Consortium on Reaching Excellence in Education, Inc.® (CORE) provides its Online Language & Literacy Academy (“OL&LA”) to you, subject to the following Terms of Service (“TOS”), which may be updated from time to time. Your use of OL&LA and its materials constitutes your agreement to all such terms, conditions, policies, and notices (the “Agreement”). This Agreement is a legal document that governs the terms and conditions of your subscription to OL&LA. You are also agreeing to accept a non-exclusive, non-assignable right and license to use OL&LA and its resources. You understand and agree that OL&LA is provided “AS-IS” and that CORE assumes no responsibility for the timeliness, deletion, misdelivery, or failure to store any user communications or personalization settings. You are responsible for obtaining access to OL&LA, and that access may involve third-party fees (such as Internet service provider or airtime charges). You are responsible for those fees. In addition, you must provide and are responsible for all equipment necessary to access OL&LA.

CORE’S performance hereunder will be excused and the time for the performance of OL&LA will be extended for the duration of any delays caused by you or for delays caused by causes beyond the reasonable control of CORE such as fire, floods, strikes, riots, pandemic, epidemic, unavailability of labor or materials or services, process shutdown, acts of God, of terrorism, of war or the public enemy, or acts or regulation of any governmental agency.

Payment for OL&LA included on each Quote is due according to the payment schedule outlined in such Quote. Unless specified otherwise in a Quote, all invoices are payable within 30 days of receipt by you. In the event you do not pay an invoice when due, CORE has the right to charge a late fee of 1.0% of the outstanding payment due per month starting from the original date the payment was due. You will reimburse CORE for reasonable out-of-pocket expenses incurred by CORE and its personnel in connection with OL&LA. CORE will provide you with reasonably detailed invoices for such expenses and you agree to pay the total amount shown as due on each invoice within 30 days after receipt thereof.

Each fully executed Quote represents a firm commitment between you and CORE for OL&LA and, where applicable, participant counts agreed upon in a Quote on the dates set forth therein.

CORE reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, OL&LA (or any part thereof) with or without notice. You agree that CORE shall not be liable to you or any third party for any modification, suspension, or discontinuance of OL&LA. CORE may change, add, or remove any part of this Agreement, or any other terms associated with the use of OL&LA, at any time, by posting a notice of such changes to the Terms of Service page. Any changes shall become part of the Agreement and shall apply as soon as such a notice is posted. By continuing to use OL&LA after the notice is posted, you are indicating your acceptance of those changes.

a. As used in this Agreement, “Confidential Information” will mean all confidential, proprietary, and non-public information and materials owned, possessed, or used by either CORE or you which is at any time so designated by such party orally or in writing as “Confidential” or “Proprietary”. In addition, information which (i) would be apparent to a reasonable person, familiar with the disclosing party’s business and the industry in which it operates, that such information is of a confidential or proprietary nature the maintenance of which is important to the disclosing party or (ii) is orally or visually disclosed to the other party or which is not designated in writing as confidential, proprietary or secret at the time of disclosure but within a reasonable time after such disclosure the disclosing party delivers to the receiving party a written document describing such Proprietary Information and referencing the place and date of such disclosure and the names of the employees of the party to whom such disclosure was made, will constitute Confidential Information. Notwithstanding anything herein to the contrary, the terms of this Agreement, and CORE’s methodologies, work approaches, techniques, professional development materials (unless other specified therein) and processes constitute CORE Confidential Information without the requirement of designating it as such either orally or in writing.

b. Confidential Information will not include any information to the extent it (i) is or becomes a part of the public domain through no act or omission on the part of the receiving party, (ii) is disclosed to third parties by the disclosing party without restriction on such third parties, (iii) is in the receiving party’s possession, without actual or constructive knowledge of an obligation of confidentiality with respect thereto, at or prior to the time of disclosure under this Agreement, (iv) is disclosed to the receiving party by a third party having no obligation of confidentiality with respect thereto, (v) is independently developed by the receiving party without reference to the disclosing party’s Confidential Information or (vi) is released from confidential treatment by written consent of the disclosing party.

c. Each of CORE and you will hold in confidence and not disclose (except on a confidential basis to its employees, agents, consultants, or subcontractors who need to know in connection with OL&LA and who are bound to preserve the confidentiality thereof) all Confidential Information received from the other party in the same manner and to the same extent as it holds in confidence its own Confidential Information of a similar nature and value, and will not use any such Confidential Information except for purposes contemplated by this Agreement.

