Local Education Agency Subscription Agreement

This Local Educational Agency Subscription Agreement (together with all the exhibits, attachments and Order Forms attached hereto, this “Agreement”) is by and between YouScience, LLC (“YouScience”) and the educational institution, local educational agency, school administrative unit, education industry association, or other legal or professional educational entity that receives the Services (“School”). This Agreement constitutes a binding contract between School and YouScience (together, the “Parties” and, individually, each a “Party”).

This Agreement governs School’s access to and use of the Services. By executing an Order Form that states it is subject to or otherwise governed by this Agreement or by using our Services, School acknowledges and agrees to be bound by the terms of this Agreement.

1. DEFINITIONS. For purposes of this Agreement, the following capitalized terms shall have the meanings ascribed thereto. Other capitalized terms used in this Agreement are defined in the context in which they are used and shall have the meanings there indicated.

(a) “Account” means, generally and as context dictates, a Faculty Account and/or Student Account.

(b) “Confidential Information” means, subject to applicable laws, any information prepared for or delivered to a Party (the “Receiving Party”) by the other Party or its representatives (the “Disclosing Party”) (including information or data received by the Disclosing Party from a third party to whom the Disclosing Party has confidentiality obligations) that: (i) is marked or designated by the Disclosing Party as “confidential” or “proprietary”; (ii) is disclosed orally or visually provided that such information is identified at the time of disclosure as confidential or proprietary; or (iii) is known to the Receiving Party, or should be known to a reasonable person given the contents and circumstances of the disclosure, as being treated as confidential or proprietary by the Disclosing Party, even if the Disclosing Party fails to take the actions specified in (i) or (ii) with respect to such information.

(c) “Documentation” means all YouScience user manuals, operating instructions, and other documentation relating to the Services, as generally made available by YouScience to School and Users from time to time.

(d) “DPA” means the Data Privacy Addendum located at https://www.youscience.com/data-privacy-addendum/ that governs the Parties’ data obligations under this Agreement and is hereby incorporated by reference.

(e) “Faculty” means School’s administrators, teachers, and counselors who are authorized to access and use the Services.

(f) “Faculty Account” means an account established for School Faculty that permits the Faculty to use the Services in their capacity as an account administrator and for their own purposes, as described in and in accordance with the Terms of Use.

(g) “Intellectual Property” means, to the extent that any of the following are recognized in any jurisdiction worldwide: (i) intellectual property and/or proprietary rights, whether registered or unregistered, including, without limitation, copyrights and patent rights (including, without limitation, applications for patent protection); (ii) publicity rights, trade dress, registered or otherwise protected trademarks, trade names, service marks, and protection from trademark dilution; (iii) trade secrets, as defined in the Uniform Trade Secrets Act or its successor, or its equivalent in the applicable jurisdiction; and (iv) proprietary products, services, know-how, techniques, business processes, configurations, and business methods.

(h) “Online Terms” means, collectively the Service Schedules and Terms of Use. The Online Terms are hereby incorporated into this Agreement by reference and any references to the Agreement herein shall include, as applicable and as appropriate, Service Schedules and Terms of Use.

(i) “Order Form” means any quote, online order form, purchase order, invoice, or other ordering document through which School requests and/or acquires access to, use of, or receipt of any Services.

(j) “Privacy Policy” means the then-current Privacy Policy for the Services located at https://www.youscience.com/privacy-policy/.

(k) “Services” means the online applications and related services provided or made available by YouScience to School and its Users under this Agreement and one or more Order Forms, as specified in Exhibit B of the Data Privacy Addendum.

(l) “Service Schedule” means the schedule for a particular Service or Services published on YouScience’s website that provides a description of such Service and other information applicable to the access, use and operation of such Service. A link to each Service Schedule is available at https://www.youscience.com/exhibit-b-service-schedule/.

(m) “Student” means a student enrolled in the schools within School’s school district or other applicable jurisdiction that is authorized to use the Services. With respect to Students that are under the age of 18 (or applicable age of majority), the term “Student” shall also refer to such Student’s parent or legal guardian.

(n) “Student Account” means an account established for an individual Student to access and use the Services, as described in and in accordance with the Terms of Use.

(o) “User” means an individual that is authorized to access and use the Services.

(p) “Terms of Use” means the then-current Terms of Use for the Services located at https://www.youscience.com/terms-of-use/.

