Master Services Agreement

This Service Agreement (this “Agreement”), effective as of the date electronically agreed (the “Effective Date”), is by and between Trilogy Mentors LLC, a Virginia limited liability company, located at 3126 W. Cary Street, Richmond, Virginia 23221 (“Provider”) and [CUSTOMER NAME], a [STATE OF ORGANIZATION] [ENTITY TYPE], located at [CUSTOMER ADDRESS] (“Customer”). Provider and Customer may be referred to herein collectively as the “Parties” or individually as a “Party.”

WHEREAS, Customer desires to offer online academic tutoring, mentoring and content (collectively, “Customer Services”) using its own content (“Content”) and instructors, tutors, and mentors (each, a “Customer Mentor;” and collectively, “Customer Mentors”) to persons enrolled at K-12 or collegiate institutions of learning, including their respective parent(s) or guardian(s) or employees of certain employers (“Students”);

WHEREAS, Provider provides online academic support program services and technology through access to a proprietary AWS cloud platform (the “Platform”); and

WHEREAS, Customer desires to utilize the Provider Platform to provider Customer Services to Students through the use of Content and Customer Mentors.

NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

1.  Definitions.

(a) “Access Credentials” means any user name, identification number, password, license or security key, security token, PIN, or other security code, method, technology, or device used, alone or in combination, to verify an individual’s identity and authorization to access and use the Services.

(b) “Affiliate” of an entity means any other person or entity that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such entity. The term “control” (including the terms “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by contract or otherwise.

(c) “Aggregated Statistics” means data and information related to Customer’s use of the Services and the Platform that is or may be used by Provider in an aggregate and anonymized manner, including, but not limited to, to compile statistical and performance information related to the provision and operation of the Services and Platform. 

(d) “Authorized User” means Students, Customer Mentors, and Customer’s employees, consultants, contractors, agents, or administrators who are authorized by Customer to access and use the Platform under the rights granted to Customer pursuant to this Agreement. Notwithstanding the foregoing, or anything else contained herein, Provider reserves the right to require any Authorized User, at any time, to separately agree to Provider’s then-current terms and conditions and privacy policy related to the Platform or Services, as the same may be amended from time to time, prior to providing access to such Authorized User to all or a specified portion of the Platform.

(e) “Customer Data” means, information, data, and other content, in any form or medium, that is collected, downloaded, submitted, posted, or otherwise received by Provider, directly or indirectly, or transmitted by or on behalf of Customer or an Authorized User through the Platform or use of the Services, other than Aggregated Statistics.

(f) “Documentation” means Provider’s user manuals, handbooks, instructions, and knowledge base relating to the Platform and Services that the Provider provides or makes available to Customer either electronically or in hard copy form/end user documentation relating to the Services and Platform.

(g) “Harmful Code” means any software, hardware, or other technology, device, or means, including any virus, worm, malware, or other malicious computer code, the purpose or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system, or network; or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality, or use of any data Processed thereby; or (b) prevent Customer or any Authorized User from accessing or using the Services or Platform as intended by this Agreement.

(h) “Process” means to take any action or perform any operation or set of operations that the Services are capable of taking or performing on any data, information, or other content, including to collect, receive, input, upload, download, record, reproduce, store, organize, compile, combine, log, catalog, cross-reference, manage, maintain, copy, adapt, alter, translate, or make other derivative works or improvements, process, retrieve, output, consult, use, perform, display, disseminate, transmit, submit, post, transfer, disclose, or otherwise provide or make available, or block, erase, or destroy. “Processing” and “Processed” have correlative meanings.

(i) “Provider IP” means the Services, the Platform, the Documentation, and any and all intellectual property provided to Customer or any Authorized User in connection with the foregoing. For the avoidance of doubt, Provider IP includes Aggregated Statistics and any information, data, or other content derived from Provider’s monitoring of Customer’s or any Authorized User’s access to or use of the Services or Platform, but does not include Customer Data. 

(j) “Services” means the software-as-a-service offering described in Exhibit A.