d. Each of CORE and you will take appropriate action by instruction or agreement with its employees, agents, consultants, and subcontractors to satisfy its obligations under this Section 6 and each will be responsible for any breach of this Section 6 by its employees, agents, consultants and subcontractors.

e. You agree that the deliverables provided to you may be based on CORE’s Confidential Information and that the delivery of OL&LA will not impair CORE’s right to make, prepare, create, procure, or market products or services now or in the future.

a. CORE shall indemnify and fully hold harmless you, your officers, employees, and agents, from and against any and all claims, actions, damages, judgment, liabilities, costs, including reasonable attorneys’ fees or expenses, and including all claims for injuries or damages to persons and/or property, which result from the negligent acts or omission of CORE, its officers, employees, and/or agents in the execution of this Agreement.

b. You shall indemnify and fully hold harmless CORE, its officers, employees, and agents, from and against any and all claims, actions, damages, judgment, liabilities, costs, including reasonable attorneys’ fees or expenses, and including all claims for injuries or damages to persons and/or property, which result from the negligent acts or omission of you, your officers, employees, and/or agents in the execution of this Agreement.

YOU EXPRESSLY UNDERSTAND AND AGREE THAT:

1. YOUR USE OF OL&LA IS AT YOUR SOLE RISK. OL&LA IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. CORE EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
2. CORE MAKES NO WARRANTY THAT (I) OL&LA WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (II) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED, (III) OR THAT THIS WEBSITE, ITS CONTENT, AND THE SERVERS ON WHICH THE WEBSITE AND CONTENT ARE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
3. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF OL&LA IS DONE AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
4. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM CORE OR THROUGH, OR FROM, OL&LA SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TOS.
5. INFORMATION CREATED BY THIRD PARTIES THAT YOU MAY ACCESS ON THE WEBSITE OR THROUGH LINKS IS NOT ADOPTED OR ENDORSED BY CORE AND REMAINS THE RESPONSIBILITY OF SUCH THIRD PARTIES.

The failure of CORE to exercise or enforce any right or provision of the TOS shall not constitute a waiver of such right or provision. If any provision of the TOS is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the TOS remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of, or related to, the use of OL&LA or the TOS must be filed within one (1) year after such claim or cause of action arose or be forever barred.

Except as permitted in a Quote, neither party may use the other’s name or logo in any marketing materials without such party’s prior written consent.

You may not use OL&LA or its content for any illegal purpose or in any manner inconsistent with this TOS. You agree to use OL&LA solely for your own noncommercial use and benefit and not for resale or other transfer or disposition to any other person or entity.

In the event that CORE determines, in its sole discretion, that a user has breached any portion of these terms and conditions, or has otherwise demonstrated inappropriate conduct, it reserves the right to (i) warn the user via e-mail that she or he has violated this Agreement; (ii) delete any content provided by the user (or anyone accessing user’s account); (iii) discontinue the user’s account and OL&LA; (iv) notify and/or send content to and/or fully cooperate with the proper law enforcement authorities for further action; (v) retroactively charge for the unauthorized use; and/or (vi) take any other action that CORE deems appropriate.

This Agreement and all Quotes may be terminated, by either party, effective immediately and without notice, in the event of (i) the dissolution, termination of existence, liquidation, or insolvency of the other party, (ii) the appointment of a custodian or receiver for the other party, (iii) the institution by or against the other party of any proceeding under the United States Bankruptcy Code or any other foreign, federal or state bankruptcy, receivership, insolvency or other similar law affecting the rights of creditors generally, or (iv) the making by the other party of a composition of, or any assignment or trust mortgage for the benefit of, creditors. In the event of your dissolution, termination of existence, liquidation, insolvency, appointment of a custodian or receiver or the institution of bankruptcy, receivership, insolvency, or other similar proceedings, or the composition of, or assignment of trust mortgage for, the benefit of creditors, then the licenses granted under this Agreement and any Quotes will be forfeited and returned to CORE. All provisions that reasonably should survive termination of this Agreement or a SOW shall survive and any accrued rights to payment and remedies for breach of this Agreement will survive, in accordance with their terms, the completion of CORE’s Services hereunder and the expiration or termination of this Agreement or any Quote.

