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This Master Services Agreement (“Agreement”) is entered into by and between GreenFig Micro Education, Inc., a Delaware corporation, (“GreenFig”) and the Customer (“Customer”) and sets forth the terms and conditions under which GreenFig will grant Customer and its Students the right to access and use the Services and Courseware ordered pursuant to any SOW.
BY ACCEPTING THIS AGREEMENT, BY (1) CLICKING A BOX INDICATING ACCEPTANCE, OR (2) EXECUTING AN SOW, ORDER FORM OR SIMILAR INSTRUMENT (“ORDER FORM”) THAT REFERENCES THIS AGREEMENT, CUSTOMER AGREES TO THE TERMS OF THIS AGREEMENT. THE INDIVIDUAL ACCEPTING THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS. THE TERM “CUSTOMER” REFERS TO SUCH ENTITY AND ITS AFFILIATES. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT.
This form Agreement became effective on November 1, 2019. It is effective between Customer and GreenFig as of the date of Customer’s accepting this Agreement following such date (the “Effective Date”
1.1 “Academic Period” means the period GreenFig and Customer agree to provide GreenFig services to the students attending Customer’s educational institution with a specific start and end date.
1.2 “Apprentorship and Placement” means any of the mentorship, career counseling, Student coaching and unpaid internship and job search assistance services that may be offered by GreenFig.
1.3 “Confidential Information” means all information regarding a party’s business, including, without limitation, technical, marketing, financial, employee, planning, and other confidential or proprietary information, disclosed under this Agreement, that is clearly identified as confidential or proprietary at the time of disclosure or that the receiving party knew or should have known, under the circumstances, was considered confidential or proprietary. .
1.4 “Core Offering” means the Online Platform, Virtual Live Classroom, Apprentorship and Placement and Training & Onboarding services.
1.5 “Courseware” means any educational content, books, readers, courseware, videos and other materials made available for download or provided by other means in association with the GreenFig Services.
1.6 “Customer Data” means any documents, data, information, or other materials provided by one party to the other as part of or facilitating the GreenFig Service, including any document, template or other similar file submitted by Customer through the Online Platform.
1.7 “Documentation” means any user manuals, handbooks, and online or offline materials provided by GreenFig to Customer that describe the features, functionality or operation of the GreenFig Services.
1.8 “GreenFig Service” means the Core Offering as well as any other service(s) delivered by GreenFig to Customer as described herein or in the applicable SOW.
1.9 “Online Platform” means GreenFig’s white labeled online platform that provides access to Courseware and online educational materials.
1.10 “Marks” means the name(s), trade name(s), trademark(s) and logo(s) of Customer.
1.11 “SOW” means any mutually agreed upon statement of work that references this Agreement and identifies the GreenFig Service(s) and/or Courseware to be made available by GreenFig.
1.12 “Student” means any full or part-time student that is currently enrolled to attend Customer’s educational institution(s)..
1.13 “Training & Onboarding” means the training services provided by GreenFig designed to educate and teach Customer’s designated trainees with regards to operation and implementation of recruiting events, apprentorships, placement services, the Online Platform and Virtual Live Classroom.
1.14 “Virtual Live Classroom” means the live classroom services provided by or on behalf of GreenFig as delivered in an Internet streaming or broadcast format.
2.1 Core Offering. GreenFig will provide and make available to Customer the Core Offering, as well as any other GreenFig Service identified in the applicable SOW. GreenFig will use commercially reasonable efforts to perform the GreenFig Services in accordance with the terms of this Agreement and the applicable SOW. From time to time, the parties may agree to SOWs; provided, however, GreenFig agrees to undertake the obligations andresponsibilities set forth in the Order Form..
2.2 Support. Subject to the terms of this Agreement, GreenFig shall use commercially reasonable efforts to (a) maintain the security of the Online Platform; and (b) provide the support services described in Exhibit A.
2.3 Core Offering Promotion. The parties will reasonably cooperate with one another to market and promote the Core Offering to Students in an effort to meet the mutually agreed upon enrollment goal(s) described in the applicable SOW.
2.4 Restrictions. Customer will not, and will not permit any Student or other party to: (a) knowingly interfere with or disrupt the integrity or performance of the Online Platform, Virtual Live Classroom or the data contained therein; (b) harass or interfere with another GreenFig customer’s use and enjoyment of the Online Platform or Virtual Live Classroom; (c) reverse engineer, disassemble or decompile any component of the Online Platform; (d) interfere in any manner with the operation of the Online Platform, the Virtual Live Classroom, or the hardware and network used to operate the Online Platform or Virtual Live Classroom; (e) sublicense any of Customer’s rights under this Agreement, or otherwise use the Online Platform, Virtual Live Classroom or Courseware for the benefit of a third party or to operate a service bureau; or (f) modify, copy or make derivative works based on any part of the Online Platform, Virtual Live Classroom or Courseware (except that Customer may reproduce its Marks in connection with the Online Platform, Virtual Live Classroom and Courseware, provided such reproduction does not obscure or remove any of GreenFig’s marks or logos).
