SaaS Subscription Agreement

This SaaS Subscription Agreement (the “SaaS Agreement”) governs Customer’s access to and use of the Services identified in an Order Form entered into between Customer and the applicable Coly entity identified in that Order Form (“Coly”).

This SaaS Agreement, each applicable Order Form, the Data Processing Addendum, and any applicable product schedule constitute the “Agreement.”

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1. Definitions

“Affiliate” means an entity that directly or indirectly controls, is controlled by, or is under common control with a party, where “control” means ownership of more than fifty percent of the voting interests or the power to direct the entity’s management.

“Authorized User” means an Individual User or Customer Personnel whom Customer authorizes to access or use the Services within the Subscription Scope.

“Coly Technology” means the Services, software, technology, models, methodologies, documentation, interfaces, designs, workflows, know-how, and other materials provided or used by Coly in connection with the Services, including all modifications and improvements to them.

“Customer Data” means information, content, records, and other data submitted to, collected through, or processed by the Services on Customer’s behalf, including data relating to Authorized Users. Customer Data does not include Usage Data.

“Customer Personnel” means Customer’s employees, faculty members, staff members, administrators, contractors, agents, and other personnel whom Customer authorizes to access or administer the Services on Customer’s behalf.

“Data Processing Addendum” or “DPA” means the data processing addendum incorporated into the Agreement.

“Documentation” means Coly’s then-current user instructions and technical documentation for the Services.

“Individual User” means an individual who accesses or uses the Services in a personal or individual capacity under Customer’s subscription, including a student, prospective student, applicant, tenant, resident, or prospective resident

“Order Form” means an ordering document executed by Customer and Coly identifying the Services, Subscription Scope, Subscription Term, fees, and other customer-specific terms.

“Services” means the hosted, subscription-based services, features, support, and related offerings identified in an Order Form, including any assessments, profiles, insights, matching functionality, portals, integrations, or Coly Assistant features purchased by Customer.

“Subscription Scope” means the usage scope identified in the Order Form, including the purchased tier, number or category of Authorized Users, number of students, usage limits, features, add-ons, and other applicable restrictions.

“Subscription Term” means the initial subscription term and any renewal term identified in the Order Form.

“Usage Data” means data generated from the operation and use of the Services that has been aggregated or anonymized so that it does not identify Customer or an Authorized User.

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2. Provision of the Services

1. Services.  

Coly will provide the Services to Customer during the Subscription Term in accordance with the Agreement.

Customer’s subscription is limited to the Services, features, Subscription Scope, and add-ons identified in the applicable Order Form. Customer does not receive any right to access or use a product, feature, or add-on not identified in the Order Form.

2. Access Rights

Subject to Customer’s payment of applicable fees and compliance with the Agreement, Coly grants Customer a limited, non-exclusive, non-transferable, and non-sublicensable right during the Subscription Term to permit its Authorized Users to access and use the Services: within the Subscription Scope; for Customer’s internal institutional or business purposes; in accordance with the Documentation; and subject to the terms and restrictions of the Agreement.

Customer may not provide access to the Services to any person who is not an Authorized User.

3. Accounts

Customer is responsible for: designating appropriate Authorized Users; maintaining accurate account and contact information; protecting account credentials under Customer’s control; preventing unauthorized access to the Services through Customer’s accounts; and promptly notifying Coly of suspected unauthorized access or use. Customer is responsible for activity occurring through its accounts to the extent caused by Customer or its Authorized Users.

4. Subcontractors

Coly may engage subcontractors to assist in providing, operating, hosting, supporting, or maintaining the Services.

Coly remains responsible for the performance of its obligations under the Agreement by its subcontractors. Coly’s engagement of subprocessors that process personal data is governed by the DPA.  

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3. Subscription Scope and Usage Limits

1. Subscription Limits

Customer’s right to use the Services is limited to the Subscription Scope stated in the Order Form.

Customer will not exceed the applicable limits without Coly’s prior written approval. Additional use may result in additional fees as set forth in the Order Form or otherwise agreed in writing.

2. Changes in Subscription Scope

Customer may request an increase in the Subscription Scope in accordance with the Order Form. An increase becomes binding when confirmed in writing by Coly, including by email.