(k) “Session” means a session of interaction, commencing at the time two Authorized Users, or an Authorized User and a Customer Mentor, enter a virtual classroom (or at the conclusion of a Session that ends as a result of clause (ii) of this definition and immediately thereafter such Authorized Users or Customer Mentor, as applicable, continue to share a virtual classroom) and ends at the earlier of (i) when one of them exits the virtual classroom, or (ii) two hours after commencing.

(l) “Third-Party Products” means any third-party products described in
Exhibit A provided with or incorporated into the Services or Platform.

2. Access and Use.

(a) Provision of Access. Subject to and conditioned on Customer’s payment
of Fees and compliance with all other terms and conditions of this Agreement, Provider hereby grants Customer a non-exclusive, non-transferable (except in compliance with Section 11(g) right to access and use the Services during the Term, solely for use by Authorized Users in accordance with the terms and conditions herein. Such use is limited to Customer’s internal use. Provider shall provide to Customer the necessary passwords and network links or connections to allow Customer and Authorized Users to access the Services. Provider may change the equipment, hardware or software required to access the Service; or interrupt the Service, or any portion of the Service, to perform routine or non-routine maintenance, error correction or other changes.

(b) Documentation License. Subject to the terms and conditions contained in
this Agreement, Provider hereby grants to Customer a non-exclusive, non-sublicenseable, non-transferable (except in compliance with Section 11(g)) license to use the Documentation, if any, during the Term solely for Customer’s internal business purposes in connection with its, and the Authorized Users, use of the Services.

(c) Use Restrictions. Customer shall not, and shall not permit the Authorized
Users to, use the Services for any purposes beyond the scope of the access granted in this Agreement. Customer shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of the Services or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part; (iv) remove any proprietary notices from the Services or Documentation; (v) use the Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right (including any privacy right) of any person (including by any unauthorized access to, misappropriation, use, alteration, destruction, or disclosure of the data of any other Provider customer), or that violates any applicable law; (vi) bypass or breach any security device or protection used by the Services or access or use the Services other than use by an Authorized User through the use of his or her own valid Access Credentials. If Customer becomes aware of any actual or threatened activity prohibited by this Section 2(c), Customer shall, and shall cause its Authorized Users to, immediately: (a) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Services and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and (b) notify Provider of any such actual or threatened activity.

(d) Reservation of Rights. Provider reserves all rights not expressly granted
to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer, any Authorized User or any third party any intellectual property rights or other right, title, or interest in or to the Provider IP.

(e) Compliance with Data Privacy Regulations. Customer warrants that it shall maintain all Access Credentials, Customer Data, and other personally identifiable information pursuant to all applicable data privacy laws and regulations including, but not limited to, the California Consumer Protection Act and European Union General Data Protection Regulation. Customer further represents and warrants that it has read and acknowledged Provider’s Policy attached at Exhibit B.

(f) Suspension. Notwithstanding anything to the contrary in this Agreement,
Provider may temporarily suspend Customer’s and any Authorized User’s access to any portion or all of the Services :(i) if Provider reasonably determines that (A) there is a threat or attack on any of the Provider IP; (B) Customer’s or any Authorized User’s use of the Provider IP disrupts or poses a security risk to the Provider IP or to any other customer or vendor of Provider; (C) Customer, or any Authorized User, is using the Provider IP for fraudulent or illegal activities; (D) subject to applicable law, Customer has ceased to continue its business 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; (E) Provider’s provision of the Services to Customer or any Authorized User is prohibited by applicable law; or (F) Customer, or any Authorized User, has violated this Agreement or any then-current terms and conditions or privacy policy; (ii) if any vendor of Provider has suspended or terminated Provider’s access to or use of any third-party services or products required to enable Customer or an Authorized User to access the Services; or (iii) in accordance with Section 4(a) (any such suspension described in subclause (i), (ii), or (iii), a “Service Suspension”). Provider shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Services following any Service Suspension. Provider shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Provider will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension.

