Master Services Agreement.

WHEREAS, Company possesses unique skills, knowledge, and expertise which are desirable to Client; and

WHEREAS, Client desires to hire Company to provide specified Lesson Planning and Delivery System Services to Client and/or its Affiliates (as defined below); 


NOW, THEREFORE, in consideration for the promises, rights, and obligations set forth below, the Parties hereby agree as follows:

 

1. DEFINITIONS. As used herein, the following terms shall have the meanings set forth below: 

  1. “Affiliates” shall mean, with respect to any specified individual or legal entity, any other individual or legal entity that, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such specified individual or legal entity.

  2. "Client Information" shall mean all data, materials, images and text which Client provides to Company in digital or other readily usable format for use in performing the Services that is the confidential, intellectual property of Client.

  3. “Project Deliverables” shall mean the intellectual property deliverables created under an SOW specifically and solely for Client. By way of clarification and in no way limiting the foregoing, Project Deliverables shall not include any information or data provided to Client pursuant to the Base Subscription SOW.

  4. “Student” shall mean a unique primary user of the Services. Students shall not include teachers, administrators or parents whom access the platform.

  5. “User” shall mean all Students, teachers, administrators and parents who access the platform.


2. SERVICES. 

  1. Services Generally. The “Services” shall be the provisioning of the Lesson Planning and Delivery System Services owned by Company as updated and modified from time to time. In accordance with the terms of this Agreement, Company agrees to provide Client with the Services and Client agrees to accept and pay for the Services.

  2. Performance of Services. Company shall perform the Services to the reasonable satisfaction of Client in accordance with this Agreement. All Services shall be performed:

  1. in a professional and good workmanlike manner with the highest skill and care used by members of the same profession and in accordance with the highest prevailing industry and local standards;

  2. in accordance with, and subject to, the terms and conditions of this Agreement; and

  3. in accordance with all applicable laws, regulations, ordinances and stipulations of authorities having jurisdiction over the performance of the Services, or over Company.


3. TERM & TERMINATION.

  1. Term Generally. This Agreement shall commence as of the Effective Date and continue in full force until terminated pursuant to this Section 3 (the “Term”).

  2. Termination for Convenience. This Agreement may be terminated for convenience by either Party upon thirty (30) days written notice to the other Party except that any Order Forms shall survive termination for the period remaining in the then-current Subscription Period.

  3. Termination for Cause. This Agreement may be terminated for cause by either Party upon with immediate effect if the non-terminating Party commits a material breach of a material provision of this Agreement that either (I) has existed for more than thirty (30) days after notice of such breach was given to the breaching Party or (ii) is incapable of repair.

  4. Effect of Termination.

    1. Upon termination of this Agreement for any reason, the rights, licenses and access to the Services granted to Client will terminate immediately and Company shall cease performing the Services. Client shall not be liable for the cost of any Services incurred after the end of the Term but Client shall be liable for all costs of the Services accrued until the end of the Term, including costs not yet invoiced, nonrefundable fees such as subscription fees (whether or not such fees have yet been paid), and partially complete Project Deliverables.

    2. All monetary obligations of both Parties shall become immediately due and payable upon termination of this Agreement.

    3. Upon termination of this Agreement and except as otherwise set forth herein, Client shall permanently delete and destroy any information obtained through the Services or otherwise owned by Company, including any derivative works based on such information. Upon request by Company, Client will certify the deletion and destruction of such in writing, signed by an executive-level employee of Client.

  5. Data Retention. Company will make all Client Information in its possession at the time of termination of this Agreement available to Client in an electronically exportable format for a period of sixty (60) days following the termination of this Agreement; provided that, Company shall have no obligation to deliver any Client Information to Client if there are any amounts owed or purported to be owed by either Party to the other Party under the terms of this Agreement.


4. PAYMENT. 

  1. Amount. Client shall pay Company the amounts specified in the applicable Order Form for the Services (“Fees”). Unless otherwise specified, all fees are invoiced in advance of Services being rendered and are based on the Services ordered, notwithstanding Client’s actual usage of the Services. All payments made under this Agreement shall be irrevocable, non-refundable, and non-creditable except as otherwise provided herein.