Customer may decrease its Subscription Scope only as permitted by the Order Form. A decrease does not reduce fees already invoiced, accrued, or payable.

3. Monitoring

Coly may monitor aggregate and automated usage information to: maintain and scale the Services; administer applicable usage limits; prevent spam, automated misuse, or abuse; protect the security and integrity of the Services; and identify use that materially exceeds the Subscription Scope.

Any processing of personal data for these purposes remains subject to the DPA.

4. Rate Limiting

Coly may apply reasonable rate limits or technical restrictions where Customer’s or an Authorized User’s use: exceeds the Subscription Scope; threatens the security, integrity, availability, or performance of the Services; materially interferes with other customers’ use of the Services; or violates the Agreement.

Where reasonably practicable, Coly will notify Customer of the restriction and cooperate with Customer to address the underlying issue.

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4. Customer Responsibilities

1. Authorized Use

Customer will use, and will require its Authorized Users to use, the Services only in accordance with the Agreement and applicable law. Customer is responsible for determining whether the Services are appropriate for Customer’s intended use and for configuring and using the Services consistently with Customer’s legal, regulatory, and institutional obligations.

2. Customer Administration

Customer will: provide accurate information reasonably required to configure and provide the Services; designate the contacts identified in the Order Form; maintain appropriate internal policies and procedures governing use of the Services; provide notices and obtain authorizations or consents that Customer is legally responsible for obtaining; maintain the systems, connectivity, and equipment needed to access the Services; and reasonably cooperate with Coly in implementing and supporting the Services.

3. Authorized Users

Customer will inform Authorized Users of applicable restrictions and limitations governing the Services.

Customer will not represent the Services in a manner inconsistent with the Agreement or Documentation.

4. Prohibited Uses

Customer will not, and will not permit any Authorized User or third party to:

• copy, modify, translate, adapt, or create derivative works from the Services or Coly Technology, except as expressly permitted in writing;

• reverse engineer, decompile, disassemble, or attempt to derive source code, underlying models, algorithms, or non-public components of the Services, except to the extent such restriction is prohibited by applicable law;

• sell, resell, lease, sublicense, distribute, or make the Services available to a third party other than an Authorized User;

• use the Services to develop or provide a competing product or service;

• remove or alter proprietary notices;

• circumvent or interfere with usage limits, access controls, or security measures;

• introduce malicious code or harmful materials;

• access or use the Services unlawfully or in violation of another person’s rights;

• submit data that Customer lacks the right or authority to process through the Services;

• use the Services to harass, threaten, defame, discriminate against, or harm another person; or

• use the Services outside the Subscription Scope.

Coly may investigate suspected violations and take reasonable protective action in accordance with Section 14.

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5. Service, Availability, Support, and Changes

1. Availability

Coly will use commercially reasonable efforts to make the Services available on a continuous basis, except for:

• planned maintenance;

• emergency maintenance;

• outages or failures caused by Customer, an Authorized User, or Customer-controlled systems;

• failures of internet, telecommunications, or third-party infrastructure outside Coly’s reasonable control; and

• events of force majeure.

Coly will provide advance notice of planned downtime where reasonably practicable.

2. Support

Coly will provide the level of support identified in the Order Form. Customer will provide sufficient information for Coly to understand, reproduce, and investigate reported issues.

3. Faults in the Services

If the Services experience a material fault for which Coly is responsible, Coly will use commercially reasonable efforts to correct the fault with reasonable promptness under the circumstances.

Customer must notify Coly within a reasonable period after discovering a fault and provide information reasonably necessary to demonstrate and reproduce the issue.

If Customer is unable to use a material portion of the Services for a significant period due to a fault caused by Coly, and Coly does not correct the fault within a reasonable period after receiving notice, Customer may request a reasonable credit corresponding to the affected Services and period of unavailability.

The remedies in this Section are Customer’s exclusive remedies for a failure in availability or performance, except as otherwise expressly stated in the Agreement.

4. Exclusions

Coly is not responsible for faults, defects, delays, or unavailability caused by:

• An Authorized User;

• Customer systems, networks, equipment, content, or configurations;

• use of the Services contrary to the Agreement or Documentation;

• unauthorized modifications or integrations;

• third-party products not supplied or controlled by Coly; or

• malicious code or security interference where Coly has maintained the security measures required under the DPA.