(g) Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, Provider may monitor Customer’s and the Authorized Users’ use of the Services and collect and compile Aggregated Statistics. As between Provider and Customer, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Provider. Customer acknowledges that Provider may compile Aggregated Statistics based on Customer Data input into the Services. Customer agrees that Provider may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law.

(h) Surveys. Notwithstanding anything to the contrary contained in this
Agreement, to the extent a survey with respect to a Customer Mentor is obtained pursuant to the Services, Provider shall have full use of such survey and as between Provider and Customer, all right, title, and interest in such survey, and all intellectual property rights therein, belong to and are retained solely by Provider and Provider may use such surveys to the extent and in the manner permitted under applicable law.

3. Customer Responsibilities.

(a) General. Customer is responsible and liable for all access to and uses of
the Services and Documentation, directly or indirectly through Authorized Users, whether such access or use is permitted by or in violation of this Agreement or any applicable law, reports related to the Services (other than Customer Mentor surveys), and Customer Data, by any means controlled by Customer or any Authorized User, including any information, instructions, or materials provided by any of the to Provider. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement or law if taken by Customer will be deemed a breach of this Agreement or law by Customer. Customer shall use reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Services, and shall cause Authorized Users to comply with such provisions. Customer agrees to comply with Provider’s then-current terms and condition and privacy policy, as well as the Family Educational Rights and Privacy Act and the Children’s Online Privacy Protection Act. Customer understands that Provider may require Customer and Authorized Users to accept updates to the Service.

(b) Customer Control and Responsibility. Customer has and will retain sole
responsibility for: (a) all Customer Data, including its content and use; (b) all information, instructions, and materials provided by or on behalf of Customer or any Authorized User in connection with the Services; (c) Customer’s information technology infrastructure, including computers, software, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or through the use of third-party services (“Customer Systems”); (d) the security and use of Customer’s and its Authorized Users’ Access Credentials; and (e) all access to and use of the Services and Documentation directly or indirectly by or through the Customer Systems or its or its Authorized Users’ Access Credentials, with or without Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use.

(c) Access and Security. Customer shall employ all physical, administrative,
and technical controls, screening, and security procedures and other safeguards necessary to: (a) securely administer the distribution and use of all Access Credentials and protect against any unauthorized access to or use of the Services; and (b) control the content and use of Customer Data, including the uploading or other provision of Customer Data for Processing by the Services. Customer shall promptly and without unreasonable delay notify Provider upon learning of any actual or suspected misappropriation or unauthorized access to, or disclosure or use of the Services, Platform, or Confidential Information (“Data Breach”). Customer shall cooperate with Provider in investigating and correcting any such Data Breach.

(d) Authorized User Consent. Customer shall obtain verifiable consent from
the parents or guardians of each Student under the age of eighteen (18) prior to providing such Student access to the Services. Customer shall provide copies of such consents to Provider. Upon request of Provider, Provider shall have the right to review and approve the form of such consent and Provider shall have the right to review and/or receive copies of any such consents that have been obtained. Provider shall have the right to deny Services to any Authorized User or proposed Authorized User under the age of eighteen
(18) for which it has not been provided a verifiable consent, in a form acceptable to Provider, upon Provider’s request. The policy governing information collected and used by Provider in connection with the Services is detailed in the then-current privacy policy. All terms, provisions and agreements set forth in the privacy policy (except to the extent expressly modified herein) are hereby incorporated herein by reference with the same force and effect as though fully set forth herein.

(e) Customer Representations, Warranties, and Covenants Regarding Customer Data. Customer represents, warrants, and covenants to Provider that Customer owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Data so that, as received by Provider and Processed in accordance with this Agreement, they do not and will not infringe, misappropriate, or otherwise violate any intellectual property rights, or any privacy or other rights of any third party (including, without limitation, of any Authorized User) or violate any applicable law.

