FEV Tutor, Inc.
Additional Terms and Conditions
(“Client”) and FEV Tutor Inc.,, fka Focus Care, Inc. (“Company”) agree as follows:
Company provides school district (“Client”) an instructional subscription based software license for access to the Company’s online interactive tutoring software marketed under the name “FEV Tutor” (the “Platform”) where Client can find content (“Content”) and tutoring and related services to Client’s students (“Services”). Client desires to retain Company to provide the subscription based license for the right to access the Platform and receive the Services available there. Company agrees to license the Platform to Client pursuant to these terms and conditions (“T&C”) and, in conjunction with the Platform, to provide Services. Company is an independent contractor and neither it nor any of its directors, officers, employees or agents shall be considered a partner, employee or agent of Client. These terms and conditions supersede all Client based purchase orders (“PO”), and if there is any conflict with the terms of any PO, the terms and conditions shall control.
The term “Agreement” as used herein shall refer to the executed Purchase Order and the terms under it and these Additional Terms and Conditions.
1. Client responsibilities. Client is responsible and liable for access to, and all uses of, the Platform and the Services, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Client is responsible for all acts and omissions of students, Client employees, agents and representatives, and any authorized users (“Users”). Client shall use reasonable efforts to make all Users aware of this Agreement’s provisions as applicable to such User’s use of the Platform and Services, and shall cause Users to comply with such provisions. Without limiting the foregoing, Client will: (a) supply student information necessary to populate the Platform for scheduling, reporting and running the Platform; (b) activate single sign on (Clever, Classlink, Google or other), as necessary for scaled licensing; (c) activate data share integration with NWEA MAP, STAR Diagnostic, i-READY (or other assessment provider), to share benchmark data on scale with Company; (d) work with Company to (i) develop and implement a roll out schedule for the Services, (ii) determine configuration of subjects and grade levels to be tutored for each student, (iii) develop a schedule of tutoring hours and slots for each student to allow targeted intervention of two to three hours per week per student; (e) follow minimum requirements designated by the Company for setting up the school computers/firewall for use with the Platform and, if school labs are used, products; (f) provide any data or curriculum resources necessary for Company to provide targeted individualized learning plans for students; and (g) help the Company with any coordination required to train students on the Platform. Use Restrictions. Client will not, and shall not permit any User to, access or use the Platform or Services except as expressly permitted by this Agreement and any applicable third-party license agreement.
2. Downtime. Client acknowledges and agrees that the Platform and Services may from time to time be unavailable due to: (a) routine or customary service downtimes scheduled by Company, and unscheduled downtimes due to unforeseen circumstances; (b) any act or omission by Client or any User that does not strictly comply with this Agreement and Company’s specifications for the Platform and Services; (c) any delay or failure of performance caused in whole or in part by Client’s delay in performing, or failure to perform, any of its obligations under this Agreement; (d) Client’s or its User’s Internet connectivity; (e) any Force Majeure Event (defined below); (f) failure, interruption, outage, or other problem with any software, hardware, system, network, facility, or other matter not supplied by Provider pursuant to this Agreement; or (g) disabling, suspension, or termination of the Platform or Services as permitted pursuant to this Agreement.
3. Payments. Invoices are due and payable within thirty (30) days from receipt of the applicable invoice. If Client fails to make any payment when due, without limiting Company’s other rights and remedies: (i) Company may charge interest on the past due amount at the rate of 1% per month (or 12% annualized) calculated daily or, if lower, the highest rate permitted under applicable law; (ii) Client shall reimburse Company for all costs incurred by Company in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (iii) if such failure continues for 90 days or more, Company may suspend Client’s and its Users’ access to any portion or all of the Platform and Services until such amounts are paid in full. All fees and other amounts payable by Client under these T&C are exclusive of taxes and similar assessments. Client is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Client hereunder, other than any taxes imposed on Company’s income.
4. Term and Termination.
- Term. The Agreement shall commence on the later of the effective date of the Purchase Order or the date specified as the Subscription Based License Start Date in the Purchase Orders and terminate on the date specified as the Subscription Based License End Date in the Purchase Order (and if no date is specified, one (1) calendar year) (“Initial Subscription Period”) and thereafter, the Agreement will renew for any additional period stated as the Renewal Subscription Period in the Purchase Order (and if no such period is specified in the Purchase Order, one (1) calendar year (“Renewal Subscription Period”; hereinafter, the Initial Subscription Period and each Renewal Subscription Period shall be referred to as the “Subscription Period” or “Term”) unless either party sends the other party written notice more than thirty (30) days prior to the expiration of the then current Subscription Period that it does not wish to renew.
