This agreement (the “Agreement”) is between the applicant, a China company (“AGENT”), and ESP Learning Systems, LLC, a Florida Limited Liability Company (“ESPL/FVS”) doing business as Franklin Virtual Schools, and Franklin Virtual High School, having principal offices at 545 E. Tennessee St, Tallahassee, Florida 32308.
AGENT will utilize ESPL/FVS Programs/Services in its academic program offerings, for students interested in taking online courses offer by an American High School. The ESPL/FVS Programs/Services included in the Agreement will be defined below. The business relationship will be based exclusively upon the following terms and conditions:
a. Co-Branded – ESPL/FVS Programs/Services displaying a trademark or distinctive name identifying an association with AGENT.
b. ESPL/FVS Programs/Services – (or “Program”) means the education based programs, products and services available from the ESPL/FVS website, www.franklinonline.org, and the Programs/Services defined in this Agreement.
c. Standard Terms and Conditions – the ESPL/FVS general and specific disclosures, use provisions, requirements, rules, specifications, and standards that form the user agreement for Customers & Students using ESPL/FVS Programs/Services.
2. Purpose: ESPL/FVS desires to provide its online education programs to AGENT students for utilization by said students seeking to complete online high school courses and programs. AGENT will ensure utilization and payment by agents, students or student guardians based on the terms set forth in this Agreement.
3. Term: The period of validity of this Agreement (the “Term”) will be for three (3) years from the date of AGENT’s execution by an authorized officer of the company, indicated in the signature block below (the “Effective Date”). This Agreement will automatically renew annually thereafter, unless either party provides written notice to the other party of its intent not to renew. Such notice must be received at least ninety (90) days prior to the scheduled expiration date, provided that this Agreement has not been terminated earlier as set forth herein.
4. Utilization of ESPL/FVS Programs/Services:
a. Subject to the terms and conditions of this Agreement, ESPL/FVS hereby grants to AGENT a limited, revocable authority to utilize, for a fee, the ESPL/FVS Programs/Services defined in this agreement and hereby grants AGENT:
i. The right to use the ESPL/FVS logo and electronic facsimiles thereof, and any associated materials, language or code for the sole purpose of promoting the ESPL/FVS Programs/Services to prospective students. Utilization of Programs/Services and copyrighted material must conform to the standards of advertising/promotion expected of ESPL/FVS directly by its identified Accreditation organization, AdvancED/SACS. ESPL/FVS retains and reserves all rights in and to such logo and related materials.
ii. The use of any marketing, advertising, and communications materials, including press releases, product brochures, print advertising, online advertising elements, display ads and websites, that describe ESPL/FVS or the ESPL/FVS Programs/Services.
b. Each Program shall have Standard Terms and Conditions defined by ESPL/FVS to govern use of the Program, and ESPL/FVS’s retention of all title, ownership rights, and intellectual property rights with respect to the ESPL/FVS Programs/Services. AGENT will ensure that all of its Students are obligated to agree to the then current, version of the Program Standard Terms and Conditions as a precondition to receiving ESPL/FVS Programs/Services. AGENT is permitted to obligate Customers and/or Students to agree to additional terms and conditions, provided that such additional terms and conditions do not conflict with the terms of this Agreement or the Program Standard Terms and Conditions. In the event of a conflict between a term of this Agreement and a term of any Program Standard Terms and Conditions, the term of this Agreement will prevail, provided that in all events, nothing contained in this Agreement will modify, alter, or affect anything in the Program Standard Terms and Conditions that relates to the ownership of any ESPL/FVS Services provided or otherwise made available by ESPL/FVS to AGENT, its Customers or its Students. In the absence of Standard Terms and Conditions for a Program, the then current version of the ESPL/FVS Standard Terms and Conditions as posted at https://www.esplearning.com/ESP-terms.asp shall be used.
c. AGENT acknowledges and agrees that this is not a technology license agreement and, except as expressly provided herein, AGENT will have no right separate from the terms of this Agreement to access or use the proprietary software or hardware technology used by ESPL/FVS to separately provide the ESPL/FVS Programs/Services.
d. All title, ownership rights, and intellectual property rights utilized by ESPL/FVS to provide the ESPL/FVS Programs/Services, and the ESPL/FVS Marks are owned by ESPL/FVS or its suppliers or licensors, and ESPL/FVS and its suppliers and licensors hereby expressly retain and reserve all rights, title, and interest in these, including all related patents, copyrights, trademarks, trade secrets, and other intellectual property and proprietary rights.
