DATABASE LICENSING AGREEMENT
This ALL IN EDUCATION, LLC DATABASE LICENSING AGREEMENT ("Agreement") is entered into today (the "Effective Date") by and between ALL IN EDUCATION, LLC (“Licensor”), a California limited liability company, with offices at 4425 Jamboree Rd., Suite 170, Newport Beach, CA 92660 and your company specified in the form above.
WHEREAS, Licensor provides integrated higher education cost-reduction services to high school and college-aged students through its proprietary online curriculum and resources which include, but are not limited to, personal coaching, college admissions counseling, curriculum advisement, tuition reimbursement assessment, scholarship application guidance, resume writing, career development and the use of strategic alliances (hereinafter, the "Licensor Database"); and
WHEREAS, Licensee desires, subject to the terms and conditions of this Agreement, to license the Licensor Database, and the right to use such database;
WHEREAS, Licensor is willing, subject to the terms and conditions of this Agreement, to license the Licensor Database, and the right to use such database.
NOW THEREFORE, the Parties agree as follows:
- "AAA" shall mean the American Arbitration Association.
- "Affiliate" shall mean any corporation, firm, partnership or other legal entity that, directly or indirectly, controls, is controlled by, or is under common control of either Licensor or Licensee. A corporation or other entity shall be regarded as in control of another corporation or entity, if (a) in the case of corporate entities it owns or directly or indirectly controls more than fifty percent (50%) of the outstanding voting stock or other ownership interest of the other corporation or entity, or if it possesses, directly or indirectly, the power to manage, direct or cause the direction of the management and policies of the corporation or other entity or the power to elect or appoint fifty percent (50%) or more of the members of the governing body of the corporation or other entity, and (b) in the case of non-corporate entities, direct or indirect ownership of at least fifty percent (50%) interest with the power to direct the
management and policies of such non-corporate entities.
- "Authorized Use" shall have the meaning set forth in Section 2.2.
- "Subscription" shall mean Licensee’s subscription to the Licensor Database.
- "Confidential Information" shall mean (a) the terms of this Agreement, and (b) all non-public business information, trade secrets and technical information relating to Licensor, including, but not limited to all data, information, inventions, know-how, technology, trade secrets and the like belonging to Licensor, including, where appropriate and without limitation, any associated information, business, financial data, invention disclosures, patent disclosures, patent applications (and related files and strategies), structures, models, techniques, processes, and the like, and hardware configurations and software in various stages of development or any software product (source code, object code or otherwise), including its audiovisual components (menus, screens, structure and organization) and any human or machine readable form of the program, and any writing or medium in which the program or information therein is stored, written or
described, including, without limitation, diagrams, flow charts, designs, drawings, specifications, models, data, bug reports, and the like.
- "Effective Date" shall have the meaning set forth in the first paragraph of this Agreement.
- "Indemnitee" shall mean the Party that intends to claim indemnification under Article 10 of this Agreement.
- "Indemnitor" shall mean the Party from which the Indemnitee seeks indemnification.
- “Licensee Client” shall mean client(s) of Licensee with License to access Licensor Database.
- “License” shall have the meaning set forth in Section 3.1.
- “License Term” shall have the meaning set forth in Section 4.2.
- “Licensed IP” shall mean all of Licensor’s current and future intellectual property rights, including but not limited to, copyrights, trademarks, patents, and trade secrets associated with the Licensor Database.
- “Non-profit Licenses” shall have the meaning set forth in Section 4.1.
- "Performance Default" shall mean a breach or default of a material obligation of this Agreement.
- "Receiving Party" shall have the meaning set forth in Section 6.1.1.
- "Records" shall mean Licensee's documentation of its access to and use of the Licensor Database.
- “Renewal” shall mean the purchase and payment to Licensor for an additional year of access to Licensor Database.
- "Representation Default" shall mean the untruth of any material representation or warranty given hereunder by a Party.
- “Commercial Licenses” shall have the meaning set forth in Section 4.1.
- "Third Party" shall mean any individual, partnership, joint venture, corporation, trust, estate, unincorporated organization, government or any department or agency thereof, or other entity other than Licensor or Licensee.
LICENSE AND OPTION
2.1 License to Licensor Services. Subject to the terms and conditions of this Agreement, Licensor hereby grants to Licensee, a non-exclusive License (with a limited right to sublicense to Licensee Clients), to access and use the Licensor Database solely within the Authorized Use.
2.2 Authorized Use.
2.2.1 Licensee's right to access and use Licensor Database is exercisable through the methods authorized herein for the purpose of enhancing Licensee Services.
2.2.2 Licensee shall not reproduce, adapt, prepare derivative works based upon, or distribute copies of any portion of the Licensor Database for any purpose. Other than those rights conferred in this Agreement, Licensee shall not rent or loan Licensor Database access or reverse engineer, decompile, disassemble or otherwise attempt to access any source code included on the Licensor website or used in the Licensor Database. Further, Licensee shall use reasonable efforts to prevent any unauthorized copying, distribution, reverse engineering, decompiling, and disassembling of any of Licensor Database through appropriate methods, including, but not limited to, agreements entered into by Licensee with its employees, consultants, contractors and collaborators.
