This service agreement dated as of <DATE> (“Effective Date”) is made between Stem Minds Corp., a company incorporated under the laws of Ontario (“Stem Minds”) and the undersigned <NAME>. (“Customer”).
- Stem Minds has developed certain educational programs and program content that it makes available to educators as a service.
- Stem Minds desires to provide to Customer and Customer desires to obtain access to the educational programs and program content as well as additional services in accordance with and subject to the provisions set out in this Agreement.
Now therefore, in consideration of the promises and the mutual agreements hereinafter set out and of other consideration (the receipt and sufficiency of which are acknowledged by each Party), the Parties covenant and agree as follows:
In this Agreement and the schedules annexed hereto, the following terms shall have the respective meanings indicated below:
“Agreement” means this Service Agreement, all Schedules attached hereto and any Order Forms entered into between the Parties.
“Authentication ID” means a security mechanism by which an Authorized User identifies herself or himself to the Platform and gains access thereto, which security mechanism may include user identification, passwords, digital certificates or any other similar process mechanism for authentication and recognition as determined by Stem Minds from time to time.
“Authorized User” means a teacher or student whom Customer has authorized to access and use the Platform and Program Content.
“Claim” has the meaning ascribed to it in Section 8.1.
“Confidential Information” means all documents, information, technology and data disclosed or furnished in any connection with this Agreement by Stem Minds to Customer, including without limitation, the Platform and Program Content, prior to or after the date of this Agreement, directly or indirectly, whether in oral, written, graphic, video, machine-readable or other form that is either marked or identified (in writing or orally) as being confidential or proprietary or that Customer can reasonably conclude or ought to know is confidential or proprietary to Stem Minds.
“Contributions” means feedback, ideas, comments, and suggestions submitted by Customer (including individual schools, where applicable) or any Authorized User to Stem Minds concerning the Services or Program Content or other related matters.
“Customer Data” means information, materials and data (including personal information of or concerning Authorized Users), in any form or medium, that is submitted by or on behalf of Customer (including individual schools, where applicable) to Stem Minds in connection with the Services and including through the use of the Platform.
“Effective Date” means the date first written above.
“Fees” means the fees as set out in Schedule B to be paid by Customer to Stem Minds for the performance of the Services.
“Order Form” means any order forms executed by the Parties from time to time pursuant to this Agreement.
“Party” means either Stem Minds or Customer; and “Parties” means both of them.
“Personal Information” means any personal information or data as defined by applicable law.
“Platform” means the website application or computer software provided by Stem Minds and/or its third party licensors where the Program Content is made available.
“Program Content” means Stem Minds Content and/or Third Party Content, as applicable.
“Services” has the meaning ascribed to it in Section 2.1.
“Stem Minds Content” means educational content, games, lesson plans, and materials that is developed by Stem Minds and made available to Customer in connection with the provision of the Services, whether in written form or through the Platform or otherwise.
“Stem Minds Parties” has the meaning ascribed to it in Section 8.1.
“Term” has the meaning ascribed to it in Section 7.1.
“Third Party Content” means educational content, games, lesson plans and materials that is that developed by a third party and made available to Customer in connection with the provision of the Services, whether in written form or through the Platform or otherwise.
“Third Party Terms” has the meaning ascribed to it in Section 2.3.
“Workshop Services” means the workshops conducted in-school or at a Stem Minds location as more particularly described in Schedule A.
The following Schedules are a part of and are integral to this Agreement:
Schedule A – Services
Schedule B – Fees
Schedule C – Term
Schedule D – List of Schools
The division of this Agreement into articles, sections, schedules and other subdivisions, and the inclusion of headings, are for convenience of reference only and shall not affect the construction or interpretation of this Agreement. The headings in the Agreement are not intended to be full or precise descriptions of the text to which they refer. Unless something in the subject matter or context is inconsistent therewith, references herein to Articles and Sections are to Articles and Sections of this Agreement.
- Additional Rules of Interpretation
In this Agreement, unless the context requires otherwise, words in one gender include all genders and words in the singular include the plural and vice versa. Wherever the words “include”, “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation” and the words following “include”, “includes” or “including” shall not be considered to set forth an exhaustive list. The terms “this Agreement”, “hereof”, “hereunder” and similar expressions refer to this Agreement and not to any particular article, section or other portion hereof and include any agreement supplemental hereto. Unless otherwise defined herein, words or abbreviations which have well-known trade meanings are used herein with those meanings.
