This EdCuration Vendor Agreement (this “Agreement
”) is made by and between EdCuration, Inc., a Colorado corporation (“EdCuration
”), and the educational content and curriculum vendor (“Vendor
,” and together with Edcuration, the “Parties
,” and each, a “Party
”) identified in the invoice form referencing this Agreement (the “Invoice
BY ACCEPTING THE INVOICE OR BY OTHERWISE INDICATING VENDOR’S ASSENT TO THIS AGREEMENT BY ANY SIMILAR MECHANISM, VENDOR IS CONSENTING TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF VENDOR DOES NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, VENDOR MAY NOT CLICK “ACCEPT” OR OTHERWISE INDICATE VENDOR’S ASSENT TO THIS AGREEMENT. This Agreement is effective as of the effective date specified on the Invoice (the “Effective Date
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:
- Invoice. The Invoice is deemed to be incorporated into this Agreement. In the event of a conflict between the Invoice and the body of this Agreement, the terms of the Invoice will prevail.
- Status as Independent Contractor. EdCuration is an independent contractor pursuant to this Agreement. Nothing in this Agreement creates any agency, joint venture, partnership, or other form of joint enterprise, employment, or fiduciary relationship between the Parties. Neither Party has any express or implied right or authority to assume or create any obligations on behalf of, or in the name of, the other Party or to bind the other Party to any contract, agreement, or undertaking with any customer or other third party.
- Listing Vendor Offerings. EdCuration shall market, advertise, and promote Vendor’s educational content, products, services, and other offerings (the “Vendor Offerings”) to prospective and existing customers on EdCuration’s website (the “Site”) and conduct additional promotional and marketing services, each as further described on the Invoice (the “Services”). Any purchase of Vendor Offerings will be conducted directly between Vendor and the applicable customer, unless otherwise agreed in writing by Vendor and EdCuration. Vendor agrees that EdCuration will have no responsibility for any such purchases.
- Vendor Obligations. Vendor shall provide EdCuration with any information and support about the Vendor Offerings as may reasonably be requested by EdCuration to carry out its responsibilities hereunder. Vendor shall provide EdCuration at no charge with documentation, brochures, pictures, logos, descriptions and other promotional materials as may reasonably be requested by EdCuration for the promotion of the Vendor Offerings.
- Access to Portal.
- Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, EdCuration may monitor Vendor’s use of the EdCuration Offerings and collect and compile data and information related to Vendor’s use of the EdCuration Offerings that is used by EdCuration in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the EdCuration Offerings (“Aggregated Statistics”).As between Vendor and EdCuration, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by EdCuration. Vendor acknowledges that EdCuration may compile Aggregated Statistics based on Vendor data inputted into the EdCuration Offerings. Vendor agrees that EdCuration 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, including in connection with the EdCuration Offerings.
- EdCuration will provide a customer success partner as a single point of contact for Vendor and will use commercially reasonable efforts to make the EdCuration Offerings available for access by Vendor.
- Service Suspension. Notwithstanding anything to the contrary in this Agreement, EdCuration may temporarily suspend its provision of Services or Vendor’s access to any portion or all of the EdCuration Offerings if:(i) EdCuration reasonably determines that (A) there is a threat or attack on any EdCuration property; (B) Vendor’s use of the EdCuration Offerings disrupts or poses a security risk to the EdCuration property or to any other customer or vendor of EdCuration; (C) Vendor is using the Services or the EdCuration Offerings for fraudulent or illegal activities; (D) subject to applicable law, Vendor has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or any disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) EdCuration’s provision of the Services or EdCuration Offerings to Vendor is prohibited by applicable law; (ii) any vendor of EdCuration has suspended or terminated EdCuration’s access to or use of any third-party services or products required to enable Vendor to access the EdCuration Offerings or to enable EdCuration to provide Services; or (iii) in accordance with Section 7 (iii) (any such suspension described in subclause (i), (ii), or (iii), a “Service Suspension”). EdCuration shall use commercially reasonable efforts to provide written notice of any Service Suspension to Vendor and to provide updates regarding resumption of performance of Services or access to the EdCuration Offerings following any Service Suspension. EdCuration shall use commercially reasonable efforts to resume performance of Services or access to the EdCuration Offerings as soon as reasonably possible after the event giving rise to the Service Suspension is cured. EdCuration will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Vendor may incur as a result of a Service Suspension.