Licensee shall have the right to access the Licensor Database as of the Effective Date of this Agreement, which consent shall not be unreasonably withheld or delayed.
2.2.3 The foregoing provisions of this Section 2.2 shall be collectively defined as "Authorized Use".
2.2.4 For clarification, nothing in this Agreement will be construed to limit in any way the use or transfer of the Agreement by Licensor at any time for any purpose outside the Authorized Use, including without limitation, the development and commercialization of any product alone or with any Third Party for Licensor’s commercial benefit.
DATABASE ACCESS AND RECORDS
3.1 License. According to the terms of this Agreement, the License purchased by Licensee shall provide access to those services and resources on the Licensor Database as specified on Schedule 1.
3.2 Licensor reserves the right to make periodic updates, upgrades or improvements to the Licensor Database. Licensor may or may not notify Licensee of such updates, upgrades or improvements depending on the extent of said changes to Licensor Database.
3.3 License Use Restrictions. Each License is considered a “single-user” license e.g. Licensee must purchase a separate License for each Licensee Client accessing the Licensor Database. Licenses may not be shared or used by more than one person to access Licensor Database. Licensee may not resell Licenses.
3.4.1 Licensee shall maintain Records sufficient to enable Licensor and Licensee to monitor compliance with and enforce their respective rights and obligations under this Agreement, including without limitation, payments receivable pursuant to Article 4.
3.4.2 Right To Inspection. No more than two (2) times a year, unless as otherwise agreed in writing, upon Licensor’s request and at its expense, Licensee shall permit Licensor, or an independent agent appointed by Licensor and acceptable to Licensee (such acceptance not to be unreasonably withheld or delayed) to examine Licensee's Records solely to the extent necessary to verify the fulfillment of Licensee's obligations under this Agreement; provided, however, that Licensor and such agent have entered into a confidentiality agreement that contains confidentiality provisions substantially similar to the terms of this Agreement (including provisions of non-use and non-disclosure). Licensor's agent
shall report to Licensor only the results of such examination (i.e., whether or not Licensee is in compliance with its obligations under this Agreement together with the amounts of any overpayment or under payment), and shall not disclose to Licensor or any Third Party any of Licensee’s Confidential Information provided to it or to which it may have had access during the conduct of the examination. Thereafter, within fifteen (15) days Licensee shall pay Licensor or Licensor shall pay Licensee any overpayment or under payment as applicable. Licensor, at its sole discretion, can suspend all active Licensee Licenses if payment is not received within 15 days of underpayment being discovered.
REVENUE SHARING AND ROYALTIES
4.1 License and Royalty Fees. Licensor will offer the following two (2) types of Licenses: 1) Commercial Licenses for companies seeking to profit from use of the Licensor Database and 2) Non-profit Licenses for companies, organizations, or government entities designated as non-profit by the Internal Revenue Service.
4.1.1. Commercial Licensees. Commercial Licensees shall pay Licensor a $225.00 per License royalty fee.
4.1.2 Non-profit Licensees. The cost per License for Non-profit Licensees shall be determined by the number of Licenses purchased, as stated below:
4.2 License Term. Each license shall be active for a period of 12 months from the date of first use.
4.3 Renewals. Licenses may be renewed by Licensee at any time before the License expires. Licenses can be renewed at the prevailing royalty rate in this Agreement or as defined by Licensor after the Effective Date. Licensees will receive thirty (30) day notice of any changes to the price or royalty rate of Licenses.
4.4 Right To Increase License Fees and Royalty Rate. Due to the likely addition of services and increased costs of operation, Licensor shall have the unilateral right to increase License fees and royalty rates at any time after the Effective Date of this Agreement. Licensees will be notified of any increase to license and royalty rates thirty (30) days prior to such change. Licensee has the option to accept or reject said changes. Licensee’s rejection of said changes would prevent Licensee from selling additional licenses after the expiration of the thirty (30) day notice period for fee or royalty changes.
4.5 Refunds. Upon written request and in accordance with the Refund Policy attached as Schedule 2, Licensor will provide Licensee a refund on any License purchased within 30 days of said request being received by Licensor.
4.6 Payment. Licensor will issue invoices on a 30 day cycle, issuing invoices on the last business day of each month. Invoices are to be paid in full within 15 days of electronic receipt (email) by Licensee.
4.6.1 Licensees with franchises. This Agreement is between AIE and the Parent company/corporation. All franchise locations and licenses sold are ultimately the responsibility of the Parent company/corporation (Licensor).
4.6.2 Late Payment Fee. Any payment due under this Agreement that is not paid on or before the date such payment is due shall bear interest of 1.5% per month, or the amount permitted by law.
4.6.3 Failure by Licensee to Make Timely Payment.
(i) Notice and Right to Terminate. In the event Licensor has not received any cash payment due under this Agreement by the prescribed due date, Licensor shall notify Licensee of such non-payment. In the event that Licensor has not received payment within fifteen (15) days after receipt by Licensee of such notice from Licensor, Licensor shall have the right to suspend Licensee's access to the Licensor Database in addition to any other remedies that may be available to Licensor at law or in equity until Licensee makes such payment. In the event that such payment is not made within thirty (30) days of Licensee's receipt of such notice, Licensor shall have the additional right to terminate this Agreement. Termination of this Agreement revoke all Licensee and its Licensee Client’s rights and privileges to access the Licensor Database.
