THIS MASTER SERVICES AGREEMENT (this “Agreement”) is made and entered into by and between LearnPlatform, Inc. a Delaware Corporation having a principal place of business at 707 N. West Street, Suite 104, Raleigh, NC 27603 (“LearnPlatform”) and the entity (“Customer”) named in the LearnPlatform Quote, Statement of Work or Order Form (collectively, the “Order Form”) attached to or linked with this Agreement
NOW THEREFORE, in consideration of the mutual promises and undertakings herein, the receipt and sufficiency of which are hereby acknowledged, the parties intending to be legally bound do hereby agree as follows:
SERVICES
1.1 LearnPlatform will provide Customer access to its technology and perform the certain services (“Services”, which are described in Exhibit A) as mutually agreed upon by the parties in the Order Form. Additional services and subscriptions may be agreed to, under these terms, through additional Order Form.
1.2 No Services pursuant to this Agreement will commence until an Order Form has been executed by both of the parties or otherwise agreed to in writing. The terms of this Agreement will be made a part of and incorporated by reference into future order, and are hereby made a part of and incorporated into this Agreement. In the event of a conflict between the terms of this Agreement and a future order the terms of this Agreement will govern, unless otherwise specifically agreed in the Order Form.
1.3 LearnPlatform will use reasonable commercial efforts to perform all Services in accordance with the specifications and timelines set forth in an applicable Order Form. LearnPlatform will perform all Services and obligations under this Agreement in accordance with all applicable laws.
1.4 Deliverables. As part of the Services, LearnPlatform will provide Customer with those reports, statements and agendas expressly set forth in the Order Form (collectively the “Deliverables”). LearnPlatform may also grant Customer the right to use one or more certification statements or logos provided by LearnPlatform to indicate that LearnPlatform has assessed Customer’s product and confirmed that the product meets certain qualities and standards as determined by LearnPlatform (the “Impact Badge”). In the event Customer elects to use the the Impact Badge in connection with the marketing, sale, promotion or distribution of its product, Customer shall conspicuously place the Impact Badge on the LearnPlatform listing that features and describes the product. The use of the Impact Badge shall at all times be subject to the quality standards and requirements of LearnPlatform.
1.5 Use of Deliverables and Impact Badge. Customer shall at all times use the Deliverables and Impact Badge in a manner that is not false, misleading or injurious to the goodwill or reputation of Customer or LearnPlatform. Customer shall (i) refrain from making any representations or claims about the Report or Impact Badge that are outside the scope of the Report and the applicable Services; and (ii) ensure that any and all distributors, dealers, resellers, and retailers of Customer’s products adhere to these same requirements. In the event Customer breaches this provision, LearnPlatform may terminate Customer’s right and license to use the Deliverables and/or Impact Badge upon written notice.
COMPENSATION & PAYMENT
2.1 Customer shall pay to LearnPlatform, for the Services received, the fees mutually agreed upon in each Order Form (the “Fees”).
2.2 Customer shall be responsible for any applicable sales, use, value added, federal excise, and all other similar taxes, charges or levies lawfully levied by a duly constituted taxing authority against, upon or in respect of the Services, other than taxes that are the obligations of LearnPlatform, such as taxes based on net income.
2.3 Invoices for Fees will be submitted in accordance with the payment schedule associated with the relevant quote. Customer will pay all undisputed invoiced Fees within 30 days of receipt of invoice or resolution of such dispute.
