ARTICLE 1. GRANT OF LICENSES.
1.1 Products and Services Genius Education leases its product the 360° Solution suite and grants the client the rights to use the product for the specific modules and duration of time listed in the quote also referred to as Attachment 1
1.2 Genius Education’s License to Client. During the Term, and subject to the use restrictions and other terms of this Agreement, Genius Education hereby grants to Client and its Permissible End Users a royalty-free, non-exclusive, non-transferable right and license to use the Services described more fully on the Order (“License”). “Permissible End Users” means the directors, managers, employees, donors, parents and students of the Clients. All references in this Agreement to “End Users” shall mean Permissible End Users.
1.3 Services. Genius Education may make commercially reasonable changes to the Services, from time to time. If Genius Education makes a material change to the Services, Genius Education will inform Client.
1.4 Facilities and Data Transfer. All facilities used to store and process Client data will adhere to reasonable security standards no less protective than the security standards at facilities where Genius Education stores and processes its own information of a similar type. Genius Education has implemented at least industry standard systems and procedures to ensure the security and confidentiality of Client data, protect against anticipated threats or hazards to the security or integrity of Client data, and protect against unauthorized access to or use of Client data. As part of providing the Services, Genius Education may transfer, store and process Client data in the United States or any other country in which Genius Education or its agents maintain facilities. By using the Services, Client consents to this transfer, processing and storage of Client data.
1.5 Use. Client will use the Services in connection with Client’s usual and customary business purposes and for no other use. Genius Education may make new applications, features or functionality available from time to time through the Services, the use of which may be contingent upon Client’s agreement to additional terms.
ARTICLE 2. RESERVATION OF RIGHTS; RESTRICTIONS ON USE.
2.1 Reservation of Rights. Genius Education is the sole and exclusive owner of all right, title and interest in and to the Services. The data belongs to the client. And any and all derivative works and software which comprise the Services, and the proprietary system and method of its collection, compilation and delivery. Except for the License rights granted in this Agreement, no right, title or interest in or to the foregoing are granted or transferred hereunder, by license or otherwise.
2.2 Restrictions on Use. Client shall be permitted to sub-license or otherwise distribute the other party’s data provided hereunder to any third party on a standalone basis or in unmodified form. Client shall not: (i) sell, resell, lease or the functional equivalent, the Services to a third party; (ii) attempt to reverse engineer the Services or any component; (iii) attempt to create a substitute or similar service through use of, or access to, the Services (iv); use the Services to create, enhance or structure any database for resale or distribution; (iv) redistribute the Services over the Internet; or (v) use the Services to create derivative products.
2.3 Revocation. Genius Education may revoke the License granted to the Client hereunder if the Client is in uncured material breach of the License restrictions under this Section or its confidentiality obligations under Section 5, or if the Client commits an uncured material violation of Genius Education’s intellectual property rights. Client’s rights under the License are subject to Client’s continued compliance with this Agreement.
ARTICLE 3. DELIVERY; AVAILABILITY AND UPDATES; SUPPORT; REPRESENTATIONS.
3.1 Delivery of Services. Genius Education shall deliver the Services in accordance with the schedule provided in the Order.
3.2 Availability. The Services will be made available to the Client 24 hours a day and 7 days a week subject to scheduled maintenance requirements for the Services as set forth in Section 3.4.
3.3 Updates. From time to time Genius Education may make available to Client new, updated and/or supplemental content for elements of the Services (“Updates”). To the extent any Updates are provided hereunder, they shall be licensed under the same terms and conditions as the applicable Services.
3.4 Training, Support and Maintenance. Genius Education will provide training services as well as support and maintenance (“Support Services”) to Client as ordered and paid for pursuant to an applicable Order and in accordance with the terms of Support Services located at http://geniuseducation.com/support-services/ . With respect to Support Services, Client hereby agrees that it will, at its own expense, respond to questions and complaints from End Users or third parties relating to Client’s or End Users’ use of the Services. Client will use commercially reasonable efforts to resolve support issues before escalating them to Genius Education. If Client cannot resolve a support issue consistent with the above, then Client may escalate the issue to Genius Education and Genius Education will provide second level technical support to Client. All contact and communications between Genius Education and the Client shall be only with the designated Administrators (as defined below) and Genius Education will have neither responsibility nor obligation to respond to inquiries, requests for support or other communications except through such Administrators. Genius Education will provide Client with all standard documentation in either hard copy or electronic format customarily and usually prepared by Genius Education in connection with the Services.