(ii) Collection of unpaid licenses. In the event of failure to make payment and, or, termination due to a failure to make payment, all outstanding invoices of specified franchise(s) under the Parent company/corporation will be billable to the Parent company/corporation. All past due invoices are due Licensor immediately upon receipt by Parent company/corporation.
4.6.5 Mode of Payments. All payments under this Agreement shall be paid in U.S. Dollars by deposit to the account of Licensor of immediately available funds by check or online transfer or as Licensor will designate from time to time.
CONFIDENTIALITY AND PUBLICATION
5.1 Confidentiality. The Parties acknowledge that any previously executed confidentiality agreement by the Parties controls and shall continue to control all disclosures from the effective date of such agreement up to and until the Effective Date. The Parties agree that the confidentiality provision in their prior agreement is hereby superseded by the terms and conditions set forth in this Article 5 and the other applicable terms and conditions set forth in this Agreement. All information and documentation deemed to be "Confidential Information" under the superseded confidentiality agreement will be deemed to be Confidential Information under Section 1.5 and this Article 5.
5.1.1 The Parties acknowledge that during the course of this Agreement they may each receive (and hence become a "Receiving Party") from the other (the "Disclosing Party") information electronically, in writing or orally, that is proprietary and/or confidential and of commercial value to the Disclosing Party. The Parties agree that they shall take all reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information. Without limiting the foregoing, the Parties shall take at least those measures that each takes to protect its own confidential information of a similar nature, but in no event less than a reasonable degree of care. Both Parties shall immediately notify the other in the event that either Party has knowledge of any unauthorized use or
disclosure of the Confidential Information.
5.1.2 Except to the extent expressly authorized by this Agreement, the Parties agree that the Receiving Party shall keep confidential and shall not publish or otherwise disclose, and shall not use for any purpose, any Confidential Information furnished to it by the Disclosing Party pursuant to this Agreement, regardless of the medium on which it is provided, including know-how, except to the extent that it can be established by the Receiving Party by competent proof that such information:
(i) was already known to the Receiving Party, other than under an obligation of confidentiality, at the time of disclosure by the Disclosing Party;
(ii) was generally known to the public or otherwise part of the public domain at the time of its disclosure to the Receiving Party;
(iii) became generally available to the public or otherwise part of the public domain after its disclosure through no action or inaction of the Receiving Party;
(iv) was subsequently lawfully disclosed to the Receiving Party by a Third Party who did not require the Receiving Party to hold it in confidence or limit its use, provided it was not obtained by such Third Party under an obligation of confidentiality directly or indirectly from the Disclosing Party; or
(v) was independently discovered or developed by the Receiving Party without the use of or access to the Disclosing Party's Confidential Information, as can be documented by written records created at the time of such independent discovery or development.
5.2 Permitted Disclosure.
5.2.1 Subject to Article 5.1, Licensor may disclose specific, as needed Information (including without limitation, sales numbers and successful tuition cost reduction statistics) to the extent such disclosure is required for marketing and promotion of the Licensor Database.
5.2.2 Notwithstanding the obligations of Section 5.1, the Receiving Party may disclose the Disclosing Party's Confidential Information in establishing rights or enforcing obligations under this Agreement, or complying with applicable law; provided however, that in each case described herein if a Receiving Party shall be required to make any disclosure of the Disclosing Party's Confidential Information under this Section 5.2.2, it will (i) give reasonable advance notice to the Disclosing Party of such disclosure requirement; (ii) provide a copy of the proposed disclosure; and (iii) use commercially reasonable efforts in assisting the Disclosing Party to secure confidential treatment of such Confidential Information required to be disclosed, including cooperating with the other to obtain a protective order for the
Disclosing Party's Confidential Information.
5.3 Publication. Licensee may publish results of its work within the scope of the license granted under this Agreement.
5.4 Restricted Use. Except as otherwise expressly set forth in this Agreement, this Article 5 shall not be construed to allow Licensee, Licensee Contractors, Licensee's employees and consultants or any other person or entity to access, use, publish, disclose, re-package or re-distribute the Licensor Database, or any portion of its contents, including, but not limited to, any source code or object code, or any Licensor software or hardware configurations, at any time without the express written consent of Licensor.
5.5 Equitable Relief. Each Party acknowledges and agrees that with respect to the nature of the Confidential Information, there may be no adequate remedy at law for any breach of the a Party's obligations under the confidentiality provisions of this Agreement, that any such breach may result in irreparable harm to the other Party, and therefore, that upon any such breach the other Party shall be entitled to seek equitable relief, in addition to whatever remedies it might have at law, including injunctive relief, specific performance or such other relief as such other Party may request to enjoin or otherwise restrain any act prohibited hereby, as well as the recovery of all costs and expenses, including reasonable attorneys' fees.
