Master Services Agreement

This Master Services Agreement, including all Orders, addenda, exhibits and schedules hereto (collectively, this “Agreement”), is between MF Genius, Corp. (d/b/a CampusIQ), a Delaware corporation (“CampusIQ”) and the customer (“School”) whose name appears on the Order regarding the Services, effective as of the Effective Date set forth on the Order (“Effective Date”). CampusIQ and School are each referred to individually as a “party” and collectively as the “parties.”

PLEASE REVIEW THIS AGREEMENT CAREFULLY. BY ACCESSING OR USING THE SERVICES, SCHOOL AGREES TO BE BOUND BY THIS AGREEMENT, INCLUDING ANY UPDATES OR REVISIONS POSTED HERE OR OTHERWISE COMMUNICATED TO SCHOOL. IF SCHOOL DOES NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, SCHOOL MAY NOT ACCESS OR USE THE SERVICES.

RECITALS

WHEREAS, CampusIQ has developed a proprietary analytics tool which, among other things allows schools to see information through websites, dashboards and reports as well as export data, visualize student behaviors and identify at-risk students (the “CampusIQ Report”).

WHEREAS, School is an educational institution that desires to receive, and CampusIQ desires to provide, access to the CampusIQ Report and certain related services (the “Services”) pursuant to the terms and conditions specified in this Agreement.

NOW, THEREFORE, for and in consideration of the mutual covenants and benefits derived hereby, the Parties agree as follows:

CampusIQ Student Success Report And Services.

1. Rights to Use the CampusIQ Report. Subject to the terms and conditions of this Agreement, CampusIQ hereby grants School and its Authorized Users (defined below) a limited, non-exclusive, non-transferable, non-sublicenseable, right and license to access and use: (i) the CampusIQ Report to analyze certain data provided by School, including Internet and other School Logs, Learning Management System (LMS), and Student Information System (SIS) (“School Data”), and (ii) certain analytics and other data generated by the CampusIQ Report in respect of the School Data, including class attendance, library usage, facility usage and at-risk prediction (the “CampusIQ Data”), and to analyze such CampusIQ Data.
2. Authorized Users. School may allow only the faculty, employees and independent contractors for each Campus (defined below) identified in an Order (defined below) (“Authorized Users”) to access the CampusIQ Report on behalf of School, provided that such Authorized Users abide by the terms set forth herein. School shall immediately notify CampusIQ in the event that School or an Authorized User becomes aware of any unauthorized access to the Services or any violation of the terms of this Agreement. School shall be liable for any breach of the Agreement by any Authorized User.
3. Restrictions. School and its Authorized Users may not rent, lease, lend, sell, redistribute, reproduce or sublicense the CampusIQ Report, or use the CampusIQ Report as a service bureau. School may not copy, decompile, reverse-engineer, disassemble, attempt to derive the source code of, modify, create derivative works of the CampusIQ Report, or any part thereof, or use the CampusIQ Report to violate any law or regulation. To the extent the foregoing restrictions are prohibited by applicable law or by an agreement between CampusIQ and one of its licensors, the foregoing activities are permitted only to the extent necessary to comply with such law or license(s). School shall not exploit the CampusIQ Report in any unauthorized way whatsoever, including but not limited to, by trespass or burdening network capacity.
4. Reports. CampusIQ will provide School with an electronic report (each, a “Report”) detailing the results of the analysis provided by the CampusIQ Report.
5. Support Services:
  1. 1. CampusIQwill provide the following support services to School—(i) email response time of 48 hours or less, and (ii) basic trouble shooting regarding errors.
    2. CampusIQ will assign to School a representative that will work closely with the School’s objective. As of the Effective Date, the initial CampusIQ representative will be available. Any questions, strategy, feedback, or otherwise will be directed through this representative. The CampusIQ representative and School will meet monthly to address any concerns, review results and discuss any other types of strategy or feedback as required.
6. Press Release School and CampusIQ agrees to allow each other the ability to create a press release. Both School and CampusIQ may obtain quotes or other information from the other. In both cases, each party has the right to modify the press release before it is released.