CONFIDENTIALITY
3.1 The term “Confidential Information” shall mean all communications, documents and other information, whether in written, oral or other form, which either party (the “Disclosing Party”) furnishes, causes to be furnished or otherwise discloses to the other party (the “Receiving Party”), or which the Receiving Party otherwise learns in connection with the negotiation and performance of this Agreement. Confidential Information includes, but is not limited to, the terms of this Agreement, computer software, methodologies, algorithms, product plans, designs, market research and analysis, costs, pricing, customer and supplier lists, customer and supplier information, strategies, forecasts, technical data and know-how. Notwithstanding the foregoing, Confidential Information shall not include information: (a) that at the time of disclosure is in the public domain or is otherwise available to the Receiving Party other than on a confidential basis; (b) that, after disclosure, becomes a part of the public domain by publication or otherwise through no fault of the Receiving Party; (c) disclosed to the Receiving Party by a third party not under an obligation of confidentiality to the Disclosing Party; or (d) that is or has been developed by the Receiving Party (as evidenced by the Receiving Party’s written records) independently of the disclosures by the Disclosing Party.
3.2 The parties acknowledge that each party considers the Confidential Information it discloses to be valuable, confidential and proprietary. Each party agrees to keep secret and confidential the Confidential Information of the other party, and further agrees to use such information solely for the purpose of performing and exercising its rights under this Agreement. Except as authorized by this Agreement, the Receiving Party shall not use any Confidential Information for its own or any third party's benefit, without the prior written approval of an authorized representative of the Disclosing Party.
3.3 Each party further agrees that the Confidential Information shall not be copied, reproduced, or disclosed to any third party, except that the Receiving Party may disclose the Confidential Information or portions thereof to those of its directors, officers, employees, subcontractors, representatives and agents (collectively, the “Representatives”) who need to know such information for the purpose of performing under this Agreement. Prior to disclosing any Confidential Information to any Representative, the Receiving Party will inform such Representative of the confidential nature of the Confidential Information and will require such Representative to agree to be bound by terms of confidentiality substantially similar to the terms of confidentiality in this Agreement. Notwithstanding any provision in this Agreement, a Receiving Party may disclose Confidential Information or portions thereof to the extent required to comply with applicable law, rule or regulation or an order issued by a court or governmental agency of competent jurisdiction; provided, however, that prior to disclosing any Confidential Information pursuant to such legal requirement or to such court or governmental agency, the Receiving Party shall, if permitted by applicable law, give the Disclosing Party reasonable prior written notice to permit the Disclosing Party to obtain a protective order or limit or challenge such requirement.
3.4 Neither party shall reverse engineer, decompile or disassemble any software of the other party, unless expressly authorized by the other party.
3.5 Upon termination or expiration of this Agreement, the Receiving Party will promptly return to the Disclosing Party or destroy all documents and other tangible materials representing any Confidential Information and all copies thereof; provided, however, that the Receiving Party may retain any information held on technology backup tapes in the ordinary course of business or as required by applicable law; provided that such information remains subject to the confidentiality obligations set forth in this Agreement.
3.6 Data Protection. The parties agree that in course of the performance of the Services as described herein, LearnPlatform may have access to personally identifiable information (PII) and/or student data subject to various data privacy and security laws, including FERPA. In the event a data privacy agreement (“DPA”) between LearnPlatform and the applicable local or state education agency (“LEA”) are not already in place, and the parties conclude that additional terms are necessary for LearnPlatform to process, receive, transfer, access and/or use the PII or student data in compliance with applicable law, the parties will enter into a mutually agreeable DPA to all for the sharing and use of the PII and/or student data for the purposes of research.
INTELLECTUAL PROPERTY
4.1 LearnPlatform Property. LearnPlatform and its licensors shall be the exclusive owner of all right, title, and interest in and to any and all tools, models, processes, materials, items, information, or technology provided or used by LearnPlatform in connection with the performance of the Services, including, without limitation, the Impact Badge and the LearnPlatform platform and software, along with any and all improvements or modifications to any of the foregoing (the “LearnPlatform Materials”). Any and all rights of patent, copyright, trademark of service mark, trade secret, know-how, and all other proprietary rights (the “Intellectual Property Rights”) related to the LearnPlatform Materials are and shall continue to be exclusively owned by LearnPlatform or, as applicable, its licensors. Except as expressly provided in this Agreement, Customer obtains no rights, title or interest in or to the LearnPlatform Materials or the Intellectual Property Rights related thereto. For clarity, all Deliverables generated by LearnPlatform in the performance of the Services shall remain the exclusive property of LearnPlatform; provided that these rights shall not extend to any Customer Materials (as defined below). Upon Customer’s payment in full of all amounts owed under this Agreement and the applicable Order Form, LearnPlatform hereby grants Customer a perpetual, royalty free, revocable (as expressly provided in Section 1.5 of this Agreement) license to use the Deliverables and Impact Badge for the purposes specified in the Order Form.
