This Master SaaS and Services Agreement (this “Agreement”) is entered into by and between ThinK-12, Inc., a Delaware corporation (“ThinK-12”) with a place of business at 83 South Street Morristown, NJ 07960, and the Customer (“Customer”). ThinK-12 and Customer are sometimes referred to jointly as the “parties” or singularly as a “party.”

 

RECITALS.

 

WHEREAS, Customer desires to use the Services of ThinK-12, and ThinK-12 wishes to provide the Services to Customer, each on the terms and conditions set forth in this Agreement.

 

NOW, THEREFORE, in consideration of the mutual covenants and promises set forth herein, and other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

 

  1. SERVICES

 

1.1 Purpose. This Agreement sets forth the terms and conditions under which ThinK-12 agrees to provide (i) certain programs and features within the ThinK-12 product portfolio (each such program or feature together with any applicable documentation thereto, and programming and user interfaces) to Customer and its Authorized Users, as set forth on each order form (“Order Form”) and (ii) if applicable, all other implementation services, customization, integration, data import and export, monitoring, technical support, maintenance, training, backup and recovery, and change management (“Professional Services” together with Subscription Services, the “Services”) related to Customer’s access to, and use of, such Subscription Services and each Program, as further set forth on each statement of services (“Statement of Work”) issued hereunder (Order Forms and Statements of Professional Services are sometimes referred to jointly as a “Statement of Services”).

 

1.2 The Services; Access and Use License. Subject to the terms and conditions of this Agreement, during the Term, ThinK-12 shall use commercially reasonable efforts to provide (i) Customer, Administrative and End Users access to each Program, and (ii) Customer Professional Services, if applicable. Subject to the terms and conditions of this Agreement, during the Term, ThinK-12 hereby grants Customer, Administrative and End Users a non-exclusive, non-sublicensable, nontransferable, worldwide license to access and use each Program, solely for Customer’s business purposes as set forth herein.

 

1.3 Subscription Services. Each applicable Order Form shall specify and further describe the Subscription Services to be provided in accordance with the representations and warranties set forth herein, and shall identify, each applicable Program, users, fees, subscription term and other applicable terms and conditions.

 

1.4 Professional Services. Each applicable Statement of Work shall specify and further describe the Professional Services to be provided in accordance with the representations and warranties set forth herein, and may, but need not, include, the Professional Services offered, limitations, milestones, fees, term and other applicable terms and conditions.

 

1.5 Changes to Program. ThinK-12 may, in its sole discretion, make any changes to any Program that it deems necessary or useful to (i) maintain or enhance (a) the quality or delivery of ThinK-12’s products or services to its customers, (b) the competitive strength of, or market for, ThinK-12’s products or services, (c) such Program’s cost efficiency or performance, or (ii) to comply with applicable law.

 

  1. Program ACCESS AND AUTHORIZED USERS

 

2.1 Administrative Users. During the configuration, set-up process and contractual use of each Program, Customer may have an unlimited number of Administrative users access the Program(s). Administrative users are Customer’s employees or agents, as specified by the Customer, for the sole purpose of administering and managing the Program(s).

 

2.2 End Users. Customer may allow a number of Customer’s end users (“End Users”), as specified on the Order Form, to use the applicable Program(s) on behalf of Customer. End User subscriptions are for designated End Users and cannot be shared or used by more than one End User. Examples of End Users include the Customer’s prospective students, prospective students’ parents/guardians, current students, current students’ parents/guardians, prospective staff and current staff.

 

2.3 Conditions to Use. As a condition to access and use of a Program, (i) each Administrative and End User shall agree to abide by the terms of ThinK-12’s end-user terms of use which it may modify from time to time. Customer shall immediately notify ThinK-12 of any violation of the terms of any of the foregoing by any User upon becoming aware of such violation.

 

2.4 Account Responsibility. Customer will be responsible for (i) all uses of any account in the Program(s), whether or not Customer has authorized the particular use or user, and regardless of Customer’s knowledge of such use, and (ii) securing its ThinK-12 account, passwords (administrative and end user passwords) and files. ThinK-12 is not responsible for any losses, damages, costs, expenses or claims that result from stolen or lost passwords.