School Responsibilities.

1. System Data.
  During the Initial Term (defined below), CampusIQ and School will use commercially reasonable efforts to enable integration and access by CampusIQ to School’s and each Campus’s learning management system (“LMS”), School’s student information system (“SIS”), WiFi logs, as well as other systems that CampusIQ requests (collectively “Data Systems”). School will be responsible for obtaining any required consents to enable such integration and access and will provide or obtain a license to CampusIQ for all information accessible by CampusIQ within the Data Systems. School retains ownership of all data in the Data Systems.
2. CampusIQ’s Performance. School understands that CampusIQ’s performance hereunder is dependent on School’s timely and effective performance of School’s tasks and responsibilities specified hereunder and timely decisions and approvals by School. CampusIQ shall be entitled to rely on all decisions and approvals of the School in connection its provision of the CampusIQ Report to School.

Intellectual Property.

1. Intellectual Property Rights. For the purposes of this Agreement, “Intellectual Property Rights” means patents and other patent rights (including patent disclosures and applications and patent divisions, continuations, continuations-in-part, reissues, and extensions thereof); copyrights and other rights in works of authorship (including software and including registered and unregistered copyrights and unpublished works of authorship); moral rights, trade secrets; know-how; trademarks and service marks (including registered and unregistered); and all other forms of tangible or intangible work, invention, improvement, discovery, process, writing, design, model, drawing, photograph, report, formula, pattern, device, compilation, database or computer program, whether or not protectable under Title 17 of the U.S. Code and whether or not patentable or otherwise protectable under Title 35 of the U.S. Code and whether or not protectable or patentable under similar laws worldwide, that are not conceived of, prepared, procured, generated or produced, whether or not reduced to practice.
2. CampusIQ Intellectual Property. Except as specifically set forth in this Agreement, all Intellectual Property Rights in and to the CampusIQ Report, the CampusIQ Data, and the Reports are and shall remain the sole and exclusive property of CampusIQ. Without limiting the foregoing, CampusIQ will retain exclusive ownership of (i) all of CampusIQ’s know-how, concepts, techniques, methodologies, ideas, templates, software, interfaces, utilities and tools, (ii) all updates, modifications, improvements, enhancements and derivative works of the CampusIQ Report conceived, discovered, developed or reduced to practice, solely or in collaboration with others, during the course of performance of the Services, and (iii) in each case, all related Intellectual Property Rights. If School or any of its Authorized Users submits comments, suggestions, or other feedback regarding the CampusIQ Report to CampusIQ (“Feedback”), School agrees that CampusIQ will own all Intellectual Property Rights to such Feedback without accounting or obligation to School.
3. School Intellectual Property. Except as specifically set forth in this Agreement, all Intellectual Property Rights in and to the School Data, and the Marks (defined below) is and shall remain the sole and exclusive property of School.
4. License to Reports. Subject to the payment of the applicable Charges, CampusIQ grants to School a perpetual, non-exclusive, non-transferable, non-sublicensable, royalty free license to use, display and create derivative works of the Reports for the applicable School academic year for School’s internal business and educational purposes.
5. Trademark License. School hereby grants to CampusIQ a non-exclusive, non-transferable (except as provided in Section 9(c)) license during the Term to use the trademarks, logos and associated branding provided by School to CampusIQ (the “Marks”) in order to provide the Services to School, including for display within the CampusIQ Report. CampusIQ’s use and display of the Marks will comply with the branding guidelines provided in writing by School from time to time.
6. Reference. School acknowledges that CampusIQ may refer to School as a customer of CampusIQ and include the Marks and information regarding School’s use of the CampusIQ Report in CampusIQ’s marketing materials, list of customers and on CampusIQ’s website.
7. Reservation of Rights. Each Party reserves all Intellectual Property Rights not expressly granted to the other Party in this Agreement. Except as expressly stated, nothing herein shall be construed to directly or indirectly grant to a receiving Party any right, title or interest in a providing party’s Intellectual Property Rights in services or materials furnished by such providing Party hereunder.