Unless otherwise specified, all references to monetary amounts, including the symbol “$”, are in respect of US currency.
- Provision of Services
Stem Minds shall provide to Customer during the Term, the Workshop Services and access to the Platform and Program Content as and to the extent specified in Schedule A (“Services”). Customer may purchase additional Services at a future date pursuant to the terms of an Order Form.
- Access to Platform and Program Content
- If Customer is a board of education, it is authorized to delegate and sublicense the rights granted to Customer herein to use and access the Stem Minds Content, the Third Party Content and the Platform to the schools listed in Schedule D (as may be updated by the Parties from time to time) subject to and in accordance with the terms and conditions of this Agreement and subject to the condition that (a) it (and not the individual schools) shall be liable for the payment of all Fees payable hereunder, and (b) it shall remain responsible for, and liable to Stem Minds in respect of, the compliance with the terms of this Agreement by such schools and it agrees that it shall indemnify, defend, and hold harmless the Stem Minds Parties from and against any and all losses, damages, liabilities, costs (including reasonable attorneys’ fees) incurred by Stem Minds resulting from any such schools’ (or their representatives’) acts, omissions or breach of this Agreement.
- Third Party Content
Certain Third Party Content and any links to Third Party Content may be provided subject to separate terms and conditions (“Third Party Terms”). If Third Party Content is not provided subject to separate Third Party Terms, then Stem Minds warrants to Customer that it has the right to provide the Third Party Content to Customer for use as described in this Agreement. If Third Party Content is provided subject to separate Third Party Terms, then Customer and all Authorized Users’ use of such Third Party Content is subject to the terms and conditions of the Third Party Terms and Stem Minds shall have no liability or responsibility to Customer in respect of such Third Party Content and Customer’s sole and exclusive recourse in respect of any defect, mistake, issue or other matter or dispute concerning such Third Party Content shall be in accordance with the Third Party Terms between Customer and the applicable third party, and Customer hereby releases Stem Minds, on behalf of of itself and all Authorized Users, from any and all liability associated with its access to, use of and any reliance on such Third Party Content.
- Permitted Use
Customer shall be entitled to use the Platform and Program Content solely for non-commercial and educational purposes or as otherwise permitted by Third Party Terms.
- Authorized Users
Stem Minds may provide Customer with Authentication IDs to be distributed by Customer to its Authorized Users. Customer shall control and maintain the security of all Authentication IDs. Customer shall promptly report to Stem Minds any errors or irregularities in the Program Content and/or Platform or any unauthorized use of any part thereof and inform Stem Minds immediately if any Authentication ID becomes known to any third person who is not authorized to possess such information.
Submission of Contributions to Stem Minds is voluntary. Contributions are subject to the following terms: (i) Customer warrants that Contributions do not violate any confidentiality obligations that Customer or Authorized Users may have to third parties and that they do not contain proprietary rights of third parties; (ii) Contributions become the property of Stem Minds and by submitting them, Customer hereby assigns to Stem Minds all rights in and to them and waives all moral rights that Customer or Authorized Users may have; (iii) Stem Minds is free to disclose and use (or refuse to disclose or use) any Contributions at its sole discretion; and (iv) Customer is not entitled to any compensation or reimbursement of any kind under any circumstances.
- Customer’s Obligations
Customer hereby grants to Stem Minds a royalty-free, non-exclusive, non-transferable right and license during the Term to use, copy, store and display the Customer Data to the extent necessary to provide the Services, including to provide access to Program Content and the Platform and perform its obligations under this Agreement. Customer shall provide Stem Minds with the Customer Data (if any) required by Stem Minds to perform the Services, including Customer Data listed in Schedule A. Customer agrees that Stem Minds reserves the right to transfer and disclose Customer Data to, and that Customer Data may be stored, generated and processed on systems operated and supported by, a third party hosting provider and its subcontractors and agents and that such third parties may be located in jurisdictions outside of Canada.
