HomeMy WebLinkAboutAccelerate Education Master Services and License Agreement - SignedMaster Services and License Agreement
Between
Bonneville Joint School District 93
and
Accelerate Education
Bonneville Joint School District 93 ("Customer') and Accelerate Education Incorporated, a Nevada
corporation ("Acceler!te") enter into this Master Services and License Agreement (the "Agreement") as
of the fd-.'*'-day of.tll' ~ . 2020
1) Products and Services
Subject to the terms and condrtions set forth in this Agreement. Accelerate agrees to provide the products
and perform the services described in the attached Exhibits Accelerate reserves the right. from time to
time, to add, change or discontinue any of its products or services.
2) Title to Licensed Materials
Customer acknowledges and agrees that Accelerate shall retain all right, title and interest in and to the all
products licensed to Customer hereunder, including without limitation all content, curriculum, delivery
systems. documentation. including releases and code bases, which Accelerate may from time to time
provide to Customer hereunder (the "Licensed Materials") and which Customer and Accelerate agree
shall be added to Exhibit A. Nothing herein transfers or conveys to Customer any ownership right, title or
interest in or to the Licensed Materials or to any copy thereof or any Accelerate Intellectual Property
therein.
"Accelerate Intellectual Property" includes everything which Accelerate makes. conceives. develops,
discovers, reduces to practice or fixes in a tangible medium of expression, alone or wrth others, pursuant
to the terms of this Agreement, including without limitation any courses created by Accelerate, and all
intellectual property that Accelerate has or will develop, including developments, concepts, ideas,
procedures, and original works of authorship, including but not limited to interim work product, outlines.
modifications and derivative works. and all similar matters. whether or not copyrightable, and also
includes all records and expressions of those matters
3) Grant of License
License Terms. Accelerate hereby grants Customer a non-transferable, non-exclusive, royalty-free
license to access and use the Licensed Materials listed in Exhibit A during the term of this Agreement. All
such access and use of the Licensed Materials shall be sub1ect to the terms and conditions hereof.
Customer shall use its best efforts to prevent any improper use of the Licensed Materials or any violation
of Accelerate's rights 1n the Accelerate Intellectual Property, and shall, under no circumstances. sell,
lease. assign. sublicense or otherwise transfer the Licensed Materials except as provided herein.
Customer shall not remove any proprietary, copyright, patent. trademark. design right, trade secret, or any
other proprietary rights legends from the Licensed Materials. Customer agrees not to disassemble,
decompile, translate into human readable form or into another computer language, reconstruct or decrypt,
or reverse engineer. all or any part of the Licensed Materials Further, Customer shall not write or develop
any derivative works or computer programs based upon any part of the Licensed Materials.
4) Term and Termination
Initial Term. The initial term of this Agreement ("Initial Term") shall commence on the date of the
Agreement and shall continue for a one (1) year period. At the end of the Initial Term. this Agreement will
automatically renew for succeeding 12-month periods (each, a "Renewal Term") unless either party
notifies the other at least thirty (30) days prior to the end of such relevant Initial Term or Renewal Term
that it does not intend to renew.
Termination. Erther party may termrnate this Agreement on written notice if the other party materially
breaches any term or condition of this Agreement and fails to cure such breach wrthin ten (10) days rn
after the date of written notice to cure.
5) Fees, Invoices; Late Fees; Interest
Current pricing for the Licensed Materials is set forth in the Exhibit B attached hereto.
Customer will provide Accelerate with enrollment reports on a monthly basis throughout the term of this
Agreement (each, an 'Enrollment Report') which included Student Identifier, Course Trtle, Start Date, End
Date, Status (Active, Completed, Withdrawn, etc.). Accelerate shall invoice Customer for Licensed
Materials in Exhibit A. Customer shall pay all invoices wrthin thirty (30) days of the date of the invoice. In
the event that any invoice for fees rs not paid in full within 30 days of the rnvoice date, Customer shall pay
an additional late payment fee equal to 2.0% of the unpaid amount. plus srmple interest on the balance
owing at the rate of 18% per annum beginning 60 days after the date of the invoice as well as any costs
incurred by Accelerate in collecting the unpaid amount.
6) Accelerate Representations and Warranties
Delivery. Accelerate represents and warrants that (a) it has full power and authority to enter into, and to
perform its obligations under, this Agreement; (b) rt has all registrations, licenses and approvals
necessary to conduct rts business and to enter into and perform its obligations under this Agreement.
Functionality Accelerate represents and warrants that it will use its best efforts to make the Licensed
Materials function in a manner satisfactory to Customer and as outlined in this Agreement, and according
to published documentation: however, the parties acknowledge that the technology employed has
limitations beyond the control of Accelerate.
Intellectual Property. Accelerate represents and warrants that neither Accelerate, in connection with
performing the Services, nor the Licensed Materials will knowingly infringe any patent, copyright.
trademark or trade secret or other proprietary right of any person.