Orders, Charges and Payment.

1. Orders. To obtain access to the Services for a campus within School (each, a “Campus”), Campus shall submit an order to CampusIQ identifying the applicable Campus (each, an “Order”). Each Order shall set forth the fees to be paid by School for access to the Services by such Campus (the “Charges”), the duration of access for the applicable campus (“Access Period”), and other applicable business terms. The School itself shall also maintain an Order that governs each Campus’s Order (“Initial Term”). No Order shall be binding upon CampusIQ unless signed by an authorized representative of CampusIQ.
2. Charges. Within five business days of the execution of each Order, CampusIQ will invoice School for the applicable Charges under such Order.
3. Payment Terms. All amounts due hereunder shall be paid in U.S. dollars. Unless expressly agreed to by the Parties in writing, all amounts shall be due and payable within thirty (30) days of the date of invoice. Any invoice remaining unpaid for more than thirty (30) days from receipt shall accrue interest at a rate of the lesser of one percent (1.0%) per month, or the highest rate allowed by law.
4. Taxes. The Charges payable under this Agreement shall not include local, state or federal sales, use, value-added, excise or personal property or other similar taxes or duties, and any such taxes shall be assumed and paid by School, except those taxes based on the net income of CampusIQ.

1. Confidentiality.

1. Definition. As used in this Agreement, “Confidential Information” shall mean any confidential or proprietary information (i) related to a Party’s business or operations, customers, suppliers, subscribers, finances, or (ii) other information received by a Party by virtue of that Party's relationship with the other Party including, but not limited to, finances, marketing plans, business opportunities, personnel, research, development, customer data, or know-how. For the avoidance of doubt, all such Confidential Information relating to the CampusIQ Report shall be deemed to be the Confidential Information of CampusIQ. In addition, all Education Records (as defined below) shall be deemed to be the Confidential Information of School.
2. Exclusions. Confidential Information does not include information which (a) is rightfully received by the receiving Party from a third party without restriction, (b) is known to or developed by the receiving Party independently without use of the confidential information, (c) is or becomes generally known to the public by other than a breach of duty hereunder by the receiving Party, or (d) has been approved in advance for release by written authorization of the non-disclosing Party.
3. Non-Use and Non-Disclosure. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any third party (other than as set forth herein) and may only use the disclosing Party’s Confidential Information for the intended business purpose related to this Agreement and for the benefit of the disclosing Party, provided that CampusIQ shall be free to use its general knowledge, skills and experience, and any ideas, concepts, know-how, and techniques that are acquired or used in the course of performing its obligations hereunder. Both Parties shall protect Confidential Information of the other Party from disclosure or misuse by using the same degree of care as for their own confidential information of like importance, but shall at least use reasonable care. Further, both Parties agree to have each of their employees or agents with access to any Confidential Information agree to be bound by an enforceable agreement that ensures the protection of the Confidential Information from disclosure. It is understood that said Confidential Information shall remain the sole property of the disclosing Party unless otherwise expressly set forth herein.
4. Disclosure Required by Law. Notwithstanding Subsection 5(c) above, a receiving Party may disclose the other Party’s Confidential Information if the information is required by law to be disclosed in response to a valid order of a court of competent jurisdiction or authorized government agency, provided that the receiving Party must give the disclosing Party prompt written notice and obtain or allow for a reasonable effort by the disclosing Party to obtain a protective order prior to disclosure.