e. Without limiting the pertinent provisions of the ESPL/FVS Standard Terms and Conditions, AGENT will not, and to the best of its ability, will not permit any of its Students or any other third party, to (i) copy, use, analyze, reverse engineer, decompile, disassemble, translate, convert, or apply any procedure or process to any of the ESPL/FVS Programs/Services to ascertain, derive, and/or appropriate for any reason or purpose any source code, source listings, trade secret information, process, other intellectual property, or any other aspect of any ESPL/FVS Programs/Services, or (ii) remove any product identification, proprietary legends, marks, attributions, or other notices in or on any of the ESPL/FVS Programs/Services or the Promotional Materials.
f. AGENT understands and agrees that ESPL/FVS may, from time to time and in its sole discretion, add, modify, alter, or remove any particular Program feature, or any aspect thereof, included in the ESPL/FVS Programs/Services. Although certain aspects of the ESPL/FVS Services may permit customization or modification requests from AGENT or the Customer and/or Student, any such customization or modification will be subject to ESPL/FVS’s prior written consent.
5. AGENT Responsibilities.
a. AGENT will promote the ESPL/FVS Programs/Services to appropriate students/parents, and AGENT will use its best efforts to generate prospective Student interest and participation in the ESPL/FVS Programs/Services. Without limiting the generality of the foregoing, AGENT will:
i. Determine the specific promotional materials need, create said promotional materials and distribute these for the purpose of marketing and promoting the ESPL/FVS Programs/Services Students; and
ii. Allow ESPL/FVS to participate in various forums and any other presentation opportunities that would help promote ESPL/FVS and the ESPL/FVS Programs/Services.
b. AGENT will provide all assistance, actions, student training and support services necessary or appropriate to properly register, begin utilizing, and ensure progress by students for the enrolled ESPL/FVS Programs/Services.
c. AGENT will use all reasonable efforts to ensure that all of AGENT’s employees, agents, and contractors comply with the terms and conditions of this Agreement.
6. ESPL/FVS Responsibilities.
a. ESPL/FVS will make available all Programs within its platform requested by AGENT for promotion and utilization by registered AGENT students.
b. Provide AGENT with a primary contact (name, title, email, phone) for the areas of a) technical support, b) faculty/curriculum support & training services, c) marketing and sales support & training services, d) Customer and Student support & training services, e) document and shipping support & training services, f) program management.
c. ESPL/FVS will make a best efforts attempt to communicate in a timely manner to assist AGENT in fulfilling its obligations where ESPL/FVS personnel are essential to AGENT’s completion of an identified responsibility.
d. ESPL/FVS will create a shared or FTP-accessible folder of approved ESPL/FVS or partner trademarks and/or marketing materials from which AGENT is free to utilize in the creation of promotional materials needed to ensure its ability to comply with the terms of this agreement.
e. ESPL/FVS will validate its corporate and accreditation status as a Regionally Accredited, American High School. ESPL/FVS will continue to make every effort, within its ability, to retain its present or better status with the State of Florida Corporation Commission, the Florida Department of Education, and its accreditor, AdvancED, parent company of the regional accreditation organization, Southern Association of Colleges and Schools, SACS.
f. ESPL/FVS will not issue student completion documents until receiving sign-off by an authorized AGENT agent/representative.
7. Student Refunds/Payments: AGENT will be compensated from revenues paid to an authorized ESPL/FVS Partner and are not paid directly by ESPL/FVS.
a. Within 5 business days following the end of each month ESPL/FVS will produce a report of all revenues attributable to AGENTS’s enrolled students that may be used by AGENT’s authorized ESPL/FVS Partner for computation of any commission payments due to AGENT.
b. Commission percentages and terms of payment shall be governed exclusively by the AGENT’s agreement with its authorized ESPL/FVS Parter.
c. As there are no student refunds offered in this program, AGENT understands that ESPL/FVS will hold a reserve, not to exceed five percent (5%), from student revenue collected for student refund policy exceptions or credit card chargebacks. Reconciliation of this reserve fund will lag commission payments to the ESPL/FVS Partner by one quarter, and amounts due ESPL/FVS or Partner will be identified in subsequent commission reports. Reserve account balances remaining, upon Agreement termination, will be paid out to Partner 60 days following any contact terminations.
