Defined Terms

“ACH Transaction” shall mean an electronic payment transaction originated by Customer and processed through the ACH Network in the Federal Reserve System.

“Affiliate” shall mean any entity that, directly or indirectly controls, is controlled by (either through monetary means or through a close business relationship), or is under common control with, either Party.

“Application Platform Maintenance” shall mean (i) management of disk space, CPU usage, system alarms, connectivity (routers and firewalls) and bandwidth; the identification of problems in the Products related to coding errors and/or bugs; (ii) the provision of upgrades and patches to the Products; and (iii) any ad-hoc support requirements or other mutually agreed assistance required for the continued operation of the business processes.

“Business Day” shall mean any day that is not a Saturday, Sunday or other day on which banks are closed.

“Business Hours” shall mean the hours of 09h00 and 17h00 (EST) on any Business Day.

“Client Data” shall mean (i) data provided by the Client or any third party on behalf of the Client to KEV, or otherwise received or collected by KEV, relating to the Client in respect of this Agreement; (ii) data specific to the Service Offering that KEV receives, generates, processes, or supplies for the Client or its customers in the performance of the Service Offering, excluding any Derivative Work created by KEV for its own internal purposes or which is proprietary or confidential to KEV or its suppliers; (iii) End User Account information; (iv) End User Login information; and (v) other information collected by KEV from the Client in respect of KEV`s Privacy Policy.

“Client” shall have the meaning set forth in the applicable Statement of Work.

“Confidential Information” shall mean (i) the information that is intended to be covered by this Agreement including, without limitation, any identities, addresses, telephone numbers, telefax and/or facsimile numbers of agents, brokers, principals, investors, manufacturers, clients, suppliers, staff, financial institutions, communicated to the Accessing Party by the Information Owner or acquired by the Accessing Party from the Information Owner, during the course of the negotiations and discussions (including during any RFP process) referred to as well as in the conclusion or configuration of any agreement concluded between the Parties; (ii) the information which provides the Information Owner with competitive advantage, including but not limited to, trade secrets, ideas, processes, concepts, formulas, computer software, data and know-how, copyrightable material, improvements, inventions (whether patentable or not), techniques, marketing plans, strategies, business and service development plans, timetables, forecasts and customer lists all as related to the Products and Services (past, current and prospective) of the Information Owner; (iii) the Information Owner’s business or technical information, including but not limited to, any information relating to its service plans, service designs, service costs, finances, marketing plans, business opportunities, source code, audit and security reports, research, development or know-how; (iv) any information designated by the Information Owner or End User as “confidential” or “proprietary” or which, under the circumstances taken as a whole, would reasonably be deemed to be confidential; (v) any communication, whether verbal, printed, electronic or otherwise, designated by the Information Owner or End User as “confidential”,  “proprietary” or subject to copyright given to the Accessing Party prior to the Statement of Work Effective Date; (vi) any information about; all discussions in; and any resultant rulings pertaining to disputes or arbitration; (vii) Client Data; (viii) End User data; (ix) Documentation; (x) Product and Services Documentation; and (xi) the terms and conditions of this Agreement and any Statement of Work; but excluding information that (a) is or becomes generally available to and known by the public (other than as a result of a non-permitted disclosure), (b) has been independently acquired without reference to such Confidential Information, or (c) is required to be disclosed by any Law.

“Configuration” shall mean, except as modified in the applicable Statement of Work, services relating to the technical preparation of the Client’s network and database on a highly secure basis, including (i) contracting with the internet service provider(s) to ensure that network packet loss does not exceed 1% from KEV’s border router to the termination point of the internet service provider’s uplink to the public Internet; (v) deployment of a firewall to filter out network traffic that is not accessing the Products and load balancing devices; (vi) implementation and security measures, including such measures as KEV deems necessary to address data theft (through SSL encryption) (viii) data source development; (ix) template design and development; (x) custom integration using application programming interfaces; and (xi) third party integration.

“Customer” shall mean client’s customer who submits a payment to Customer by means of an ACH transfer.

“Data Migration” shall mean the importing of Client Data for use in the Products as agreed to by both KEV and the Client during the Product implementation phase.

“Derivative Work” shall mean a work based on one or more preexisting works, including a condensation, transformation, translation, modification, expansion, or adaptation, that, if prepared without authorization of the owner of the copyright of such preexisting work, would constitute a copyright infringement under applicable Law, but excluding the preexisting work.

“District Designate” shall mean an employee of the Client who has successfully completed the District Designate Training and who is authorized by the Client to submit telephone Support Requests to KEV.

“District Designate Training” shall mean the Training Services offered by KEV, the successful completion of which is mandatory for all District Designates pursuant to the terms of the Agreement.

“Documentation” shall mean the  materials on both soft copy and hard copy as the case may be relating to the Service Offering, including, but not limited to, the relevant sales and technical materials, pricing, project planning, Product and Services Documentation, user and technical manuals, and instructional videos, as provided by KEV.

“End User” shall mean any individual using School Cash Online, as the case may be.

“Entry” shall mean a transaction submitted by Customer for processing by the Services and further defined in the NACHA Rules.

“EWallet” shall mean the account that holds any funds paid by End Users that are not intended to be used for an immediate purchase.

“Fees” shall mean the fees payable by the Client to KEV for the Service Offering, as set out in Schedule A to the applicable Statement of Work, and shall include any payment paid by the Client to KEV, any Overtime charges, fees for Support beyond the scope of Support as defined herein, and any Professional Services charges, if any.