6.1 Licensor Rights. Subject to the rights granted hereunder, Licensor retains all rights, title and interest to and in the Licensor Database. To avoid doubt, with the exception of the rights expressly granted under this Agreement, Licensee, its Affiliates, Contractors, Clients, and Licensee employees shall have no rights, claims or interests whatsoever (including, but not limited to, any intellectual property rights) with respect to the Licensor Database.
6.2 Licensee Rights and Obligations. Nothing in this Agreement is intended or shall be interpreted as granting to Licensee or any Third Party any right or interest in any intellectual property (a) invented, discovered, developed, or otherwise created by Licensor or its Affiliates, or (b) acquired or licensed by Licensor or its Affiliates.
6.3 Third-Party Infringement. If Licensor believes that the data, information or software within Licensee infringes any patent, copyright, trademark, or other proprietary right, or if the licensing or use of the Licensor Subscription or any part thereof, is, as a result, enjoined, then Licensor may, at its election, option, and expense: (a) procure for Licensee the right under such proprietary right to use such data, information or software or such part thereof; or (b) replace such data, information or software, or such part thereof, with other non-infringing data, information or software or parts having substantially the same purpose; or (c) suitably modify the data, information or software, or part thereof, to become non-infringing; or (d) if unable to accomplish (a), (b), or (c) after using commercially reasonable efforts to do so, remove the infringing data,
information or software, or part thereof, and make an equitable adjustment of the fees paid hereunder, including a refund thereof, as mutually agreed upon.
6.4 Licensor and Licensee shall cooperate to police diligently the intellectual property related to the Licensor Database. Licensee shall promptly notify Licensor in writing of any unauthorized use, infringement, misappropriation, dilution or other violation of the Licensor’s intellectual property ownership rights of which it becomes aware.
6.5 Licensor shall have the primary right, but not the obligation, to bring and control any suits against any unauthorized use, infringement, misappropriation, dilution or other violation of the Licensed IP. Licensor shall be entitled to retain the entirety of any award arising from such suit. Licensee agrees to cooperate with Licensor in any litigation or other enforcement action that Licensor may undertake to enforce or protect the Licensed IP in the field of the Licensor pursuant to Section 6.4 and, upon Licensor 's request, to execute, file and deliver all documents and proof necessary for such purpose, including being named as a Party to such litigation as required by law. Licensee shall have the right to participate and be represented in any such action, suit or proceeding by its own counsel at its own expense. Licensee shall have no claim of any kind against Licensor
based on or arising out of the Licensor 's handling of or decisions concerning any such action, suit, proceeding, settlement, or compromise, and the Licensee hereby irrevocably releases Licensor from any such claim; provided, however, that Licensor shall not settle, compromise or voluntarily dispose of any such action, suit or proceeding in a manner that would materially restrict the rights or benefits of Licensee pursuant to this agreement without the prior consent of Licensee, which consent shall not be unreasonably withheld, delayed or conditioned. In the event Licensor elects not to exercise this right, Licensee, upon prior written approval from Licensor, may bring such suit, and Licensor agrees to reasonably cooperate with Licensee, including being named as a party to such suit. If Licensee elects to bring such suit, Licensee shall be entitled to that portion of any award based upon the actual damage to the Licensee’s business directly resulting from such
unauthorized use, infringement, misappropriation, dilution or other violation of the Licensed IP.
6.6 Future Intellectual Property Rights. To the extent that Licensee makes any contributions, improvements, or modifications to the Licensor Database, and/or Licensor’s related services, Licensee agrees to assign to Licensor all right, title, and interest in the intellectual property rights associated therewith.
TERM AND TERMINATION
7.1 Term. Unless terminated earlier as provided herein, this Agreement shall commence on the Effective Date and shall remain in full force for three (3) years, or upon termination by either party, whichever comes first.
7.1.1 Licensor Right to Terminate. Licensor may terminate this Agreement for, but not limited to, the following reasons:
i. misrepresentation of AIE’s database by Licensee
ii. failure to pay invoices on time
iii. conflicts that are unable to be resolved between executive management of Licensor and Licensee.
iv. violating IP, confidentiality protections or any other provision as agreed to herein
Should this Agreement be terminated, Licensor shall provide written (electronic mail) correspondence to Licensee. Termination will be deemed the day written correspondence was received by Licensee, whether the Licensee responds in turn or not. At this time all rights to sell AIE licenses would be revoked. Licenses purchased, or sold, by Licensee prior to the termination of this Agreement will remain active throughout the remainder of their 12-month activation period.
7.2 Default. Notice of Default. In the event of a Representation Default or Performance Default by either Party, the non-defaulting party must first give the defaulting party written notice thereof, which notice must state the nature of the falsehood, breach or default in reasonable detail and request the defaulting party cure such Default within ten (10) days, except as otherwise provided herein. Such notice must be addressed to the person(s) and/or office(s) identified in Section 11.10.
7.3 Termination for Default. The non-defaulting party may terminate, in addition to any other remedies that may be available to such non-defaulting party at law or in equity, this Agreement in the event of (a) a Representation Default by the defaulting party, or (b) a Performance Default by the defaulting party; if such Default that has not been cured within the ten (10) day period, or such other period provided herein, after receipt of the written notice of termination from the non-defaulting part, and the defaulting party has failed to commence substantial remedial actions within such period and to diligently pursue the same. Notwithstanding the foregoing, if a Representation or Performance Default is not curable by its nature, the non-defaulting party may terminate this Agreement, which termination shall be effective
on the tenth day following written notice to the defaulting party.