4.2 Customer Property. Customer owns and shall continue to own all right, title, and interest in its Intellectual Property Rights and data existing prior to the date of this Agreement, and all derivatives, modifications, adaptations, or improvements, to such Intellectual Property Rights (in each case whether created by LearnPlatform, Customer, a subcontractor, or any third party) (“Customer Materials”). Subject to the terms and conditions of this Agreement, Customer grants LearnPlatform a limited, royalty-free, non-exclusive, revocable (upon termination of this Agreement), terminable (upon termination of this Agreement) license to use the Customer Materials solely in connection with LearnPlatform’s performance of Services in accordance with this Agreement. All Customer Materials provided to LearnPlatform to enable LearnPlatform to perform the Services for Customer hereunder which constitute personally-identifiable information pursuant to applicable laws shall solely be used and displayed to third parties in an aggregate manner. LearnPlatform acknowledges and agrees that its use of the Customer Materials shall not create any right, title, or interest in its favor relative to the Customer. Materials. All use of the Company Materials by LearnPlatform and any rights arising therefrom, and goodwill generated thereby, shall inure solely to the benefit of, and are and shall be owned exclusively by Customer.
4.3 Third-Party Property. All trademarks, service marks, logos and other branding elements associated with any school, technology provider, or educational tools and all intellectual property rights in and to the educational tools available through the LearnPlatform platform will be owned by their respective owners.
4.4 Trade Secrets. In the performance of Services under this Agreement or any SOW, neither party will disclose to nor use for the benefit of the other, any trade secrets of a third party without first obtaining the right to do so
4.5 Platform. Customer agrees that the usage of any Software owned or controlled by LearnPlatform (including without limitation LearnPlatform’s Platform) shall be governed by the terms of service, which are incorporated herein by reference, found at the following address:https://learnplatform.com/terms-of-service. In the event of any conflict or inconsistency between this Agreement and the Platform’s terms of service, this Agreement shall control.
TERM OF AGREEMENT
5.1 Term. Subject to Section 5.2 below, and unless otherwise mutually agreed to by the Parties in an Order Form, this Agreement will have a term of one (1) year from the Effective Date. Thereafter, this Agreement will automatically renew for successive twelve (12) month terms unless either party provides advance written notice of its intent not to renew at least sixty (60) days prior to the end of the then current Term. (As used herein, both the initial Term and each renewal term shall be collectively referred to as the “Term”).
5.2 Termination.Either party may terminate this Agreement or any SOW at any time upon thirty (30) days prior written notice to the other party. Notwithstanding the foregoing, should any Order Form entered into during the period of this Agreement require LearnPlatform to provide Services beyond the date on which this Agreement is terminated pursuant to the terms of this paragraph 6.2.1, then the terms of this Agreement will remain in effect with respect to such Order Forms, until the termination date set forth in such Order Form or its earlier termination pursuant to this paragraph. Either party may terminate this Agreement if the other party commits a material breach of this Agreement that remains uncured for at least thirty (30) calendar days after written notice of the breach by a non-breaching party. Customer or LearnPlatform may terminate this Agreement or any SOW immediately upon providing notice if the other party becomes insolvent or bankrupt.