 

  1. ADDITIONAL RESTRICTIONS AND RESPONSIBILITIES

 

3.1 Software Restrictions. Customer will not, nor permit or encourage any third party to, directly or indirectly (i) reverse engineer, decompile, disassemble or otherwise attempt to discover or derive the source code, object code or underlying structure, ideas, know-how or algorithms relevant to a Program or any software, documentation or data related to a Program (“Software”); (ii) modify, translate, or create derivative works based on a Program or any Software; (iii) use a Program or any Software for timesharing or service bureau purposes or other computer service to a third party; (iv) modify, remove or obstruct any proprietary notices or labels; or (v) use any Software or a Program in any manner to assist or take part in the development, marketing or sale of a product potentially competitive with such Software or Program. For the avoidance of doubt, Software and the Services, including all user-visible aspects of the Services, are the Confidential Information of ThinK-12, and Customer will comply with Section 4 with respect thereto.

 

3.2 Customer Compliance. Customer shall use, and will ensure that all Authorized Users use, each Program, Software, and the Services in full compliance with this Agreement, ThinK-12’s end-user terms of use and all applicable laws and regulations. Customer represents and warrants that it (i) has accessed and reviewed any terms of use or other policies relating to a Program provided by ThinK-12, (ii) understands the requirements thereof, and (iii) agrees to comply therewith. ThinK-12 may suspend Customer’s account and access to each Program and performance of the Services at any time and without notice if ThinK-12 believes that Customer is in violation of this Agreement. Although ThinK-12 has no obligation to monitor Customer’s use of a Program, ThinK-12 may do so and may prohibit any use it believes may be (or alleged to be) in violation of the foregoing.

 

3.3 Cooperation. Customer shall provide all cooperation and assistance as ThinK-12 may reasonably request to enable ThinK-12 to exercise its rights and perform its obligations under, and in connection with, this Agreement, including providing ThinK-12 with such access to Customer’s premises and its information technology infrastructure as is necessary for ThinK-12 to perform the Services in accordance with this Agreement.

 

3.4 Training and Education. ThinK-12 shall provide adequate training and education to Customer  for its Administrative Users. Training and Education may be in the form of in-person or virtual meetings, documented materials, videos, email, phone or digital chat. Customer shall use commercially reasonable efforts to cause Administrative Users to be, at all times, educated and trained in the proper use and operation of each Program utilized by the Customer, and to ensure that each Program is used in accordance with applicable manuals, instructions, specifications and documentation provided by ThinK-12 from time to time.

 

3.5 Customer Systems. Customer shall be responsible for obtaining and maintaining—both the functionality and security of—any equipment and ancillary services needed to connect to, access or otherwise use each Program, including modems, hardware, servers, software, operating systems, networking, web servers and the like.

 

3.6 Restrictions on Export. Customer may not remove or export from the United States or allow the export or reexport of the Software or anything related to a Program, Software or Services, or any direct product thereof in violation of any restrictions, laws or regulations of any United States or foreign agency or authority.

 

 

  1. CONFIDENTIALITY

 

4.1 Confidential Information. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has been, and may be, exposed to or acquired business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Confidential Information”). Confidential Information of ThinK-12 includes non-public information regarding features, functionality and performance of each Program and Software. Confidential Information of Customer includes non-public data provided by Customer to ThinK-12 to enable the provision of access to, and use of, the Services as well as all content, data and information recorded and stored by each Program for Customer (“Customer Data”), but explicitly excludes Vendor Information (defined below). The terms and conditions of this Agreement, including all pricing and related metrics, are ThinK-12’s Confidential Information.

 

4.2 Exceptions. Notwithstanding anything to the contrary contained herein, Confidential Information shall not include any information that the Receiving Party can document (i) is or becomes generally available to the public, (ii) was in its possession or known by it prior to receipt from the Disclosing Party, (iii) was rightfully disclosed to it without restriction by a third party, or (iv) was independently developed without use of any Confidential Information of the Disclosing Party.