  2. Invoices. Invoices for amounts owed by Client to Company shall be rendered in accordance with the terms specified in the applicable SOW. All payments are due within fifteen (15) days of receipt of invoice. Client authorizes Company to automatically charge any amounts invoiced and owed to any payment methods of Client provided to Company. This authorization shall remain in effect until all amounts owed to Company have been paid in full. Client shall keep no less than one payment method on file with Company up to date and accurate.

  3. Form of Payment. All payments are to be made in U.S. dollars only. All statements of price in the Agreement are in US dollars unless otherwise stated. All declined payments shall be subject to a $200 charge decline fee per instance. Company may rerun any declined payment method no earlier than five (5) days after the last attempt. Payment shall be made and accepted in any of the following formats:

    1. American Express, Visa, Mastercard or Discover Debit or Credit Card

    2. ACH Transfer

    3. Electronic Check

  4. Late Payment. Late payments of Fees and other financial obligations of Client will accrue late interest at the rate of 1.5% over the outstanding balance per month, or the maximum rate permitted by law, whichever is less, from the date such payment was due until the payment of the balance with the monthly interest accrued pro rata with respect to any period less than one month.

  5. Taxes. Client will be responsible for payment of all sales, use, property, value-added, withholding, or other federal, state, or local taxes except for taxes based solely on Company’s net income. If Company is required to pay any such taxes based on the licenses granted by this Agreement or on Client’s use of the Services, then such taxes will be billed to and paid by Client at the same time as the applicable Services are paid for when possible, if not, as soon as possible.


5. REPRESENTATIONS & WARRANTIES. 

  1. Company Representations. Company represents and warrants that:

    1. it has the full right, power, capacity and authority to enter into and fully perform this Agreement and to perform or provide the Services;

    2. it shall provide Client with prompt written notice of any legal or regulatory issues applicable to the execution of the Services of which Company has actual knowledge;

    3. its execution and delivery of this Agreement, and the performance by Company of its Services, will not (a) constitute a violation of conflict with or result in a default under, any contract, agreement or instrument of any kind to which Company is a party or by which it is bound, or (b) violate any judgment, decree, order, law, rule or regulation applicable to Company.

    4. To the best of Company’s knowledge, the Services as delivered do not infringe intellectual property rights of any other person or entity. Notwithstanding the foregoing, Company shall not be deemed to have breached the warranties contained in this Section to the extent that Client, modifies the Services in any manner, or to the extent that the Services are based on specifications, instructions or intellectual property provided by Client, that incorporates third party materials, or that incorporates Client Information.

  2. Client Restrictions, Obligations and Representations.

    1. Client shall ensure the Services are in compliance with COPPA, including obtaining advance written consent from all parents and guardians whose children under the age of 13 will access and use the Services. When obtaining consent, Company’s Privacy Policy must be supplied by Client to the parent or guardian. Client shall provide Company proof of compliance with this Section 5(B)(i) upon written request by Company.

    2. Except as set forth in any applicable SOW, Client shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use and enjoy the Services, including without limitation, hardware, software, networking, data storage provisions and the like.

    3. Client grants to Company, during the Term, a limited, non-transferable license to use the information and data submitted to Company during Client’s (including affiliates, users and sublicensees of Client) use of the Services solely to the extent reasonably necessary to provide the Services. Client represents and warrants that Client owns or has the right to use and to sublicense to Company all Client Information, and other intellectual property supplied by Client to Company, including the right to publicly display, publish, and distribute the Client Information on the Internet and to authorize Company to use the same in accordance with this Agreement; and (iii) the use by Company of any Client Information in accordance with this Agreement shall not violate the intellectual property rights of any third party. Client agrees to defend, indemnify, and hold harmless Company, and its directors, officers, employees and agents from and against any claim, demand, cause of action, debt or liability (including reasonable attorneys’ fees) arising out of the breach of this Section.