8. Warranties. Each party in this agreement represents and warrants to the other party as follows:
a. The party has the full power and authority to execute, deliver, and perform under this Agreement;
b. This Agreement is valid, binding, and enforceable against each party in accordance with the terms herein and no provision requiring either party’s performance is in conflict with the party’s obligations under any other agreement;
c. Each party is duly organized, authorized, and in good standing under the laws of the jurisdiction of its organization and is duly authorized to do business in all other jurisdictions in which that party’s business makes such authorization necessary or required; and
d. Each party will comply with all laws, rules, and regulations that apply to the performance of its obligations hereunder.
e. AGENT will not use, or allow any Student or other third party to use, the ESPL/FVS Services in a manner that is, or that potentially is, illegal, a legal risk to ESPL/FVS, degrading to the quality, goodwill, reputation, or provision of the ESPL/FVS Services, or a violation of any of the terms and conditions of this Agreement or the ESPL/FVS Standard Terms and Conditions.
9. Indemnification. Each party will at its own expense, pay, indemnify, defend, with counsel reasonably acceptable to the other party, and hold harmless the other party, its affiliates and subsidiaries, and their respective officers, directors, owners, employees, agents, contractors, successors, and assigns for, from, and against any and all claims, actions, demands, lawsuits, proceedings, losses, damages, liabilities, causes of action, settlements, taxes, contributions, penalties, fines, costs or expenses, including reasonable attorneys’ fees and costs, of whatever kind, character, or nature, that may be suffered or incurred as a result of or that arise from a party’s material breach of this Agreement.
10. Disclaimers; Limitations of Liability.
a. EXCEPT FOR THE EXPRESS LIMITED WARRANTIES CONTAINED IN THE ESPL/FVS STANDARD TERMS AND CONDITIONS, ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES, INCLUDING (WITHOUT LIMITATION) ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR APPLICATION, NON-INFRINGEMENT, SATISFACTORY QUALITY, NONINTERFERENCE, ACCURACY OF INFORMATIONAL CONTENT, OR ARISING FROM A COURSE OF DEALING, LAW, USAGE, OR TRADE PRACTICE, HEREBY ARE EXCLUDED TO THE EXTENT ALLOWED BY APPLICABLE LAW AND ARE EXPRESSLY DISCLAIMED BY EITHER PARTY.
b. NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARARY, INDIRECT OR SIMILAR DAMAGES (INCLUDING LOSS OF PROFIT, REVENUE, BUSINESS OPPORTUNITY, BUSINESS ADVANTAGE, EXPECTED SAVINGS, OR DATA AND COSTS OF COVER) ARISING UNDER OR RELATING TO THIS AGREEMENT, NOTWITHSTANDING EITHER THE FORM IN WHICH ANY LOSS OR ACTION IS BROUGHT OR ANY FAlLURE OF ESSENTIAL PURPOSE, EVEN IF SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; PROVIDED, HOWEVER, THAT THE FOREGOING LIMITATIONS WILL NOT APPLY TO (I) ANY DUTIES, OBLIGATIONS, OR RESPONSIBILITIES OF AGENT (IN THIS AGREEMENT OR OTHERWISE) THAT RELATE TO OWNERSHIP, INTELLECTUAL PROPERTY, INDEMNIFICATION, OR CONFIDENTIALITY, OR (II) ANY GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF AGENT OR ANYONE ACTING ON ITS BEHALF OR UNDER ITS DIRECTION OR CONTROL.
c. MAXIMUM AND AGGREGATE LIABILITY OF EITHER PARTY FOR DIRECT DAMAGES IN CONNECTION WITH THIS AGREEMENT WILL BE LIMITED TO THE AGGREGATE AMOUNT OF REBATES PAID EITHER PARTY UNDER THIS AGREEMENT IN THE SIX (6) MONTH PERIOD PRECEDING WHEN THE LIABILITY IS ALLEGED TO HAVE ARISEN.
a. As used herein, “Confidential Information” means any information relative to one party to this Agreement (the “Disclosing Party”), its business, its operations, or its assets that is clearly marked “confidential” or “proprietary”, whose confidential or proprietary nature has been made known by the Disclosing Party to the other party to this Agreement (the “Receiving Party”), or that ought to be treated as confidential under the circumstances surrounding the disclosure, provided that information is not considered Confidential Information if such information:
i. Is or becomes public knowledge other than by breach of this Section or any other duty of a party;
ii. Is in the possession of or was previously known by the Receiving Party without restriction in relation to disclosure before the date of receipt from the Disclosing Party;
iii. Is received by either party from a third party not under a duty of confidence; or
iv. Is independently developed without the use of or reference to the Confidential Information of the other party.