 

4.3 Non-use and Non-disclosure. With respect to Confidential Information of the Disclosing Party, the Receiving Party agrees to: (i) use the same degree of care to protect the confidentiality, and prevent the unauthorized use or disclosure, of such Confidential Information it uses to protect its own proprietary and confidential information of like nature, which shall not be less than a reasonable degree of care, (ii) hold all such Confidential Information in strict confidence and not use, sell, copy, transfer reproduce, or divulge such Confidential Information to any third party, (iii) not use such Confidential Information for any purposes whatsoever other than the performance of, or as otherwise authorized by, this Agreement.

 

4.4 Compelled Disclosure. Notwithstanding Section 4.3, the Receiving Party may disclose Confidential Information of the Disclosing Party to the extent necessary to comply with a court order or applicable law; provided, however that the Receiving Party delivers reasonable advance notice of such disclosure to the Disclosing Party and uses reasonable efforts to secure confidential treatment of such Confidential Information, in whole or in part.

 

4.5 Remedies for Breach of Obligation of Confidentiality. The Receiving Party acknowledges that breach of its obligation of confidentiality may cause irreparable harm to the Disclosing Party for which the Disclosing Party may not be fully or adequately compensated by recovery of monetary damages. Accordingly, in the event of any violation, or threatened violation, by the Receiving Party of its obligations under this Section, the Disclosing Party shall be entitled to seek injunctive relief from a court of competent jurisdiction in addition to any other remedy that may be available at law or in equity, without the necessity of posting bond or proving actual damages.

 

  1. PROPRIETARY RIGHTS

 

5.1 Ownership. Customer shall own all right, title and interest in and to the Customer Data, and any and all Program content, trademarks, service marks and designs specific or custom to the Customer. ThinK-12 shall own and retain all right, title and interest in and to (i) each Program, Software and the Services, all content, designs, trademarks, service marks and all improvements, enhancements or modifications thereto, (ii) any software, applications, inventions or other technology developed in connection with the Services, and (iii) all intellectual property and proprietary rights in and related to any of the foregoing (collectively, “Services IP”).

 

5.2 Customer Data and Vendor Information License. Customer hereby grants to ThinK-12 a non-exclusive, transferable, sublicensable, worldwide and royalty-free license to use (i) Customer Data to provide the Services to Customer hereunder and as necessary or useful to monitor and improve a Program, Software and the Services, both during and after the Term, and (ii) Vendor Information for any lawful purpose. “Vendor Information” means any Vendor list or Vendor contact information that is provided to ThinK-12 by Customer or uploaded to any Program by or on behalf of Customer. For the avoidance of doubt, ThinK-12 may use, reproduce and disclose Program-, Software- and Services-related information, data and material that is anonymized, deidentified, or otherwise rendered not reasonably associated or linked to Customer or any other identifiable individual person or entity for product improvement and other lawful purposes, all of which information, data and material will be owned by ThinK-12.

 

5.3 No Other Rights. No rights or licenses are granted except as expressly set forth herein.

 

  1. FEES & PAYMENT

 

6.1 Fees. Customer will pay ThinK-12 the then-applicable fees described in an Order Form, as applicable, in accordance with the terms set forth therein (“Fees”), including, for the avoidance of doubt, any fees incurred through Customer’s use of a Program exceeding a services capacity parameter specified on an Order Form.

 

6.2 Renewal Fees. Upon the commencement of each Renewal Term, (i) Customer shall be liable to ThinK-12 for payment of a Renewal Fee. Customer hereby consents to ThinK-12 charging any such Renewal Fee to the credit card, or other payment method, associated with Customer’s account without need to provide any further notice or receive any further consent. Each “Renewal Fee” shall equal the Service Fee or Renewal Fee, as applicable, due to ThinK-12 during previous term as may be increased in ThinK-12’s sole discretion by a percentage up to the Fee Increase Percentage specified on the applicable Order Form; provided, if the Initial Term was greater than one (1) year, for purposes of calculating the initial Renewal Fee the Service Fee shall be prorated to one (1) year. Notwithstanding the foregoing, if Customer is not liable to ThinK-12 for a Service Fee under an Order Form, no Renewal Fees shall be charged to Customer with respect to such Order Form.

 

6.3 Reimbursable Expenses. In addition to the Fees, if applicable, Customer shall reimburse ThinK-12 for reasonable out-of-pocket expenses incurred by ThinK-12 in connection with performing the Professional Services, so long as said out-of-pocket expenses are pre-approved by Customer.

