Client Terms
PLEASE READ THESE CLIENT TERMS (TOGETHER WITH ANY SCOPE OF WORK, “AGREEMENT”) CAREFULLY. WHEN YOU SIGN A SCOPE OF WORK AUTHORIZING US TO PERFORM SERVICES FOR YOU OR PAY US A FEE IN EXCHANGE FOR SERVICES WE PROVIDE TO YOU, YOU AGREE TO THESE TERMS.
1. DEFINITIONS.
a. “Confidential Information” means non-public information concerning the disclosing party’s products, designs, processes, techniques, know-how, algorithms, constructs, services, intellectual property, operations, concepts, management, relationships with other companies, actual and potential customers, marketing and business plans, cost data, and other financial data. Such information may be conveyed orally by the disclosing party or in the form of drawings, schematics, specifications, other technical information, reports, summaries, or presentations. All of the foregoing information shall be considered the Confidential Information of the disclosing party, regardless of whether it is marked or otherwise identified as confidential. In addition, other information shall be considered the Confidential Information of the disclosing party if it is marked confidential or identified at the time of disclosure as confidential.
b. “Deliverables” means the items to be provided or actually provided by Company to Client under this Agreement, including items specifically designated or characterized as deliverables in a Scope of Work attached hereto.
c. “Fee” means the total fee for Services as specified in the Scope of Work.
d. “Intellectual Property Rights” means all rights, title, and interest in and to each party’s respective names, logos and service marks, proprietary features and proprietary technology, trade secrets, patents, copyrights, trademark, and other proprietary rights of any type under the laws of any governmental authority, domestic or foreign, including rights in and to all applications, registrations, renewals, and extensions relating to any of these rights.
e. “Services” means the services to be performed under a Scope of Work and services actually performed by Company.
2. SERVICES. During the Term of the Agreement, Company shall provide Services and produce Deliverables as defined on any Scope of Work signed by the parties.
a. Additional Services and Deliverables. In the event Client requests, and Company agrees to provide, any services or deliverables not defined on the Scope of Work, additional fees and expenses may apply and the parties will execute an updated or new Scope of Work to reflect those additional services, deliverables, and associated fees and expenses.
3. TERM. The term of this Agreement shall commence on the Effective Date and shall continue in full force and effect until the completion or termination of Services under any signed Scope of Work (the “Term”).
4. SURVIVAL. Sections concerning the parties’ rights and obligations, which by the content of the Section, operate after termination or which are necessary to enforce any right (including, without limitation, payment of Fees), will survive any termination or expiration of this Agreement.
5. TERMINATION.
a. Breach. If either party breaches any provision contained in this Agreement, and the breach is not cured within fifteen (15) days after the breaching party receives a detailed notice of the breach from the non-breaching party, the non-breaching party may then deliver a second notice to the breaching party immediately terminating this Agreement.
b. Insolvency. Company may terminate this Agreement, and may cease performance of Services and production of Deliverables, immediately upon written notice thereof to the Client if (i) Company becomes aware of any reason Client may not be able to pay Fees in a timely manner and Client does not make reasonably sufficient reassurances of its ability to pay within forty-eight (48) hours after notice by Company of its intent to terminate, or (ii) Client makes an assignment for the benefit of creditors, becomes subject to a bankruptcy proceeding, or is subject to the appointment of a receiver.
c. Client Convenience. If Client desires to terminate this Agreement or any portion of the Services on the Scope of Work, Client may do so at any time for any reason, solely by providing written notice to Company. The effective date of any termination shall be the date Company actually receives Client’s notice, and Client shall be liable for a cancellation fee equivalent to the Fee.
Client hereby acknowledges this cancellation fee has been incorporated into this Agreement as a valid pre-estimate of damages that Company will sustain which will not be capable of precise determination, and that this cancellation fee is not a penalty, but rather is considered the agreed-upon liquidated damages suffered as a result of Client’s cancellation because of the nature and size of Company’s business and industry, in which Company resources are reserved specifically for Client’s Services and other clients may be turned away during Client’s reserved Timeline. Upon receipt of Client’s termination or partial cancellation notice, Company will invoice Client for the cancellation fee, and Client shall pay such invoice within fifteen (15) days after receipt of invoice. Late charges for delinquent payment, as specified below, apply to the cancellation invoice.