7.4.1 A Party may terminate this Agreement if, during the Term, the other Party shall file in court or agency pursuant to any statute or regulation of any state or country, a petition in bankruptcy or insolvency or for reorganization or for an arrangement or for the appointment of a receiver or trustee of the Party or of its assets, or if the other Party proposes a written agreement of composition or extension of its debts, or if the other Party shall be served with an involuntary petition in bankruptcy or seeking reorganization, liquidation, dissolution, winding-up arrangement, composition or readjustment of its debts or any other relief under any bankruptcy, insolvency, reorganization or other similar act or law of any jurisdiction now or hereafter in effect, or
there shall have been issued a warrant of attachment, execution, restraint or similar process against it, filed in any insolvency proceeding, and such petition shall not be dismissed within ninety (90) days after the filing thereof, or if the other Party shall propose or be a Party to any dissolution or liquidation, or if the other Party shall make an assignment for the benefit of creditors.
7.5 Consequences of Termination. Upon termination of this Agreement:
(i) The following provisions shall survive: Article 3 (Database and Inspection of Records); Article 4 (Revenue Sharing and Royalties); Article 5 (Confidentiality and Publication); Article 7 (Term and Termination); Article 10 (Disclaimers and Limitation of Liability); Article 11 (Indemnity) and Article 12 (General Provisions). Notwithstanding Sections 7.4.2(ii) and 7.4.2(iii), Sections 4.1 and 4.3 shall survive termination of this Agreement.
(ii) In the event of termination of this Agreement by reason of Licensee's Default, Licensee shall pay, within thirty (30) days following written notice of termination an amount equal to any amount due and payable as of the date of such termination. Any outstanding amounts due to Licensor after termination shall incur a 1.5% per month late fee.
(iii) In the event of termination of this Agreement by Licensor, subject to the payment of all fees due and payable prior to the date the Default occurred, all Licenses granted to Licensee hereunder shall continue in full force and effect for the time period anticipated by the most recent payment made by Licensee.
7.6 Remedies. The rights and remedies provided in this Article 8 shall not be exclusive and shall be in addition to any other rights and remedies available at law or in equity.
REPRESENTATIONS AND WARRANTIES AND RELATED CONVENANTS
8.1 Each Party represents to the other Party as of the Effective Date and thereafter, that, to the best of its knowledge:
8.1.1 it is duly organized and/or validly existing and in good standing under the laws of the jurisdiction it has the power and authority and the legal right to enter into this Agreement and to perform its obligations hereunder;
8.1.2 the execution and delivery of this Agreement and the performance of the transactions contemplated hereby have been duly authorized by all necessary business actions of such Party and the person executing this Agreement on behalf of each Party has been duly authorized to do so by all requisite corporate or business actions;
8.1.3 the execution and delivery of this Agreement and the performance by such Party of any of its obligations under this Agreement does not (i) conflict with, or constitute a breach or violation of, any other contractual obligation to which it is a Party, any judgment of any court or governmental body applicable to such a Party or its properties or, to the best of such Party's knowledge, any statute, decree, order, rule or regulation of any court or governmental agency or body applicable to such Party or its properties, and (ii) with respect to the execution and delivery of this Agreement, require any consent or approval of any Third Party;
8.1.4 it is aware of no action, suit or inquiry or investigation contemplated or instituted by any Third Party that questions or threatens the validity of this Agreement; and
8.1.5 this Agreement is legally binding upon its execution and, subject to the discretion of courts in awarding equitable relief and to applicable bankruptcy, reorganization, insolvency, moratorium, and similar laws, enforceable in accordance with its terms.
8.2 Each Party shall (a) comply with all applicable laws, regulations and guidelines in connection with that Party's performance of its obligations and exercise of its rights pursuant to this Agreement, (b) maintain good standing under the laws of the jurisdiction of its incorporation, and (c) not enter into any contractual obligation that would conflict with or constitute a breach or violation of any material provision of this Agreement.
DISCLAIMERS AND LIMITATION OF LIABILITY
9.1 NOTHING IN THIS AGREEMENT SHALL BE CONSTRUED AS A REPRESENTATION MADE OR WARRANTY GIVEN BY LICENSOR THAT THE USE OF ANY INFORMATION, DATA, SOFTWARE OR OTHER MATERIALS PROVIDED HEREUNDER WILL NOT INFRINGE ANY PATENT, COPYRIGHT, TRADEMARK, OR OTHER RIGHTS OF ANY THIRD PARTY. THE INFORMATION, DATA, SOFTWARE AND OTHER MATERIALS PROVIDED BY LICENSOR HEREUNDER ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. LICENSOR MAKES NO WARRANTY THAT THE PRODUCTS WITHIN LICENSOR DATABASE DO NOT CONTAIN ERRORS.