Customer is responsible for complying with all applicable laws and is solely responsible to obtain, and represents and warrants to Stem Minds that it has or shall obtain all necessary consents (including all consents that are required under applicable privacy and data protection laws with respect to the Personal Information of Authorized Users) to provide Customer Data to Stem Minds for use, storage, processing, disclosure, disposal and hosting, in the course of the provision of the Services in accordance with the Agreement. Stem Minds will store and process Customer Data for the purposes contemplated by this Agreement. Except as expressly provided herein, Stem Minds does not have any responsibility hereunder to ensure that Customer’s policies or practices related to the collection, storage and processing of Customer Data are adequate or comply with any applicable law. Customer acknowledges that in communicating Customer Data to Stem Minds through public telecommunications networks, including the Internet, Customer Data may be transmitted across provincial, state or international territorial borders. Customer shall be solely responsible for determining whether any such transfers comply with applicable laws. Stem Minds does not guarantee the integrity of, or inadvertent disclosure of, or corruption or loss of Customer Data transmitted via telecommunications networks, including the Internet.
- Customer Responsibilities
Customer shall be responsible for the following:
- procuring, installing, operating, and maintaining Customer’s systems, including high-speed Internet connection, computer hardware and software, necessary for Customer and Authorized Users to access the Program Content and Platform;
- assigning, recording and controlling the issuance and use of all Authentication IDs;
- maintaining the accuracy, completeness and adequacy of all Customer Data; and
- obtaining the necessary parental consents required by law in relation to any Authorized User’s use of and access to the Program Content and Platform who is under the age of majority.
In addition to the foregoing responsibilities, if Customer is a board of education, it shall be responsible for the following:
- recruiting and organizing schools listed in Schedule D, and facilitating access to and use of the Program Content and Platform to Authorized Users at such schools and such other stakeholders; and
- ensuring schools listed in Schedule D are in compliance with the obligations imposed on Customer in the provisions of this Agreement.
- Prohibited Activities
Customer shall not and shall ensure Authorized Users do not: (i) use the Program Content and Platform for improper or unlawful purposes; (ii) copy Program Content; and (iii) remove any copyright or other proprietary rights notice on the Program Content or any copies thereof.
- Fees and Payment
In consideration for the provision of access to and use of the Platform, Program Content and Services during the Term, Customer shall pay to Stem Minds the “Fees” in accordance with the payment terms as set out herein. All invoiced fees are due within thirty (30) days of the date of the invoice (unless otherwise provided in Schedule B or on a Stem Minds invoice. Any Fees or other amounts due by Customer shall not be subject to set off, counterclaim, adjustment, reduction, compromise, or otherwise by virtue of any actual or potential claim against Stem Minds. Customer acknowledges that Stem Minds does not charge fees for providing links to Third Party Content (for example, links to YouTube videos) on the Platform that may otherwise accessed by Authorized Users at no cost.
The Fees exclude and Customer shall pay any and all taxes, however designated or incurred, which are paid or payable as a result of or otherwise in connection with the provisions of the Services and transactions contemplated in this Agreement including, without limitation, federal, provincial and local, excise, sales, use, goods and services, harmonized, withholding, value added and any taxes or other amounts in lieu thereof.
- Interest on Late Payments
Where Customer fails to pay any Fees or other amounts due hereunder, in accordance with the payment terms and due dates set out herein, Stem Minds shall have the right, in addition to any other rights or remedies available to it, to charge Customer interest on such overdue amounts at the rate of three percent (3%) per month calculated daily, compounded monthly both before and after any court judgment in respect of the same from the date such payment was due.
- Stem Minds’ Ownership
Customer acknowledges and agrees that, as between Customer and Stem Minds, Stem Minds or its third party contractors own all worldwide right, title and interest, including all intellectual property rights, in and to: (i) the Platform; (ii) Program Content; and (iii) all modifications, enhancements, upgrades, updates or customization to the Program Content.
- not to use any Confidential Information for any purpose except in the performance of its obligations under the Agreement or as otherwise expressly permitted hereunder;
- to disclose such Confidential Information only to its officers, directors, employees, third party subcontractors, and Authorized Users who have a need to know such Confidential Information for purposes of the Agreement and who are under a duty of confidentiality;
- to protect such Confidential Information from unauthorized use, access, theft or disclosure in the same manner that it protects its own similar Confidential Information, but in no event with less care than reasonable care; and
- to promptly notify Stem Minds of any actual or potential unauthorized access to or use of Confidential Information.