“Installation Services” shall mean (a) the set-up of Client’s database with user logins and passwords,  chart of accounts, vendor information and student information; (b) speed and quality control tests to maximize performance of the Products; and (c) backup and recovery of the Client’s database.

“Intellectual Property” shall mean all of the following, whether protected, created or arising under the jurisdiction that governs this Agreement as set forth in Section 8.1 or any other foreign jurisdiction:  (i) patents, patent applications (along with all patents issuing thereon), statutory invention registrations, and divisions, continuations, continuations-in-part, and substitute applications of the foregoing, and any extensions, reissues, restorations and reexaminations of the foregoing, and all rights therein provided by international treaties or conventions; (ii) copyrights, mask work rights, database rights and design rights, whether or not registered, published or unpublished, and registrations and applications for registration thereof, and all rights therein whether provided by international treaties or conventions or otherwise; (iii) trade secrets; (iv) trademarks, service marks, trade names, service names, trade dress, logos and other identifiers of source, including all goodwill associated therewith and all common law rights, registrations and applications for registration thereof, and all rights therein provided by international treaties or conventions, and all reissues, extensions and renewals of any of the foregoing; (v) all rights arising from or in respect of domain names and domain name registrations and reservations, and (vi) all other applications and registrations related to any of the rights set forth in the foregoing clauses (i)-(v) above.

“Law” means any domestic or foreign federal, state, provincial or local statute, law (including common law), ordinance, regulation, rule, code or Governmental Order, or any other requirement or rule of law.

“Losses” shall mean any and all losses, liabilities, damages and claims, and all related costs and expenses (including legal fees on the scale as between attorney and own client, tracing and collection charges, costs of investigation, consequential losses, interest and penalties).

“Merchant Account” shall mean a bank account that allows the Client to accept payments by credit card.  This account, and all costs associated with it, shall be the sole responsibility of the Client.

“NACHA Rules” shall mean the then-current rules, regulations and procedural guidelines published by the National Automated Clearing House Association (“NACHA”) and/or all regional payment alliances associated with NACHA.

“Originating Depository Financial Institution” or “ODFI” shall mean, in an ACH Transaction, the financial institution which receives the Entry and transmits the Entry to its ACH Operator for transmittal to a Receiving Depository Financial Institution for debit or credit to the Customer’s account, as these terms are further defined in the NACHA Rules.

“Products and Services Documentation” shall mean all of the formal documentation used by KEV to deliver the Products, including the operational documents, training documents, support documents and user guides.

“Products” shall mean (i) the KEV System and (ii) the certain applications, operating systems, utility programs, communications software, interfaces and other computer software that KEV shall make accessible to the Client, as they may evolve during the Statement of Work Term or be modified or replaced in accordance with the terms of this Agreement and as further described in the applicable Statement of Work.

“Professional Services” shall mean consulting or other services that may be provided by KEV to the Client and that may involve analysis, development, integration, and training (but not including Support or Training Services).

“Representative” shall mean, with respect to a Party, the Affiliates of such Party and the directors, officers, partners, employees, agents, consultants, contractors, advisors, legal counsel, accountants and other representatives of such Party and its Affiliates.

“School Cash Accounting” shall mean the line of accounting software as a whole for use over the internet developed and marketed by KEV.

“School Cash Catalog” shall mean the KEV software module that allows school staff to create and manage items available for student purchase over the internet.

“School Cash Online” shall mean the KEV software module designed to accept online payments directly from End Users.

“School Cash Register” shall mean the KEV point of sale software module for use by those assigned a User Login.

“School Cash Resource Center” shall mean the KEV software module which provides support and training services over the Internet.

“Server” shall mean the computer hardware and software required to host the Products.

“Services” shall mean the ACH Processing Services provided to Customer under this Agreement.

“Service Offering” shall mean the comprehensive solution provided by KEV to the Client, including the Products, services and account management.

“Settlement Account” shall mean a commercial demand deposit bank account which Customer has established for JHA’s access and use to settle financial payment transactions processed by JHA on behalf of Customer.

“Statement of Work” shall mean each document that (a) is executed by the Parties pursuant to Article 5; (b) details the work effort; and (c) further describes the Products and Services.

“Student Items” shall mean items, goods and services available for purchase by End Users as offered and maintained by school district staff.

“Support” shall mean assistance provided by KEV to the District Designates with problems and/or errors with (i) the routine operation and use of the Products; (ii) data backups and disaster recovery; (iii) Configuration; (iv) receipt of data and document transfer from the Client to KEV; (v) KEV Application Platform installation, administration and maintenance; (vi) login credentials; and (vii) any ad-hoc operational requirements or other mutually agreed activities required by the Client for the continuous operation of all the business processes (for which Client shall be charged additional fees).

“Support Request” shall mean the issue and/or error in a Service reported to the KEV Support Agent in accordance with Section 4.1 of the Agreement.

“Third Party Software” shall mean software or systems not created by KEV.

“Training Services” means all services related to the provision of training related to the use of the Products, as further described in the Agreement.

“User Login” shall mean a person employed by the Client who has been issued a unique and personal user-name and password for each Product.

“User Login Training” shall mean the Training Services offered by KEV, the successful completion of which is mandatory for all User Logins pursuant to the terms of the Agreement.

“Website” shall mean www.kevgroup.com/sla