9.2 IN NO EVENT SHALL LICENSOR OR LICENSOR'S SUPPLIERS PARTNERS, AFFILIATES, VENDORS, OR THE LIKE, ASSOCIATED WITH ANY PART OF LICENSOR’S DATABASE/SERVICES BE LIABLE FOR LOST PROFITS, LOSS OF USE, LOSS OF BUSINESS, BUSINESS INTERRUPTION, LOSS OF DATA, COST OF COVER OR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES OF ANY NATURE WHATSOEVER, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY WHETHER BASED IN CONTRACT, WARRANTY, TORT, STRICT LIABILITY, STATUTORY OR OTHERWISE, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.3 THE LIABILITY OF LICENSOR AND LICENSOR'S SUPPLIERS PARTNERS, AFFILIATES, VENDORS AND THEIR RESPECTIVE AGENTS, EMPLOYEES, SUBCONTRACTORS, SUPPLIERS, CUSTOMERS AND SUBLICENSEES WITH RESPECT TO ANY AND ALL SUITS, ACTIONS, LEGAL PROCEEDINGS, CLAIMS, DEMANDS, DAMAGES, COSTS AND EXPENSES ARISING OUT OF THE PERFORMANCE OR NONPERFORMANCE OF ANY OBLIGATIONS UNDER THIS AGREEMENT, WHETHER BASED ON CONTRACT, WARRANTY, TORT, STRICT LIABILITY, STATUTORY OR OTHERWISE, SHALL BE LIMITED TO (a) DIRECT, ACTUAL DAMAGES INCURRED AS A RESULT OF LICENSOR'S OR LICENSEE'S FAILURE TO PERFORM ITS OBLIGATIONS AS REQUIRED BY THIS AGREEMENT, AND (b) SHALL NOT EXCEED, IN THE AGGREGATE, A SUM EQUAL TO THE TOTAL AMOUNTS PAID TO LICENSOR UNDER THIS AGREEMENT.
9.4 NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, ANY TECHNOLOGY DISCOVERED THROUGH LICENSEE'S AUTHORIZED USE OF THE LICENSOR DATABASE AND SERVICES MAY BE SUBJECT TO LICENSOR'S INTELLECTUAL PROPERTY RIGHTS AND/OR THE INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY.
INDEMNITY, DAMAGES AND INSURANCE
10.1 Licensee Indemnity. Licensee shall indemnify, defend and hold harmless Licensor (including its officers, directors, employees, members and agents from and against all personal or property losses, liabilities, damages and expenses (including attorneys' fees and costs) arising from a claim of a Third Party (a) out of the falsehood or inaccuracy in any respect of any representation or warranty or out of the breach or non-fulfillment of any material covenant or agreement of Licensee contained herein, contemplated hereby, or related hereto; or (b) out of the gross negligence and intentional or unintentional misconduct of Licensee in connection with the performance of the Agreement and its obligations under this Agreement; or (c) out of Licensee's use of Licensor name or services.
10.2 Licensor Indemnity. Licensor shall indemnify, defend and hold harmless Licensee (including its officers, directors, employees and agents) from and against all personal or property losses, liabilities, damages and expenses (including attorneys' fees-and costs) arising from a claim of a Third Party (a) out of the falsehood or inaccuracy in any material respect of any representation or warranty or out of the breach or non-fulfillment of any material covenant or agreement of Licensor contained herein or contemplated hereby, or (b) out of the gross negligence or intentional misconduct of Licensor in connection with the performance of its obligations under this Agreement; except to the extent any such loss, liability, damage or expense arises from the action or inaction of Licensee.
10.3 Procedure. The Indemnitee shall promptly notify the Indemnitor of any loss, liability, damage, expense, claim, demand, action or other proceeding in respect of which the Indemnitee intends to claim such indemnification, and the Indemnitor shall have the right to participate in, and, to the extent the Indemnitor so desires, jointly with any other indemnitor similarly noticed, to assume the defense thereof with counsel selected by the Indemnitor and reasonably satisfactory to the Indemnitee; provided, however, that an Indemnitee shall have the right to retain its own counsel, with the fees and expenses to be paid by the Indemnitee, if representation of such Indemnitee by the counsel retained by the Indemnitor would be inappropriate due to actual or potential differing interests between such Indemnitee and any other Party represented by such counsel in such
proceedings. The indemnity agreement in this Article 10 shall not apply to amounts paid in settlement of any loss, liability, damage, expense, claim, demand, action or other proceeding if such settlement shall be effected without the consent of the Indemnitor, which consent shall not be withheld unreasonably. The failure to deliver notice to the Indemnitor within a reasonable time after the commencement of any such action, if prejudicial to its ability to defend such action, shall relieve such Indemnitor of any liability to the Indemnitee under this Article 10 to the extent Indemnitor is prejudiced by Indemnitee's delay, but the omission so to deliver notice to the Indemnitor will not relieve it of any liability that it may have to the Indemnitee otherwise than under this Article 10. The Indemnitor may not settle the action or otherwise consent to an adverse judgment in such action or other proceeding that effects the rights or interests of the Indemnitee without the express
written consent of the Indemnitee, which consent shall not be unreasonably withheld or delayed. The Indemnitee under this Article 10, and its employees and agents, shall cooperate fully with the Indemnitor and its legal representatives in the investigation of any action, claim or liability covered by this indemnification.