    4. The Services are rendered, to Client for internal use only. Client will not, and will not permit or authorize any unauthorized third party to: (i) copy, modify, translate, or create derivative works of the Services; (ii) reverse engineer, decompile, disassemble or otherwise attempt to reconstruct, identify or discover any source or object code, underlying ideas, underlying user interface techniques, or algorithms of the Services, Project Deliverables; (iii) lend, lease, offer for sale, sell or otherwise use the Services for the benefit of third parties; or (iv) attempt to circumvent any license, timing or use restrictions that are built into the Services, Project Deliverables.

    5. Client will: (i) be responsible for its (and, where applicable, third parties’ under its control and responsibility) compliance with this Agreement; (ii) use best efforts to prevent unauthorized access to or use of the Services; (iii) notify Company immediately of any unauthorized access and/or use of which Client becomes aware or should have reasonably become aware in the ordinary course of use of the Services; (iv) use the Services only in accordance with this Agreement, and all applicable laws and regulations.

    6. Client shall not (a) make the Services available to any third party except for as expressly allowed by this Agreement (b) sell, resell, rent or lease the Services; (c) interfere with or disrupt the integrity or performance of the Services; (d) attempt to gain unauthorized access to the Services or their related systems or networks; (e) share, either intentionally or unintentionally its login credentials; (f) use the Services in breach of the Terms of Service and Privacy Policy of Company, as such are in place from time to time and available here [HYPERLINK]; or (g) do anything else prohibited by this Agreement;

    7. Client shall not to use any the Services to store, display, or transmit content that is deceptive, libelous, defamatory, obscene, racist, hateful, infringing or illegal. Company takes no responsibility and assumes no liability for the results of any usage of the Services by Client and Client agrees that Company is acting only as a passive conduit for the online distribution and publications of Client supplied data.


6. CONFIDENTIAL INFORMATION.

  1. Definition of Confidential Information. As used herein, "Confidential Information" means all confidential information disclosed by a Party ("Disclosing Party") to the other Party ("Receiving Party") in writing, that is designated as confidential or that should be reasonably understood to be confidential given the nature of the information and the circumstances of disclosure. Client’s Confidential Information will include Client Information; Company’s Confidential Information will include all data provided as a part of Services; and Confidential Information of each Party will include business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such Party. However, Confidential Information will not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.

  2. Protection of Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of the same kind (but in no event less than the level of reasonable care). The Receiving Party agrees: (i) not to use any Confidential Information of the Disclosing Party for any purpose other than for the purposes consistent with this Agreement; and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its affiliates’ employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those contained herein. Neither party will disclose the terms of this Agreement or any Order Form to any third party other than its affiliates and its legal counsel and accountants without the other party’s prior written consent.

  3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.


7. DISCLAIMERS.

  1. Disclaimers Generally. Client acknowledges and understands that neither Company, nor any of its employees, representatives, agents or the like, warrant that the Services offered or provided hereunder will not be interrupted or be error free. Company does not make any warranty as to the results that may be obtained from the use of the Services.

  2. Scheduled Downtime. Client acknowledges that the Services may be temporarily unavailable due to scheduled maintenance or for unscheduled emergency maintenance. When reasonably possible, Company shall use reasonable efforts to provide advance notice of a scheduled interruption to the Services.

  3. Data Protection. Company shall maintain data security and protection standards no less than as protective as industry standard. Notwithstanding the foregoing, company shall not be liable to Client for any third-party data breach, event or other interruption of service not solely the result of the gross-negligence of Company. Client expressly disclaims any reliance on the data security practices of Company.

  4. Company Disclaimers. The Parties agree that, in respect of information and Services provided by Company under this Agreement, except as expressly stated herein, COMPANY MAKES NO AND CLIENT DOES NOT RELY ON ANY, EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE PROJECT DELIVERABLES OR SERVICES, OR THEIR CONDITION, MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE OR USE BY ANY CUSTOMER. COMPANY FURNISHES THE WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Except as expressly provided in this Agreement or Services are provided “as is” with all faults, and the entire risk as to satisfactory quality, performance, accuracy, and effort is with the user of such information or Services.