3.5 Violations. If Genius Education becomes aware of an End User’s violation of the Agreement, then Genius Education may specifically request that Client suspend the applicable End User account. If Client fails to comply with Genius Education’s request to suspend an End User account, then Genius Education may do so in its sole and absolute discretion. “End user account” means a Genius Education-hosted account established by Client through the Services for an End User.
3.6 Hardware and Connectivity. Client is solely responsible for obtaining and maintaining any hardware, software or connectivity necessary to take delivery of the Services.
3.7 Administrators. Client may specify up to two administrators in an applicable Order who will have the rights to access admin account(s) and to administer the End User accounts. “Administrators” mean the Client-designated technical personnel who administer the Services to Client and End Users on Client’s behalf. The names and contact information for each Administrator shall be provided to Genius Education in writing. Client is responsible for: (a) maintaining the confidentiality of the password and admin account(s); (b) designating those individuals who are authorized to access the admin account(s); and (c) ensuring that all activities that occur in connection with the admin account(s) comply with the Agreement. Client agrees that Genius Education’s responsibilities do not extend to the internal management or administration of the Services for Client and that Genius Education is merely a data-processor and software provider. “Admin account(s)” means the administrative account(s) provided to Client by Genius Education for the purpose of administering the Services. The use of the admin account(s) requires a password, which Genius Education will provide to Client.
3.8 End User Consent. Client’s administrators may have the ability to access, monitor, use, or disclose data available to End Users within the End User accounts. Client will obtain and maintain all required consents from End Users to allow: (i) Client’s access, monitoring, use and disclosure of this data and Genius Education providing Client with the ability to do so and (ii) Genius Education to provide the Services. Client will use commercially reasonable efforts to prevent unauthorized use of the Services, and to terminate any unauthorized use. Client will promptly notify Genius Education of any unauthorized use of, or access to, the Services of which it becomes aware.
3.9 Representations. Each party represents and warrants to the other party that: (a) it has full corporate power and authority to enter into this Agreement and to carry out the provisions hereof; (b) it is duly authorized to execute and deliver this Agreement and to perform its obligations hereunder; and (c) the execution, delivery and performance of its obligations under this Agreement does not conflict with any other agreement to which it is a party or by which it is bound.
EXCEPT AS 4. EXPRESSLY SET FORTH HEREIN, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND OR NATURE, EXPRESS OR IMPLIED, AS TO THE CONDITION, VALUE OR QUALITIES OF THE DATA PROVIDED HEREUNDER, AND EACH PARTY SPECIFICALLY DISCLAIMS ANY REPRESENTATION OR WARRANTY OF MERCHANTABILITY, SUITABILITY OR WORKMANSHIP THEREOF, OR THE ABSENCE OF ANY DEFECTS OR ERRORS THEREIN.
ARTICLE 4. FEES, TAXES AND PAYMENTS.
4.1 Fees. Client shall pay Genius Education the Fees. Fees means the amounts invoiced to Client by Genius Education for the Services as described in the Order.
4.2 Invoices; Taxes; Currency. Invoices for Services shall be issued in accordance with the payment schedule set forth on the Order. Fees are due as stated in the Order and if not so stated, then Net 15 days from the date of invoice. Past due amounts are subject to the maximum monthly interest charge allowed by law. All fees shall be made in US Dollars, and are exclusive of applicable taxes, which shall be paid for by Client.
4.3 Payments in Event of Breach. In the event that the Client is provided any discount, preferred pricing package or like savings in payment terms on the Order and the Agreement is terminated due to breach of this Agreement or any other obligation by the Client, the discount will be forfeited and the Client shall owe the full quoted price as is noted on the Order for the duration of the Agreement. The Client shall be immediately invoiced the forfeited sums for past periods under the Agreement with payment due within 15 days from the invoice date.