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6. Customer Data

1. Customer Ownership

As between the parties, Customer retains all right, title, and interest in Customer Data.

Customer grants Coly a limited right to host, copy, transmit, process, display, and otherwise use Customer Data only as necessary to: provide, operate, support, secure, and maintain the Services; perform Coly’s obligations under the Agreement; follow Customer’s documented instructions; prevent or address fraud, misuse, security, or technical issues; comply with applicable law; and exercise Coly’s rights under the Agreement.

2. Customer Responsibility for Data

Customer represents that it has the rights and authority necessary to provide Customer Data to Coly and to instruct Coly to process that data as contemplated by the Agreement.

Customer is responsible for: the accuracy and legality of Customer Data; Customer’s instructions concerning Customer Data; determining the lawful basis for Customer’s collection and use of Customer Data; obtaining any required third-party permissions, authorizations, or consents; and ensuring that Customer’s use of Customer Data through the Services complies with applicable law.

3. Data Processing Addendum

Coly’s processing of personal data on Customer’s behalf is governed by the DPA.

The DPA controls if it conflicts with this SaaS Agreement regarding the processing, privacy, security, return, deletion, disclosure, or protection of personal data.

4. Disclosure and Preservation

Coly may disclose Customer Data where required by applicable law, court order, subpoena, or valid legal process. Unless prohibited by law, Coly will notify Customer before making the disclosure and will reasonably cooperate with Customer at Customer’s expense if Customer seeks to challenge the request.

Upon Customer’s written legal-hold instruction identifying specific data, Coly will preserve that data as described in the DPA.

5. Privacy Notice

Coly’s Privacy Notice describes relevant privacy practices and is available at the location identified in the Order Form or Documentation.

The Privacy Notice is not part of the Agreement and does not modify the parties’ contractual rights or obligations.

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7. Usage Data and General Know-How

1. Usage Data

Coly may collect and use Usage Data to: operate, maintain, analyze, and improve the Services; understand aggregate use and performance; develop new features and functionality; maintain security and prevent misuse; and support Coly’s internal business operations.

Coly will not use Usage Data in a manner that identifies Customer or an Authorized User.

2. General Know-How

Coly may use general knowledge, skills, ideas, methodologies, concepts, and experience acquired in providing the Services, provided that Coly does not disclose Customer’s Confidential Information or use Customer Data except as permitted by the Agreement.

3. Product Improvement

Subject to the DPA and any applicable product schedule, Coly may develop and improve its own ranking, matching, assessment, recommendation, and service logic using Usage Data and other data that Coly is authorized to use.

Any special restrictions governing Coly Assistant conversation data are set forth in the DPA and Coly Assistant Schedule.

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8. Intellectual Property

Coly and its licensors retain all right, title, and interest in and to the Coly Technology, including all intellectual property rights, and, except for the limited access rights expressly granted under the Agreement, no intellectual property rights are transferred or licensed to Customer.  

Customer retains ownership of all materials, content, trademarks, and other intellectual property it supplies for use with the Services and grants Coly a limited, non-exclusive license during the Subscription Term to use those materials solely to provide the Services and perform its obligations under the Agreement.  

Coly may use without restriction or obligation any suggestions, ideas, or feedback Customer provides concerning the Services, provided that Coly may not identify Customer as the source without Customer’s permission.  

Either party may identify the other as a customer or service provider, as applicable, and use the other party’s name, trademark, and logo in customer or vendor lists, websites, presentations, and other marketing materials. Each party will use the other party’s marks in accordance with any applicable brand guidelines and will promptly discontinue or modify such use upon written request.

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9. Confidentiality

“Confidential Information” means non-public information disclosed by or on behalf of one party (the “Disclosing Party”) to the other party (the “Receiving Party”) that is designated as confidential or reasonably should be understood as confidential under the circumstances, including non-public business, financial, technical, security, product, customer, and operational information and the non-public terms of the Agreement.  

The Receiving Party will use the Disclosing Party’s Confidential Information only to perform its obligations or exercise its rights under the Agreement, protect it using at least reasonable care and no less than the care it uses to protect its own similar information, and disclose it only to its personnel, professional advisers, Affiliates, and contractors who need access for purposes of the Agreement and are bound by appropriate confidentiality obligations. The Receiving Party remains responsible for those recipients’ compliance with this Section.  