b. The Receiving Party agrees that it will:
i. Not use the Confidential Information disclosed to it by the Disclosing Party for any purpose other than in connection with its performance under this Agreement, unless otherwise agreed to in writing by the Disclosing Party;
ii. Not disclose to any third party Confidential Information received from the Disclosing Party without the prior written consent of the Disclosing Party, provided that the Receiving Party may disclose Confidential Information disclosed to it by the Disclosing Party on a need-to-know basis to its employees, agents, consultants, and contractors to enable the Receiving Party to perform its obligations in this Agreement, but only if such persons have first undertaken in writing to treat the Confidential Information as confidential under the same terms and conditions as contained in this Agreement; and
iii. Provide reasonable precautions to ensure that all Confidential Information disclosed to it by the Disclosing Party is treated as confidential and not disclosed and employ at least those precautions that such party employs to protect its own confidential or proprietary information, but in no event will the standard of care be less than the standard of care that a reasonable business person would use in protecting its own confidential information.
c. A party may disclose Confidential Information that is required to be disclosed by law or by a court or other legal authority, but only to the extent required by law or such final court order or administrative authority ruling; and provided that the party gives prompt prior notice of such disclosure to the other party and consults with the other party and cooperates with the other party’s reasonable requests to resist or narrow that request or to obtain an order or other reliable assurance that confidential treatment will be accorded the information disclosed.
d. The Receiving Party will notify the Disclosing Party immediately upon the discovery of any unauthorized use or disclosure of the Disclosing Party’s Confidential Information, and will cooperate with the Disclosing Party in every reasonable way to assist the Disclosing Party in regaining possession of the Confidential Information and in preventing its further unauthorized use or disclosure.
e. Promptly upon the Disclosing Party’s request, the Receiving Party will return to the Disclosing Party all originals, copies, reproductions, and summaries of Confidential Information, or, at the Disclosing Party’s option, certify the destruction thereof.
f. The Receiving Party’s disclosure or use (or threat to disclose or use) any Confidential Information of the Disclosing Party in breach of this Agreement will cause immediate and irreparable harm to the Disclosing Party and the Disclosing Party will be entitled to immediate injunctive relief against any actual or threatened violation, in addition to any of its other rights and remedies.
g. This Agreement does not transfer to the Receiving Party any ownership rights in, or express or implied license rights to any of the Disclosing Party’s Confidential Information.
h. The Receiving Party’s obligations with respect to the Disclosing Party’s Confidential Information under this Section, and the Disclosing Party’s rights under this Section, will continue in full force and effect for a period of three (3) years following the expiration or earlier termination of this Agreement.
a. This Agreement may be terminated as follows:
i. At any time upon mutual written agreement of the parties;
ii. By either party, upon written notice to the other party, for the material breach of this Agreement by the other party if such material breach has remained uncured for a period of thirty (30) days after the date of written notice to the breaching party;
iii. By either party, with written notice, upon (A) the institution by or against the other party of insolvency, receivership, or bankruptcy proceedings or any other proceedings for the settlement of the other party’s debts; (B) the other party making an assignment for the benefit of creditors; (C) the other party becoming insolvent; or (D) the other party’s dissolution or ceasing to do business (or its adoption of a resolution for either); or
iv. By execution of any right of termination under this Agreement.
b. Notwithstanding anything in this Agreement to the contrary, the expiration or termination of this Agreement will not affect either party’s performance of any of the responsibilities described in Sections 2, 3 & 4 above with respect to any sale (if applicable) made by AGENT of any ESPL/FVS Service. Each party will perform all responsibilities in accordance with and subject to the terms and conditions of this Agreement.
c. Termination of this Agreement will not release either party from any liability which at the time of termination has already accrued to the other party or which thereafter may accrue with respect to any act or omission committed before termination, or from any obligation that survives termination.
d. Termination of this Agreement, for any reason permitted hereunder, will be without prejudice to any other rights or remedies of the parties; provided, however, that neither party will be liable to the other for damages of any sort resulting solely from terminating this Agreement in accordance with its terms.
e. The provisions of this Agreement that impose continuing obligations upon a party or by their nature survive and continue in force and effect after the expiration or termination of this Agreement will remain in force and effect after such expiration or termination (including provisions relating to payment, confidentiality, intellectual property, disclaimers, limitations of liability, indemnification, non-solicitation, and governing law and jurisdiction).
13. Relationship of the Parties. The parties are independent contractors with respect to each other. Neither party is, nor will either party be considered to be, an employee, agent, or representative of the other party, and neither party will have the authority to bind or commit the other party in any manner without the other party’s express and prior written consent. There are no third party beneficiaries to this Agreement.
14. Non-Solicitation. During the Term and for a period of twelve (12) months thereafter, neither party may, either directly or indirectly, solicit, induce employ, hire, or engage any of the other party’s or its affiliates’ employees, personnel, or subcontractors with whom either party comes into contact as a result of the transactions contemplated by this Agreement without the prior written consent of the other party.