 

6.4 Payment. ThinK-12 may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by ThinK-12 thirty (30) days after the mailing date of the invoice (unless otherwise specified on the applicable Order Form). Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection. In addition to any other remedies available, ThinK-12 may suspend Services in the event of payment delinquency.

 

6.5 Payment Disputes. If Customer believes that ThinK-12 has billed Customer incorrectly, Customer must contact ThinK-12 no later than thirty (30) days after the closing date on the first billing statement in which the believed error or problem appeared in order to receive an adjustment or credit. Inquiries should be directed to ThinK-12’s customer support department or the applicable Account Manager.

 

6.6 Taxes. Customer shall pay, and shall be labile for, all taxes relating to ThinK-12’s provision of the Services hereunder. ThinK-12 shall pay, and shall be liable for, taxes based on its net income or capital.

 

6.7 No Deductions or Setoffs. All amounts payable to ThinK-12 hereunder shall be paid by Customer to ThinK-12 in full without any setoff, recoupment, counterclaim, deduction, debit or withholding for any reason except as may be required by applicable law.

 

6.8 Subpoena Expenses. If ThinK-12 has to provide information in response to a subpoena related to Customer’s account, then ThinK-12 may charge Customer for ThinK-12’s costs. Such charges may include fees for attorney and employee time spent retrieving records, preparing documents and participating in depositions or other legal process as well as other costs incurred in complying with such legal processes.

 

  1. TERM AND TERMINATION

 

7.1 Term. This Agreement shall remain in effect until its termination as provided below (the “Term”). The term of each Statement of Services shall begin on the applicable “Services Effective Date” and continue for the “Service Term,” in each case as specified in such Order Form. Each Order Form shall renew for additional (i) one (1) year periods if the Service Term is equal to or greater than one (1) year, or (ii) periods equal to the Service Term if the Service Term is less than one (1) year (each, a “Renewal Term”), unless written notice of non-renewal is received by the other party at least sixty (60) days, but not less than thirty (30) days, prior to the expiration of the then current term.

 

7.2 Termination. ThinK-12 may terminate this Agreement upon written notice to Customer if no Order Form is in effect. In addition to any other remedies it may have, either party may also terminate this Agreement upon written notice if the other party fails to pay any amount when due or otherwise materially breaches this Agreement and fails to cure such breach within thirty (30) days or as agreed upon by both parties after receipt of written notice of such breach from the non-breaching party. However, termination by Customer for non-breach-related reasons does not relieve Customer of amounts due as indicated on the Order Form, whether or not the Service Term has been completed. Notwithstanding the foregoing, if Customer is a state agency or a political subdivision of a state, or a federal agency or a political subdivision of the federal government, Customer may terminate this Agreement at any time (i) for convenience upon ninety (90) days’ written notice to ThinK-12, or (ii) if adequate funds to pay ThinK-12 all fees owed hereunder are not appropriated to such Customer during the Term, unless otherwise authorized by law; provided, it is expressly agreed that Customer shall not activate this non-appropriation provision for its convenience, substation for another procurement system or solution, or to circumvent the requirements of this Agreement in any way.

 

7.3 Effect of Termination. Upon termination of the Agreement, each outstanding Statement of Services, if any, shall terminate and Customer shall immediately cease all use of, and all access to, the Subscription Services and ThinK-12 shall immediately cease providing the Professional Services. If (i) ThinK-12 terminates this Agreement pursuant to the second sentence of Section 7.2, or (ii) Customer terminates this Agreement pursuant to clause (i) of the last sentence of Section 7.2, all Fees that would have become payable had each outstanding Statement of Service remained in effect until expiration of its current term will become immediately due and payable.

 

7.4 Survival. Sections [3.1, 4–6, 7.2, 7.4, and 9–17] shall survive any termination or expiration of this Agreement. All other rights and obligations shall be of no further force or effect.