(f) Non-Solicit. Customer shall not, and shall cause its Authorized Users to
not, solicit, hire, employ, or otherwise retain the services of any employee or independent contractor of Provider during the term of this Agreement or for a period of twelve (12) months following the termination of this Agreement unless approved or authorized by Provider.

(g) Customer Failures. Provider is not responsible or liable for any delay or
failure of performance caused in whole or in part by Customer’s failure to perform, delay in performing, or otherwise as it relates to matters outside of Provider’s control, pertaining to the obligations under this Agreement.

4. Fees and Payment.

(a) Fees. Customer shall pay Provider the fees (“Fees”) as set forth in Exhibit A without offset or deduction. Customer shall make all payments hereunder in US dollars on or before the due date set forth in Exhibit A. If Customer fails to make any payment when due, without limiting Provider’s other rights and remedies: (i) Provider may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Customer shall reimburse Provider for all reasonable costs incurred by Provider in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (iii) if such failure continues for 30 days or more, Provider may suspend Customer’s and its Authorized Users’ access to any portion or all of the Services until such amounts are paid in full.

(b) Taxes.  All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer 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 Customer hereunder, other than any taxes imposed on Provider’s income.

5. Confidential Information.

From time to time during the Term, either Party may
disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media/in written or electronic form or media, whether or not marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information of Customer includes Student information and records and personally identifying information of Students; provided, however, that, for the avoidance of doubt, Customer Mentor surveys and Aggregated Statistics are Provider’s Confidential Information and are not Customer’s Confidential Information. Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party’s rights under this Agreement, including to make required court filings. On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date. Notwithstanding the foregoing or anything to the contrary contained in this Agreement, after expiration or termination of this Agreement, Provider may retain Customer Data, but such information will remain subject to all confidentiality, security and other applicable requirements of this Agreement.

6. Intellectual Property Ownership; Feedback.

(a) Provider IP. Customer acknowledges that, as between Customer and Provider, Provider owns all right, title, and interest, including all intellectual property rights, in and to the Provider IP For the avoidance of doubt, all right, title, and interest, in and to the Services (including, without limitation, all content related to the Services, other than Customer Data) and all copyrights, trademarks, service marks, patents, trade secrets and other proprietary rights embodied therein, and any improved, updated, modified, or additional parts thereof, will at all times remain the property of Provider or its licensors. Customer may not, and shall not permit any Authorized User to, remove the copyright notice or any other proprietary notices from any materials provided by Provider as part of the Services. Nothing herein will give or be deemed to give Customer, or any Authorized User, any right, title, or interest in or to the same except as expressly provided in the license grant provisions above. Provider reserves all rights not expressly granted in this Agreement.

(b) Customer Data. Provider acknowledges that, as between Provider and
Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data. Customer hereby grants to Provider a non-exclusive, royalty-free, irrevocable, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for Provider to provide the Services or otherwise, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Customer Data incorporated within the Aggregated Statistics.

(c) Feedback. If Customer or any of its employees or contractors sends or
transmits any communications or materials to Provider by mail, email, telephone, or otherwise, suggesting or recommending changes to the Provider IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Provider is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Customer hereby assigns to Provider on Customer’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and Provider is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Provider is not required to use any Feedback. Without limiting the generality of the foregoing, it is expected that from time to time Customer will provide Provider with development suggestions that are useful to Customer’s learning environment and such development suggestions shall be deemed Feedback for purposes of this Agreement.

(d) Trademarks.

(i ) Provider and Customer each own certain trademarks, including
without limitation, the logos, designs, variations or translations thereof, and the exclusive right to use and license the use thereof. Provider and Customer seek to grant one another a royalty-free, non-exclusive right to use the respective parties’ trademarks for the sole purpose of promoting the Services during the Term of this Agreement.

(ii) Customer hereby acknowledges Provider’s right, title, and interest in and to the trademarks owned and used by Provider (the “Provider Marks”) and Provider’s exclusive right to use and license the use of the Provider Marks and agrees not to claim any title to the Provider Marks or any right to use the Provider Marks except as permitted by this Agreement. Customer shall include all notices and legends with respect to Provider’s trademarks and trade names as are or may be required by applicable federal, state, and local trademark laws or which may be reasonably requested by Provider.