2. PROVISION OF SERVICES

2.1 General. During the Term, YouScience will provide the Services in accordance with the terms of this Agreement and the applicable Order Form. School’s use of the Services shall comply at all times with the terms of this Agreement.

2.2 Authorization for Access and Use. Subject to the terms of this Agreement and the applicable Order Form, YouScience grants to School and its Users a limited, non-exclusive, non-transferable, non-sublicensable, non-assignable, revocable right to access and use the Services as described in the Documentation and applicable Service Schedule(s).

2.3  School-Managed Credentials. If School elects to utilize single-sign-on for the Accounts utilizing login credentials managed by School (“School Managed Credentials”), School agrees to provide the information necessary and to work with YouScience to implement the use of such School Managed Credentials. Without limiting anything set forth herein, as between School and YouScience, School shall be solely responsible for validating and authenticating any School Managed Credentials used, or attempted to be used, to access any Account.

3. DUTIES OF THE PARTIES

3.1  Duties of the School.

(a) General Duties. School will: (i) ensure that School and its Users’ access to and use of the Services comply with this Agreement; (ii) use commercially reasonable efforts to prevent and terminate any unauthorized access to or use of the Services; (iii) only permit authorized Faculty to access and use a Faculty Account; (iv) not permit or otherwise allow any Student access to or use of any age-restricted Services where that Student does not meet the minimum age specified on the Service Schedule or as otherwise specified by YouScience; and (v) promptly notify YouScience if School becomes aware of any unauthorized access to or use of the Services or an Account.

(b) Consent. Without limiting anything set forth in the Agreements, School will obtain all necessary parental consent for Students under the age of 18 (or applicable age of majority) to access and use the Services before allowing any such Students to access or use the Services.

3.2  Duties of YouScience. YouScience will: (i) provide the Services as specified in the Agreements; (ii) comply with all applicable state and federal laws, including without limitation and regulations pertaining to data privacy and security, as described in the DPA; and (iii) comply with its data-related obligations as set forth in the DPA.

4. OWNERSHIP

4.1 YouScience Owns the Services.  As between the Parties, YouScience owns all right, title, and interest in and to the Services, including any outputs, analytics, improvements, modifications, enhancements, additions, and derivatives therein or thereof, and any and all Intellectual Property rights in the foregoing. School does not acquire any rights, express or implied, in the foregoing other than those specified in this Agreement and the DPA.

4.2  Data Ownership. The Parties relative ownership rights and obligations related to data covered under this Agreement are provided in the DPA. For clarity, YouScience does not acquire ownership in the School Data, as defined in the DPA.

5. FEES AND PAYMENT

5.1 Fees. School shall pay YouScience the fees applicable to the Services provided to School by YouScience under this Agreement (the “Fees”) as set forth in the applicable Order Form(s) and any invoicing schedule(s) therein, without offset or deduction. If no payment terms are stated in the Order Form, YouScience will invoice School annually prior to the use of the Services or as the Parties otherwise agree in writing. School shall make all payments hereunder in US dollars within thirty (30) days of School’s receipt of an invoice. If School fails to make any payment when due, without limiting YouScience’s other rights and remedies, if such failure to pay is not promptly remedied, YouScience may suspend School’s access to any portion or all of the Services until such amounts are paid in full.

5.2 Changes. The Fees set forth in an Order Form shall remain in effect during the initial term of such Order Form. Any changes to the Fees applicable during any renewal of an Order Form shall be negotiated in good faith and applicable only if agreed in writing by the Parties.

5.3 Taxes. Fees and other amounts payable by School under this Agreement are exclusive of any taxes and similar assessments. School is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local government or regulatory authority on any amounts payable by School hereunder, other than taxes imposed on YouScience’s income. If School is exempt from taxes pursuant to applicable law, School is responsible for providing proof of such exemption to YouScience.

6. CONFIDENTIALITY

6.1 Obligations. The Receiving Party shall keep in strict confidence and trust all Confidential Information of the Disclosing Party. The Receiving Party shall: (i) not, without the prior written consent of the Disclosing Party: (a) disclose the Disclosing Party’s Confidential Information to any third party (other than to the Receiving Party’s employees, agents, or representatives on a need-to-know basis who are bound by obligations of non-disclosure and limited use at least as stringent as those contained herein); or (b) use the Disclosing Party’s Confidential Information except and solely for the performance of the Receiving Party’s obligations under this Agreement; and (ii) use the same care and discretion to avoid disclosure of the Disclosing Party’s Confidential Information as it uses with its own confidential or proprietary information, and in no event with less than reasonable care.