6. PAYMENT TERMS.
a. Fee. Client shall pay the Fee within fifteen (15) days after receipt of invoice or as required by the payment schedule defined in the Scope of Work.
i. Increase of Fee. Company reserves the right to increase the price of its Services, by giving reasonably advance notice to the Client, to reflect any increase in the cost of the Services resulting from any request by the Client to increase or otherwise change the Services or any Deliverables defined on the Scope of Work.
b. Expenses. Client shall reimburse Company for all expenses arising under a Scope of Work(“Expenses”). Company shall request Client approval of any individual expense in excess of $50 prior to incurring such expense. From time to time as Company incurs expenses during the Term, Company shall provide Client with an expense report invoice detailing expenses incurred and including receipts as proof of payment, and Client shall pay such invoices no later than thirty (30) calendar days after receipt.
c. Late Charges for Delinquent Payment. Late charges will be imposed on any balance remaining unpaid after the due date for each installment of the Payment Schedule has expired, computed at 1.5% per month (18% per year). Client’s unpaid balance will be determined by taking the beginning balance of Client’s account for each month, adding any new charges and subtracting any payments and credits made to Client’s account. This amount will then be multiplied by the applicable monthly periodic rate of 1.5% to compute the late charge for Client account for that month. In the event of Client’s default on the payment, and in addition to all sums owed to Company by Client (including late charges detailed above), Company shall be entitled to recoup all costs and expenses caused by Client’s default including but not limited to fees accrued in collecting payment owing from Client.
7. DELIVERABLES FOR PERSONAL USE ONLY, NOT DISTRIBUTION. All Deliverables provided, including without limitation all materials specified in the Services section of a Scope of Work, are owned by us and provided solely for personal use. You and your employees may not distribute or share our Deliverables with friends, colleagues, or any third party who is not a parent or legal guardian directly involved in a child’s school placement process without our prior written permission.
8. INTELLECTUAL PROPERTY OWNERSHIP. Each party owns and shall retain all rights, title, and interest in and to its Intellectual Property Rights, or other rights of each party, including any such rights in and to any information or content contributed by such party. As between the parties, any information and content contributed by each party shall at all times be and remain the sole and exclusive property of the contributing party. All present and future rights in and title to the respective party’s content (including the right to exploit such content over any present or future technology) are reserved to the individual parties for their exclusive use, and neither party shall have proprietary rights nor shall acquire proprietary rights to the other party’s content by virtue of this Agreement. Except as specifically permitted herein, neither party may copy or make any use of the other party’s content, or any variations or derivatives thereof, for any purpose, without the other party’s prior written approval. Except as specifically permitted herein, neither party shall use the trademarks, trade names, service marks, trade dress, logos or titles of the other. Each of the parties shall retain separate ownership over their respective Intellectual Property Rights, including improvements thereto, regardless of whether such improvements were developed pursuant to this Agreement. However, each of the parties shall grant the other party sufficient rights to effectuate the purposes of this collaboration.
9. YOUR PRIVACY; TESTIMONIAL CONSENT. We are committed to respecting your privacy. For more information regarding what information we may collect from you and how we may use that information, please read our Privacy Policy. We plan to use any feedback you may provide to us regarding our Services, which we may use as a testimonial on our website, in discussions with potential clients, and in other formats or mediums for promotional, marketing, and other business purposes. However, if you prefer to limit your exposure, please let us know in advance. If you have not previously notified us in writing that we may not use your feedback, name, likeness, and photographs of your image for the purposes described above, then you grant us the worldwide, perpetual, irrevocable, royalty-free right, in all formats and media now or hereafter known, to use them in any manner we deem appropriate and without limitation. We are happy to review any requests you make regarding use or removal of materials that include your likeness, and we will do our best to find a reasonable solution.
10. REPRESENTATIONS AND WARRANTIES. Each party represents and warrants to the other that: (i) it is a corporation duly organized, validly existing, and in good standing under the laws of its state of incorporation; (ii) it has full corporate power and authority to carry on its business and to enter into this Agreement; (iii) the execution and performance of this Agreement will not violate, cause a breach of, or be restricted by any agreements with third parties, or violate any applicable laws, government rules, regulations, or court orders; and (iv) to the best of its knowledge, both the granting of rights to the other party under this Agreement (including the grant of rights to the granting party’s Intellectual Property) and the exercise thereof by the other party will not infringe or otherwise violate the intellectual property or other proprietary or contractual rights of any person or entity. In the event that Client requests Company use third-party materials in providing its Services and Deliverables, Client specifically represents and warrants to Company that it has obtained valid licenses from the authorized licensor or owner of such third-party materials and that such licenses permit Company use of such third-party materials in the form and manner requested by Client.