5.3 Payments Due Upon Termination. Upon the termination of this Agreement and/or any Order Form, Customer will pay LearnPlatform for all reimbursable expenses incurred (which may include non- cancelable obligations committed before receipt of notice of termination) and Services provided through the date of notice of termination based upon the progress of the work performed and to the extent that such expenses and Services are authorized pursuant to the SOW(s) that is(are) subject to the termination hereunder.
REPRESENTATION AND WARRANTY
Representations and Warranties of Each Party
6.1.1 Authorization. Each party represents and warrants that it has the right to enter into this Agreement with the other party. Each party further represents and warrants that it is not a party to any agreement or under any condition which would prevent it from fulfilling its obligations under this Agreement and that during the Term of this Agreement.
6.1.2 Compliance with Laws. Each party shall comply with all laws and regulations applicable to the Services including without limitation those relating to kickbacks, fraud, data privacy, and government funded programs.LearnPlatform Representations and Warranties. LearnPlatform represents, warrants and covenants that: (i) the Services will be performed using competent and qualified personnel in a professional and workmanlike manner, in accordance with the highest industry standards; (ii) it has sufficient rights in the LearnPlatform Retained Works and Services to grant the rights provided under this Agreement; (iii) the Services and the use of the Service as authorized under this Agreement will not infringe, misappropriate or violate any intellectual property, privacy, publicity, statutory, legal, contractual, personal or other right of any person or entity; (iv) none of the Services contain any “harmful” or “malicious” code (as such terms are generally defined and understood in the computer programming industry) or programming devices (e.g., viruses, key locks, back doors, trap doors, timers or other disabling devices), excluding any mechanisms intended to prevent the use of the Services beyond the Term, which could disrupt the use of the Services or any other data, software or hardware or destroy, damage or make inaccessible data, software or hardware.Disclaimer. EXCEPT AS EXPRESSLY STATED OTHERWISE IN THIS AGREEMENT, LEARNPLATFORM MAKES NO REPRESENTATION OR WARRANTY REGARDING THE SERVICES AND ANY LEARNPLATFORM TOOLS THAT CUSTOMER MAY HAVE ACCESS TO PURSUANT TO THIS AGREEMENT, ALL OF WHICH IS PROVIDED “AS IS.” ANY OTHER REPRESENTATIONS, WARRANTIES AND CONDITIONS (WHETHER IMPLIED BY STATUTE, COMMON LAW OR OTHERWISE), INCLUDING ALL WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES THAT MAY BE OTHERWISE IMPLIED FROM ANY COURSE OF DEALING, PERFORMANCE OR USAGE, ARE EXCLUDED TO THE FULLEST EXTENT PERMISSIBLE BY LAW.
MUTUAL INDEMNIFICATION
Each Party as the indemnifying party (the “Indemnifying Party”) “ will indemnify, defend and hold harmless the other Party, and its directors, officers, employees, representatives, associates, consultants, subcontractors and agents (the “Indemnitees”) against and from any liability, damage, loss, or expense (including, without limitation, reasonable attorney’s fees and expenses of litigation) (collectively, “Loss”) incurred by or imposed upon the Indemnitiees in connection with any third party claims, suits, actions, demands or judgments (collectively, “Claims”) (i) that the Tools or Customer Materials, respectively, used in accordance with this Agreement infringes or misappropriates the intellectual property of a third party; (ii) the Indemnifying Party’s breach of this Agreement; or (iii) the violation of applicable law by the Indemnifying Party. The Indemnitees agree to immediately notify the Indemnifying Party of any such Claims. Such notice will set forth all information known to the Indemnitees relating to the Claims and will be sent pursuant to the terms of this Agreement. The failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent such failure shall have adversely prejudiced the Indemnifying Party.The Indemnifying Part’s obligation to indemnify the Indemnitees will not apply to any Claims or Loss that arises solely and directly from any willful misconduct, negligent act, or omission of the Indemnitees or failure by the Indemnitees to comply with relevant regulations or other governmental requirements.EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATION OR A BREACH OF THE CONFIDENTIALIY PROVISIONS OF THIS AGREEMENT, N NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY TO THE OTHER PARTY, EXCEED THE TOTAL AMOUNT THAT CUSTOMER PAID TO LEARNPLATFORM FOR THE SERVICES, WHETHER SUCH LIABILITY IS BASED IN CONTRACT, TORT OR OTHERWISE. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY PUNITIVE, CONSEQUENTIAL, SPECIAL, AND/OR INDIRECT DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF GOOD WILL, PROFITS OR BUSINESS. THESE LIMITATIONS SHALL APPLY REGARDLESS OF WHETHER THE PARTY KNEW, SHOULD HAVE KNOWN OR WERE FOREWARNED OF THE POSSIBILITY OF SUCH DAMAGES.