6.2 Exceptions. As used in this Agreement, the term Confidential Information does not include information that demonstrably: (i) is or becomes generally available to the public other than as a result of a disclosure by the Receiving Party; (ii) was possessed by the Receiving Party prior to being furnished by the Disclosing Party, provided that the source of such information was not known by the Receiving Party to be bound by a confidentiality agreement with, or other obligations of confidentiality to, the Disclosing Party or any third party with respect to such information; (iii) is independently developed by the Receiving Party without breach of this Agreement or use of the Disclosing Party’s Confidential Information; or (iv) becomes available to the Receiving Party from a source other than the Disclosing Party that is permitted to disclose such information, provided that such source is not bound by a confidentiality agreement with, or other obligation of confidentiality to, the Disclosing Party or any third party with respect to such information.

6.3 Required Disclosures. It shall not be a violation of Section 6.1 for the Receiving Party to disclose the Disclosing Party’s Confidential Information in response to a subpoena or other legal process served upon the Receiving Party or where applicable law requires the disclosure of such information, provided that: (i) if not prohibited under applicable law, the Receiving Party, prior to disclosing such information, gives reasonable prior written notice to the Disclosing Party sufficient to permit the Disclosing Party to seek a protective order if it so chooses; and (ii) in all cases, the Receiving Party discloses only that information that is legally required to be disclosed. For clarity, any of the Disclosing Party’s Confidential Information the Receiving Party discloses pursuant to this Section 6.3 shall remain subject to the confidentiality requirements under this Agreement for all other purposes.

6.4 Remedies. The Receiving Party acknowledges and agrees that the Disclosing Party may be irreparably harmed if the Disclosing Party’s Confidential Information were to be disclosed to third parties, or if any use were to be made of such Confidential Information other than as permitted under this Agreement and further agrees that the Disclosing Party shall have the right to seek injunctive relief upon any violation or threatened violation of the terms of this Section 6, in addition to all other rights and remedies available at law or in equity, without having to post a bond or other security.

6.5 Return/Destruction of Confidential Information. Except as otherwise set forth in the DPA, the Receiving Party shall delete, destroy, or return to the Disclosing Party all Confidential Information of the Disclosing Party within six (6) months after the conclusion of the Term or at any time upon the Disclosing Party’s request.

7. TERM AND TERMINATION

7.1  Term. This Agreement shall become effective as of the effective date specified in the applicable Order Form. If the applicable Order Form does not specify an effective date, then this Agreement shall become effective on the date of the applicable Order Form, and if the applicable form is not dated, then this Agreement shall become effective on the date the School first accesses the Services, and shall remain in effect until the end of the latest term specified in any applicable Order Form (the “Term”).

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

(a) YouScience may terminate this Agreement and any applicable Order Form, effective on written notice to School, if School: (i) fails to pay any amount when due hereunder, and such failure continues for more than thirty (30) days after YouScience’s delivery of written notice thereof; or (ii) breaches any of School’s obligations under Sections 3.1 or the DPA; and

(b) 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 for a period of thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach.

7.3  Effects of Termination. Without limiting any other effects of termination set forth in this Agreement,

(a) Upon termination of this Agreement or an Order Form, as applicable, School shall immediately discontinue access to and use of and shall have no further right to access or use the applicable Services. Termination will not affect School’s obligations to pay any and all Fees that have become due before such termination, nor shall termination of this Agreement or any Order Form entitle School to any refund. Further, termination shall not relieve School of any liabilities or obligations arising before the date of such termination; and

(b) Upon termination of this Agreement, YouScience shall delete or de-identify School Data, as specified in the DPA.

8. INDEMNIFICATION

8.1  Infringement Indemnification. YouScience shall indemnify, defend, and hold School harmless from and against any and all losses, settlements, claims, actions, suits, proceedings, investigations, judgments, awards, damages, liabilities and any and all legal (including reasonable attorneys’ fees), accounting, and other fees, costs, and expenses reasonably incurred in connection therewith that are sustained by, incurred by, or asserted against School and arise out of a third party claim that the Services infringe or misappropriate such third party’s Intellectual Property rights (“Infringement Claim”).