15. Force Majeure. ESPL/FVS will not be liable for delays or failures in performance under this Agreement resulting from acts or events beyond its reasonable control (a “Force Majeure Event”), including acts of war, terrorism, acts of God, earthquake, flood, embargo, riot, sabotage, labor dispute, governmental act, failure of the internet, power failure, or energy, utility, or telecommunications interruptions, provided that ESPL/FVS: (i) gives AGENT prompt notice of such cause; and (ii) uses its reasonable commercial efforts to promptly correct such failure or delay in performance. In the event that a Force Majeure Event lasts for more than twenty (20) days, and ESPL/FVS cannot correct its failure or delay in performance during that period of time, AGENT may terminate this Agreement upon written notice to ESPL/FVS.
16. Assignment and Subcontracting. Neither party may assign any of its rights or delegate any of its duties or obligations under this Agreement without the other party’s prior written consent, and any attempt by a party to do so will be invalid and without effect. This Agreement will be binding on the parties and their successors and permitted assigns
17. Changes. The terms and conditions of this Agreement may only be amended, changed, or modified if such amendment, change, or modification is in writing and signed by a duly authorized representative of AGENT and ESPL/FVS.
18. Notices. For the purposes of this Agreement, the address of each party will be:
For AGENT: Same as submitted by applicant.
For ESPL/FVS: ESP Learning Systems, LLC
16427 North Scottsdale Road, Ste 410
Scottsdale, AZ 85251
Phone #: (602) 684-8787
Facsimile #: (850) 270-6770
Email Address: [email protected]
Attention: David Hooser, President & CEO
Any notice that either party is required or authorized by this Agreement to give or make to the other will be made in writing and (a) delivered personally, with a written acknowledgment of receipt; or (b) sent by overnight delivery service; or (c) sent by certified mail, return receipt requested; or (d) sent by facsimile transmission, with electronic confirmation plus and back-up copy emailed; and in each case, addressed to the other party at the address set forth above or such other address subsequently notified in writing by either party to the other, and will be deemed for the purposes of this Agreement to have been given or made when first received. Each party further agrees to provide the other with complete and accurate contact information of such party, and to ensure that such information is updated and kept current at all times.
19. Waivers. The failure, of either party, to insist upon strict performance of any provision of this Agreement, or to exercise any right or remedy to which it is entitled, will not constitute a waiver. A waiver will be effective only when in writing, signed by the party charged with making the waiver.
20. Severability. In the event that any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be subject to modification by the court and will be interpreted so as best to accomplish the objectives of the original portion to the fullest extent permitted by law, and the remaining provisions will remain in full force and effect.
21. Entire Agreement. This Agreement, which includes the terms and conditions set forth in this letter, Schedule A attached hereto, and the ESPL/FVS Standard Terms and Conditions, constitutes the entire understanding between the parties relating to the subject matter of this Agreement and, unless expressly stated otherwise in this Agreement, supersedes all prior or contemporaneous representations, writings, negotiations, understandings, or agreements relating hereto.
22. Governing Law; Jurisdiction; Language. This Agreement will be governed by and construed in accordance with the laws of the State of Arizona without reference to the conflict of law provisions thereof. The parties irrevocably consent and submit to the exclusive jurisdiction and venue of the state and federal courts located in Maricopa County, Arizona, for any dispute relating to the terms, interpretation, or performance of this Agreement. As used in this Agreement, the term “including” will mean “including, without limitation,” the term “includes” will mean “includes, without limitation,” and terms appearing in the singular will include the plural and terms appearing in the plural will include the singular. Captions and headings are provided for ease of reference only and will not be used in interpreting this Agreement.
23. Remedies. All rights and remedies of the parties under this Agreement will be cumulative and none will exclude any other rights or remedies allowed under present or future law, except to the extent expressly provided otherwise in this Agreement.
24. Further Assurances. Each party agrees to take, or cause to be taken, all such further or other actions as will reasonably be necessary to make effective, to consummate and to perform the undertakings and obligations contemplated by this Agreement.
25. Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which taken together will constitute one and the same Agreement. All signed facsimile copies of this Agreement will be deemed as valid as originals.
The terms and conditions as stated in and incorporated into this Agreement are set forth on the date of this signing this agreement.
AGREED AND ACCEPTED:
Date: _____, 2020
ESP Learning Systems, LLC
By: DAVID HOOSER
Name: David Hooser
Title: President and CEO
Date: February 20, 2020