ARTICLE 5. CONFIDENTIAL INFORMATION.
5.1 Generally. Client acknowledges that the Services and all applicable support tools, techniques and databases therein: (a) are proprietary to Genius Education and constitute its Confidential Information (defined in Section 5.2); (b) constitute trade secrets owned by Genius Education or its licensors; (c) are the valuable property of Genius Education or its licensors; and (d) have commercial value. As such, Client shall maintain all Services in strict confidence as provided in this Agreement and shall use the Services only as permitted hereunder. As an express condition to the license rights granted in Article 1, Client may not attempt to discover trade secrets or other proprietary information related to the applicable data through decompiling, reverse-engineering, translating, reverse-translating or use of other methods with respect to the Services. Genius Education acknowledges that all End User Data are proprietary to the Client and to End Users and are Confidential Information. “End User Data” means all information input or supplied by an Administrator about an End User or by an End User through use of the Services.
5.2 Confidential Information. Each party acknowledges and agrees that it or its employees may, in the course of performing its responsibilities under this Agreement, be exposed to or acquire information, data or materials, in tangible or intangible form, that are trade secrets of and/or proprietary or confidential to the other party or their customers or to third parties to whom the disclosing party owes a duty of confidentiality (“Confidential Information”). Confidential Information shall also include: (a) the terms of this Agreement; (b) the Genius Education related marketing materials; (c) customer lists, prospect lists, existing agreements with vendors and business partners of either party, and pricing proposals; (d) marketing, sales, financial and other business information, data and plans; (e) research and development information; (f) End User Data, information concerning the End Users, prospective End Users, employees and service providers of either party; and (g) any other information identified in writing as confidential or information that the receiving party knows or should reasonably know is confidential. The receiving party agrees to hold such Confidential Information in strict confidence and will not copy, reproduce, sell, assign, license, market, transfer or otherwise dispose of, give or disclose such Confidential Information to third parties or use such Confidential Information for any purposes whatsoever except to the limited extent necessary to perform and exercise its rights under this Agreement and shall advise each of its employees who may be exposed to Confidential Information of their obligations to keep such Confidential Information confidential.
5.3 Exceptions; Irreparable Harm. The foregoing restrictions shall not apply to Confidential Information which is: (a) or becomes publicly available other than by disclosure by the receiving party in violation of this Agreement; (b) demonstrably known to receiving party previously; (c) independently developed by either party outside of this Agreement; or (d) rightfully obtained by either party from third parties. If one party breaches its obligations under this Article 5 or under Article 2, the non-breaching party may not have an adequate remedy at law. The parties agree, therefore, that the non-breaching party may be entitled, in addition to other available remedies, to seek an injunction restraining any actual, threatened or further breaches of the breaching party’s obligations or any other appropriate equitable order or decree.
ARTICLE 6. INDEMNIFICATION.
Each party (the “Indemnifying Party”) shall indemnify and defend the other and its officers, directors, employees and representatives (collectively, the “Indemnified Parties”) from any actual or threatened claim that the unmodified form of the data, content and materials licensed from Genius Education or obtained from the Client (including End User data) infringes, misappropriates or otherwise violates any right, title or interest (including any intellectual property right or right of privacy) of any third party. These indemnity and defense obligations are the Indemnifying Party’s only liability and the Indemnified Parties’ only remedy for such claims; provided, however, that they shall not apply to claims arising from the Indemnified Parties’ unauthorized use or modification of the data, content or materials licensed from the Indemnifying Party hereunder or from the Indemnified Parties’ combination of the licensed data, content or materials with the products, content, data, materials or technologies of any other party.
ARTICLE 7. ARBITRATION; LIMITATION OF LIABILITY.