11. PLACEMENT NOT GUARANTEED. We provide our Services to support families in their child’s school placement experience because we know it can be time-consuming and challenging to navigate due to varying processes, priority enrollment, deadlines, limited spot availability, and other factors defined by each school. Even within the California public school system, while students do have a right to free, public education, the law does not guarantee a student’s placement at their neighborhood school and does not require approval of transfer requests. Because there are so many variables involved in school placement, we cannot guarantee any child’s placement in any particular school or any other results. However, we believe that our knowledge and support gives families the best possible outcome, even when that result may not be what they or we originally anticipated.
12. DISCLAIMER. The content of our website, Deliverables, and any other materials we provide is for informational purposes only and provided “as is” without guarantees or promises as to any results you may obtain by using that content or engaging our Services. Except as otherwise set forth in this Agreement, Company does not make and hereby specifically disclaims all warranties, whether express or implied, including the implied warranties of merchantability, fitness for a particular purpose, course of dealing, or course of performance.
13. CONFIDENTIALITY. The receiving party acknowledges the confidential nature of the disclosing party’s Confidential Information and agrees that, during the term of this Agreement and indefinitely after termination of this Agreement, it shall not disclose the disclosing party’s Confidential Information to any other person, or use any Confidential Information for any purpose other than as contemplated in this Agreement, without the prior written consent of an authorized representative of the disclosing party. Each party shall take reasonable precautions (no less rigorous than the receiving party takes with respect to its own comparable Confidential Information) to prevent unauthorized or inadvertent disclosure of the other party’s Confidential Information. However, a receiving party may disclose Confidential Information of a disclosing party pursuant to any statute, regulation, order, subpoena, or document discovery request, provided that prior written notice of such disclosure is furnished to the disclosing party as soon as practicable in order to afford the disclosing party an opportunity to seek, at its own expense, a protective order. Should the disclosing party fail to seek or obtain a protective order, the receiving party may disclose such information without liability, provided that the receiving party is legally compelled to disclose such Confidential Information.
14. LIMITATION OF LIABILITY. Under no circumstances shall either party be liable to the other party for indirect, incidental, consequential, punitive special or exemplary damages arising from or related to this Agreement. Our aggregate liability arising out of or relating to this Agreement, the Services or a Scope of Work will not exceed the amount you have paid us during the past six (6) months.
15. NOTICES. All notices under this Agreement shall be in writing and shall be delivered in person or sent by registered mail, certified mail, confirmed email, confirmed facsimile, or other reliable form of receipted delivery (e.g., Federal Express) delivery fees prepaid, to the address of the other party as set forth in this Agreement or to such other address as such party shall have designated by notice in the foregoing manner. Such notice shall be deemed effective upon receipt or refusal, as evidenced by a delivery receipt or confirmation email or facsimile.
16. RELATIONSHIP OF PARTIES. Nothing contained in this Agreement shall be construed to constitute either party as a partner, agent, fiduciary, franchisor, or employee of the other. In both parties’ dealings with third parties, neither party shall hold itself out as a partner, agent, fiduciary, franchisee, or employee of the other party. Neither party shall have authority to make any agreements or incur any liability on behalf of the other party, nor shall either party be liable for any acts, omissions to act, contracts, commitments, promises or representations made by the other, except as specifically authorized in this Agreement or as the parties may otherwise agree in writing. Any agreement made by a party in violation of this section shall be void.
17. ASSIGNMENT AND DELEGATION. This Agreement is binding on the parties and their respective successors and permitted assigns. No party may assign any of its rights or delegate any of its duties under this Agreement, except with the prior written consent of the other party; provided, however, that Company may engage employees, independent contractors, consultants, volunteer assistants or other persons or entities to aid Company in performing the services it provides under this Agreement. Such consent shall not be unreasonably withheld, conditioned, or delayed. This requirement covers all assignments of rights or duties, whether they are voluntary or involuntary; provided, however, that either party may assign this Agreement to an entity controlling, controlled by or under common control with the assignor, or in connection with the merger or reorganization of the assignor, or in connection with the sale or other transfer of all or substantially all of the assignor’s assets. Any other purported assignment of rights or delegation of duties in violation of this section is void.