10.4 Insurance. Each Party will maintain, through self-insurance or commercially placed insurance, $1,000,000 in both general liability and errors and omissions coverage for the non-contractual indemnification obligations set forth herein, including without limitation, in respect to suits, actions, claims, demands, damages, costs and expenses arising out of the use of the Licensor Database by Third Parties. Each Party may request in writing the other Party to provide proof of a general liability policy and an errors and omissions insurance policy.
11.1 No Partnership. Nothing in this Agreement is intended or shall be deemed to constitute a partnership, agency, distributorship, employer-employee or joint venture relationship between Licensee and Licensor. No Party shall incur any debts or make any payments for the other, except to the extent, if at all, specifically provided herein.
11.2 Assignments. Neither Party shall assign any of its rights or obligations hereunder in whole or in part, except: (a) as incident to the merger, consolidation, reorganization or acquisition of stock or assets or a similar transaction affecting all or substantially all of the assets or voting control of the assigning Party; (b) to any directly or indirectly wholly-owned subsidiary if the assigning Party remains liable and responsible for the performance and observance of all of the subsidiary's duties and obligations hereunder; or (c) with the consent of the other Party, such consent not to be unreasonably withheld or delayed. This Agreement shall be binding upon the successors and permitted assigns of the Parties, and the name of a Party appearing herein shall be deemed to include the names of such Party's successors and permitted assigns to the extent
necessary to carry out the intent of this Agreement. Any assignment not in accordance with the above shall be void.
11.3 Further Actions. The Parties agree to execute, acknowledge and deliver such further instruments, and to do all such other acts, as may be necessary or appropriate in order to carry out the purposes and intent of this Agreement.
11.4 No Trademark Rights. Except as otherwise provided herein or agreed to in advance in writing, no right, express or implied, is granted by this Agreement to use in any manner the name Licensor or any other trade name or trademark of Licensor for any purpose other than for the Parties' own internal purposes.
11.5 Public Announcements. Licensor will have the right to use Licensee’s trademarks, associated sales numbers, customer testimonials, etc. for Licensor’s use in any marketing materials (print, website, verbal, etc.).
11.6 Entire Agreement of the Parties; Amendments. This Agreement, including its Schedules and Exhibits constitute and contain the entire understanding and agreement of the Parties and cancels and supersedes any and all prior negotiations, correspondence, representations, understandings and agreements, whether verbal or written, between the Parties respecting the subject matter hereof. No waiver, modification or amendment of any provision of this Agreement shall be valid or effective unless made in writing and signed by a duly authorized representative of each Party. The failure or delay of either Party in enforcing any of its rights under this Agreement shall not be deemed a continuing waiver or a modification by such Party of such right.
11.7 Severability. In the event any one or more of the provisions of this Agreement should for any reason be held by any court or authority having jurisdiction over this Agreement or either of the Parties to be invalid, illegal or unenforceable, such provision or provisions shall be validly reformed to as nearly as possible approximate the intent of the Parties and, if unreformable, shall be divisible and deleted in such jurisdiction; elsewhere, this Agreement shall not be affected so long as the Parties are still able to realize the principal benefits bargained for in this Agreement.
11.8 Captions. The captions to this Agreement are for convenience only, and are to be of no force or effect in construing or interpreting any of the provisions of this Agreement.
11.9 Governing Law. This Agreement shall be governed by and interpreted in accordance with the laws of the State of California without reference to the conflict of law principles thereof. Any court action or proceeding with respect to, or arising out of, this Agreement will, if brought by either party herein, be instituted and tried only in the state courts of Orange County, California or the U.S. District Court for the Southern District of California, and both parties hereto waive any right to cause such action or proceeding to be instituted or tried elsewhere.
11.10 Notices and Deliveries. Any notice, request, delivery, approval or consent required or permitted to be given under this Agreement shall be in writing and shall be either delivered personally, sent by a nationally recognized overnight courier, costs prepaid, and shall be deemed to have been duly given when so delivered in person or sent, with receipt confirmed, or one (1) business day (three (3) business days for international deliveries) after the date of deposit with such nationally recognized overnight courier, or sent via electronic means when applicable. All such notices, requests, deliveries, approvals, consents or other communications shall be addressed to the respective Parties at the addresses set forth below, or to such other address as a Party may designate to the other Party in accordance herewith.
If to Licensor, addressed to:
ALL IN EDUCATION
4425 Jamboree Rd., Suite 170
Newport Beach, CA 92660
Attn: Kyle Shelley, CEO
cc: Law Offices of Pankaj S. Raval
11.11 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
11.12 Force Majeure. If the performance of any part of this Agreement by either Party or of any obligation under this Agreement except the obligation to pay money, shall be prevented, restricted, interfered with or delayed by reason of any cause beyond the reasonable control of the Party liable to perform, unless conclusive evidence to the contrary shall be provided, the Party so affected shall, upon giving written notice to the other Party, be excused from such performance to the extent of such prevention, restriction, interference or delay, provided that the affected Party shall use its commercially reasonable efforts to avoid or remove such causes of non-performance and shall continue performance with the utmost dispatch whenever such causes are removed. When such circumstances arise, the Parties shall discuss what, if any, modification of the terms of this
Agreement may be required in order to arrive at an equitable solution.