 

  1. WARRANTY AND DISCLAIMER

 

8.1 Warranties. ThinK-12 represents and warrants that it will deliver its Program(s) and perform the Professional Services in a professional and workmanlike manner. Each party represents and warrants that it has the legal power to enter into this Agreement. Additionally, Customer warrants that (i) Customer owns or has a license to use and has obtained all consents and approvals necessary for the provision and use of all of the Customer Data that is placed on, transmitted via or recorded by a Program and the Services; (ii) the provision and use of Customer Data as contemplated by this Agreement and each Program and the Services does not and shall not violate any Customer’s privacy policy, terms-of-use or other agreement to which Customer is a party or any law or regulation to which Customer is subject to; and (iii) no Customer Data will include social security numbers or other government-issued identification numbers, financial account numbers, credit card or debit card numbers, credit report information or other personal financial information, health or medical information or other information that is subject to international, federal, state, or local laws or ordinances now or hereafter enacted regarding data protection or privacy, including, but not limited to, the Health Insurance Portability and Accountability Act, the Health Information Technology for Economic and Clinical Health Act, the Fair Credit Reporting Act and the Children’s Online Privacy Protection Act.

 

8.2 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN OR IN A STATEMENT OF SERVICE, THINK-12 DOES NOT WARRANT THAT ACCESS TO THE PROGRAM(S), SOFTWARE OR SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, NOR DOES THINK-12 MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. FURTHER, THINK-12 MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO SERVICES PROVIDED BY THIRD PARTY TECHNOLOGY SERVICE PROVIDERS RELATING TO OR SUPPORTING A PROGRAM, INCLUDING HOSTING AND MAINTENANCE SERVICES, AND ANY CLAIM OF CUSTOMER ARISING FROM OR RELATING TO SUCH SERVICES SHALL, AS BETWEEN THINK-12 AND SUCH SERVICE PROVIDER, BE SOLELY AGAINST SUCH SERVICE PROVIDER. THE PROGRAM(S), SOFTWARE AND SERVICES ARE PROVIDED “AS IS,” AND THINK-12 DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

 

  1. INDEMNITY

 

9.1 Indemnification by ThinK-12. ThinK-12 will defend Customer against any claim, suit, demand, or action made or brought against Customer by a third party alleging that the Services, or Customer’s use or access thereof in accordance with this Agreement, infringes any intellectual property rights of such third party, and will indemnify and hold harmless Customer from any damages, losses, liabilities, costs and fees (including reasonable attorney’s fees) finally awarded against Customer in connection with or in settlement of any such claim, suit, demand, or action. The foregoing obligations do not apply with respect to portions or components of any Program or Service (i) not supplied by ThinK-12, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery, or granting of access, by ThinK-12, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Services is not strictly in accordance with this Agreement. If, due to a claim of infringement, a Program is held by a court of competent jurisdiction to be or is believed by ThinK-12 to be infringing, ThinK-12 may, at its option and expense (a) replace or modify such Program to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using such Program, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for such Program. This Section states Customer’s sole and exclusive remedies for claims of infringement.

 

  1. LIMITATION OF LIABILITY. IN NO EVENT SHALL (I) EITHER PARTY’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY EXCEED IN THE AGGREGATE THE TOTAL FEES PAID OR OWED BY CUSTOMER AND VENDORS HEREUNDER DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE EVENT GIVING RISE TO THE CLAIM (SUCH AMOUNT BEING INTENDED AS A CUMULATIVE CAP AND NOT PER INCIDENT), AND (II) EITHER PARTY HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, COVER, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATIONS AND DISCLAIMERS SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

 

  1. GOVERNING LAW AND DISPUTE RESOLUTION. This Agreement is governed in all respects by the laws of the State of DELAWARE, without giving effect to its rules relating to conflict of laws. Neither any adoption of the Uniform Computer Information Transactions Act nor the U.N. Convention on the International Sale of Goods applies to this Agreement or to the rights or duties of the parties under this Agreement. Any dispute arising out of or relating to this Agreement, or its subject matter, shall be resolved exclusively by binding arbitration under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”). Either party may send a notice to the other party of its intention to file a case with the AAA under this Section (“Arbitration Notice”). Arbitration will be conducted in Delaware by a single arbitrator knowledgeable in government contracting matters and the commercial aspects of “software as a service” arrangements and intellectual property. The parties will mutually appoint an arbitrator within thirty (30) days of the Arbitration Notice. If the parties are unable to agree on an arbitrator, then the AAA will appoint an arbitrator who meets the foregoing knowledge requirements. The arbitration hearing will commence within sixty (60) days after the appointment of the arbitrator and the hearing will be completed and an award rendered in writing within sixty (60) days after the commencement of the hearing. Prior to the hearing, each party will have the right to take up to four (4) evidentiary depositions, and exchange two (2) sets of document production requests and two sets, each, of not more than ten (10) interrogatories. The arbitrator will provide detailed written explanations to the parties to support their award and regardless of outcome, each party shall pay its own costs and expenses (including attorneys’ fees) associated with the arbitration proceeding and fifty percent (50%) of the fees of the arbitrator and the AAA. The arbitration award will be final and binding and may be enforced in any court of competent jurisdiction.