7) Customer Warranties and Representations
Customer represents and warrants that (a) it has full power and authority to enter into, and to perform its
obligations under, this Agreement: (b) rt has all registrations, licenses and approvals necessary to
conduct its business and to enter into and perform its obligations under this Agreement. Customer will not
knowingly infringe any patent, copyright. trademark or trade secret or other proprietary right of any
person. Customer further represents and warrants that it shall have in force valid agreements wrth any of
its employees, subcontractors or other third parties who may have access to the Licensed Materials
sufficient to ensure such parties' compliance with the terms of this Agreement regarding the use and
protection of the Licensed Materials and Accelerate Intellectual Property
8) Limited Liability
ASIDE FROM THE WARRANTIES PROVIDED HEREIN, THE LICENSED MATERIALS ARE PROVIDED
"AS IS," WITHOUT WARRANTY, EITHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED
WARRANTY OF MERCHANTABILITY, QUALITY. PERFORMANCE OR FITNESS FOR A PARTICULAR
PURPOSE. ACCELERATE'S MAXIMUM LIABILITY UNDER THIS AGREEMENT SHALL BE FOR
DIRECT DAMAGES AND SHALL BE LIMITED TO THE REFUND OF ALL FEES PAID BY CUSTOMER
UNDER THIS AGREEMENT. ACCELERATE WILL NOT BE LIABLE FOR ANY PROPERTY DAMAGE.
PERSONAL INJURY, LOSS OF USE, INTERRUPTION OF BUSINESS, LOSS OF PROFITS, OR
OTHER SPECIAL. INCIDENTAL OR CONSEQUENTIAL DAMAGES. HOWEVER CAUSED. WHETHER
FOR BREACH OF WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE). STRICT LIABILITY
OR OTHERWISE.
9) FERPA
Accelerate warrants to Customer that it w1;1 not make available or distribute any student information in
violation of the Family Educational Rights and Privacy Act ("The Buckley Amendment" or "FERPA").
10) Confidentiality
Each party agrees that during the existence of this Agreement and for two (2) years thereafter 1t will hold
in strictest confidence, and will not use or disclose to any third party, any Confidential Information of the
other party. The term "Confidential Information" shall mean all non-public information, whether business
or technical in nature that the other party designates as being confidential, or which under the
circumstances of disclosure ought to be treated as confidential. If any party has any questions as to what
comprises Conf1dent1al Information of the other party it agrees to consult with such other party prior to
any disclosure. Confidential Information shall not include information that was known to the receiving
party prior to disclosure, information that is independently developed by the receiving party who had no
access to the other party's Confidential Information, or information that becomes publicly available
through no fault of the receiving party. The restrictions on disclosure imposed by this Section shall not
apply to information that is required by law or order of a court, administrative agency or other
governmental body to be disclosed by the receiving party
11) Notice
All notices, requests. demands and other communications under this Agreement shall be in writing and
shall be effective upon receipt
Notice to Customer. Unless hereinafter changed by written not1ce. any notice to Accelerate or Customer,
other than invoices and notice with respect to invoices. shall be delivered or mailed to:
Bonneville Joint School District 93 Accelerate Education
3497 N Ammon Rd.
- - ----~-
Idaho Falls, ID 83401
3655 W Anthem Way
Suite A-109237
Anthem. Ai 85086 · - --··
Tel (208) 525-4400 Tel: 866-705-5575
Fax· ·-Fax: 866-716-0880
---~·---·----
12) Force Majeure
Neither party shall be considered to be 1n default as a result of its delay or failure to perform its obligations
herein when such delay or failure arises out of causes beyond the reasonable control of the party.
13) Indemnification
Each party shall indemnify, defend . .and hold the other harmless from and against any and all third party
claims. liabilities. damages. losses. costs and l'Xpenses (including reasonable attorneys' fees) arising out
of or relating to any breach or alleged breach ·of this Agreement by the indemnifying party. This 1s upon
the condition that the party seeking indemnification shall give the other party prompt written notice of such
suit and full right and opportunity to conduct the defense thereof, together with full information and all
reasonable cooperation. No costs or expenses shall be incurred for the account of the other party without
its written consent
14) Dispute Resolution & Mediation
Except for any claims seeking injunctive relief. 1n the event of any dispute. claim or controversy arising out
of or relating to this Agreement or the breach thereof (a "Dispute'), the parties shall first attempt to resolve
the Dispute, without formal proceedings. through a telephone conference between Accelerate's CEO or
other designated representative and Customer's CEO or other designated representative. If the parties
are unable to resolve the Dispute within ten (10) business days of receipt of a written notice from the
other that details the Dispute, then upon notice by either party to the other, the Dispute shall be finally
determined and settled by arbitration in accordance with the Commercial Arbitration Rules of the
American Arbitration Association ("AAA'). Unless otherwise agreed by the parties. the arbitration panel
shall consist of one arbitrator chosen 1n accordance with the AAA Any such arbitrator shall be
knowledgeable in the subject area in which the Dispute arises. Each party shall be entitled to
representation by counsel, to appear and present written and oral evidence and argument and to cross
examine witnesses presented by the other party. The arbitration award shall be in writing and the
arbitrator shall provide written reasons for the award. The award of the arbitrator shall be final and
binding on the parties hereto and may be enforced in any court of competent 1urisd1ct1on. The prevailing
party in any action or proceeding to enforce its rights hereunder shall be entitled to recover reasonable
attorneys' fees and other reasonable costs. including fees of the arbitrator and the AAA, incurred 1n the
action or proceedings. This Agreement shall be governed by the laws of the State of Arizona. The parties
agree that all facts and other information relating to any arbitration arising under this Agreement shall be
kept confidential to the fullest extent permitted by law.
