SCHOLA SERVICES AGREEMENT

This Schola Services Agreement (this "Agreement") is between Schola, Inc., a Delaware corporation ("Schola"), and the customer identified in applicable Order Form ("Customer"). This Agreement sets forth conditions regarding Customer's use of Schola's services (the "Schola Services"). By accessing or using the Schola Services in any manner, Customer agrees to be bound by this Agreement.

The person entering into this Agreement on behalf of Customer represents and warrants that the person is a duly authorized representative with the authorization to act on behalf of Customer and bind Customer to this Agreement.

In consideration of the mutual promises set forth in this Agreement, the parties, intending to be legally bound, agree as follows:

1.
Use of Platform; Order Forms.
a.
Order Form. The specific details of the Schola Services that Customer is purchasing will be set forth in one or more order forms (each, an "Order Form"). The nature of each Order Form may vary, depending on the specific Schola Services it covers. In the event of a conflict between the terms of this Agreement and the terms of an Order Form, the terms of this Agreement shall control unless the language in the Order Form states it is intended to supersede this Agreement.
b.
Use of Platform. Many of the Schola Services are made available to Customer via web-based platforms (each, a "Platform"). Customer may use the Platforms as necessary to use the Schola Services it has purchased.
c.
Responsibility for Users. Customer is responsible for all individuals who use the Platforms and/or Schola Services on its behalf (each, a "User"). Customer shall ensure that each of its Users uses the Platforms and Schola Services in accordance with this Agreement. Any action by a User that is a breach of this Agreement will be deemed a breach of this Agreement by Customer.
2.
Payment. The fees that Customer is required to pay for the Schola Services (the "Schola Fees") will either be identified on the applicable Order Form or communicated to Customer directly on the Platforms. To the extent Schola sends an invoice to Customer for Schola Fees, all such Schola Fees are due within 30 days of Customer's receipt of the applicable invoice. Payments not received on time are subject to a 2% late fee per month.
3.
Restrictions. Customer may not: (a) modify, disclose, alter, translate or create derivative works of the Platforms or the Schola Services; (b) sublicense, resell, distribute, lease, rent, lend, transfer, assign or otherwise dispose of the Platforms or Schola Services; (c) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any source code, object code, or underlying structure, ideas, or algorithms of the Platforms, in whole or in part; (d) use the Platforms to store or transmit any viruses, software routines or other code designed to permit unauthorized access, to disable, erase or otherwise harm software, hardware or data, or to perform any other harmful actions; (e) use the Platforms or Schola Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right, privacy right, or other right of any person, or that violates any applicable laws; (f) interfere with or disable any features, functionality, or security controls of the Platforms or otherwise circumvent any protection mechanisms for the Platforms; (g) copy, frame or mirror any part or content of the Platforms; (h) build a competitive product or service, or copy any features or functions of the Platforms or Schola Services; (i) interfere with or disrupt the integrity or performance of the Platforms; or (j) attempt to gain unauthorized access to the Platforms or related systems or networks. Schola may temporarily suspend Customer's access to the Platforms if Schola determines or reasonably suspects that Customer has or intends to violate, or has assisted others in violating or preparing to violate, any provision of this Section 3 (any such temporary suspension, a "Service Suspension"). Schola shall have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any third party may incur as a result of a Service Suspension, and Customer shall not be entitled to any refunds of any Schola Fees on account of any Service Suspension.
4.
Marks. Conditioned upon Schola's compliance with any usage guidelines provided by Customer, Customer hereby grants Schola an exclusive, worldwide, royalty-free license to use the trademarks and service marks of Customer (collectively, the Customer's "Marks") in connection with the performance of the Schola Services.
5.
Term; Termination.
a.
Term. This Agreement commences on the effective date of the initial Order Form (the "Effective Date"), and will continue in effect until the expiration or termination of the final Order Form (the "Term"). Each Order Form will commence on the effective date of that Order Form and continue for the initial term identified in the Order Form (the "Order Form Initial Term"). At the end of the Initial Order Form Term, the Order Form will automatically renew for successive renewal periods of the same duration as the Initial Order Form Term (each, an "Order Form Renewal Term") unless Customer opts out of an upcoming Order Form Renewal Term by providing written notice to Schola at least thirty (30) days prior to the commencement of an upcoming Order Form Renewal Term.
b.
