TUTORING SERVICES AGREEMENT
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THIS SERVICES.
BY SIGNING AN ORDER, USING THE SERVICES, OR CLICKING “AGREE” OR OTHER FORM OF ASSENT, YOU ARE AGREEING TO BE BOUND BY THIS AGREEMENT. IF YOU ARE AGREEING TO THIS AGREEMENT ON BEHALF OF OR FOR THE BENEFIT OF YOUR EMPLOYER OR A THIRD PARTY, THEN YOU REPRESENT AND WARRANT THAT YOU HAVE THE NECESSARY AUTHORITY TO AGREE TO THIS AGREEMENT ON THEIR BEHALF.
This agreement (“Agreement”) is between FEV Tutor, Inc., (“FEV”), and the Customer agreeing to these terms (“Customer”).
This agreement and the applicable order provide Customer with (i) tutoring services, (ii) access to and usage of an Internet-based software platform, including, without limitation, its features, functions, and user interface, and underlying software (“Platform”), and (iii) design and delivery services ((i), (ii) and (iii) are collectively referred to herein as the (“Services”). This Agreement contemplates one or more orders for the Services, which orders are governed by the terms of this Agreement.
2. USE OF SERVICES.
a. Authorized Users. Customer may allow its employees, contractors, and its students (“Authorized Users”) to use the Services, solely on behalf of Customer and its students, provided Customer is responsible for such Authorized Users’ compliance with the terms of this Agreement.
b. Customer Customer: (i) must use industry standard password management practices to keep its passwords for its account in the Services secure and confidential, and promptly notify FEV of any unauthorized access to its account in the Services; (ii) is responsible for its access control policies and administration of access rights to its account within the Services, the acts and omissions of its Authorized Users, and the accuracy of and permissions to provide the Customer Data (as defined below); and (iii) may use the Services only in accordance with the Services’ user guide and applicable law.
c. Third Party Services. The Services may interoperate with third party services (“Third Party Services”), and may depend on continuing availability of and access to Third Party Services for full functionality of the Services.
a. Fees and Payment. Customer must pay all fees as specified on the order, but if not specified, then within 30 days of receipt of an invoice. The fees are exclusive of sales, use, withholding, VAT and other similar taxes, and Customer is responsible for payment of such taxes at the rate and in the manner for the time being prescribed by law. If FEV has the legal obligation to pay or collect taxes for which Customer is responsible under this section, FEV will invoice Customer and Customer will pay that amount unless Customer provides FEV with a valid tax exemption certificate authorized by the appropriate taxing authority.
b. Nonpayment. Any invoiced amount not received by FEV by the due date may accrue interest at the lower rate of 1.5% per month or the maximum rate permitted by law. In addition, if an invoiced amount is 30 days or more past due, FEV may suspend access to the Services until the amount is paid in full, provided FEV has given Customer at least 30 days’ prior written notice that its account is past due.
4. TERM AND TERMINATION.
a. Term.This Agreement continues until all orders have expired, unless earlier terminated as provided below.
b. Term of Orders. The term of each order must be specified in the order. [Term of Orders. Unless otherwise stated in an order, (i) orders and all subscriptions under them will automatically renew for additional one-year periods unless a party notifies the other of non-renewal 30 or more days before the renewal date, (ii) an automatically renewing order will remain unchanged from the prior term except for any pricing increase of which FEV has notified Customer 60 or more days before the renewal date, and (iii) upon automatic renewal, the per-unit pricing for any Service will not increase by more than 7% over that in the prior term unless the prior pricing was clearly designated in the order as promotional or one-time.]
c. Mutual Termination for Material Breach. If either party is in material breach of this Agreement, the other party may terminate this Agreement and all orders at the end of a written 30-day notice/cure period, if the breach has not been cured.
d. Effect of Termination. If this Agreement is terminated for FEV’s breach, FEV will refund Customer fees prepaid for the remainder of the term of all orders beginning on the termination effective date. If this Agreement is terminated for Customer’s breach, Customer will pay any unpaid fees for the term of all orders.