 

  1. SECURITY. ThinK-12 may, from time to time, host and/or maintain a Program using a third party technology service provider and Customer acknowledges that ThinK-12 cannot offer any additional or modified procedures other than those put in place by such technology provider with respect to such technology service.

 

  1. PUBLICITY. Customer agrees that ThinK-12 may identify Customer as a customer and use Customer’s logo and trademark in ThinK-12’s promotional materials. Customer may request that ThinK-12 stop doing so by submitting an email to info@ThinK-12.com at any time. Customer acknowledges that it may take ThinK-12 up to 30 days to process such request. Notwithstanding anything herein to the contrary, Customer acknowledges that ThinK-12 may disclose the existence and terms and conditions of this Agreement to its advisors, actual and potential sources of financing and to third parties for purposes of due diligence.

 

  1. NOTICES. All notices, consents, and other communications between the parties under or regarding this Agreement must be in writing (which includes email and facsimile) and be addressed according to information provided on an Order Form. All notices, consents and other communications between the parties under a Statement of Services will be sent to the recipient’s address specified thereon. All communications will be deemed to have been received on the date actually received. Either party may change its address for notices by giving written notice of the new address to the other party in accordance with this Section.

 

  1. FORCE MAJEURE. ThinK-12 is not responsible nor liable for any delays or failures in performance from any cause beyond its control, including, but not limited to acts of God, changes to law or regulations, embargoes, war, terrorist acts, acts or omissions of third party technology providers, riots, fires, earthquakes, floods, power blackouts, strikes, weather conditions or acts of hackers, internet service providers or any other third party or acts or omissions of Customer or any Authorized User.

 

  1. ASSIGNMENT. Neither party may assign this Agreement to any third party without the prior written consent of the other; provided that no consent is required in connection with an assignment to an affiliate or in connection with any merger, reorganization, consolidation, sale of assets or similar transaction. ThinK-12 may sublicense any or all of its obligations hereunder. For the avoidance of doubt, a third party technology provider that provides features or functionality in connection with a Program shall not be deemed a sublicensee under this Agreement.

 

  1. GENERAL PROVISIONS. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement, together with Statement of Services entered into hereunder and all exhibits, annexes and addenda hereto and thereto is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement. All waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement, and neither party has authority of any kind to bind the other party in any respect whatsoever. In the event of a conflict between this Agreement and any Statement of Services, such Statement of Services shall prevail unless otherwise expressly indicated in this Agreement or such Statement of Services. The heading references herein are for convenience purposes only and shall not be deemed to limit or affect any of the provisions hereof. Unless otherwise indicated to the contrary herein by the context or use thereof: (i) the words “hereof,” “hereby,” “herein,” “hereto,” and “hereunder” and words of similar import shall refer to this Agreement as a whole and not to any particular Section or paragraph of this Agreement; (ii) the words “include,” “includes” or “including” are deemed to be followed by the words “without limitation;” (iii) references to a “Section” or “Exhibit” are references to a section of, or exhibit to this Agreement; and (iv) derivative forms of defined terms will have correlative meanings.

 

 

 

 

 

Programs, features and service level descriptions

 

ThinK-12 Families™

ThinK-12 Families is a revolutionary approach to driving enrollment, family engagement and retention (re-enrollment) for schools and districts. It’s a web and mobile-web application that supercharges school websites and communication with richer experiences for prospective and current families.

Features

ThinKTanK™. Professionally developed content to help prospective families make the right school choice for their child(ren), engage in the school community, and stay enrolled at a school. Content may also be customized to describe and refer to specific highlights of Customer’s school(s).