- Termination for Breach. Either party may terminate this Agreement, in whole or in part, for the material breach of the other party if such material breach remains uncured for thirty (30) days after receipt of written notice from the non-breaching party of such material breach. The notice of the breach should be described in reasonable detail. Any breach that is not cured in 30 days may result in termination.
- Termination for Convenience. Client or Company may terminate this Agreement, in whole or in part, for its convenience by providing Company with thirty (90) days’ prior written notice of its intention to terminate for convenience.
4. Other Termination or Suspension. Notwithstanding anything to the contrary in this Agreement, Company may suspend or terminate Client’s and any User’s access to any portion or all of the Platform and Services if: (i) Company determines that (A) there is a threat or attack on the Platform, the Services, and/or any Company intellectual property (collectively, “Company IP”), (B) Client’s or any User’s use of the Company IP disrupts or poses a security risk to the Company IP or to any other client or vendor of Company, (C) Client, or any User, is using the Company IP for fraudulent or illegal activities, (D) Client has ceased to continue its operations in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding, or (E) Company’s provision of the Platform or Services to Client or any User is prohibited by applicable law; or (ii) any vendor of Company has suspended or terminated Company’s access to or use of any third-party services or products required to enable Client to access the Platform or Services.
- Effect of Termination. Termination of this Agreement shall not limit either party from pursuing other remedies available to it, including injunctive relief, nor shall termination relieve the parties of obligations that are otherwise owed under this Agreement. Company shall have no obligation to retain data more than ninety (90) days after termination or expiration of this Agreement.
- Platform. For the Term of this Agreement, and subject to the terms and conditions set forth herein, Company grants to Client a limited, non-exclusive, non-transferable right and license to access and use the Platform and the Services offered thereon solely for purposes stated in this Agreement.
- Client IP. For the Term of this Agreement, and subject to the terms and conditions set forth herein, Client grants to Company a royalty-free, worldwide, limited, non-exclusive license to use the Client intellectual property (“Client IP”) provided by Client for the purpose of (a) displaying such Client IP on the Platform as Client may determine, (b) identifying Client in Company’s promotional materials and on any Company website where Company has obtained Client’s advance written consent with regard to the same, and (c) in any manner deemed necessary by Company to provide the Platform and Services pursuant to this Agreement.
- As part of the offering under the Agreement, the Company and its personnel may be provided with access to certain educational records and similar personally identifiable information. The Client and the Company agree that the Company and any personnel utilized by it pursuant to the Agreement are deemed to be “school officials” for purposes of the Family Educational Rights and Privacy Act (“FERPA”). As such, a) confidential student information may be shared with the Company and its personnel based on the Client’s determination that the Company has a legitimate educational interest in the student involved, and the Company shall be bound to protect the confidentiality of students and personally identifiable information consistent with the law.
6. Limitations. Except for the limited license granted herein, each party is prohibited from using or displaying (directly or indirectly) any URL, logos, marks, trademarks, or service marks of the other party, in any manner whatsoever without the express written permission of such other party, which may be denied in the sole discretion of such party. All rights not granted are expressly reserved by the owner of such rights. All right, title, and interest in and to the Company IP are and will remain with Company. Client has no right, license, or authorization with respect to any of Company IP except as expressly set forth herein. Without limiting the foregoing, Client shall not use the Platform or Services for any purposes beyond the scope of the services and access granted under the Agreement and the Subscription Based License granted herein. Client shall not at any time, directly or indirectly, and shall not permit any Users to: (i) copy, modify, or create derivative works of the Platform or Services, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Platform or Services; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any source code or other software component of the Platform or Services, in whole or in part; (iv) remove any proprietary notices from the Platform or Services; (v) use the Platform or Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right; (vi) bypass or breach any security device or protection used by the Platform or Services or access or use the Platform or Services other than as expressly permitted herein; (vii) input, upload, transmit, or otherwise provide to or through the Platform or Services, any information or materials that are unlawful or injurious, or contain, transmit, or activate any harmful code; (viii) damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Platform or Services; or (ix) otherwise access or use the Platform or Services beyond the scope of the authorization granted hereunder, or in any manner that violates any applicable law.