18. THIRD PARTY BENEFICIARIES. This Agreement is intended for the sole and exclusive benefit of the signatories and is not intended to benefit any third party. Only the parties to this Agreement may enforce it.
19. DISPUTE RESOLUTION. The parties shall attempt in good faith to resolve any dispute arising out of or relating to this Agreement promptly by negotiation between executives who have authority to settle the controversy. Any party may give the other party written notice of any dispute not resolved in the normal course of business. Within seven (7) days after delivery of the notice, the receiving party shall submit to the other party a written response. The notice and response shall include with reasonable particularity: (a) a statement of each party’s position and a summary of arguments supporting that position; and (b) the name and title of the executive who will represent that party and of any other person who will accompany the executive. Within fifteen (15) days after delivery of the notice, the executives of both parties shall meet at a mutually acceptable time and place (“First Meeting”). All offers, promises, conduct and statements, whether oral or written, made in the course of the negotiation by any of the parties, their agents, employees, experts and attorneys are confidential, privileged and inadmissible for any purpose, including impeachment, in arbitration or other proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the negotiation. At no time prior to the First Meeting shall either party initiate an arbitration or litigation related to this Agreement except to pursue a provisional remedy that is authorized by law or by American Arbitration Association under its Commercial Mediation Rules or by agreement of the parties. However, this limitation is inapplicable to a party if the other party refuses to comply with the requirements of the written notice of dispute, response to that notice, and First Meeting above. All applicable statutes of limitation and defenses based on the passage of time shall be tolled while the procedures specified above are pending and for fifteen (15) calendar days thereafter.
20. ARBITRATION. If any dispute is not resolved pursuant to the dispute resolution provision above, then the parties agree to first endeavor to settle the dispute in an amicable manner by mediation administered by the American Arbitration Association under its Commercial Mediation Rules, before resorting to arbitration. Thereafter, any unresolved dispute shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Rules, and judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Any mediation or arbitration conducted pursuant to this paragraph shall be held and administered in Marin County, California. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.
21. GOVERNING LAW; FORUM. This Agreement and any disputes arising out of or in connection with this Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to its conflict of law provisions. Any matter involving interpretation or enforcement of this Agreement shall be brought in the state or federal courts in Marin County, California. The Parties hereby accept the exclusive and personal jurisdiction of those courts. If any action is instituted to enforce the terms of this Agreement, the prevailing party shall be entitled to its reasonable costs and expenses incurred in connection with the action, including reasonable attorney’s fees.
22. WAIVER. Failure by either party to enforce any provision shall not be deemed a waiver of future enforcement of that or any other provision. No waiver of any breach of any provisions of this Agreement will be effective unless set forth in an agreement in writing signed by the party against which enforcement of such waiver is sought, and no waiver of any breach will be deemed to be a waiver of any other or subsequent breach.
23. SEVERABILITY. In the event that any portion of this Agreement is declared invalid, illegal, or unenforceable for any reason, the remaining portions of this Agreement shall remain in full force and effect.
24. INTERPRETATION. This Agreement is the product of an arms-length negotiation between the parties, with each of the parties being represented by legal counsel of its choice. Accordingly, in any interpretation of this Agreement, it shall be deemed that this Agreement was prepared jointly by the parties, and no ambiguity shall be construed or resolved against either party on the premise or presumption that the party was responsible for drafting this Agreement.
25. ENTIRE AGREEMENT. This Agreement, as well as any signed Scope of Work, is the exclusive agreement between the parties with respect to its subject matter and as of its date supersedes all prior agreements, negotiations, representations, and proposals, written or oral, related to its subject matter. Its terms cannot be modified, supplemented, or rescinded except by an agreement in writing signed by an authorized officer of all parties. There are no conditions precedent to the effectiveness of this Agreement other than those expressly stated in this Agreement. The provisions of this Agreement may not be explained, supplemented, or qualified through evidence of trade usage or a prior course of dealing. In entering into this Agreement, neither party has relied upon any statement, representation, warranty or agreement of the other party except for those expressly included in this Agreement.