Representations and Warranties; Disclaimers
- 1. General Representations and Warranties. Each Party represents and warrants to the other Party that: (i) it has the full corporate right, power, and authority to enter into this Agreement and to perform the obligations and duties hereunder; (ii) the execution of this Agreement, and the performance of the obligations and duties hereunder, do not and will not violate any agreement to which a Party or by which a Party is otherwise bound; (iii) when executed and delivered by both Parties, this Agreement will constitute the legal, valid and binding obligation of both Parties, enforceable against the other Party in accordance with its terms; and (iv) each Party acknowledges that the other Party makes no representations, warranties, or agreements related to the subject matter hereof which are not expressly provided for in this Agreement.
  2. FERPA. School represents and warrants that it will at all times during the Term comply with the Family Educational Rights and Privacy Act, 20 U.S.C. § 1232g, and its implementing regulations, 34 C.F.R. pt 99, (“FERPA”) and other laws with respect to the Activities, the provision of School Data and its use of the CampusIQ Report under this Agreement. To the extent that School discloses to CampusIQ or CampusIQ has access to, education records or personally identifiable information contained in such records (“Education Records”) under this Agreement, CampusIQ agrees to comply with FERPA, and School agrees to assist CampusIQ in such compliance, as a “school official” with “legitimate educational interests.” The officers, employees, and agents of CampusIQ may use such Education Records, but only for the purposes for which the disclosure was made.
  3. School Data. School represents and warrants that none of the School Data or any other information provided by School to the CampusIQ Report (including Education Records) infringes the Intellectual Property Rights of any third party or otherwise violates applicable law.
  4. Consents and Approvals. School hereby represents and warrants that it has obtained, and covenants to obtain, all required consents or approvals that are necessary to allow CampusIQ (i) to collect, process, use and store Education Records, and (ii) to provide the Services. CampusIQ’s performance hereunder is specifically conditioned on School’s receipt of such consents and approvals
  5. Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION 6, CAMPUSIQ MAKES NO OTHER WARRANTIES CONCERNING THE CAMPUSIQ PLATFORM, THE APP, OR THE SERVICES WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS, ON ITS OWN BEHALF ON AND BEHALF OF ITS SUPPLIERS AND LICENSORS, ANY IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. CAMPUSIQ DOES NOT WARRANT THAT THE CAMPUSIQ PLATFORM WILL MEET ALL OF SCHOOL’S REQUIREMENTS.

FERPA and Student Records Handling
1. The parties acknowledge and agree that certain information provided by School to CampusIQ may be covered by the FERPA. Education Records (as defined in Section 6(b) above) obtained by CampusIQ from School continue to be the property of and under the control of School. Further, subject to Section 3(b) above, the provisions of this Section 7 shall also apply to Reports containing Education Records.
2. Parents, legal guardians, or Students may review personally identifiable information in the Student’s Education records and correct erroneous information by contacting School. The School Representative will inform CampusIQ of the change.
3. CampusIQ shall take the following actions to confirm the security and confidentiality of Student’s Education Records:
  1. Designating and training employees on the security and confidentiality of Education Records;
  2. Limiting employee access to Education Records based on roles and responsibilities;
  3. conducting background checks on employees who have access to Education Records ;
  4. conducting privacy training that includes FERPA for employees with access to Education Records; and
  5. protecting Education Records with technical, contractual, administrative, and physical security safeguards in order to protect it from unauthorized access release or use.
4. In the event of an unauthorized disclosure of a Student’s Education Records, CampusIQ shall report to an affected parent, legal guardian, or Student pursuant to the following procedure:
  1. 1. date of the breach, the types of information that were subject to the breach;
    2. general description of what occurred; steps CampusIQ is taking to address the breach;
    3. the contact person at the vendor who the data holder can contact.
5. CampusIQ shall not use any information in a Student Education Record for any purpose other than those required or specifically permitted by this Agreement, including for targeted advertising.
6. CampusIQ certifies that a Student's Education Records shall not be retained or available to CampusIQ upon termination or expiration of this Agreement
7. The School agrees to work with CampusIQ to ensure compliance with FERPA. In addition, CampusIQ agrees to work with LEA to ensure compliance with FERPA.

Term And Termination.