11.13 Dispute Resolution. Licensor and Licensee shall deal with each other in good faith. In the event that a dispute arises between the Parties concerning, or in any way relating to, this Agreement, the Parties shall undertake good faith efforts to amicably resolve such dispute.
11.13.1 Executive Officers. In the event that the Parties are unable to resolve any such dispute, the matter shall be referred for further review and resolution to the Chief Executive Officer, or another designated representative of Licensor, and to the Chief Executive Officer of Licensee or Licensee's representative as designated in writing by Licensee to Licensor, who will attempt in good faith and reasonable diligence to resolve the dispute.
11.13.2 Mediation. If the dispute is not resolved within thirty (30) days after referral under Section 11.13.1, or such other time as mutually agreed upon in writing by the Parties, the Parties shall submit the matter to non-binding mediation to be administered by the AAA under the AAA's Commercial Mediation Rules. The Party desiring such mediation shall initiate it in accordance with the AAA's Commercial Mediation Rules. Upon delivery of the mediation request, the Parties shall endeavor in good faith to select a neutral mediator who is acceptable to each Party. If the Parties have not selected a mutually acceptable neutral mediator within five (5) business days after delivery of the mediation request, they shall notify the AAA and request the AAA to appoint a mediator in accordance with the Mediation Rules. Unless
otherwise agreed upon by the Parties, all mediation sessions shall be held at the AAA regional office in the Orange County metropolitan area. The Parties shall endeavor in good faith to resolve the dispute through the mediation process contemplated by this Section and neither Party shall be entitled unilaterally to terminate the mediation prior to thirty (30) days after the appointment of a mediator.
11.13.3 Confidentiality. The Parties hereby mutually agree that the existence, terms and content of any dispute resolution entered into pursuant to this Agreement, as well as all information or documents relating thereto, shall be maintained in confidence and not be given, shown, disclosed to, or discussed with any Third Party except: (a) by prior written agreement of both Parties; (b) during any legal proceeding to protect or secure a Party's rights under such dispute resolution; (c) counsel and accountants who shall agree to maintain its confidentiality; (d) to the extent required by applicable reporting requirements; and (e) upon compulsory legal process.
DATABASE LICENSE SUBSCRIPTION
Subject to the terms and conditions of the Agreement, each License purchased by Licensee shall be valid for a 12-month period from the time of first use, renewable yearly, and include access to Licensor Database resources, as indicated and further defined below:
- Online curriculum resources related, but not limited to, college admissions, personal branding, paying for college and career readiness;
- Databases: a) scholarship databases for all 50 states b) network of employers that pay tuition reimbursement;
- Online study resource for credit by examination, including, but not limited to CLEP, DSST (DANTES) and ECE;
- Video instruction;
- Virtual resumes templates and critique; and
- Reduced tuition (WUE) and in-state tuition counseling.
RIGHT TO ACCESS FUTURE IMPROVEMENTS
License holders will also have access to those resources currently available on the Licensor Database as of the Effective Date as well as those services Licensor decides to add to the Database Resources throughout the term of the License. Licensor, at its own discretion, may add services and resources to its database that are not made available to Licensee Clients.
Each License shall remain active for a period of 12 months. At some time preceding the expiration of the License, Licensee may pay Licensor a fee or royalty consistent with Article 4 of the Agreement, or as agreed to by the Parties in writing at a later date, to renew the License.
LICENSOR REFUND POLICY
Within 30 days of the activation of a License, Licensee shall have the right to return said License and receive a refund for any fee or royalty paid in relation to the returned License. To receive a refund, Licensee must present Licensor with proof of the following: (a) the License was purchased by Licensee, (b) the License was purchased within 30 days from the date Licensor received the written request for a refund, and c) Licensee has issued the refund to the customer.
LICENSOR RIGHT TO AUDIT
Licensor reserves the right to Audit any refunds that Licensee requests. “Audit” shall mean Licensor may, at its sole discretion, contact Licensee, its employees, independent contractors, or the Licensee customer to discuss the basis for any requested refund.
EXPRESS COVENANT OF GOOD FAITH AND FAIR DEALING
This Refund Policy is predicated on the implied (now express) covenant of good faith and fair dealing governing all contracts. As such, Licensee is expressly forbidden from suggesting to its clients that they can purchase a License to access Licensor’s Database for up to 30 days with the intention of requesting a refund before the 30 day trial period expires. All requested refunds should be supported by clear statement from Licensee Client explaining the reasoning for the refund. Any indication that Licensee engaged in practices that violated the covenant of good faith and fair dealing by encouraging clients to take advantage of Licensor’s refund policy will void any pending refund claim by the Licensee and result in an audit of all prior refund requests. Licensee will be billed, payment due immediately upon receipt, for all refunds that are found to have violated the terms stated herein.
MAXIMUM REFUNDS ALLOWABLE
Should the number of refunds on Licenses purchased by Licensee exceed twenty percent (20%) of the total Licenses purchased in any given month, Licensor reserves the right to immediately terminate this Agreement.