Confidential Information does not include information that the Receiving Party can demonstrate is or becomes public without breach of the Agreement, was lawfully known to the Receiving Party without restriction before disclosure, was lawfully received from a third party without confidentiality restriction, or was independently developed without use of the Disclosing Party’s Confidential Information.  

The Receiving Party may disclose Confidential Information to the extent required by applicable law or valid legal process, but, unless prohibited by law, will promptly notify the Disclosing Party and provide reasonable assistance if the Disclosing Party seeks protective treatment. These obligations continue during the Subscription Term and for three years afterward, except that obligations concerning trade secrets and personal data continue for as long as that information remains protected under applicable law.

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10. Fees and Payment

Customer will pay the fees stated in the Order Form in accordance with the invoicing and payment terms set forth therein.  

Fees exclude applicable taxes, duties, and governmental charges, which Customer is responsible for paying, other than taxes based on Coly’s net income. Customer must notify Coly in writing of any good-faith invoice dispute before the applicable payment deadline or within any other period stated in the Order Form, and the parties will cooperate to resolve the dispute.  

Overdue and undisputed amounts may accrue interest at the maximum rate permitted by applicable law. If any undisputed amount remains unpaid for at least thirty (30) days after its due date, Coly may suspend the affected Services after providing Customer at least ten (10) days’ prior written notice and an opportunity to cure. Except where prohibited by applicable law, Customer may not withhold, offset, or deduct amounts owed under the Agreement.

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11. Warranties and Disclaimers

Each party represents that:

• it has the legal authority to enter into the Agreement; and

• the individual entering into the Agreement on its behalf is authorized to do so.

Coly warrants that it will provide the Services in a professional manner materially consistent with the Agreement and Documentation.

Customer’s exclusive remedy for a breach of this warranty is correction or reperformance of the affected Services. If Coly cannot correct or reperform the affected Services within a reasonable period, Customer may terminate those Services and receive a prorated refund of prepaid fees for the unused portion.

The Services rely in part on information supplied by Customer and Authorized Users, including self-reported information. Coly does not warrant that profiles, assessments, insights, matches, recommendations, or other outputs will be accurate, complete, current, suitable for every user, or free from error or misinterpretation.

Customer and Authorized Users remain responsible for decisions, actions, and interpretations based on those outputs.

Except for the express warranties in the Agreement, the Services are provided “as is” and “as available.”

To the maximum extent permitted by law, Coly disclaims all implied warranties, including warranties of merchantability, fitness for a particular purpose, title, non-infringement, and any warranty arising from course of dealing or usage of trade.

Coly does not warrant that the Services will be uninterrupted, error-free, or compatible with every system or configuration.

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12. No Professional Advice

Coly does not provide medical, psychological, therapeutic, counseling, crisis, legal, or other licensed professional services.

Profiles, assessments, insights, recommendations, and other outputs made available through the Services are for general informational, personal-insight, and administrative purposes. They are not substitutes for professional evaluation, advice, treatment, intervention, or judgment.

Customer will not represent the Services as providing professional services or as replacing Customer’s personnel, policies, procedures, or professional resources.

Additional terms governing Coly Assistant appear in the Coly Assistant Schedule.

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13. Indemnification

Coly will defend Customer against any third-party claim alleging that Customer’s authorized use of the Services infringes the third party’s intellectual property rights and will pay any damages and settlement amounts finally awarded against Customer or approved by Coly, except to the extent the claim results from Customer Data or Customer materials, use of the Services in violation of the Agreement, modification of the Services by anyone other than Coly, combination of the Services with products, data, or processes not provided by Coly where the claim would not otherwise have arisen, or Customer’s continued use after Coly provides a non-infringing replacement or instructs Customer to discontinue use of the affected Services.  

If such a claim is made or reasonably likely, Coly may obtain the right for Customer to continue using the affected Services, modify or replace them with materially equivalent functionality, or terminate the affected Services and refund any prepaid fees attributable to the unused portion. Customer will defend Coly against any third-party claim arising from Customer Data or Customer materials, Customer’s or an Authorized User’s unlawful use of the Services, Customer’s use of the Services in material violation of the Agreement, or Customer’s failure to obtain any rights, permissions, notices, or consents for which Customer is responsible, and will pay any damages and settlement amounts finally awarded against Coly or approved by Customer.  