8. OWNERSHIP.

  1. Ownership Generally. Company retains all right, title, and interest, including all intellectual property rights and interests, in and to the Services. Client acknowledges that the Services include Company’s valuable trade secrets and improper use or disclosure would cause Company irreparable harm. Accordingly, Client agrees to use the Services solely as authorized in this Agreement. Client further acknowledges that the license pursuant to the applicable Order Form is not a sale and does not entail transferring to Company any title or ownership in or of the Services, or any part thereof. ALL RIGHTS NOT EXPRESSLY GRANTED HEREUNDER ARE RESERVED TO COMPANY.

  2. License to Use Feedback. Client grants to Company a worldwide, perpetual, irrevocable, royalty free license to use and incorporate into the Applications and Services any suggestion, enhancement request, recommendation, correction or other feedback provided by Client or its employees, consultants or contractors relating to the operation of the Services, excluding any Client Information.

  3. Compliance Audits. Subject to Company’s confidentiality and data security obligations hereunder, Company may remotely monitor Client’s use of the Services to ensure compliance with the Agreement and Client consents to such monitoring on behalf of itself and any parties using the Services under the terms of this Agreement.


9. INDEPENDENT CONTRACTOR. The Parties to this Agreement are independent contractors, and nothing herein shall be construed as creating an employment, agency, franchise, joint venture or partnership relationship between the Parties.  Neither Party shall have any right, power or authority to enter into any agreement, or incur any obligation or liability, for or on behalf of, or to otherwise bind, the other Party without prior written consent of the other Party, except as otherwise expressly provided in this Agreement. 

 

10. LIMITATION OF LIABILITY; INDEMNIFICATION. Under no circumstances shall Company be liable for lost profits or any incidental, special, exemplary, or consequential damages. Neither Party shall be required to indemnify the other except as required by the express terms of this Agreement. The total liability of Company to Client under this Agreement or otherwise shall be limited to the value of any fees paid or due by Client to Company or otherwise earned by Company under this Agreement in the six (6) months immediately prior to the filing of a claim. Client shall defend, indemnify, and hold Company harmless, at Client’s own expense, against any action or suit brought for any loss, damage, expense or liability that may result by reason of an infringement of any patent, trademark, copyright, or trade secret based upon the normal and intended use of the Client Information. Client agrees to indemnify and hold Company harmless against all claims, liabilities, demands, damages, or expenses (including attorneys’ fees and expenses) arising out of or in connection with Client’s use of the Services.


11. GOVERNING LAW AND JURISDICTION. This Agreement shall be governed by the laws of California without giving effect to its choice of law provisions.  In the event either Party breaches, or threatens to breach this Agreement, the non-breaching Party may apply to a court of competent jurisdiction for injunctive or other equitable relief to restrain such breach or threat of breach, without disentitling the non-breaching Party from any other relief in either law or equity.  The Parties agree that any action related to this Agreement shall be venued solely in California, and the Parties hereby irrevocably commit to the jurisdiction of said court for any such action.  


12. SURVIVAL. All terms and provisions of this Agreement, including any exhibits, which by their nature are intended to survive termination of this Agreement, will so survive.


13. ATTORNEYS’ FEES. In the event of breach of this Agreement, the prevailing Party shall be entitled to reimbursement of all of its costs and expenses, including reasonable attorneys’ fees, incurred in connection with such dispute, claim or litigation, including any appeal thereof as determined in a final, non-appealable order by a court of competent jurisdiction. 


14. STATUTE OF LIMITATIONS. In the event of an alleged breach of this Agreement, any claim or potential claim must be brought within one (1) year of the termination of this Agreement. 


15. NOTICES. All notices, consents, and other communications required or permitted under this Agreement, specifically excluding service of process, shall be deemed sufficient if (A) delivered personally; (B) delivered by overnight (24-hour) courier service; (C) delivered through electronic mail; or (D) delivered by U.S. mail, registered or certified, return receipt requested, postage prepaid. All such notices and communications should be directed to such Party’s notification address and instructions as provided on the signature page of this Agreement.