- Payment. Vendor shall pay EdCuration the fees (“Fees”) as set forth in an Invoice without offset or deduction. Unless otherwise specified in any Invoice or any mutual written agreement between EdCuration and Vendor, all Fees are invoiced annually in advance on the effective date of the Invoice and on the subsequent annual anniversary of the initial effective date of the Invoice. Unless otherwise set forth in an Invoice, all Invoices issued by EdCuration will be due and payable 30 days of the date of EdCuration’s Invoice.All Fees are nonrefundable, except as expressly otherwise set forth herein or in any Invoice, and will be paid in U.S. dollars. If Vendor fails to make any payment when due, without limiting EdCuration’s other rights and remedies: (i) EdCuration 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) Vendor shall reimburse EdCuration for all costs incurred by EdCuration in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (iii) if such failure continues for 15 days or more, EdCuration may suspend its provision of Services and access to the EdCuration Offerings until such amounts are paid in full.
- Intellectual Property.
- Ownership. Vendor acknowledges that, as between EdCuration and Vendor, Vendor owns all right, title, and interest, including all intellectual property rights, in and to the EdCuration Offerings.
- Vendor’s License Grant. Vendor hereby grants to EdCuration a non-exclusive, non-transferable, and non-sublicensable license to use, display, and otherwise exploit (a) Vendor’s trademarks and (b) all information, documentation, brochures, pictures, logos, descriptions and other promotional materials and content provided to EdCuration (collectively, the “Vendor IP”), in each case during the Term in connection with the marketing, promotion, and advertising of the Vendor Offerings. Vendor agrees that EdCuration has the right to remove, screen, edit, add to, or otherwise modify Vendor IP as EdCuration deems appropriate. Vendor represents and warrant to EdCuration: (i) Vendor owns the Vendor IP or otherwise has the right to grant the rights and licenses set forth in this Agreement; (ii) the use of Vendor IP does not and will not violate, misappropriate or infringe on the rights of any third party, including privacy rights, publicity rights, copyrights, trademark and/or other intellectual property rights; (iii) Vendor IP does and will comply with applicable law; and (iv) all Vendor IP provided to EdCuration will be truthful, accurate, and complete.
- Feedback. If Vendor or any of its personnel or representatives send or transmit any communications or materials to EdCuration by mail, email, telephone, or otherwise, suggesting or recommending changes to the EdCuration Offerings or any other product, service, or offering of EdCuration, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), EdCuration is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback.
- Reservation. Except as expressly provided in this Agreement, no right, title, or interest is granted, whether express or implied, by either Party to the other Party, and nothing in this Agreement shall be deemed to grant to either Party rights in any products, services, or other offerings of the other Party or any third party. Each Party expressly reserves all rights not expressly granted herein.
- Term and Termination.
- Term. Except as set forth in the Invoice, the 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 one year from such date (the “Term”).
- Termination. In addition to any other express termination right set forth in this Agreement:
- EdCuration may terminate this Agreement, effective on written notice to Vendor, if Vendor or its personnel: (i) fails to pay any amount when due hereunder, and such failure continues more than 15 days after EdCuration’s delivery of written notice thereof; (ii) breaches any of its obligations under Section 10 or 12 of this Agreement or any of its obligations under the Terms of Service; (iii) fails to comply with EdCuration’s Acceptable Use Policy, or (iv) commits an offense involving moral turpitude under applicable law or becomes the subject of public disrepute, contempt or scandal that affects Vendor’s or EdCuration’s image or goodwill;
- 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: (i) is incapable of cure; or (ii) being capable of cure, remains uncured 30 days after the non-breaching Party provides the breaching Party with written notice of such breach; or
- either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) 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; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) 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.
- Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, Vendor shall immediately discontinue use of the EdCuration Offerings, without limiting Vendor’s obligations under Section 10. No expiration or termination will affect Vendor’s obligation to pay all Fees that may have become due before such expiration or termination or entitle Vendor to any refund.
- Survival. This Section 9.4 and Sections 2, 7, 8.1, 8.3, 8.4, 9.3, and 10 through 23 survive any termination or expiration of this Agreement, as well as any other provision that, in order to give proper effect to its intent, should survive the expiration or termination of this Agreement, will survive such expiration or termination.
- Confidentiality. All non-public, confidential, or proprietary information of a Party and that should be reasonably understood to be the confidential information of the disclosing Party, (“Confidential Information”) disclosed by a Party to the other Party, whether disclosed orally or disclosed or accessed in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as “confidential,” in connection with this Agreement is confidential, solely for the use of, or otherwise in connection with, the performance of a Party’s obligations under this Agreement, and may not be otherwise disclosed, unless authorized by the disclosing Party in writing. Confidential Information does not include any information that: (a) is or becomes generally available to the public, other than as a result of the receiving Party’s breach of this Agreement; (b) is obtained by the receiving Party on a non-confidential basis from a third party that was not legally or contractually restricted from disclosing such information; (c) the receiving Party establishes by documentary evidence was in the receiving Party’s possession prior to the disclosing Party’s disclosure hereunder; or (d) was or is independently developed by the receiving Party without reference to or use of, in whole or in part, any Confidential Information. Upon the disclosing Party’s request, the receiving Party shall promptly, at the disclosing Party’s election, destroy or return all documents and other materials received from Vendor. Vendor shall be entitled to injunctive relief for any violation of this Section.
- EdCuration warrants that it will perform all Services in accordance with generally accepted industry standards. Vendor’s sole and exclusive remedy for any breach of the foregoing warranty will be for EdCuration to use commercially reasonable efforts to re-perform the Services. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN THIS SECTION 10, THE SERVICES AND THE EDCURATION OFFERINGS ARE PROVIDED “AS IS” AND EDCURATION HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. EDCURATION 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. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN THIS SECTION 10, EDCURATION MAKES NO WARRANTY OF ANY KIND THAT SERVICES, THE EDCURATION OFFERINGS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET VENDOR’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.
- Indemnification. Vendor shall indemnify, hold harmless, and, at EdCuration’s option, defend EdCuration from and against any losses, damages, liabilities, costs (including reasonable attorneys’ fees) resulting from any claim, suit, action, or proceeding (“Claim”) that the Vendor Offerings or Vendor IP, or any use of the Vendor Offerings or Vendor IP, infringes or misappropriates any third-party intellectual property rights or other rights and any Claims based on Vendor’s or any of its personnel’s (i) negligent or more culpable acts or omissions; (ii) breach of this Agreement or EdCuration’s Terms of Service; or (iii) failure of Vendor to comply with applicable laws, rules, or regulations, provided that Vendor may not settle any Claim against EdCuration unless EdCuration consents to such settlement, and further provided that EdCuration will have the right, at its option, to defend itself against any such Claim or to participate in the defense thereof by counsel of its own choice.
- Limitations of Liability. IN NO EVENT WILL EDCURATION 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 EDCURATION WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE.IN NO EVENT WILL EDCURATION’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, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO EDCURATION UNDER THIS AGREEMENT IN THE SIX-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
- Non-Disparagement. Vendor shall not, directly or indirectly, during the Term or at any time thereafter, disparage or create any negative inference as to the reputation, prestige, value, image or impression of EdCuration, the Services, the EdCuration Offerings, or any other EdCuration products, services, or other offerings, by words, actions or other communications, or by any omissions to speak, act or otherwise communicate, or in any other manner whatsoever.