As a condition of either party’s indemnification obligations, the indemnified party must promptly notify the indemnifying party of the claim, provide reasonable cooperation at the indemnifying party’s expense, and permit the indemnifying party to control the defense and settlement; provided, however, that the indemnifying party may not settle a claim in a manner that admits fault by or imposes non-monetary obligations on the indemnified party without its prior written consent.  

Coly recognizes that certain public institutions and governmental entities may be prohibited by applicable law from providing indemnification. If Customer is legally prohibited from providing some or all of the indemnification required by this Section, Customer’s indemnification obligations apply only to the maximum extent permitted by applicable law. To the extent Customer cannot provide indemnification, Customer remains responsible for its own acts and omissions and those of its personnel, agents, and contractors, subject to applicable law and the other terms of the Agreement.

A limitation on Customer’s authority to provide indemnification does not limit Coly’s indemnification obligations unless the applicable Order Form expressly states otherwise.

Nothing in this Section constitutes a waiver of any sovereign, governmental, statutory, or other immunity, defense, or limitation of liability available under applicable law.

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14. Suspension

Coly may suspend affected access to the Services if:

• Customer materially exceeds the Subscription Scope;

• Customer or an Authorized User materially violates the Agreement;

• use of the Services presents a material security, legal, or operational risk;

• suspension is reasonably necessary to prevent harm to the Services, Coly, Customer, an Authorized User, or another customer;

• Coly is required to suspend access by law or governmental authority; or

• an undisputed payment remains overdue as provided in Section 10.3.

Where reasonably practicable, Coly will:

• give Customer prior notice;

• limit the suspension to the affected account, feature, or Service;

• explain the basis for the suspension; and

• restore access after the issue is reasonably resolved.

Coly may suspend access immediately where necessary to address an urgent security, legal, or safety risk.

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15. Limitation of Liability

To the maximum extent permitted by law, neither party is liable for any indirect, incidental, special, exemplary, punitive, or consequential damages, or for lost profits, revenues, goodwill, or business opportunities, arising from or relating to the Agreement, regardless of the legal theory asserted.

Except for liabilities subject to the Enhanced Cap or liabilities identified below as uncapped, each party’s aggregate liability arising from or relating to the Agreement will not exceed the fees paid or payable by Customer for the affected Services during the twelve months preceding the event giving rise to the claim.

Each party’s aggregate liability arising from or relating to its indemnification obligations, breach of confidentiality obligations, or breach of the DPA will not exceed two times the fees paid or payable by Customer under the affected Order Form during the twelve months preceding the event giving rise to the claim, the “Enhanced Cap.”

The exclusions and limitations in this Section do not apply to the extent prohibited by applicable law.

They also do not limit:

• Customer’s obligation to pay fees;

• a party’s fraud or willful misconduct; or

• liability that cannot legally be limited.

The limitations in this Section apply regardless of the legal theory asserted and even if a remedy fails of its essential purpose.

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16. Insurance

During the Subscription Term, Coly will maintain commercially reasonable insurance appropriate to its business and the Services, including professional liability and cyber liability coverage.

Upon reasonable written request, Coly will provide Customer with evidence of applicable coverage.

Any specific coverage limits will be stated in the Order Form or other written documentation provided by Coly.

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17. Term and Termination

This SaaS Agreement begins when the first Order Form incorporating it becomes effective and continues until all Order Forms have expired or been terminated.

Each subscription begins and continues for the Subscription Term stated in the applicable Order Form.

Either party may terminate the affected Order Form or, if the breach affects the entire relationship, the Agreement, if the other party:

• materially breaches the Agreement and does not cure the breach within ten days after written notice; or

• commits a material breach that is incapable of cure.

To the extent permitted by law, either party may terminate the Agreement if the other party:

• becomes insolvent;

• ceases payment of its debts generally;

• enters liquidation or similar proceedings;

• has a receiver or administrator appointed over substantially all its assets; or

• becomes subject to bankruptcy or reorganization proceedings that are not dismissed within a reasonable period.