Standard program includes access to the ThinKTanK Global content library, customization of 10 global content articles, and 10 originally written articles,  per school. Additional customization of global content articles is available at $50/article, and additional originally written articles are available at $175/article. All articles are up to 500 words.


Q & A Videos. Commonly asked questions of prospective and current families answered in video format by school staff, students, parents and/or graduates. Videos are loaded into a technical engine that displays the appropriate videos for their corresponding questions.

Standard program includes up to 5 questions and 5 video responses per question (totaling up to 25 videos). Videos are 30 seconds to 1 minute long. Additional videos are available at $225 each.


Family Network. Allows for designated family ambassadors (selected by the school) to engage with prospective families, as well as a closed social community (enrolled families at Client school only) that help families get and stay connected with each other.

Standard program includes up to 10 family ambassadors and unlimited family users.


Staff Directory. A visual staff listing that helps drive connections between families and staff.

Standard program includes unlimited staff users.


ClubHub™ (“The Hub”). A visual club directory that highlights club features and information.

Standard program includes unlimited clubs/groups and unlimited users.


Outcomes. A visual display of school outcomes (placements).

 Standard program includes the design and development of the Outcomes page (showcasing student outcomes/accomplishments) and two success stories (up to 500 words each).  Also includes Graduate Gallery™, with unlimited users.


ThinK-12 Staff™

ThinK-12 Staff is a web and mobile-web application that helps recruit, engage and retain staff for a school and/or district.

Features

ThinKTanK™. Professionally developed content to help prospective Staff make the right school choice, help current staff engage in the school community, and stay employed at a school. Content may also be customized to describe and refer to specific highlights of Client’s school(s).

Standard program includes access to the ThinKTanK Global content library, customization of 10 global content articles, and 10 originally written articles,  per school. Additional customization of global content articles is available at $50/article, and additional originally written articles are available at $175/article. All articles are up to 500 words.


Q & A Videos. Commonly asked questions of prospective and current staff answered in video format by school staff, students, parents and graduates. Videos are loaded into a technical engine that displays the appropriate videos for their corresponding questions.

Standard program includes up to 5 questions and 5 video responses per question (totaling up to 25 videos). Videos are 30 seconds to 1 minute long. Additional videos are available at $225 each.


Staff Network. Allows for designated staff ambassadors (selected by the school) to engage with prospective staff, as well as a closed social community (current staff at Client school only) that helps staff get and stay connected with each other.

Standard program includes up to 10 staff ambassadors and unlimited staff users.


Staff XL. A learning center for staff continued education.

Standard program includes the design of the Staff XL section with unlimited external links to resources, designated by the Client.


Outcomes. A visual display of school outcomes.

Standard program includes the design and development of the Outcomes page (showcasing teacher and/or student outcomes/accomplishments) and two success stories (up to 500 words each). 


Job Board. A visual display of open positions at a school.

Standard program includes the design and development of the Job Board with unlimited external links to job applications and resources.


ThinK-12 Connect™. An email and messaging engine that drives engagement and ongoing usage of the programs.

Standard program includes the design and development of up to 6 email and text messaging campaigns, with unlimited sends. Recipient data to be provided by Client. Additional campaigns to non-Client-provided recipients may also be run at a cost of $225/campaign send, plus  the acquired cost of the data with an additional 10% service fee for data management.


Family Service Center™: An Ai chat tool that offers families fast and easy answers to commonly asked questions.

Standard program includes a full school website scrape and development of up to 15 questions & corresponding responses. 


Standard program includes ADA Compliance and language translation, or suggested end-user browser tools to accommodate user needs. 

 

Service and Support

Standard Support. Includes the build, customization, launch and ongoing optimization of Client program(s). Unlimited phone, email and chat support for all Client Administrative Users. Typical support ticket or request response times of 48 hours. M-F 8:00AM – 6:00PM ET. Web-based support center for Administrative and End Users. Initial training webinar or meeting, and end of program cycle wrap up/review.

Premium Support. Includes everything in Standard Support, plus… Monthly program performance summaries and monthly training and support webinars. Typical support ticket or request response times of 12 hours or less.