5. MUTUAL CONFIDENTIALITY.
a. Confidential Information Definition and Exclusions. Confidential Information is defined as all non-public information disclosed by one party (“Discloser”) to the other party (“Recipient”) under this Agreement, which information is either designated in writing as confidential, or is information that reasonably should be understood to be confidential given the nature of the information and the circumstances of its disclosure (“Confidential Information”). FEV’s Confidential Information includes, without limitation, the Services, and pricing information. Customer’s Confidential Information includes, without limitation, the Customer Data. Confidential Information excludes information that: (i) is or becomes generally known to the public without breach of any obligation owed to Discloser; (ii) was known to Recipient before its disclosure by Discloser, or is received by Recipient from a third party, either of these without breach of any obligation owed to Discloser; or (iii) is independently developed by Recipient without use of or access to Discloser’s Confidential Information. Recipient may disclose Confidential Information to the extent required by law or court order, but will provide Discloser with advance notice to seek a protective order.
b. Protection of Confidential Information. Recipient agrees that it will use the Confidential Information solely for purposes within the scope of this Agreement (“Purposes”), and that it will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than a reasonable degree of care) to limit access to Confidential Information of Discloser to those of its employees and contractors who: (i) have a need to know the Confidential Information for the Purposes, and (ii) have written obligations of confidentiality in place with Recipient that are at least as stringent as those in this Agreement.
c. Requests for Confidential Information. Recipient may disclose Discloser’s Confidential Information in the event of a government or other third party’s lawful request, provided that Recipient will notify Discloser of such request prior to such disclosure if Recipient is legally permitted to do so.
a. Reservation of Rights. FEV and its licensors are the sole owners of the Services, including all associated intellectual property rights. Customer may not remove or modify any proprietary marking or restrictive legends in the Services. FEV reserves all rights in the Services that are not expressly granted in this Agreement.
b. Restrictions. Customer may not: (i) sell, resell, rent, or lease the Services or use them in a service-provider capacity; (ii) use the Services to store or transmit material in violation of privacy or intellectual property rights or applicable law, or to store or transmit malware; (iii) attempt to gain unauthorized access to the Services or its related systems or networks or interfere with or disrupt the integrity or performance of the Services; (iv) reverse engineer the Services except as allowed by applicable law despite this limitation; or (v) access the Services to build a competitive service or product, or copy any feature, function, or graphic for competitive purposes. FEV may suspend Services to Customer if FEV believes in good faith that Customer’s use of the Services poses an imminent threat to the security, availability or legality of the Services; in such event, FEV will work with Customer to address the issue and restore Services as quickly as possible.
c. De-Identified, Aggregated and Statistical Information. During and after the term of this Agreement, (i) FEV may use all de-identified and aggregated data within the Services, and (ii) FEV may compile and use statistical information related to the usage of the Services, both (i) and (ii) for any legitimate business purpose, including but not limited to enhancing and marketing the Services and research purposes. No de-identified, aggregated or statistical information may identify Customer Data, and there will be no means to re-identify Customer Data from it. FEV owns and retains all intellectual property rights in all such de-identified, aggregated and statistical information.
d. Feedback If Customer provides feedback or suggestions about the Services, then FEV may use such information without obligation to Customer.
e. Customer Data. All data uploaded by Customer to the Platform remains the property of Customer, as between FEV and Customer (“Customer Data”). During the term of this Agreement, Customer grants FEV the right to use the Customer Data solely for the Purposes this (which includes, without limitation, the right for FEV to enhance its Platform, technology and offerings) and in compliance with all applicable laws. During the term of this Agreement, Customer may export it Customer Data as allowed by the functionality of the Services.
7. WARRANTIES AND DISCLAIMER.
a. Customer Warranties. Customer represents and warrants to FEV that: (i) Customer has provided all required notices and has obtained all required licenses, permissions, and consents regarding Customer Data for use in accordance with the Purposes.
b. Mutual Warranties. Each party represents and warrants that it complies with all applicable laws, including but not limited to FERPA and COPPA.
c. DISCLAIMER FEV DISCLAIMS ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE. WHILE FEV TAKES REASONABLE PHYSICAL, TECHNICAL, AND ADMINISTRATIVE MEASURES TO SECURE THE SERVICES, FEV DOES NOT GUARANTEE THAT THE SERVICES CANNOT BE COMPROMISED. CUSTOMER UNDERSTANDS AND AGREES THAT: (I) THE SERVICES MAY NOT BE ERROR-FREE AND THE USE MAY BE INTERRUPTED, AND (II) FEV IS NOT RESPONSIBLE OR LIABLE FOR ANY THIRD PARTY SERVICE ISSUES.