15) Binding Effect
This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective
successors and affiliates.
16) Entire Agreement; Assignment
This Agreement (including the Exhibits) sets forth the entire understanding of the parties with respect to
the subject matter of this Agreement and supersedes any and all prior understandings and agreements,
whether written or oral, between the parties with respect to such sub1ect matter Neither party may assign
this Agreement, in whole or in part, without the other party's written consent; provided, however, that
either party may assign this Agreement without such consent in connection with any merger,
consolidation, any sale of all or substantially all of such party's assets
17) Severability
If any provision of this Agreement shall be invalid or unenforceable in any respect for any reason, the
validity and enforceability of any such provision in any other respect and of the remaining provisions of
this Agreement shall not be in any way impaired; provided, however, that the parties will attempt to agree
upon a valid and enforceable provision which shall be a reasonable substitute for each invalid provision or
unenforceable provision in light of the tenor of this Agreement and. upon so agreeing. shall incorporate
such substitute provision into this Agreement.
IN WITNESS WHEREOF. the Parties hereto have executed this Agreement on the day first above written.
erate Education
Michael Axtman, PresidenUCEO
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Exhibit C to
Master Services and License Agreement between
Customer and Accelerate Education
This Exhibit is part of the Agreement between Customer and Accelerate with respect to addrtional
responsibilities as provided herein. Except as otherwise defined in this Exhibit, all capitalized terms shall
have the meanings given to them 1n the Agreement.
Customer shall ensure that all authorized users of the fitness courses licensed to Customer by Accelerate
("Fitness Courses") agree in writing to be bound by and to comply with the consent and release terms of
use ("Terms of Use") set forth below, and the code of conduct ("Code of Conduct") set forth below, if any.
If an authorized user is a minor, Customer shall require that the Terms of Use and Code of Conduct (if
any) be executed by the parent or other legal guardian of each such minor, granting the parent's
permission for such minor to access and use the Fitness Courses, acknowledging the risks of
participation in the Fitness Courses and releasing Accelerate and its licensors from all liability related to
such participation. Customer shall provide Accelerate with a copy of each and all of the signed consents.
The Terms of Use shall be worded in substantially the same manner as provided below.
Terms of Use
The following waiver must be signed by any authorized user over the age of 18 or by the parents of any
authorized users who are under the age of 18.
1. I understand that my participation, or the participation of my child (if applicable), in Fitness
Courses involves risks of serious injury or death, and for myseW, and for my heirs, legal representatives,
and successors in interest, I fully assume all of the risks of such participation, including, but not limited to,
the following: dangers arising from equipment failure and inadequate safety equipment. health risks of
extreme or rigorous physical activity, pre-existing medical conditions, and risks arising from the
negligence of Accelerate Education Inc., its licensors and their respective principals. instructors,
employees, and heirs (the "Releasees"). Further, for myseW, and for my heirs, legal representatives, and
successors in interest, I hereby release the Releasees, and agree to defend, indemnify and hold the
harmless the Releasees, from and against any and all claims, losses, damages, costs, liabilities and
expenses of whatever kind or character, on account of any actual or alleged loss. injury or damage
(including, but not limited to, any loss, injury or damage arising from the Releasee's own negligence) to
any person or to any property arising out of or in connection with my participation in the Fitness Courses.
2. Accelerate Education Inc. grants you, the participant in the Fitness Courses, the right to use the
Fitness Courses solely as necessary for the purpose of participating in such Fitness Courses through
your educational institution. Your participation in such Fitness Courses is made possible only by license
agreement between Accelerate Education Inc. and your educational institution. You are not acquiring any
right, title or interest of any nature whatsoever in the Fitness Courses, or any part thereof, or any logo or
trade name by your participation in such Fitness Courses. Further, you hereby agree that you will not use
or copy any part of the Fitness Courses for any reason whatsoever, except as necessary to participate in
such Fitness Courses through, your educ;;iti.onal institution. All Fitness Courses are protected by copyright
and other laws.
Signed t{Jmt A· ~4)
Print Name Arnt{ f-ti!Jdu5
Date: /), Auq Jf!JQ
IN WITNESS WHEREOF, the parties have executed this Exhibit to be effective as of the effective
date of the Agreement
Aiate Education
B.~
Printed Name: Michael Axtman
Trtle: President I CEO