- Entire Agreement. This Agreement constitutes the sole and entire agreement between the Parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding such subject matter.
- Notices. All notices under this Agreement shall be made in writing and shall be deemed duly given if delivered either in person, by certified or registered mail, return receipt requested and postage prepaid, or by recognized overnight courier service. All notices shall be addressed to the Parties at their respective addresses first set forth above (or to such other address that the receiving Party may designate from time to time in accordance with this section). Notices shall be effective on receipt.
- Severability. If any term or provision of this Agreement is found by a court of competent jurisdiction to be invalid, illegal, or unenforceable, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
- Amendment. The Parties may not amend this Agreement except by written instrument signed by the Parties.
- Waiver. No waiver by any Party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
- Assignment; Successors and Assigns. Neither Party shall assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of the other Party. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves the assigning or delegating Party of any of its obligations under this Agreement. This Agreement is binding on and inures to the benefit of the Parties and their respective successors and permitted assigns.
- Binding Arbitration. Any controversy or claim arising out of or relating to this Agreement or the existence, validity, breach or termination thereof, whether during or after its term, if referred to arbitration, will be settled in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”), as modified or supplemented under this section. To initiate arbitration, either Party will file the appropriate notice at the Regional Office of the AAA in Denver, Colorado. The arbitration proceeding will take place in Denver, Colorado and will be conducted in the English language. The arbitration panel will consist of one arbitrator appointed by the AAA. Any communication between a Party and any arbitrator will be directed to the AAA for transmittal to the arbitrator. The Parties expressly agree that the arbitrators will be empowered to, at either Party’s request, (a) issue an interim order requiring one Party to cease using the other’s Confidential Information pending the outcome of the arbitration, or (b) grant injunctive relief. The arbitral award will be the exclusive remedy of the Parties for all claims, counterclaims, issues or accounting presented or pled to the arbitrators. The award will (a) be granted and paid in U.S. dollars exclusive of any tax, deduction or offset, (b) include interest from the date of breach or other violation of the Agreement until the award is fully paid, computed at 5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law, and (c) will not include attorneys’ fees. Judgment upon the arbitral award may be entered in any court that has jurisdiction thereof. Any additional costs, fees or expenses incurred in enforcing the arbitral award will be charged against the Party that resists its enforcement. Subject to the foregoing, disputes between the Parties shall be governed by, and construed and interpreted in accordance with, the Federal Arbitration Act, applicable federal law, and the laws of the State of Colorado without regard to conflict of laws principles AND WILL SPECIFICALLY NOT BE GOVERNED BY THE UNITED NATIONS CONVENTIONS ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS, IF OTHERWISE APPLICABLE. Subject to the foregoing, the Parties irrevocably consent to bring any action to enforce this Agreement in the federal or state courts located in Denver, Colorado and each Party irrevocably consents to the exclusive jurisdiction of the federal or state courts located in Denver, Colorado. Vendor agrees that any claim arising out of or related to your relationship with EdCuration and this Agreement must be filed within one year after such claim arose; otherwise, such claim is permanently barred.
- Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.Notwithstanding Section 16, counterparts may be delivered via facsimile, electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
- Interpretation. For all purposes of this Agreement, except as otherwise expressly provided or unless the context otherwise requires: (a) terms used in the plural include the singular and vice versa; (b) any reference to a “Section” refers to a Section of this Agreement; (c) all references to this Agreement and the words “herein”, “hereof”, “hereto” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular Section or other subdivision; (d) all Section headings are for convenience only and shall not affect the interpretation or construction of this Agreement; (f) the words “including,” “included” and “includes” mean inclusion without limitation; (g) the word “or” is not exclusive and shall have the meaning commonly ascribed to the term “and/or”; and (h) this Agreement has been jointly negotiated by the Parties hereto and their respective legal counsel, and any legal or equitable principles that might require or permit the construction of this Agreement or any provision hereof against the Party drafting this Agreement shall not apply in any construction or interpretation of this Agreement.