8. LIABILITY LIMIT.
a. EXCLUSION OF INDIRECT DAMAGES. FEV IS NOT LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, COSTS OF DELAY; LOSS OF OR UNAUTHORIZED ACCESS TO DATA OR INFORMATION; AND LOST PROFITS, REVENUE, OR ANTICIPATED COST SAVINGS), EVEN IF IT KNOWS OF THE POSSIBILITY OR FORESEEABILITY OF SUCH DAMAGE OR LOSS.
b. TOTAL LIMIT ON LIABILITY. EXCEPT FOR FEV’S INDEMNITY OBLIGATIONS, FEV’S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT, TORT, OR OTHERWISE) DOES NOT EXCEED THE AMOUNT PAID BY CUSTOMER WITHIN THE 12-MONTH PERIOD PRIOR TO THE EVENT THAT GAVE RISE TO THE LIABILITY.
a. FEV will defend or settle any third-party claim against Customer to the extent that such claim alleges that FEV technology used to provide the Services infringes a copyright, patent, trademark, or other intellectual property right, if Customer promptly notifies FEV of the claim in writing, cooperates with FEV in the defense, and allows FEV to solely control the defense or settlement of the claim. FEV will indemnify and hold harmless Customer from any infringement claim defense costs it incurs in defending Customer under this indemnity, FEV-negotiated settlement amounts, and court-awarded damages. Process. If such a claim appears likely, then FEV may modify the Services, procure the necessary rights, or replace them with the functional equivalent. If FEV determines that none of these are reasonably available, then FEV may terminate the Services and refund any prepaid and unused fees. Exclusions. FEV has no obligation for any claim arising from: FEV’s compliance with Customer’s specifications; a combination of the Services with other technology where the infringement would not occur but for the combination; Customer Data; or technology not provided by FEV. THIS SECTION CONTAINS CUSTOMER’S EXCLUSIVE REMEDIES AND FEV’S SOLE LIABILITY FOR INTELLECTUAL PROPERTY INFRINGEMENT.
b. Customer will, at its expense: (i) defend or settle any third-party claim against FEV arising out of or related to Customer’s unauthorizedly or unlawfully providing Customer Data to FEV or using Customer Data in the Services, and (ii) indemnify FEV and hold it harmless from all costs, damages, and attorneys’ fees, provided that FEV promptly notifies Customer of the claim in writing, cooperates with Customer in the defense, and allows Customer to solely control the defense or settlement of the claim.
10. GOVERNING LAW AND FORUM.
This Agreement is governed by the laws of the Commonwealth of Massachusetts (without regard to conflict of laws principles) for any dispute between the parties or relating in any way to the subject matter of this Agreement. Any suit or legal proceeding must be exclusively brought in the federal or state courts for Suffolk County, Massachusetts, and each party submits to this personal jurisdiction and venue. Notwithstanding the foregoing, the parties agree that a breach by a party of Section 5 of this Agreement (Mutual Confidentiality), or a violation by a party of the other party’s intellectual property rights, may cause irreparable injury or harm to the other party, and in such case the other party may seek an injunction, other equitable relief or court order in any court of competent jurisdiction. The prevailing party in any litigation is entitled to recover its attorneys’ fees and costs from the other party.
11. ENTIRE AGREEMENT AND CHANGES.
This Agreement and the order constitute the entire agreement between the parties and supersede any prior or contemporaneous negotiations or agreements, whether oral or written, related to this subject matter, including any data sharing, data collection, data usage, and data privacy agreements previously agreed to by the parties. If there is an inconsistency between this Agreement and an order, this Agreement prevails. Customer is not relying on any representation concerning this subject matter, oral or written, not included in this Agreement. No representation, promise, or inducement not included in this Agreement is binding. No waiver of any term of this agreement is effective unless both parties sign it. If any term of this Agreement is invalid or unenforceable, the other terms remain in effect. The UN Convention on Contracts for the International Sale of Goods does not apply to this Agreement. This Agreement may be modified through an online process provided by FEV. FEV rejects additional or conflicting terms of a Customer’s form-purchasing document.
a. Survival. All provisions of this Agreement regarding payment, confidentiality, indemnification, limitations of liability, proprietary rights and such other provisions that by fair implication require performance beyond the term of this Agreement must survive expiration or termination of this agreement until fully performed or otherwise are inapplicable.
b. Assignment. Neither party may assign or transfer this Agreement or an order to a third party; except that the Agreement and all orders may be assigned without the consent of the other party as part of a merger or sale of all or substantially all a party’s businesses or assets.
c. Compliance. The Services and Confidential Information may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. Neither party will permit its personnel or representatives to access or use any Services in a U.S.-embargoed country or in violation of any applicable export law or regulation.
d. Independent Contractors. The parties are independent contractors with respect to each other, and neither party is an agent, employee, or partner of the other party.
e. Force Majeure. Neither party is liable for its non-performance due to events beyond its reasonable control, including but not limited to natural weather events and disasters, labor disruptions, and disruptions in the supply of utilities.
Last Revised [02.15.2023].