8.2  Exceptions. YouScience’s indemnification obligations shall not apply to any Infringement Claim based on: (i) School’s use of the Services in any manner not expressly permitted under this Agreement or authorized by YouScience in writing; (ii) School’s use or combination of the Services with non-YouScience-provided software, data, hardware, equipment, or technology except for uses or combinations that are approved by YouScience in writing or any combination made in connection with the customary, ordinary, and intended use of the Services; or (iii) School’s access to or use of the Services after receiving notice the Services infringe a third party’s Intellectual Property rights.

8.3  Additional Rights. If an Infringement Claim is made or appears possible, YouScience shall have the option in its sole discretion to: (i) modify or replace the Services to make it non-infringing; or (ii) obtain the right for School to continue to access and use the Services. If YouScience determines that neither alternative is reasonably available, YouScience may terminate this Agreement with respect to the affected Services, effective immediately on written notice to School, and credit or refund any allocable prepaid Fees on a pro rata basis.

8.4 School Obligations. In the event of an Infringement Claim, School shall provide YouScience with: (i) prompt written notification of any such Infringement Claim; (ii) sole control and authority over the defense or settlement thereof, provided that if any settlement requires any actions or admissions by School, then the settlement will require the School’s prior written consent; and (iii) all available information and reasonable assistance necessary to settle and/or defend any such Infringement Claim. School’s failure to comply with the foregoing shall not relieve YouScience of its indemnification obligations under this Agreement, except and solely to the extent YouScience is materially prejudiced by such failure. School may have its own counsel present at, and participate in, all proceedings or negotiations relating to an Infringement Claim, at School’s own expense.

8.5  Sole Remedy. This Section 8 sets forth School’s sole remedy and YouScience’s sole liability and obligation for any actual, threatened, or alleged Infringement Claim.

9. LIMITATION OF LIABILITY.

9.1  General. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY UNDER OR IN CONNECTION WITH THIS AGREEMENT FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES (EVEN IF PREVIOUSLY APPRISED OF THE POSSIBILITY THEREOF), WHETHER THE BASIS OF THE LIABILITY IS BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), STATUTORY, OR ANY OTHER LEGAL THEORY. SUBJECT TO ANY OTHER LIMITATIONS OF LIABILITY SET FORTH IN THIS AGREEMENT, EACH PARTY’S LIABILITY TO THE OTHER PARTY UNDER ANY AND ALL CLAIMS FOR LOSS OR LIABILITY ARISING OUT OF THIS AGREEMENT SHALL NOT EXCEED AN AMOUNT EQUAL TO THREE (3) TIMES THE FEES ACTUALLY PAID BY SCHOOL TO YOUSCIENCE IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE ACT GIVING RISE TO THE LIABILITY.

9.2  Exclusions. THE FOREGOING LIMITATIONS OF LIABILITY SHALL NOT APPLY WITH RESPECT TO ANY OF THE FOLLOWING: (i) SCHOOL’S OBLIGATIONS TO PAY ALL FEES DUE HEREUNDER; (ii) ANY DAMAGES ARISING FROM A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; OR (iii) AN INFRINGEMENT CLAIM, SO LONG AS SUCH CLAIM IS NOT SUBJECT TO THE EXCEPTIONS IN SECTION 8.2.

10. MISCELLANEOUS

10.1 Relationship of the Parties. It is expressly agreed that the Parties are independent contractors and that the relationship between the Parties shall not constitute a partnership, joint venture, or agency. Neither Party shall have the authority to make any statements, representations, or commitments of any kind, or to take any action, which shall be binding on the other Party, without the prior written consent of such other Party.

10.2 No Third Party Beneficiaries. The rights, remedies, obligations, and liabilities arising under or in connection with this Agreement are solely intended to apply to the Parties to this Agreement and their respective successors and assigns.

10.3 Use of School Logo. Notwithstanding anything to the contrary in this Agreement, School authorizes YouScience to refer to School as a customer and include School’s name, word mark, and logo in YouScience’s marketing materials, including on YouScience’s websites, unless School revokes its authorization in writing.

10.4 Attorneys’ Fees. The prevailing Party in any legal suit, action, or proceeding arising under this Agreement shall be entitled to receive, in addition to all other damages to which it may be entitled, the costs incurred by such Party in conducting the suit, action, or proceeding, including reasonable attorneys’ fees, expenses, and court costs.