(A) Customer shall at no time adopt or use, without Provider’s prior written consent, any variation of the Provider Marks, including translations, or any mark likely to be similar to or confusing with the Provider Marks. In the event that Provider consents to any variation of the Provider Marks, Customer hereby agrees that Provider shall own such new mark and shall, at its cost and expense, file and obtain in Provider’s name all United States and international trademark registrations.

(B) Customer shall not contest or deny the validity or enforceability of the Provider Marks or oppose or seek to cancel any registration thereof by Provider or aid or abet others in doing so, either during the term of this Agreement or at any time thereafter.

(C) Customer agrees that it shall conduct the advertising and promotion of its services in a dignified manner, consistent with and enhancing the general reputation of the Provider Marks and Provider, and in accordance with good trademark practice.

(D) Any and all goodwill arising from Customer’s use of the Provider Marks shall inure solely to the benefit of Provider, and neither during nor after the termination of this Agreement and the license granted hereunder shall Customer assert any claim to the Provider Marks or such goodwill. Customer shall not take any action that could be detrimental to the goodwill associated with the Provider Marks or with Provider.
Provider hereby acknowledges Customer’s right, title, and interest in and to the trademarks owned and used by Customer (the “Customer Marks”) and Customer’s exclusive right to use and license the use of the Customer Marks and agrees not to claim any title to the Customer Marks or any right to use the Customer Marks except as permitted by this Agreement. Provider shall include all notices and legends with respect to Customer’s trademarks and trade names as are or may be required by applicable federal, state, and local trademark laws or which may be reasonably requested by Customer.

7. Limited Warranty and Warranty Disclaimer.

(a) Provider does not make any representations or guarantees regarding uptime or availability of the Services. PROVIDER STRICTLY DISCLAIMS ALL WARRANTIES WITH RESPECT TO ANY THIRD-PARTY PRODUCTS.

(b) THE PROVIDER IP IS PROVIDED “AS IS” AND PROVIDER HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. PROVIDER 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. PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE PROVIDER IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’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.

8. Indemnification.

(a) Provider Indemnification.

(i) Provider shall indemnify, defend, and hold harmless Customer
from and against any and all losses, damages, liabilities, costs (including reasonable attorneys’ fees) (“Losses”) incurred by Customer resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”) that the Services, or any use of the Services in accordance with this Agreement, infringes or misappropriates such third party’s issued US patents, copyrights, or trade secrets, provided that Customer promptly notifies Provider in writing of the claim, cooperates with Provider, and allows Provider sole authority to control the defense and settlement of such claim.

(ii) If such a claim is made or appears possible, Customer agrees to permit Provider, at Provider’s sole discretion, to (A) modify or replace the Services, or component or part thereof, to make it non-infringing, or (B) obtain the right for Customer to continue use. If Provider determines that neither alternative is reasonably available, Provider may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer.

(iii) This Section 8(a) will not apply to the extent that the alleged infringement arises from: (A) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Provider or authorized by Provider in writing; (B) modifications to the Services not made by Provider; (C) Customer Data; (D) Third-Party Products; or (E) failure to timely implement any modifications, upgrades, replacements or enhancements made available to Customer or the Authorized Users by or on behalf of Provider