- Injunctive Relief
Customer acknowledges and agrees that any unauthorized use or disclosure by it of any of the Stem Minds’ Confidential Information, in whole or part, will cause irreparable damage to Stem Minds, that monetary damages would be an inadequate remedy and that the amount of such damages would be extremely difficult to measure. Customer agrees that Stem Minds shall be entitled to seek temporary and permanent injunctive relief to restrain Customer from any unauthorized disclosure or use. Nothing in this Agreement shall be construed as preventing Stem Minds from pursuing any and all remedies available to it for a breach or threatened breach of a covenant made in this Section 6, including the recovery of monetary damages from Customer.
- Term and Termination
This term of this Agreement and the rights and obligations of the Parties hereto shall commence as of the Effective Date and shall continue for the period specified in Schedule C (the “Term”).
- Suspension of Services
In the event that Customer does not pay the Fees or any portion thereof when due, Stem Minds may immediately suspend Customer’s and each of the Authorized Users’ right to access and use of the Platform and Program Content and may cease provision of any Services.
- Customer’s Right to Terminate
Customer may terminate this Agreement immediately upon giving written notice of such termination if Stem Minds breaches any material provision of this Agreement and such breach continues for a period of thirty (30) days after delivery of a written notice by Customer requiring Stem Minds to correct such failure.
- Stem Minds’ Right to Terminate
Stem Minds may terminate this Agreement immediately upon giving written notice of such termination if Customer (or individual schools, as applicable):
- fails to pay in full any amounts owing by it under this Agreement by the due date thereof and such failure continues for a period of thirty (30) days after delivery of a written notice by Stem Minds requiring Customer to correct such failure; or
- breaches any other material provision of this Agreement and such breach continues for a period of thirty (30) days after delivery of a written notice by Stem Minds requiring Customer to correct such failure.
- Effect of Termination
Upon any expiration or termination of the Agreement: (i) Customer shall return to Stem Minds, or at the direction of Stem Minds, destroy (and provide an officer’s certificate attesting to the destruction as is satisfactory to Stem Minds, acting reasonably), within thirty (30) days of the termination date, all Confidential Information of Stem Minds; (ii) Customer’s and Authorized Users’ right to use and access the Platform and Program Content shall terminate; and (iii) Customer shall be responsible to pay Stem Minds for all outstanding fees due and not yet paid.
- Risk Management
Customer shall indemnify, defend, and hold harmless Stem Minds and its affiliates, directors, officers, employees and agents (“Stem Minds Parties”) from and against any and all losses, damages, liabilities, costs (including reasonable attorneys’ fees) incurred by Stem Minds resulting from any third-party claim, suit, action, or proceeding (“Claim”) brought against Stem Minds, its affiliates, directors, officers, employees and agents:
- to the extent such Claim alleges, directly or indirectly, that use of or access to Customer Data infringes any intellectually property rights of a third party;
- as a result of any use of Authentication IDs provided to Customer, whether or not such use is authorized by Customer; and
- arising from or as a result of Customer’s breach of any applicable laws.
EXCEPT AS OTHERWISE EXPRESSLY STATED IN THIS AGREEMENT, THERE ARE NO EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS IN RELATION TO THE SERVICES, THE PLATFORM OR PROGRAM CONTENT, INCLUDING IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, OR THAT THE SERVICES, PLATFORM OR PROGRAM CONTENT WILL MEET CUSTOMER’S OR AUTHORIZED USERS’ NEEDS OR WILL BE AVAILABLE FOR USE AT ANY PARTICULAR TIME OR WILL BE ERROR FREE.
- Exclusion of Damages
IN NO EVENT WILL STEM MINDS OR ANY OF THE OTHER STEM MINDS PARTIES BE LIABLE UNDER THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNDER NO CIRCUMSTANCES SHALL STEM MINDS’ TOTAL LIABILITY UNDER THIS AGREEMENT IN THE AGGREGATE FOR ANY AND ALL CLAIMS EXCEED THE FEES PAID BY CUSTOMER HEREUNDER.