1. Term. Unless terminated earlier as set forth herein, the term of each Order shall be effective as of the earlier of (i) the Effective Date and (ii) the date on which School first registered to use the Services, and shall continue until the conclusion of the Access Period set forth in the Order. The term of this agreement shall extend from the Effective Date until the termination of all Orders (the “Term”).
2. Termination; Suspension. Each Party shall have the right terminate this Agreement or any Order if the other Party commits a material breach of this Agreement or any Order and does not cure such breach within thirty (30) days after receiving written notice of such breach from the non-breaching Party, provided that in the event a material breach relates only to a particular Order, the non-breaching Party may only terminate such Order. Additionally, CampusIQ may also (at its discretion and in addition to other remedies it may have) suspend or terminate School’s and its Authorized Users’ access to the CampusIQ Report at any time for any reason, including without limitation if CampusIQ believes in good faith that School may have violated a law or restriction in this Agreement.
3. Effect of Termination. Upon termination of this Agreement for any reason, School’s rights to utilize the CampusIQ Report shall immediately terminate, except as otherwise provided herein. Sections 3(a)-3(d), 3(h), 4 (as to amounts owed as of termination), 5, 6(d), 7(c), 8 and 9 shall survive termination of this Agreement.

Limitations of Liability; Indemnification.

1. EXCEPT WITH RESPECT TO EACH PARTY’S INDEMNIFICATION OBLIGATIONS OR A BREACH OF SECTION 5 (ABOVE), TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT, STRICT LIABILITY AND OTHERWISE, FOR ANY DIRECT, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OR FOR ANY DAMAGES FOR LOST REVENUE, LOST PROFITS OR LOSS OF BUSINESS OPPORTUNITIES. THE FOREGOING LIMITATIONS WILL APPLY REGARDLESS OF WHETHER SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
2. Each Party shall indemnify, defend and hold harmless the other Party and its affiliates and their respective directors, officers, employees and agents (collectively, the “Indemnified Parties”) against all claims and all losses, liabilities, damages, fines, and penalties paid or payable to or for the benefit of any third party asserting a claim (including such third party’s successors and assigns) pursuant to any settlement, judgment or award with respect to such claim (including taxes), and all related costs and expenses (including reasonable legal fees and disbursements and out-of-pocket costs of investigation, experts, litigation, settlement, judgment, interest and penalties) arising out of or related to the indemnifying Party’s breach of its representations and warranties set forth in Section 6.

General Provisions.

