Master Service Agreement
In consideration of the mutual benefits and obligations set forth below, the parties agree as follows:
1. Access to the Service. Subject to the terms of this Agreement, and as long as Subscriber pays all of the fees to Lea(R)n as described hereunder, Lea(R)n grants Subscriber a limited, non-exclusive, non-transferable, right and license, without the right to sublicense, to access the LearnTrials platform (“LearnTrials”) and the service(s) described within the attached Quote (collectively the “Service”) for its intended purpose and no other purpose. In addition, the parties agree as follows:
2. Additional Obligations of Parties.
2.1 Subscriber Data. As part of the Service, Subscriber may provide Lea(R)n with certain data relating to Subscriber, its employees and students and their interactions with various educational technology, tools and products (“Educational Tools”). The provision of such data shall be governed by a Data Confidentiality and Security Agreement executed between the parties concurrently with this Agreement, substantially in the form of the Data Confidentiality and Security Agreement attached hereto as Exhibit A. (the “Data Agreement”). The Data Agreement is incorporated herein by reference.
2.2 Confidentiality. In addition to the requirements set forth in the Data Agreement, and without limiting either party’s obligations as set forth therein, each party agrees to maintain the confidentiality of all materials, information, policies, employee information and other related, proprietary and/or confidential documents or information provided by and prepared for either party (“Confidential Information”). Each party agrees to (i) protect the Confidential Information of the other party with no less than the same degree of care it would exercise to protect its own Confidential Information, (ii) not use the other party’s Confidential Information for any purpose other than as reasonably necessary to fulfill the terms of this Agreement, (iii) not disclose any part of the other party’s Confidential Information to any third person without the prior consent of the other party, and (iv) insure that its employees, subcontractors and other personnel agree to assume the obligations set forth in this Section 2.4 (provided that, for avoidance of doubt, each party hereby agrees that it shall be responsible for any violation of the terms of this Agreement by its employees, subcontractors and other personnel). Confidential Information does not include any information which was already known to the non-disclosing party, is generally available to the public through no fault of the receiving party or is obtained at any time lawfully from a third-party under circumstances permitting its use or disclosure to others. Should either party become legally compelled to disclose any portion of the Confidential Information such party shall promptly provide notice to the other party and reasonably cooperate with any efforts of the disclosing party in preventing the disclosure of the Confidential Information. Upon expiration or termination of this Agreement, each party agrees to return to the other party any Confidential Information of the other party it may have in its possession. The parties agree that, in the event of a breach or threatened breach of this Section 2.2, the other party may have no adequate remedy in damages and, accordingly, shall be entitled to injunctive relief against the other party’s breach or threatened breach without having to post bond.
3.1 Subscription Fees; Payment. The specific Service offerings Lea(R)n will provide Subscriber pursuant to this Agreement and the applicable fees for access to and use of the Service are set forth in the Quote which is incorporated herein by reference. The initial payment for the initial Term shall be due upon the Start Date. Lea(R)n will issue invoices for each applicable payment period thereafter and payment terms shall be as set forth in the Quote All subscription fees shall be prepaid and will be deemed earned upon payment and all payment obligations will survive termination or expiration of this Agreement.
4. Term and Termination.
4.1 Term. This Agreement shall commence on the Start Date and shall continue for the period specified on the Quote (the “Term”) unless otherwise set forth herein. Thereafter, the Agreement will automatically renew for an additional twelve (12) month period unless either party provides notice of non-renewal sixty (60) days prior to the end of the then current term. (The initial Term and any renewal Terms are collectively referred to herein as the “Term”). In recognition of continued feature development and costs by Lea(R)n in LearnTrials, the subscription fees may increase by not more than 5% for each subsequent Term. Discounts applied to the initial Term may not be applied to future years, at the discretion of Lea(R)n.
4.2 Termination; Effect. Either party may terminate this Agreement in the event the other party materially breaches this Agreement and does not cure such breach within thirty (30) days after written notice from the non-breaching party setting forth the nature of the material breach. Upon termination of this Agreement for any reason, Subscriber shall immediately discontinue all use of the Service, and thereafter shall have no further right, license or privilege to access, or use the Service. Unless the early termination of this Agreement was due to an uncured material breach by Lea(R)n, no fees will be refunded to Subscriber due to an early termination.
5. Warranties; Limit of Liability.
5.1 Limited Warranties. Lea(R)n and Subscriber each represent, warrant and covenant to the other that: (i) it is in good standing in the state of its organization and qualified to do business in every jurisdiction in which it is required to be qualified; (ii) it has full power and authority to enter into this Agreement; (iii) the execution and performance by it of its obligations under this Agreement will not constitute a breach of any other agreement or a violation of any ordinance, statute, law, or regulation to which it is a party or by which it is bound; (iv) as of the Effective Date and until termination or expiration of the Term, it is and will remain in compliance with and abide by any and all statutes, laws, ordinances, rules, and regulations promulgated by any government entity which are applicable to it.
5.2 Availability. Lea(R)n will make commercially reasonable efforts to provide 99.9% availability of the Service and LearnTrials. From time to time, however, and as may be necessary to maintain the proper operation of the Service and LearnTrials, Lea(R)n may disable the Service and/or LearnTrials for repairs, upgrades or routine maintenance. Lea(R)n will use commercially reasonable efforts to minimize the impact of any downtime on Subscriber.