GENERAL
Independent Contractors. LearnPlatform will perform the Services under this Agreement only as an independent contractor and not as an agent, employee, joint venturer or partner of Customer, and nothing contained herein will be construed to be inconsistent with that relationship or status. This Agreement will not constitute, create, or in any way be interpreted as, a joint venture, partnership, or business organization of any kind. LearnPlatform Personnel performing Services pursuant to any SOW hereunder are not nor will they be deemed to be at any time during the Term of this Agreement employees or agents of Customer.
Notices. Any notice or other communication pursuant to this Agreement will be in writing and will be deemed to have been fully given when delivered by email or nationally recognized overnight courier service or three (3) days after being mailed by United States registered or certified mail, postage prepaid and return receipt requested, to the following addresses or such other addresses as each party may provide in writing to the other party from time to time.
Assignment. This Agreement may not be assigned or subcontracted, in whole or in part, by either party without the prior written consent of the other party; provided, however, that an assignment of this Agreement by operation of law or change of control of a part shall not require approval of the other party, but shall require prior notice.
Governing Law/Venue. This Agreement will in all respects be governed by, construed and enforced in accordance with the laws of the State of Delaware, regardless of its choice of law rules.
Severability. In the event that any provision of this Agreement is held to be unenforceable by a court with competent jurisdiction, then the remainder of this Agreement shall continue to be in effect without giving accord to the part, or parts, of the Agreement which are deemed to be unenforceable.
Force Majeure. Neither party will be liable for any delay or failure to perform as required by this Agreement to the extent that such delay or failure to perform is caused by circumstances reasonably beyond the control of the party seeking relief under this section including, without limitation, labor disputes, accidents, any law, order or requirement of any governmental agency or authority, civil disorders or commotions, acts of aggression or terror, epidemics or pandemics (including without limitation, COVID-19), fire or other casualty, strikes, acts of God, explosions, or material shortages. Performance time will be considered extended for a period of time equivalent to the time lost because of any such delay or failure to perform; however, in any event, this extension of time will not exceed fifteen (15) days, at which time the non-affected party may terminate this Agreement or the applicable SOW, unless the parties agree otherwise in writing.Headings/Counterparts. The headings contained in this Agreement are for convenience of reference only and are not intended to have any substantive significance in interpreting this Agreement. This Agreement may be executed in any number of counterparts, and each such counterpart will be deemed to be an original and all such counterparts together will constitute one agreement.
No Waiver. A party’s failure at any time to enforce any of the provisions of this Agreement or any right with respect thereto, will not be construed to be a waiver of such provision or rights, nor to affect the validity of this Agreement.Amendments. No alteration, modification or other change to this Agreement will be binding on the parties except upon execution of a written amendment approved and signed by officers of LearnPlatform and Customer. Any alteration, modification or other change to an Order Form or SOW will require execution of either a change order (in a form mutually agreed upon by Customer and LearnPlatform), an amendment, or other written authorization. Change orders and/or amendments will be executed by authorized representatives of LearnPlatform and Customer.