Upon expiration or termination:

• Customer’s rights to access and use the terminated Services end;

• Customer will pay all accrued and undisputed amounts;

• each party will return or destroy the other party’s Confidential Information upon request, subject to legal retention requirements; and

• Customer Data will be returned or deleted in accordance with the DPA.

Termination does not affect rights or obligations accrued before termination.

If Customer terminates due to Coly’s uncured material breach, Coly will refund prepaid fees allocable to the unused portion of the terminated Services.

If Coly terminates due to Customer’s material breach, Customer remains responsible for fees accrued through the termination date and any other amounts that are non-cancelable under the Order Form.

Sections concerning ownership, confidentiality, accrued payment obligations, disclaimers, indemnification, limitations of liability, effects of termination, and general provisions survive expiration or termination to the extent necessary to give them effect.

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18. Force Majeure

Neither party is liable for a delay or failure caused by circumstances beyond its reasonable control, including natural disaster, fire, labor disruption, governmental action, change in law, widespread communications or utility failure, or failure of a critical third-party provider caused by such circumstances.

The affected party will: notify the other party within a reasonable time; use commercially reasonable efforts to mitigate the effect; and resume performance when reasonably possible.

If a force majeure event materially prevents performance of the Services for more than thirty consecutive days, either party may terminate the affected Services by written notice. Customer will receive a prorated refund of prepaid fees for the unused portion of terminated Services.

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19. Changes to the Agreement

Changes to an Order Form, Subscription Scope, fees, Subscription Term, DPA, or product schedule must be agreed in writing by authorized representatives of the parties.

Unless either party requires a signed amendment, written agreement may be established through an exchange of emails clearly identifying the agreed change.

Coly may update generally applicable terms for future renewal periods by providing Customer with reasonable prior written notice.

A material change will not apply during Customer’s then-current Subscription Term unless: required by applicable law; necessary to address a material security risk; agreed by the parties in writing; or it does not materially reduce Customer’s rights or increase Customer’s obligations.

The order of precedence stated in the Order Form governs conflicts among the documents constituting the Agreement.

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20. Assignment

Neither party may assign or transfer the Agreement without the other party’s prior written consent, which will not be unreasonably withheld or delayed.

Coly may assign the Agreement without Customer’s consent to: an Affiliate; or a successor in connection with a merger, reorganization, or sale of all or substantially all assets relating to the Services, provided that the assignee assumes Coly’s obligations under the Agreement and Coly provides written notice to Customer.

Any attempted assignment contrary to this Section is void.

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21. General Provisions

1. Notices.  

Formal notices concerning breach, termination, indemnification, or legal proceedings must be in writing and sent to the notice contacts identified in the Order Form. Routine operational notices may be sent by email to the applicable Customer contact. A notice is effective upon confirmed delivery, except that a notice of non-renewal is governed by the Order Form.

2. Independent Contractors

The parties are independent contractors. The Agreement does not create a partnership, joint venture, employment, franchise, fiduciary, or agency relationship.

Neither party may bind the other without express written authority.

3. No Third-Party Beneficiaries

Except as expressly stated in the Agreement, the Agreement does not create rights in any third party.

4. Waiver

A waiver must be in writing and applies only to the specific instance for which it is given. A failure or delay in enforcing a right does not waive that right.

5. Severability

If a provision is held invalid or unenforceable, it will be modified to the minimum extent necessary to make it enforceable, and the remaining provisions will remain in effect.

6. Entire Agreement

The Agreement constitutes the complete agreement between the parties concerning its subject matter and supersedes prior or contemporaneous proposals, statements, and agreements concerning that subject matter.

Terms in a Customer purchase order, procurement portal, vendor form, or similar document do not modify the Agreement unless expressly accepted in writing by an authorized representative of Coly.

7. Governing Law and Venue

The Agreement is governed by the law identified in the applicable Order Form, without regard to conflict-of-law principles.

Any dispute must be brought in the courts identified in the Order Form, subject to any legally required accommodation for a public institution.

8. Counterparts and Electronic Signatures

An Order Form or amendment may be executed in counterparts and by electronic signature. Each counterpart is deemed an original, and all counterparts together constitute one instrument.

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