Termination for Cause. Either party may immediately terminate this Agreement or an Order Form upon notice if the other party (i) materially breaches this Agreement or the Order Form and such breach is not cured within 30 days after the breaching party receives notice thereof from the other party, or (ii) ceases to do business in the normal course, becomes or is declared insolvent or bankrupt, is the subject of any proceeding related to its liquidation or insolvency (whether voluntary or involuntary) that is not dismissed within 90 days, or makes an assignment for the benefit of creditors.
c.
Termination for Convenience. Conditioned upon Customer paying the Early Termination Fee, Customer may terminate this Agreement or an Order Form without cause upon written notice to Schola. The "Early Termination Fee" means the lesser of (i) three months of Schola Fees under the terminated Order Form(s), or (ii) the Schola Fees for the remainder of the then-current term of the Order Form(s) that will be terminated.
d.
Effect of Expiration or Termination of Order Form. Upon expiration or termination of an Order Form, (a) Schola will cease providing the Schola Services subject to that Order Form; (b) Customer's right to access the Platforms for the terminated Schola Services will terminate; and (c) Customer shall pay all unpaid fees owed as of the date of expiration or termination of the Order Form.
e.
Effect of Expiration or Termination of this Agreement. Upon expiration or termination of this Agreement, (a) all active Order Forms will automatically terminate; (b) Schola will cease providing the Schola Services; (c) Customer's right to access the Platforms will terminate; (d) each party shall delete the other party's Confidential Information; and (e) Customer shall pay all unpaid fees owed as of the date of expiration or termination of this Agreement.
6.
Obligations.
a.
Compliance with Law. Each party shall comply with all applicable laws applicable to its performance of this Agreement.
7.
Intellectual Property and Data.
a.
Schola Ownership. Schola owns all right, title and interest (including intellectual property rights) in and to the Platforms and Schola Services (collectively, the "Schola Property").
b.
Feedback. Customer is encouraged to provide feedback, comments, and suggestions for improvements to the Platforms and Schola Services ("Feedback"). Any modifications to the Platforms or Schola Services that Schola makes based on the Feedback are deemed to be Schola Property. Schola has the right, but not the obligation, to use such Feedback without any obligation to provide Customer credit, royalty payment, ownership interest, or any other type of compensation.
c.
Data Rights. As between Customer and Schola, Customer owns all data that it provides to Schola pursuant to this Agreement (the "Customer Data"). Customer hereby grants Schola the right to use the Customer Data as necessary during the Term to provide the Schola Services and otherwise use the Customer Data as requested by Customer. Customer represents and warrants it has all of the rights necessary to grant the foregoing rights to Schola. Any anonymized usage data and aggregated data collected through the Platforms or Schola Services shall be the exclusive and sole property of Schola. To the extent Customer has access to data through the Schola Services (including student and parent data, the "Service Data"), Customer shall only use the Service Data in furtherance of the purposes for which it was given access to the Service Data, and shall only use the Service Data in compliance with applicable law.
8.
Confidentiality.
a.
Confidential Information. For purposes of this Agreement: "Recipient" means the party receiving Confidential Information (defined below) from the other party; "Discloser" means the party providing Confidential Information to the other party; and "Confidential Information" means the substantive terms of this Agreement and any other information whether written or oral that should reasonably be expected by the Recipient to be confidential. Confidential Information does not include information that (a) becomes generally available to the public through no fault of Recipient or its employees, agents, or representatives, (b) was rightfully in possession of Recipient without obligation of confidentiality prior to receipt thereof from Discloser, (c) is independently developed by Recipient without benefit of any Confidential Information, (d) is rightfully received by Recipient from another source on a non-confidential basis, or (e) is released for disclosure with Discloser's prior written consent.
b.
Use and Disclosure. Recipient shall not use or disclose any Confidential Information of Discloser except to the extent necessary to perform its obligations or exercise its rights hereunder, including by disclosing Confidential Information to its employees, independent contractors, and advisors who have a need to know such information to enable Recipient to perform its obligations or exercise its rights hereunder, and who are bound to keep such information confidential. Recipient shall give Discloser's Confidential Information at least the same level of protection as it gives its own Confidential Information of similar nature, but not less than a reasonable level of protection. All confidentiality obligations will survive termination of this Agreement. Upon written request from Discloser and subject to any legal obligation to preserve Confidential Information (e.g., litigation hold), Recipient shall promptly return or destroy all Confidential Information, except that neither party is obligated to purge information archived pursuant to their normal document retention procedures if the provisions of this section otherwise continue to be observed. The Recipient may disclose Confidential Information as required by law if the Recipient (a) gives the Discloser reasonable written notice to allow the Discloser to seek a protective order or other appropriate remedy, but only if such notice is legally permitted, (b) discloses only such information as is required by law, and (c) uses commercially reasonable efforts to obtain confidential treatment for any Confidential Information so disclosed.
c.