Entire Agreement. This Agreement (including all Order Forms, SOWs and any other appendices, attachments, exhibits and/or purchase orders) constitutes the entire agreement between the parties with respect to the subject matter contained herein, and this Agreement supersedes all prior or existing understandings or agreements, written and oral, between the parties with respect to the subject matter contained herein. The parties intend for this Agreement to be a complete statement of the terms of their agreement, and no change or modification of any of the provisions of this Agreement will be effective unless it is in writing and signed by duly authorized representatives of LearnPlatform and Customer. In the event of a conflict between the terms of this Agreement and any SOW, appendix, attachment, exhibit or purchase order entered into between the parties, the terms of the Agreement will govern, unless the SOW, appendix, attachment, exhibit or purchase order expressly states that it or a provision therein will govern notwithstanding a contrary provision contained in this Agreement.
Arbitration. ANY CONTROVERSY OR DISPUTE BETWEEN LEARNPLATFORM AND CUSTOMER ARISING OUT OF OR RELATED TO THIS AGREEMENT AND/OR CUSTOMER’s USE OF THE PLATFORM THAT CANNOT BE SETTLED BY MUTUAL AGREEMENT SHALL BE EXCLUSIVELY AND FINALLY SETTLED BY ARBITRATION. THE ARBITRATION SHALL BE BEFORE THE AMERICAN ARBITRATION ASSOCIATION (THE "AAA"), IN RALEIGH, NC, AND SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NORTH CAROLINA. ALL NOTICES AND REQUESTS FOR ARBITRATION SHALL BE MADE IN COMPLIANCE WITH THE RULES SET FORTH BY THE AAA. IN THE EVENT THAT ANY PARTY TO THIS AGREEMENT DESIRES TO SEEK ARBITRATION, IN ADDITION TO COMPLIANCE WITH THE RULES SET FORTH BY THE AAA, THE PARTY REQUESTING ARBITRATION SHALL GIVE WRITTEN NOTICE TO THE OTHER PARTY AT LEAST TEN (10) DAYS PRIOR TO FILING ITS REQUEST WITH THE AAA. THIS NOTICE SHALL SET FORTH THE NATURE OF THE DISPUTE, THE AMOUNT INVOLVED (IF ANY), AND THE REMEDY SOUGHT. THE PARTIES AGREE THAT ANY CLAIM SHALL BE BROUGHT IN THE PARTY'S INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING, THEREBY WAIVING THE RIGHT TO PARTICIPATE AS A CLASS REPRESENTATIVE OR CLASS MEMBER IN A CLASS ACTION RELATING IN ANY WAY TO A DISPUTE.THE PARTIES UNDERSTAND THAT ARBITRATION IS FINAL AND BINDING ON THE PARTIES. THE PARTIES FURTHER UNDERSTAND THAT BY SIGNING THIS AGREEMENT EACH PARTY WAIVES THEIR RIGHT TO SEEK REMEDIES IN COURT, INCLUDING THE RIGHT TO A JURY TRIAL. NOTWITHSTANDING THIS PROVISION, THE PARTIES AGREE THAT COMPANY MAY SEEK IMMEDIATE INJUNCTIVE RELIEF IN ANY COURT HAVING JURISDICTION OVER THE SUBJECT MATTER OR PERSONS FOR WHICH RELIEF IS SOUGHT. JUDGMENT ON ANY AWARD RENDERED BY THE ARBITRATOR(S) MUST BE ENTERED AND CONFIRMED EXCLUSIVELY IN ANY COURT HAVING JURISDICTION. ALL AWARDS SHALL BE MADE IN CONFORMITY WITH THE AAA RULES AND THE PARTIES UNDERSTAND THAT THE ARBITRATOR(S) MAY AWARD MONETARY DAMAGES AND ARE AUTHORIZED TO GRANT PRE-AWARD AND POST-AWARD INTEREST AT COMMERCIAL RATES ON ANY MONETARY AWARD. ANY SUCH AWARDS SHALL BE SUBJECT THE LIMITATION OF LIABILITIES SET FORTH HEREIN.