7.1 Arbitration. Any dispute, controversy or claim arising out of or relating in any way to the Agreement, including but not limited to the construction, validity, interpretation, enforceability or breach of the Agreement, except as provided for in Section 9.8, shall be exclusively resolved by binding arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules. The judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction. The arbitration shall take place in the City of New York. The arbitrator shall decide the dispute in accordance with the substantive law of the State of New York. There shall be one arbitrator named in accordance with such rules.
7.2 Limitation of Liability. Except for a breach of the parties’ confidentiality obligations under article 5, or for indemnity claims under article 6, or for losses or damages incurred by a party due to the grossly negligent or willful acts or omissions of the other party: (A) In no event shall either party have any liability or obligation to the other party for any type of damages other than direct damages in an amount capped at the lesser of: (i) Twenty Thousand dollars ($20,000); and (ii) The total fees paid to Genius Education in the twelve (12) months preceding the date the claim was made; and (B) In no event shall either party be liable under the agreement for any lost profits or lost revenues, indirect, consequential, exemplary, punitive or incidental damages. Either party must bring all claims and causes of action within six (6) months of their being discovered or one (1) year after the date of termination or expiration of this Agreement, whichever occurs first. The limitations and exclusions in this Article 7 apply to all claims or causes of action on whatever basis and under whatever theory brought and irrespective of whether the party has been advised of the possibility of a claim.
ARTICLE 8. TERM AND TERMINATION.
8.1 Term. The term of this Agreement commences on the Effective Date and shall remain in full force and effect for the Term set forth on the Order.
8.2 Termination for Material Breach. If either party materially breaches its obligations under this Agreement, including, in the case of Genius Education, its obligations under Article 3.4, the non-breaching party may provide the other party with a written notice specifying the nature of the breach. The breaching party shall have thirty (30) days to cure from receipt of notice. If not cured within such period, then this Agreement shall be terminated. In all events, subject to Section 8.3, below, termination or expiration of this Agreement for any reason shall terminate the Licenses, as well as the right to continue ordering/purchasing hereunder.
8.3 Additional Effects of Termination; Survival. Upon termination or expiration of the rights hereunder, Client shall: (a) immediately cease use of the Services and any other data provided to Client pursuant to this Agreement; and (b) deliver to Genius Education all data within its possession or control at that time and delete all instances and copies thereof from all system cache, media and memory on media, hardware and networks owned by Client or under its reasonable control and, if requested 5. by Genius Education, certify, through an employee holding the title of Senior Vice President or higher (or the equivalent thereof), to Genius Education in writing that it has done so. In addition, upon termination or expiration of its rights, Client shall pay any outstanding amounts due to Genius Education and upon such payment Genius Education shall provide all End User Data to Client. The following Sections shall survive termination or expiration of this Agreement: Articles 5, 6, and 7 and those portions of Articles 8 and 9 which by their nature should survive, as well as those portions of Articles 1 and 2 required to survive given the surviving rights associated thereto.
ARTICLE 9. GENERAL TERMS AND CONDITIONS.
9.1 Governing Law and Venue. This Agreement shall be construed, interpreted and governed by the laws of the State of New York without regard to its conflicts of laws principles.
9.2 Interpretation. Headings to Articles and Sections of this Agreement are for convenience only and shall not affect the interpretation of this Agreement. Wherever used in this Agreement “will” and “shall" are used in an imperative sense while “may” is used in a permissive sense. The terms “this Agreement”, “herein”, “hereof”, “hereunder” and similar expressions refer to this Agreement and not any particular Article, Section or other portion hereof. Unless otherwise specified, “days” means calendar days. Any use of the terms “including” or “include” or the phrase “e.g.” in this Agreement shall mean “including, without limitation.” Unless otherwise specified, all references to notice shall require written notice.
9.3 Entire Agreement and Amendment. This Agreement, together with all Attachments and Schedules referenced herein, is the entire agreement between the parties with respect to its subject matter and supersedes all prior oral and written agreements and understandings between the parties concerning the subject matter hereof. This Agreement may not be modified or amended except by a formal written instrument signed by both parties and referencing this Agreement and the Articles or Sections hereof intended to be modified.