Any dispute or claim arising out of or relating to this Agreement or any Quote will be resolved in accordance with the Dispute Resolution Process set forth in this Section. Any controversy or claim arising out of or relating to this Agreement, or breach thereof, will be settled as follows: Members of the senior management of both Parties will meet to attempt to resolve such disputes. If a dispute cannot be resolved within ten (10) business days, either party may make a written demand for mediation. Within thirty (30) days after such written notification, the parties will meet for one (1) day with an impartial mediator. The costs and expenses of the mediator will be shared equally by the parties. If the dispute is not resolved by mediation, the dispute will be settled by binding arbitration conducted in accordance with the JAMS procedures pursuant to its Streamlined Arbitration Rules and Procedure, by a single arbitrator, in Oakland, CA. The arbitrator will be selected as provided in the Streamlined Arbitration Rules and Procedure. The arbitrator may not award non-monetary or equitable relief of any sort. The arbitrator will have no power to award damages inconsistent with this Agreement. No discovery will be permitted in connection with the arbitration unless it is expressly authorized by the arbitrator upon a showing of substantial need by the Party seeking discovery. All aspects of the arbitration will be treated as confidential. Neither the parties nor the arbitrator may disclose the existence, content, or results of the arbitration, except as necessary to comply with legal or regulatory requirements. Before making any such disclosure, a Party will give written notice to all other parties and will afford such parties a reasonable opportunity to protect their interests. The result of the arbitration will bind the Parties, and judgment on the arbitrator’s award may be entered in any court having jurisdiction. Each Party will bear its own costs of the arbitration. The fees and expenses of the arbitrator will be shared equally by the Parties.

IN NO CASE WILL EITHER PARTY’S MAXIMUM LIABILITY ARISING OUT OF THIS AGREEMENT, WHETHER BASED UPON WARRANTY, CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY, OR OTHERWISE, EXCEED IN THE AGGREGATE, FOR CORE, THE ACTUAL PAYMENTS RECEIVED BY CORE UNDER THE QUOTE TO WHICH THE CLAIM RELATES AND, FOR CLIENT, THE AMOUNTS REQUIRED TO BE PAID UNDER SUCH QUOTE. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR: (i) INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF OPPORTUNITIES, LOSS OF DATA, OR LOSS OF USE DAMAGES, ARISING OUT OF THIS AGREEMENT OR ANY SOW, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR (ii) DAMAGES RELATING TO ANY CLAIM THAT AROSE MORE THAN ONE (1) YEAR PRIOR TO THE INSTITUTION OF SUIT THEREON.

a. This Agreement and all fully executed Quotes constitute the entire agreement between CORE and you with respect to the subject matter hereof and supersedes any and all other agreements, understandings, promises, and negotiations, either oral or written, between the parties hereto with respect to the rendering of OL&LA by CORE for you including any terms included on your purchase orders. Each party to this Agreement acknowledges that no representations, inducements, promises, or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which are not embodied herein, and that no other contract, statement, or promise not contained in this contract shall be valid or binding.

b. This Agreement shall be deemed to have been executed and delivered within the State of California, and the rights and obligations of the parties hereunder shall be construed and enforced in accordance with, and governed by, the laws of the State of California without regard to principles of conflict of laws. The venue shall lie in Alameda County, California.

c. CORE retains the right to retract any Quote if not duly executed by you within 21 days of the effective date, and/or 21 days or less prior to the first service date.

d. In the event that any provision of this Agreement or any Quote is held by a court of competent jurisdiction to be unenforceable because it is invalid or in conflict with any law of any relevant jurisdiction, the validity of the remaining provisions will not be affected, and the rights and obligations of the parties will be construed and enforced as if the Agreement or such Quote did not contain the particular provisions held to be unenforceable and the unenforceable provisions will be replaced by mutually acceptable provisions which, being valid, legal and enforceable, come closest to the intention of the parties underlying the invalid or unenforceable provision.

e. Neither this Agreement, any Quote, or any rights or licenses granted hereunder may be assigned, delegated, or subcontracted by any party without the written consent of the other party, except that (i) a party may assign and transfer this Agreement and any Quote and its rights and obligations hereunder and thereunder to any third party which succeeds to substantially own all of its business and assets or assign or transfer any rights to receive payments hereunder, and (ii) CORE may subcontract its obligations hereunder to any parent organization or any wholly-owned subsidiaries of CORE or third-party service providers, provided that CORE remains primarily liable to you hereunder.

f. The parties hereto are independent contractors. Nothing herein will be deemed to constitute either party as the representative, agent, partner, or joint venture of the other.