16. ENTIRE AGREEMENT. Notwithstanding any non-disclosure agreement entered between the Parties, this Agreement, including any Exhibits or other documents specifically incorporated by reference, sets forth the entire agreement between Company and Client with respect to the subject matter hereof and supersedes all previous representations, understandings or agreements and shall prevail notwithstanding any variance with terms and conditions of any other prior writing between the Parties. COMPANY MAKES NO AND DISCLAIMS ALL REPRESENTATIONS NOT EXPRESSLY INCLUDED IN THIS AGREEMENT AND CLIENT HAS NOT RELIED UPON ANY REPRESENTATIONS NOT EXPRESSLY INCLUDED IN THIS AGREEMENT AND EXPRESSLY DISCLAIMS SUCH RELIANCE. 


17. ENFORCEMENT. If any provision of this Agreement is held to be invalid by a court of competent jurisdiction, then the remaining provisions shall nevertheless continue in full force and effect and the invalid provisions modified to the maximum effect legally allowed. 


18. ASSIGNMENT. Neither Party may assign this Agreement or any rights or obligations hereunder, directly or indirectly, by operation of law or otherwise, without prior written consent of the other Party; provided, however, that either Party may assign this Agreement to an affiliate, subsidiary, or successor to its business. Any attempted assignment in violation of this section will be null and void.


19. NO WAIVER. Any waiver by either Party hereto of any breach of the terms and conditions hereof will not be considered a modification of any provision, nor shall such a waiver act to bar the enforcement of the subsequent breach. No waiver of any provision of this Agreement shall be valid unless in writing and signed by both Parties.


20. COUNTERPARTS. This Agreement may be signed in two counterparts, each of which shall be an original and, which taken together shall constitute one instrument. 


21. FORCE MAJEURE. Notwithstanding anything to the contrary in this Agreement, neither Party shall be liable for any delay in, or failure to perform, any obligation under this Agreement, nor shall such delay or failure to perform constitute grounds for termination of this Agreement, provided such delay or failure is due in whole or in part to circumstances beyond that Party’s reasonable control, including, but not limited to, acts of God or other similar occurrences, any law, order, regulation, direction, action, or request of the federal, state or local government or any department, agency, commission, court, bureau, corporation or other instrumentality of any one or more of said governments or of any civil military authority, national emergencies, pandemics, insurrections, riots, wars, strikes, lock-outs or work stoppages.  A force majeure as used herein does not include a financial crisis.


22. EXPORT REGULATIONS. Client shall comply with all applicable export and re-export control laws and regulations, including the Export Administration Regulations (“EAR”) maintained by the U.S. Department of Commerce, trade and economic sanctions maintained by the Treasury Department’s Office of Foreign Assets Control, and the International Traffic in Arms Regulations (“ITAR”) maintained by the Department of State. Specifically, Client covenants that it will not -- directly or indirectly -- sell, export, re-export, transfer, divert, or otherwise dispose of any products, software, or technology (including products derived from or based on such technology) received from Company under this Agreement to any destination, entity, or person prohibited by the laws or regulations of the United States, without obtaining prior authorization from the competent government authorities as required by those laws and regulations. Client agrees to indemnify, to the fullest extent permitted by law, Company from and against any fines or penalties that may arise as a result of Client’s breach of this provision.


23. RIGHT TO SUBCONTRACT. Company may exercise any of its rights, or perform any of its obligations, under this Agreement by subcontracting the exercise or performance of all or any portion of such rights and obligations on Company’s behalf. Any subcontract granted or entered into by Company of the exercise or performance of all or any portion of the rights or obligations that Company may have under this Agreement shall not relieve Company from any of its obligations under this Agreement.


24. PUBLICITY. Client grants Company a non-exclusive, world-wide, royalty-free license to use Client’s name or mark and identify Client as a client of Company, on Company’s website and/or marketing materials. Company may issue a press release, containing Client’s name, related to any award under this Agreement. Neither party will use the other party’s name or marks, refer to or identify the other party for any other reason, except as established in this section, without such other party’s written approval. Any approval required under this Section shall not be unreasonably withheld or delayed by either party.