9.4 Waiver; Counterparts. The waiver or modification by either party hereto of any term or condition hereof shall not void, waive or modify any other term or condition. The failure of either party to insist, in any one or more instances, upon the performance of any term of this Agreement shall not be construed as a waiver or relinquishment of such party’s right to such performance or to future performance of such item. A waiver granted on one occasion shall not constitute a waiver of any future occasion. This Agreement may be executed in any number of counterparts, each of which shall collectively and separately constitute one Agreement. Unenforceable provisions shall be reformed to permit enforceability with maximum effect to the original intent, and remaining provisions shall not be affected.
9.5 Notices. All notices required or permitted to be given by one party to the other under this Agreement must be sent to the parties at the respective addresses set forth on the Order and shall be deemed delivered: (a) upon delivery if delivered in person; or (b) one (1) business day after deposit with a national overnight courier.
9.6 Assignment. Neither party may assign this Agreement without the prior written consent of the other party, except that either party shall have the right to assign this Agreement without consent: (a) in connection with a reorganization, merger, consolidation, acquisition or other restructuring involving all or substantially all of the voting securities and/or assets of the party and/or by Genius Education to an Affiliate. The term “Affiliate” shall mean all entities which directly or indirectly, through one or more intermediaries, control, are controlled by, or are under common control with Genius Education, where “control” means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership of voting securities, by contract or otherwise.
9.7 Publicity. Neither party may make any public statement regarding the relationship contemplated by this Agreement without the other’s prior written approval, such approval not to be unreasonably conditioned or withheld; provided, however, that either party may, within ten (10) days of the Effective Date, without the other’s prior approval, distribute a press release announcing the existence of this Agreement. Additionally, with prior approval of the other party, which approval shall not be unreasonably conditioned or withheld, either party may include the other’s marks and logos, and may mention the parties’ relationship, in presentations, marketing materials (including the “licensees” or “partners” portions of their websites) and customer lists.
9.8 Injunctive Relief. Each party acknowledges and agrees that any actual or threatened breach or violation of Section 2.2, Section 5, or Section
9.9 of this Agreement will constitute immediate, irreparable harm to the other party for which monetary damages would be an inadequate remedy, and that the injured party shall be entitled to injunctive relief for any such breach or violation without the necessity of proving damages or posting a bond. Notwithstanding the arbitration requirement of Section 7.1, the injured party may seek injunctive relief for any actual or threatened breach or violation of the aforesaid sections of this Agreement shall be brought in the courts of the State of New York, County of New York or the Federal District Courts sitting in the Southern District of New York, which courts shall have exclusive jurisdiction for such purposes.
9.9 Non-Solicitation. During the Term and for six (6) months thereafter, neither party shall, without the prior written approval of the other party obtained at least ninety (90) days in advance, directly or indirectly solicit for employment or hire the other party’s present or recent employees with whom the soliciting party had contact pursuant to this Agreement in the six (6) months preceding the desired solicitation. Solicitation does not include the placing of general advertisements in newspapers, on websites or other general communication methods.
9.10 Force Majeure. Failures in performance beyond a party’s reasonable control (including as a result of acts of god, government actions, fire, labor difficulties, civil disturbances, transportation interruptions, interruptions of power or communications, failure of its respective contractors or other natural or supervening disasters) are excused.
9.11 Independent Contractors. Each party shall at all times remain an independent contractor for the purposes of this Agreement and not an agent, employee, co-venturer or partner of the other party with respect to the transactions contemplated hereunder. Except as provided herein, neither party has granted to the other the right to bind it in any manner whatsoever. Each party assumes full responsibility for the actions of its personnel while performing hereunder, and shall be solely responsible for their supervision, daily direction and control and for the payment of all of their compensation and other employment related payments.
9.12 Data Ownership. All data shall, at all times, remain the property of the Client. Upon termination of the contract, all data is to be transferred to Client in electronic format. Genius Education shall cooperate in the complete, orderly transfer of the data in an expeditious and professional manner. Complete file layouts for all data provided in electronic format will be provided to Client by Genius Education.