10.5 Amendment and Modification. YouScience may propose amendments to this Agreement at any time by providing notice of such proposed amendments in a manner permitted hereunder. Such proposed amendments shall be deemed accepted and become part of this Agreement thirty (30) days after the data such notice is given unless School informs YouScience that School does not accept such amendments. In the event School informs YouScience that School does not accept the proposed amendments, the proposed amendments will not take effect and the existing terms will continue in full force and effect and YouScience shall have the right to terminate this Agreement upon written notice to School. No other modification of this Agreement shall be valid except by written amendment signed by YouScience’s and School’s authorized representatives.

10.6 Waiver. No waiver by a Party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the waiving Party and shall only operate as a waiver of the failure, breach, and/or default expressly identified by such written waiver. For clarity, any waiver of a right, remedy, power, or privilege shall not preclude the waiving Party from exercising any other right, remedy, power, or privilege.

10.7  Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, 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.

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

10.9  Force Majeure. In no event shall YouScience be liable to School, or be deemed to have breached this Agreement, for any failure or delay in performing YouScience’s obligations under this Agreement, if and to the extent such failure or delay is caused by any circumstances beyond YouScience’s reasonable control, including acts of God, flood, fire, earthquake, explosion, epidemic or pandemic, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo, or other similarly disruptive events, whether or not such events are of a similar type or nature to the previously listed events.

10.10  Survival. The provisions of this Agreement which by their nature are intended to survive the expiration or earlier termination of this Agreement shall continue as valid and enforceable obligations of the Parties notwithstanding any such termination, cancellation, completion, or expiration. Without limiting the foregoing, the provisions regarding confidentiality, indemnity, and limitations of liability shall survive the expiration or earlier termination of this Agreement.

10.11  Additional Terms. School agrees that, in addition to this Agreement, School’s access to and use of the Services are governed by the Online Terms, as well as any additional terms of use, terms of service, end user license agreement, or click-through provisions governing the use of the Services published, presented, or otherwise made available to School or School’s Personnel, either directly or through the Services (collectively, the “Additional Terms”).

10.12  Conflicts. Except as otherwise expressly provided in this Agreement, including, without limitation, in an applicable Service Schedule, in the event of any inconsistency between the statements made in the body of this Local Education Agency Subscription Agreement, the Additional Terms, an Order Form, or any other documents incorporated herein by reference, the following order of precedence governs: (i) this Local Education Agency Subscription Agreement; (ii) the DPA and any exhibits thereto; (iii) the Additional Terms; (iv) the applicable Order Form; and (v) any other document incorporated herein by reference unless such document expressly provides that it is modifying this Agreement and is signed by YouScience’s and School’s authorized representatives.

10.13  Notices. All notices or other communications permitted or required to be given under this Agreement shall be sent by email to the email address provided by the other Party for such purpose and shall be deemed given when sent. Notices to YouScience shall be sent to legal@youscience.com. School shall provide an email address for notices under this Agreement. If School fails to provide an email address for notices, YouScience may provide notices under this Agreement by any means reasonably likely to provide School with actual notice thereof.

10.14  Electronic Communications. Each Party consents to receive communications from the other Party in electronic form. Further, School agrees that all notices, disclosures, and other communications that YouScience provides to School electronically satisfy any legal requirement that such communications would satisfy if they were provided in writing. The foregoing does not affect either Party’s non-waivable rights.

10.15  Commercial Software. As defined in FAR section 2.101, the Services and Documentation are “commercial items” and according to DFAR section 252.227-7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely on the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.

10.16  Governing Law. This Agreement is governed by and construed in accordance with the internal laws of the state or commonwealth in which School is principally located (“Governing Jurisdiction”) without giving effect to any choice of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the Governing Jurisdiction. Any legal suit, action, or proceeding arising out of or relating to this Agreement or the licenses granted hereunder will be instituted exclusively in the applicable federal or state courts of the Governing Jurisdiction covering the county or county equivalent in which School is principally located.

10.17  Entire Agreement. This Agreement constitutes the entire understanding and agreement between the Parties with respect to the transactions contemplated herein and supersedes any and all prior or contemporaneous oral or written communications or agreements with respect to the subject matter hereof. No usage of trade, or other regular practice or method of dealing between the Parties or others, will be used to modify, interpret, supplement, or alter in any manner the express terms of this Agreement. If any document issued by School includes any reference that is inconsistent with the provisions of this Agreement, such references shall be null and void despite no objection being stated by YouScience.