(b) Customer Indemnification. Customer shall indemnify, hold harmless, and,
at Provider’s option, defend Provider from and against any Losses resulting from (I) Customer Data, including any Processing of Customer Data by or on behalf of Provider in accordance with this Agreement, including, without limitation, any Third-Party Claim that the Customer Data, or any use of the Customer Data in accordance with this Agreement, infringes or misappropriates such third party’s US intellectual property rights or violates the privacy rights of any individual (including, without limitation, of any Authorized User), (II) any other materials or information (including any documents, data, specifications, software, content, or technology) provided by or on behalf of Customer or an Authorized User (including Provider’s compliance with any specifications or directions provided by or on behalf of Customer or any Authorized User to the extent prepared without any contribution by Provider), (III) allegation of facts that, if true, would constitute Customer’s breach of any of its representations, warranties, covenants, or obligations under this Agreement, and (IV) any Third-Party Claims based on Customer’s or any Authorized User’s (i) negligence or willful misconduct; (ii) use of the Services in a manner not authorized by this Agreement or in violation of the then-current terms and conditions or privacy policy of Provider; (iii) use of the Services in combination with data, software, hardware, equipment or technology not provided by Provider or authorized by Provider in writing; or (iv) modifications to the Services not made by Provider, provided that Customer may not settle any Third-Party Claim against Provider unless Provider consents to such settlement, and further provided that Provider 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.

(c) Sole Remedy. THIS SECTION 8 SETS FORTH CUSTOMER’S SOLE
REMEDIES AND PROVIDER’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY. IN ADDITION, PROVIDER’S LIABILITY IS SUBJECT TO SECTION 9, INCLUDING, WITHOUT LIMITATION, THE CAP OF LIABILITY CONTAINED IN THE LAST SENTENCE THEREOF.

 

9. Limitations of Liability.

IN NO EVENT WILL PROVIDER 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 PROVIDER WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL PROVIDER’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, LIABILITY UNDER SECTION 8, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO PROVIDER BY CUSTOMER UNDER THIS AGREEMENT IN THE 12 MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

10. Term and Termination.

(a) Term. The initial term of this Agreement begins on the Effective Date and, unless terminated earlier pursuant to this Agreement’s express provisions, will continue in effect until two years from such date (the “Initial Term”). This Agreement will automatically renew for additional successive two year terms unless earlier terminated pursuant to this Agreement’s express provisions or either Party gives the other Party written notice of non-renewal at least sixty (60) days prior to the expiration of the then-current term (each a “Renewal Term” and together with the Initial Term, the “Term”). Unless otherwise agreed by the Parties in writing, the fees charged for Services during any Renewal Term shall be automatically reset to be Provider’s standard fees for such Services at the commencement of such Renewal Term.

(b) Termination. In addition to any other express termination right set forth in
this Agreement:

(i) Provider may terminate this Agreement, effective on written notice to Customer, if Customer: (A) fails to pay any amount when due hereunder, and such failure continues more than 30 days after Provider’s delivery of written notice thereof; or (B) breaches any of its obligations under Section 2(c) or Section 5;

(ii) either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured 30 days after the non-breaching Party provides the breaching Party with written notice of such breach; or

(iii) either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (A) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (B) makes or seeks to make a general assignment for the benefit of its creditors; or (C) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.

(c) Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, Customer shall immediately discontinue use of the Provider IP and, without limiting Customer’s obligations under Section 5, Customer shall delete, destroy, or return all copies of the Provider IP and certify in writing to the Provider that the Provider IP has been deleted or destroyed. No expiration or termination will affect Customer’s obligation to pay all Fees that may have become due before such expiration or termination, or entitle Customer to any refund.

(d) Survival. This Section 10 and Sections 1, 4, 5, 6, 7(b), 8, 9, and 11
survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.

11. Miscellaneous.

(a) Entire Agreement. This Agreement, together with any other documents incorporated herein by reference and all related Exhibits, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement, the related Exhibits, and any other documents incorporated herein by reference, the following order of precedence governs: (i) first, this Agreement, excluding its Exhibits; (ii) second, the Exhibits to this Agreement as of the Effective Date; and (iii) third, any other documents incorporated herein by reference.

(b) Notices. All notices and other communications required or authorized to
be given by a Party to another Party under this Agreement shall be sent either as an attachment to an email and shall be deemed to have been received when acknowledged by the recipient by return email, or in writing and shall be deemed to have been received if given by hand, immediately; (ii) if given by overnight courier service, the next business day in the jurisdiction of the recipient, (iii) if given by facsimile transmission, upon acknowledgement of receipt thereof by the recipient’s facsimile machine as indicated either in the sender’s identification line produced in said recipient’s facsimile
machine or in the sender’s transmission confirmation report as provided electronically by sender’s facsimile machine, or (iv) if given by U.S. mail in certified form, first class, postage prepaid, five (5) days after the date deposited and (b) addressed as follows:

(a)     If to Customer: Address on file with Provider.