Injunctive Relief. As money damages may not be a sufficient remedy for any breach of confidentiality obligations herein, the Discloser will be entitled to seek specific injunctive relief as a non-exclusive remedy for any such breach.
9.
Press Releases. Neither party shall issue any press release, blog post, or other public statement with respect to the other party unless the other party approves the content, timing, and method of the press release, blog post, or other public statement.
10.
Representations and Warranties; Disclaimer.
a.
Mutual Representations and Warranties. Each party represents and warrants that (a) it has the full right, power and authority to enter into this Agreement and to perform the acts required of it hereunder; and (b) the execution of this Agreement and the performance of its obligations hereunder do not and will not violate any agreement to which it is a party or by which it is bound.
b.
Disclaimer. EXCEPT AS EXPRESSLY SET FORTH HEREIN, SCHOLA'S SERVICES ARE PROVIDED "AS-IS" AND SCHOLA DISCLAIMS ALL EXPRESS AND IMPLIED REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE SCHOLA SERVICES AND THE PLATFORMS (INCLUDING, WITHOUT LIMITATION, WARRANTIES OF NONINFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE).
11.
Limitation of Liability. EXCEPT FOR LIABILITIES RELATING TO INDEMNIFICATION OBLIGATIONS HEREIN, FRAUD, GROSS NEGLIGENCE, WILLFUL MISCONDUCT, AND VIOLATIONS OF SECTION 8 (CONFIDENTIALITY), (A) IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF USE, BUSINESS OR PROFITS, OR COSTS OF COVER) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, AND (B) EACH PARTY'S CUMULATIVE LIABILITY TO THE OTHER PARTY WILL NOT EXCEED THE GREATER OF (1) $10,000.00, AND (2) THE AMOUNT OF SCHOLA FEES PAID BY CUSTOMER TO SCHOLA DURING THE 12-MONTH PERIOD PRECEDING THE CLAIM.
12.
Indemnification.
a.
By Customer. To the extent not subject to Schola defense obligations herein, Customer shall defend and indemnify Schola and its officers, directors, employees, and agents (collectively, "Indemnitees") from and against any and all liability, damage, loss, cost, or expense, including reasonable attorneys' fees and expenses (collectively, "Costs"), arising out of or in connection with any actual claim, suit, action, or proceeding against Schola or its Indemnitees by a third party as a result of (a) a breach of this Agreement by Customer, (b) Schola's use of Customer Data in accordance with this Agreement, or (c) the gross negligence or willful misconduct of Customer related to this Agreement.
b.
General Indemnity By Schola. To the extent not subject to Customer's defense obligations herein, Schola shall defend and indemnify Customer and its Indemnitees from and against any and all Costs arising out of or relating to any actual claim, suit, action, or proceeding against Customer or its Indemnitees by a third party as a result of (a) a breach of this Agreement by Schola, or (b) the gross negligence or willful misconduct of Schola related to this Agreement.
c.
Infringement Indemnity by Schola. To the extent not subject to Customer's defense obligations herein, Schola shall defend and indemnify Customer and its Indemnitees from and against any and all Costs arising out of or relating to any actual claim, suit, action, or proceeding against Customer or its Indemnitees by a third party as a result of the infringement or misappropriation of third party intellectual property rights by the Schola Services or Platforms. In the event of a claim pursuant to this Section 12(c), Schola may, at its option and expense (i) obtain for Customer the right to continue to exercise the rights granted to Customer under this Agreement; (ii) substitute the allegedly infringing component for an equivalent non-infringing component; or (iii) modify the Schola Services or Platform(s) to make them non-infringing. If none of subparts (i), (ii), or (iii) in the foregoing sentence are obtainable on commercially reasonable terms, Schola may terminate this Agreement, effective immediately, by written notice to Customer. Schola's indemnification obligations do not extend to claims arising from or relating to: (i) any negligent or willful misconduct of Customer Indemnitees; or (ii) the use of the Schola Services by Customer in a manner contrary to the terms of this Agreement where the infringement would not have occurred but for such use.
d.