1. Governing Law. The interpretation and enforcement of this Agreement, and all claims arising hereunder whether in contract, tort or otherwise, will be governed by the laws of the State of Texas, without giving effect to provisions related to choice of laws or conflict of laws.
2. Force Majeure. Except for the failure to make payments, neither Party will be liable for any loss, damage or penalty resulting from delays or failures in performance resulting from acts of God, supplier delay or other causes beyond the non-performing Party's reasonable control and not caused by the negligence of the non-performing Party, and provided that such delay cannot reasonably be circumvented by the non-performing Party through the use of commercially reasonable alternate sources, workaround plans or other commercially reasonable means; provided, further, that the non-performing Party promptly notifies the other Party of the delay and the cause thereof and promptly resumes performance as soon as it is possible to do so.
3. Assignment. Neither this Agreement nor any right hereunder or interest herein may be assigned or transferred by a Party without the express written consent of the other Party; provided, however, that either Party may assign this Agreement without such consent in the case of assignment in connection with a reorganization, merger, acquisition, sale of all or substantially all of such Party’s assets related to this Agreement or similar transaction. Any purported assignment in violation of this Section shall be null and void. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the Parties hereto and their respective permitted successors and assigns.
4. Arbitration. Any dispute, controversy or claim arising out of this Agreement will be settled by binding arbitration pursuant to the Commercial Rules of the American Arbitration Association (“Rules”) then in effect. Notwithstanding those Rules, the following provisions will apply to such arbitration:
  1. 1. 1. Texas law shall apply.
      2. The arbitration will be conducted by a single arbitrator; however, at the request of either Party, a panel of three arbitrators will conduct the arbitration, with one arbitrator chosen by each of the Parties and the third appointed by the other two arbitrators. If the Parties are unable to agree upon a single arbitrator, or the third arbitrator in case of a panel of three, such single or third arbitrator (as the case may be) shall be appointed in accordance with the Rules.
      3. The fees of the arbitrator(s) shall be equally borne (50/50) by School and CampusIQ.
      4. The Parties and the arbitrator(s) shall use reasonable, diligent efforts to complete the arbitration within 60 days after the appointment of the arbitrator(s).
      5. The proceedings shall be in the English language and shall take place in Austin, Texas.
      6. All persons may participate in arbitration in person or by telephonic or electronic means, such as video conference; however, the failure to appear in person shall not be held against any Party or its counsel.
      7. The arbitrator(s) shall reach a binding decision regarding the issues presented as it deems fair, reasonable and appropriate, and such decision shall have the full force and effect of a binding judgment, which may be entered and/or transcript in any court having proper jurisdiction.
5. Other Remedies. In addition to the right to terminate this Agreement, each Party reserves all rights and remedies available to that Party under law or equity, including the right to seek damages and injunctive relief for breach or threatened breach of this Agreement by the other Party. Notwithstanding Section 10(d), each Party may seek injunctive relief in any court of competent jurisdiction.
6. Compliance with Applicable Law. Each Party agrees to comply with all municipal, local, state, federal, and international trade laws, codes, rules, ordinances and regulations, as applicable to such Party in the conduct of its business.
7. Independent Contractors. In performing their respective duties under this Agreement, each of the Parties will be operating as an independent contractor. Nothing contained herein will in any way constitute or be deemed to have created any franchise, association, partnership, or joint venture between the Parties hereto, or be construed to evidence the intention of the Parties to establish any such relationship. Neither Party shall represent itself as, an agent, legal representative, or partner of the other Party, and shall not assume or purport to create any obligation on behalf of the other Party except as expressly stated in this Agreement. Each Party shall bear their own expenses incurred in the negotiation and execution of this Agreement.
8. Entire Agreement. This document, including all schedules and exhibits hereto, contains the entire agreement and understanding between the Parties concerning the subject matter of this Agreement. Neither Party is relying on any statements made by the other Party outside of this document. Each Party is relying on its own judgment and the advice of its advisors in connection with this Agreement. This document supersedes all prior communications, discussions, negotiations, proposed agreements, letters of intent, and all other agreements, whether written or oral, excepting solely all prior confidentiality and nondisclosure agreements to the extent they are not expressly superseded by this Agreement. Except as specifically provided herein, this Agreement may be amended only by written agreement signed by authorized representatives of both Parties. It is the express intent of the Parties that this Agreement and any amendment thereto shall be interpreted solely by reference to their written terms. Any handwritten or typed changes to this Agreement must be initialed by both Parties in order to become effective.
Waiver. The waiver of any breach or default will not constitute a waiver of any other right in this Agreement or any subsequent breach or default. No waiver shall be effective unless in writing and signed by an authorized representative of the Party to be bound. Failure to pursue, or delay in pursuing, any remedy for a breach shall not constitute a waiver of such breach.
Notices. Any notice or other writing required or desired to be given or made pursuant to this Agreement shall be in writing, and shall be deemed to have been given and received, and to be effective for all purposes, the third business mail day after having been mailed via certified or registered United States mail in an envelope properly stamped and addressed to the proper Party at its registered office or, alternatively, when faxed to the numbers or emailed to the following email, if the sender has confirmation of such fax or email, respectively, having been received:

1. Severability. In the event that it is determined by a court of competent jurisdiction as a part of a final non-appealable judgment that any provision of this Agreement or part thereof is invalid, illegal, or otherwise unenforceable, such provision will be enforced or reformed as nearly as possible in accordance with the stated intention of the Parties, while the remainder of this Agreement will remain in full force and effect.
2. Construction. This Agreement has been negotiated by the Parties and their respective counsel. This Agreement will be interpreted in accordance with its terms and without any strict construction against either Party. Ambiguity will not be interpreted against the drafting Party. The captions and headings used in this Agreement are inserted for convenience only and shall not affect the meaning or interpretation of this Agreement.
3. Counterparts. This Agreement may be executed in separate counterparts and shall become effective when the separate counterparts have been exchanged between the Parties. This Agreement may be executed by facsimile or electronic signature. A facsimile or electronic reproduction of this Agreement may be executed by either Party, and such execution by both Parties shall be considered valid and binding for all purposes.