(b)      If to Provider: John Failla 3126 Cary Street Richmond, Virginia 23221

or to such other address as either party hereto may hereafter specify from time to time by written notice to the other party.

(c) Force Majeure. In no event shall Provider be liable to Customer, or be
deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, if and to the extent such failure or delay is caused by any circumstances beyond Provider’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, epidemic, pandemic, disease outbreak, public health event or crisis, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.

(d) Amendment and Modification; Waiver. Unless otherwise set forth herein, no amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

(e) Attorneys’ Fees. In the event that any action, suit, or other legal or
administrative proceeding is instituted or commenced by Provider against Customer arising out of or related to this Agreement, Provider is entitled to recover its reasonable attorneys’ fees and court costs from Customer.

(f) Severability. If any provision of this Agreement is invalid, illegal, or
unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

(g) Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the Commonwealth of Virginia without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the Commonwealth of Virginia. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the Commonwealth of Virginia in each case located in the city of Richmond, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.

(h) Assignment. Customer may not assign any of its rights or delegate any of
its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Provider. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.

(i) Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 5 or, in the case of Customer, Section 2(c), Section 11(k), or Section 11(l)would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.

(j) Auditing Rights and Required Records. Customer agrees to maintain complete and accurate records with respect to matters necessary for accurately determining Customer’s compliance with the terms and provisions of this Agreement (including, without limitation, limitation of Authorized Users to those persons included in the definition therein and applicable privacy policies). Provider may, at its own expense, on reasonable prior notice, periodically inspect and audit Customer’s records with respect to such matters.

(k) Non-Compete. During the Term and for two years after (the “Restricted Period”), Customer shall not, and shall not permit any of its Affiliates to: (i) directly or indirectly, develop software that performs similar functions to the Services or that could otherwise replace or compete with the Services (“Restricted Development”); (ii) engage in or assist others in engaging in the Restricted Development; (iii) have an interest in any person or entity that engages directly or indirectly in Restricted Development in any
capacity, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; or (iv) intentionally interfere in any material respect with the business relationships (whether formed prior to or after the date of this Agreement) between Provider and customers or suppliers of the Provider. During the Restricted Period, Customer shall not, and shall not permit any of its Affiliates to, directly or indirectly, solicit or entice, or attempt to solicit or entice, any clients or customers of Provider or potential clients or customers of Provider for purposes of diverting their business or services from Provider. Customer acknowledges that the restrictions contained in this Section 11(j) are reasonable and necessary to protect the legitimate interests of Provider and constitute a material inducement to Provider to enter into this Agreement and provide the Services contemplated by this Agreement. In the event that any covenant contained in this Section 11(j) should ever be adjudicated to exceed the time, geographic, product or service, or other limitations permitted by applicable law in any jurisdiction, then any court is expressly empowered to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or service, or other limitations permitted by applicable law. The covenants contained in this Section 11(j) and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.

(l) Changes. Provider reserves the right, in its sole discretion, to make any changes to the Services and Documentation that it deems necessary or useful to: (a) maintain or enhance: (i) the quality or delivery of Provider’s services to its customers; the competitive strength of or market for Provider’s services; or (iii) the Services’ cost efficiency or performance; or (b) to comply with applicable law. Without limiting the foregoing, either Party may, at any time during the Term, request in writing changes to the Services, including as a result of Customer’s Development Suggestions. The Parties shall evaluate and, Provider will implement such requested changes as mutually agreed to at the rate set forth below.

(m) Counterparts. This Agreement may be executed in counterparts, each of
which is deemed an original, but all of which together are deemed to be one and the same agreement.

IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the Effective Date.

TRILOGY MENTORS LLC

By:

Name: John Failla

Title: CEO & Founder

By:

Name:

Title:   

EXHIBIT A

1. Terms and Expectations:

Deliverables of Provider (also referred to as the “Services”)

  1. Provide Customer with a branded version of Provider’s Platform displaying Customer’s logo and banding and specific to Customer’s requirements.
  2. Provide Customer with training to generate accounts for each Student, parent and staff member associated with Customer.
  3. Provide Customer with training to generate monthly usage reports to the identified staff and/or administrators from Customer.
  4. Assign an “account manager” dedicated to supporting technical and instructional needs of the users from Customer.

Deliverables of Customer:

  1. Provide Provider with all necessary content and digital materials for their virtual learning environment, including Customer’s logo.
  2. Assign a point of contact who will be Provider’s main point of contact for support.
  3. Generate accounts for each Student, parent and staff member associated with Customer.
  4. Communicate technical issues with the Provider support team in a timely manner.
  5. Obtain all necessary consents including parental consents for use of platform by its Authorized Users and for sharing of data with Provider.
  6. Shall be responsible for maintaining the confidentiality of Authorized User details (user names and passwords)

2. Launch

The Parties anticipate that the Platform will be available for use by Customer as soon as practicable following execution of this Agreement. Customer will obtain all consents required by law before issuing Student or Authorized User accounts and make the same available to Provider. 

3. Monthly Calls

Provider team will perform monthly calls with Customer’s point of contact, to understand Customers use of the Services.

4. Pricing

Customer can choose from one of the following plans and change plans on a monthly basis, if desired by giving Provider at least 7 days’ notice prior to the beginning of a month.
All pricing set forth herein (and/or customized and agreed upon in the sales process) is only valid for the Initial Term. Unless otherwise agreed by the Parties in writing, the fees charged for Services during any Renewal Term shall be automatically reset to be Provider’s standard fees for such Services at the commencement of such Renewal Term.

Freelance Tutor**

Tutoring Group**

*$15.00/month

$50.00/month

1 Admin/Instructor

Unlimited students

Unlimited sessions

1-on-1 online classroom

Built-in scheduling

Automated notifications

In-app messaging

Portfolio file storage

Post-session reports

Data Insights

Fast & reliable support

 

Recorded sessions

Private Facebook Educator Community access

Free bi-weekly webinars

“Office Hours” – Q&A with Trilogy’s educator team

Discounted Professional Development training

Included in all team plans:

Up to 10 instructors

Unlimited students

1-on-1 online classroom

Built-in scheduling

Automated notifications

In-app messaging

Portfolio file storage

Post-session reports

Data Insights

Fast & reliable support

Dedicated account representative

“Train the trainer” 1:1 training with Trilogy success team

Private Facebook Educator Community access

Free bi-weekly webinars

“Office Hours” – Q&A with Trilogy’s educator team

Discounted Professional Development training

 

Ad-ons as needed

Session Recording (+$20 per month)

Over 10 instructors (+4.00 per instructor)

 

5. Surveys

  1. Instructors are prompted with an open-ended form at the end of each Session for the purpose of filling out their “after-action” report of the Session they’ve had with their Student. These forms will also include a satisfaction survey to judge their experience with the platform.
  2. Provider’s technology platform automatically collects data in regards to the length and frequency of each Student’s Sessions. Provider uses this data to judge Students’ engagement relative to the platform and program, as well as retention during an identified period of time. Provider will provide this data to Customer upon request.
  3. Session surveys are received by both the Students/Student families and instructors. This survey asks the Students and instructors questions about their satisfaction with the online program, engagement, levels, general feedback, and direct comparisons to their in-person Sessions.

6. Third Party Products

  1. The Platform is hosted by Amazon Web Services.
  2. In addition, the Platform uses the video chat provider Twilio to provide the mentorship services on the site 

 

EXHIBIT B ONLINE PRIVACY POLICY

SEE ATTACHED