatives of both Parties. InStride may update this Agreement from time to time, provided that the link to these terms will always contain the most updated version.
9. Governing Law, Jurisdiction, and Venue. The internal laws (and not the laws of conflicts) of the State of New York shall govern all questions concerning the construction, validity and interpretation of this Agreement and the performance of the obligations imposed by this Agreement. Where not resolved in accordance with Section 11(f) herein, jurisdiction and venue in any suit, action or proceeding brought by any Party under this Agreement shall properly and exclusively lie in the federal courts of New York State.
10. Severability. If any term or provision of this Agreement is for any reason held to be invalid, such invalidity shall not affect any other term or provision, and this Agreement shall be interpreted as if such term or provision had never been contained in this Agreement.
11. Notices. Except as otherwise specified in this Agreement, notices shall be in writing and shall be deemed to have been duly given five (5) days after being sent by certified mail, postage prepaid, return receipt requested, or one (1) business day after being delivered to a nationally recognized overnight carrier for next day delivery which provides for verification of service, or upon receipt if sent via e-mail.