5.3 WARRANTY DISCLAIMER. THE SERVICE AND LEARNTRIALS IS OFFERED TO SUBSCRIBER “AS IS” AND WITHOUT ANY WARRANTY, GUARANTY, CONDITION, COVENANT OR REPRESENTATION, EXPRESS, IMPLIED OR STATUTORY. ALL WARRANTIES, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TIMELINESS, CURRENCY, ACCURACY OR OTHER ATTRIBUTES, OR FROM A COURSE OF DEALING OR USAGE OF TRADE ARE SPECIFICALLY DISCLAIMED. LEARN DOES NOT WARRANT THAT THE SERVICE WILL OPERATE WITHOUT INTERRUPTION OR ERROR-FREE, OR THAT THE SERVICE WILL BE TOTALLY SECURE. The listing or availability of any Educational Tool on or through LearnTrials does not constitute a recommendation, sponsorship, guarantee or endorsement of such Educational Tool by Lea(R)n. Subscriber is responsible for determining whether you wish to use, purchase or otherwise make available any Educational Tool.
5.4 NO LIABILITY. EXCEPT AS EXPRESSLY PROVIDED IN THE DATA AGREEMENT, EACH PARTY’S AGGREGATE LIABILITY TO THE OTHER PARTY ARISING FROM OR RELATED TO THIS AGREEMENT SHALL BE LIMITED TO THE ACTUAL FEES PAID (OR OTHERWISE DUE AND PAYABLE) BY SUBSCRIBER TO LEARN FOR THE TWELVE MONTHS PRECEDING THE INCIDENT GIVING RISE TO THE LIABILITY; AND (2) NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, ARISING FROM BREACH OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY IN TORT OR ANY OTHER LEGAL THEORY.
5.5 Subscriber Employee Issues. Except to the extent arising from Lea(R)n’s breach of its obligations hereunder and/or from Lea(R)n’s negligence or willful misconduct, Subscriber acknowledges and agrees that in the event Subscriber has a dispute with any employee related in any way to use of the Service by a Subscriber employee (or a Subscriber employee has an issue with the Service of any kind), Subscriber agrees to release and indemnify, defend and hold harmless Lea(R)n (and its officers, directors, agents and employees) from and against all claims, demands and damages (actual and consequential) of every nature and kind, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with the foregoing. This obligation shall survive the termination or expiration of this Agreement.
6. Indemnity. Lea(R)n shall indemnify, defend and hold harmless Subscriber from and against any and all losses, damages, costs and expenses (including reasonable attorneys’ fees) arising out of or resulting from any claim, demand, charge, action, cause of action or other proceeding asserted by any third party against Subscriber alleging that the Service or LearnTrials or Subscriber’s use thereof infringes such third party’s patent, copyright, trademark, trade secret or other intellectual property right (each, an “Infringement Claim”). Without limiting the foregoing, if Lea(R)n receives notice of an Infringement Claim, Lea(R)n shall have the right, in its exclusive discretion and sole expense, to obtain for Subscriber (and its Subscriber Users) the right to continue to use the Service or modify or replace the Service with an alternative, non-infringing solution that performs all of the same material functionality, or if such attempts to not succeed after thirty (30) days, refund all amounts paid by Subscriber to Lea(R)n for the Service.
7. Miscellaneous. This Agreement, along with the Quote and Data Agreement, represents the complete agreement between the parties with respect to the subject matter hereof, and may only be amended by a writing executed by both parties. If any provision of this Agreement shall be held invalid, illegal or unenforceable, the validity, legality or enforceability of the other provisions hereof shall not be affected thereby, and the parties shall agree to adopt a valid, legal and enforceable provision as similar as possible to the original provision at issue. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original but all of which together shall constitute one and the same instrument. Facsimile signatures and signatures transmitted by email after having been scanned shall be accepted as originals for the purposes of this Agreement. The waiver by either party of a breach of or a default under any provision of this Agreement shall not be construed as a waiver of any subsequent breach of the same or any other provision of the Agreement, nor shall any delay or omission on the part of either party to exercise or avail itself of any right or remedy that it has or may have hereunder operate as a waiver of any right or remedy
8. Governing Law. This Agreement shall be interpreted, construed and governed according to the laws of the State of North Carolina, without reference to conflicts of law principles thereof.
9. Relationship of the Parties. No agency, partnership, joint venture, or employment is created as a result of this Agreement and neither party, nor its agents have any authority of any kind to bind the other party in any respect whatsoever. The parties will be deemed to be independent contractors and accordingly each party is responsible for its own taxes and withholding obligations.
10.Force Majeure; Neither party shall be liable for any failure or delay in performance of its obligations due to causes beyond the reasonable control of the party, including but not limited to, war, sabotages, insurrection, riot or other acts of civil disobedience, act of government affecting the terms hereof, acts of terrorism, accident, failure of telecommunications or internet service, power outages, severe weather, fire, explosion, hurricane or other acts of God
11.Assignment; Parties in Interest. This Agreement may not be assigned (by operation of law or otherwise) or transferred, in whole or in part, by either party without the prior written consent of the other party; provided, however, that either Party shall be entitled to assign this Agreement, without the prior written consent of the other Party, to an affiliate of such Party or to any successor corporation or other legal entity which succeeds as a going concern to the business presently conducted by such Party pursuant to a merger, consolidation or sale of all or substantially all of its assets, if such successor corporation assumes in writing such party’s obligations hereunder. Except as specifically provided herein, this Agreement is not intended to and does not create any rights in favor of any person or legal entity not a party hereto.