Procedure. A party seeking indemnification ("Indemnified Party") shall promptly notify the party against which indemnification is sought ("Indemnifying Party") upon becoming aware of any claim for which indemnification is sought and will: (a) provide reasonable cooperation to the Indemnifying Party, at the Indemnifying Party's expense, in connection with the defense or settlement of any such claim and (b) be entitled to participate at its own expense in the defense of any such claim. The Indemnifying Party will have sole and exclusive control over the defense and settlement of any such third-party claim, except that the Indemnifying Party shall not, without the Indemnified Party's written consent, submit to any judgment or enter into any settlement that adversely affects the Indemnified Party's rights or interests.
13.
General.
a.
No Agency. Nothing in this Agreement creates an agency, franchise, joint venture, employment relationship, or partnership between the parties. The parties are and will remain independent contractors. Neither party has the authority to bind the other or to incur any liability or otherwise act on behalf of the other. Each party shall ensure the timely disposition of all of its employee matters in connection with its organization, including employee benefits, insurance, withholdings, taxes, and similar employee-related matters.
b.
Severability. If any provision of this Agreement is held invalid, illegal, or unenforceable, such invalid, illegal, or unenforceable provision will be modified, if possible, to the minimum extent necessary to make it valid and enforceable, or if it cannot be so modified, then severed, and the remaining provisions contained herein will not in any way be affected or impaired.
c.
Waiver. Neither party's failure to enforce strict performance of any provision of this Agreement will constitute a waiver of a right to subsequently enforce such provision, and no waiver of one obligation or condition will constitute a waiver of another obligation or condition. No waiver of this Agreement will be valid unless made in writing and signed by an authorized representative of the party providing the waiver.
d.
Remedies. Except as otherwise stated herein, the remedies under this Agreement are intended to be cumulative and not exclusive.
e.
Assignment. Either party may assign this Agreement, by operation of law or otherwise, without consent, to its successor in a merger or acquisition of all or substantially all of its assets, equity, or business to which this Agreement relates. Otherwise, assignment of this Agreement is prohibited without the consent of the other party.
f.
Survival. The provisions of Sections 2, 5(d), 7, 8, 10(b), 11, 12, and 13 will survive any termination or expiration of this Agreement.
g.
Execution; Counterparts. This Agreement may be executed in any number of counterparts, each of which is an original and all of which together constitute one and the same document. The exchange of a fully executed Agreement (in counterparts or otherwise) electronically, by facsimile or other commercially common means, is sufficient to bind the parties to the terms and conditions of this Agreement.
h.
Entire Agreement; Amendment. This Agreement and any associated Order Forms constitute the entire agreement between the parties concerning the subject matter hereof and supersedes all written or oral prior agreements or understandings with respect thereto. This Agreement may not be amended except in a writing signed by authorized representatives of both parties.
i.
Notice. Each party shall send any official notice given pursuant to this Agreement to the other party at the address stated in the Order Form by: (a) certified mail return receipt requested, (b) overnight courier, or (c) confirmed electronic mail.
j.
Force Majeure. Neither party will be liable for any delays or failures of performance hereunder, except for payments, to the extent that performance of such party's obligations or attempts to cure any breach under this Agreement are delayed or prevented as a result of acts of God, labor disputes or other industrial disturbances, systemic electrical, telecommunications, or other utility failures, fires, floods, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts of terrorism or war, acts of government, civil unrest, or any other similar event or circumstance beyond its reasonable control ("Force Majeure Event"), except that the other party may terminate this Agreement upon 30 days' written notice if the Force Majeure Event can reasonably be expected to continue for more than one calendar month.
k.
Dispute Resolution. The parties agree to resolve any dispute, claim or controversy arising out of or relating to this Agreement according to the terms of this Section 13(k). First, the parties agree to attempt in good faith to resolve the dispute through informal resolution. Second, if the dispute is not resolved through informal resolution, the parties agree to participate in binding arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules in Maricopa County, Arizona. The parties agree that, in the event of arbitration (or in the event of a lawsuit if this arbitration clause is deemed invalid or does not apply to a given dispute) the prevailing party shall be entitled to costs and fees (including reasonable attorneys' fees). Either party may bring a lawsuit solely for injunctive relief without first engaging in the dispute resolution process described in this Section 13(k). In the event that the dispute resolution procedures in this Section 13(k) are found not to apply to a given claim, or in the event of a claim for injunctive relief as specified in the previous sentence, the parties agree that any judicial proceeding will be brought in the state courts of Maricopa County, Arizona. Both parties consent to venue and personal jurisdiction there.
l.
Governing Law. The validity, interpretation, construction and performance of this Agreement, and all acts and transactions pursuant hereto and the rights and obligations of the parties hereto shall be governed, construed and interpreted in accordance with the laws of the State of Arizona, without giving effect to principles of conflicts of law.