- Force Majeure
Except for any obligation to make payments, any delay or failure of either Party to perform its obligations under this Agreement or under any Schedule attached hereto or any Order Form shall be excused if, and to the extent, that the delay or failure is caused by an event or occurrence beyond the reasonable control of the Party, such as, by way of example and not by way of limitation, acts of God, action by any governmental authority, third party failures, telecommunication failures or delays, fires, flood, wind storms, wars, terrorist acts, or labour problems.
- Entire Agreement
This Agreement, together with any Schedules hereto, constitutes the entire agreement between the Parties pertaining to the subject matter hereof and supersedes all prior agreements, negotiations, discussions and understandings, written or oral, between the Parties.
- Governing Law
This Agreement shall be governed by, and construed and enforced in accordance with the laws of the Province of Ontario and federal laws of Canada, as applicable (excluding any conflict of laws rule or principle which might refer such construction to the laws of another jurisdiction). The Parties hereto agree to submit to the exclusive jurisdiction of the courts of the Province of Ontario and waive any objection relating to improper venue or forum non conveniens to the conduct of any proceeding in any such court.
In the event that any provision (or any portion of a provision) of this Agreement shall for any reason be held by a court of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, such invalidity, illegality or unenforceability shall not affect any other provision hereof and this Agreement shall be construed as if such invalid, illegal or unenforceable provision (or portion of a provision) had never been contained herein in regards to that particular jurisdiction.
The waiver by either Party of a breach or default of any provision of this Agreement by the other Party shall not be effective unless in writing and shall not be construed as a waiver of any succeeding breach of the same or of any other provision. Nor shall any delay or omission on the part of either Party to exercise or avail itself of any right, power or privilege by such Party shall constitute a waiver.
All notices or approvals required or permitted under the Agreement will be in writing and delivered by email transmission, overnight delivery service, or certified mail, and in each instance will be deemed given upon receipt. For notices sent by email the date of receipt will be deemed the date on which such notice is transmitted. All notices or approvals shall be sent to Customer and Stem Minds at the following addresses:
If to Customer:
If to Stem Minds:
212 Earl Stewart Drive
Aurora, Ontario L4G 6V7
Attention: Anu Bidani
The Parties may amend or modify this Agreement only upon mutual written agreement.
- Further Assurances
Each Party shall take such action (including, but not limited to, the execution, acknowledgment and delivery of documents) as may reasonably be requested by the other Party for the implementation or continuing performance of this Agreement.
- Independent Contractor
The Parties are independent contractors and no other relationship is intended. Nothing herein shall be deemed to constitute either Party as an agent, representative or employee of the other Party, or both Parties as joint ventures or partners for any purpose. Neither Party shall act in a manner that expresses or implies a relationship other than that of independent contractor. Each Party shall act solely as an independent contractor and shall not be responsible for the acts or omissions of the other Party. Neither Party will have the authority or right to represent nor obligate the other Party in any way except as expressly authorized by this Agreement.
This Agreement shall enure to the benefit of and be binding upon each of the Parties hereto and their permitted successors and assigns.
- No Assignment
Neither this Agreement nor any rights or obligations hereunder shall be assignable by a Party without the prior written consent of the other Party.
The Agreement may be executed in one or more counterparts, including by facsimile transmission, each of which when executed shall be deemed to be an original and all of which, taken together, shall constitute one and the same agreement.
It is the Parties desire and agreement that this Agreement and all Schedules and associated documentation be drafted in English. Les Parties conviennent que la présente convention et tous les documents s’y rattachant, soient rédigés en anglais.
Notwithstanding the termination or expiration of this Agreement for any reason, Sections 4, 6, 7, 8, and 9 and those provisions set out in Section 1 as necessary to interpret the foregoing provisions, of this Agreement shall survive any such termination or expiration.
(Signature page follows)
In witness whereof, each Party hereto has caused this Agreement to be duly executed as of the date first written above.
|STEM MINDS CORP.
I have authority to bind Stem Minds.
I have authority to bind Customer.
[List any services to be performed such as preparing a report or specific lessons/programs.]
<SCHEDULE TO BE DISCUSSED>
Payment Terms: Net 30 Days
- First Year access is granted from SEPTEMBER 1, 2019 to JUNE 31st , 2020