7. Indemnification. Client will indemnify, hold harmless, and, at Company’s option, defend Company from and against any losses, damages, liabilities, costs resulting from: (a) any third-party claim that any information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Client or a User through the Platform or Services, including data and information regarding students (the “Client Data”), or any use of the Client Data, the Platform or the Services in accordance with this Agreement, infringes or misappropriates such third party’s intellectual property rights, or breaches or violates any data privacy laws or requirements; or (b) any third-party claim based on Client’s or any User’s (i) negligence or willful misconduct; (ii) use of the Platform or Services in a manner not authorized by this Agreement; (iii) use of the Platform or Services in combination with data, software, hardware, equipment, or technology not provided by Company or authorized by Company in writing; (iv) modifications to the Platform or Services not made by Company; or (v) use of any other materials or information (including any documents, data, specifications, software, content, or technology) provided by or on behalf of Client, any User, or any third party. Client may not settle any third-party claim against Company unless Company consents to such settlement, and further provided that Company will have the right, at its option, to defend itself against any such third-party claim or to participate in the defense thereof by counsel of its own choice.
8. No Warranty. THE PLATFORM, SERVICES AND RELATED COMPANY IP ARE PROVIDED “AS IS” AND COMPANY HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. COMPANY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. COMPANY MAKES NO WARRANTY OF ANY KIND THAT THE PLATFORM, SERVICES OR COMPANY IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CLIENT’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
9. Limitations of Liability. IN NO EVENT WILL COMPANY BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL COMPANY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, EXCEED THE TOTAL AMOUNTS PAID TO COMPANY UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
10. Non-Solicitation. During the Term of this Agreement and for twelve (12) months after the earlier of its termination or expiration, the parties will not, without the written consent of the other party, directly solicit for hire any employee of the other party that worked under this Agreement, provided that compliance with this provision shall not require any party to violate applicable law. Notwithstanding the foregoing, a party’s general solicitation of employees (through, for example, advertisements in newspapers, magazines, trade journals or on the internet) will not be a violation of this provision nor will a party’s hiring of personnel of the other party who responds to such a general solicitation be a violation of this provision.
11. Governing Law and Venue. This Agreement shall be construed, interpreted and governed by the laws of the State in which the school district resides Any litigation between the parties must be filed in a state or federal court in which the school district resides.
12. Assignment. This Agreement (and any license granted hereunder) is not assignable, in whole or in part, by operation of law or otherwise, by either party without the prior written consent of the other party, which will not be unreasonably withheld, except either party may assign this Agreement without prior written consent to (i) any affiliate, or subsidiary, or (ii) any entity who acquires, directly or indirectly, all or substantially all of its assets or business, or (iii) any successor in interest entity as part of, or in connection with any merger, acquisition, reorganization or consolidation, or (iv) any other surviving entity or company in the event where a Change of Control occurs. “Change of Control” means any transaction or series of related transactions: (a) as a result of which the holders of the voting securities of the company outstanding immediately prior to such transaction would not continue to retain directly or indirectly (either by such voting securities remaining outstanding or by such voting securities being converted into voting securities of the surviving entity or otherwise), more than fifty percent (50%) of the total voting power represented by the voting securities of the company or the surviving entity outstanding immediately after such transaction or series of transactions; or (b) that constitute the sale, lease, transfer, exchange, exclusive license or other conveyance of at least fifty percent (50%) of the assets of the company; or (c) pursuant to which the Party transfers to a third party a controlling interest in (e.g., the ability to change the direction or management of) such entity. [Also, for the avoidance of doubt, notwithstanding the foregoing, Company may delegate any of its responsibilities under the Agreement to any third-party subcontractor that it wishes to use to support it in the provision of the Platform or the Services.]
13. Force Majeure. Each party shall be excused from any delay in, or impossibility of, performance due to any cause beyond its or its suppliers or subcontractors control including, but not limited to, acts of God, war, acts of government, acts of Client, utility outages, fire, flood, strike or labor trouble, sabotage, delay in obtaining labor, materials, equipment or transportation (“Force Majeure Event”).