3.1 Fees and Taxes. Customer and GreenFig will apportion the fees for the GreenFig Service in accordance with the SOW. All amounts owed by Customer in connection with this Agreement are exclusive of, and Customer shall pay, all sales, use, excise and other taxes and applicable export and import fees, customs duties and similar charges that may be levied upon Customer in connection with this Agreement, except for employment taxes and taxes based on GreenFig’s income.
3.2 True Up. Upon the completion of each relevant Academic Period, the Customer and GreenFig will determine a list of Students who officially dropped the Core Offering during such Academic Period, along with any supporting documentation reasonably requested. The parties will determine if any true-up payments are warranted based on Student attendance any resulting overpayments based on the number of Students who dropped out and for whom no revenue was collected (or was returned) consistent with Customer’s standard tuition policies. GreenFig will make any true up payments within thirty days’ (30) of determining the mutually agreed adjustment applicable to such Academic Period.
3.3 Suspension of Services. GreenFig reserves the right (in addition to any other rights or remedies GreenFig may have) to discontinue the GreenFig Service and suspend Customer’s (and its Students’) access to the Online Platform if any Fees set forth in any applicable SOW are more than thirty (30) days overdue until such amounts are paid in full.
The receiving party agrees that it will not use or disclose to any third party any Confidential Information of the disclosing party, except as expressly permitted under this Agreement. The receiving party will limit access to the Confidential Information to those who have a need to know such information to use or provide the GreenFig Service. The receiving party will protect the disclosing party’s Confidential Information from unauthorized use, access, or disclosure in a reasonable manner. Upon termination of this Agreement, the receiving party will return to the disclosing party or destroy all copies of the Confidential Information. The restrictions on use and disclosure of Confidential Information set forth above will not apply to any Confidential Information which (a) is or becomes a part of the public domain through no act or omission of the receiving party, (b) was in the receiving party’s lawful possession prior to the disclosure, as shown by the receiving party’s competent written records, or (c) is independently developed by the receiving party. The receiving party may disclose Confidential Information to the extent that such disclosure is required by law or by the order of a court or similar judicial or administrative body.
5.1 GreenFig Proprietary Service. Customer acknowledges that GreenFig retains all right, title and interest in and to the GreenFig Service, including the Core Offering, any GreenFig proprietary Courseware and software and information used by GreenFig or provided to Customer in connection with the GreenFig Proprietary Service, and that the GreenFig Technology is protected by intellectual property rights owned by or licensed to GreenFig. Other than as expressly set forth in this Agreement, no license or other rights in the GreenFig Technology are granted to the Customer. This does not apply to any 3rd party technologies used within the overall service or related classroom activities. Customer hereby grants GreenFig a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the GreenFig Service any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including Users, relating to the GreenFig Service. GreenFig shall not identify Customer as the source of any such feedback.
5.2 Customer Data. The party that initially collected the Customer Data, consistent with applicable law and the consent of any Students or other third parties, retains all right, title and interest in and to the Customer Data. Each party represents and warrants that it has obtained all appropriate consents and has the right to furnish the Customer Data for purposes of this Agreement. GreenFig will only use Customer Data provided by Customer to provide, develop and improve the GreenFig Service. Customer grants to GreenFig all licenses in and to such Customer Data as necessary for GreenFig to provide the GreenFig Service to Customer and Student. GreenFig will not otherwise knowingly use or access any Customer Data unless authorized to do so by Customer or Student (with respect to a Student’s information). For the avoidance of doubt, Students may opt-in to GreenFig’s Privacy Policy and/or separately consent to releasing their information (including Customer Data) to GreenFig, or opt-in for ancillary functionality or different GreenFig offerings which will entitle GreenFig to use such Student information consistent with the scope of such consent. GreenFig may also use aggregated and anonymized Customer Data for internal development and research purposes.
5.3 Trademark License. During the Term, Customer hereby grants GreenFig a non-exclusive, non-transferable, royalty-free license to reproduce and use the Marks solely for the purpose of providing the GreenFig Services and Courseware to GreenFig and its Students. Customer retains sole and exclusive ownership over the Marks, including all goodwill inuring from GreenFig’s use of such Marks. GreenFig will comply with any trademark guidelines provided by Customer.
5.4 FERPA/Student Data. GreenFig and Customer acknowledge that Customer is an entity that is subject to the Family Educational Rights and Privacy Act, 20 U.S.C. § 1232g; 34 C.F.R. Part 99, as amended (“FERPA”). Customer acknowledges that it remains responsible for its obligations under FERPA. Customer also acknowledges that GreenFig may receive confidential student information subject to FERPA under this Agreement and affirms that it is permitted to receive such information under 34 C.F.R. § 99.31(a) as a “party” that is “subject to the requirements of §99.33(a) governing the use and redisclosure of personally identifiable information from education records.” GreenFig agrees that it will comply with FERPA, including the requirements of 34 C.F.R. 99.33(a), and will not disclose or use any confidential student information except to the extent necessary to carry out its obligations under this Agreement and as permitted by FERPA.
6.1 Term. The term of this Agreement will commence on the Effective Date and continue until all SOWs have expired (the “Term”). Unless otherwise set forth in an SOW, each SOW will commence upon its effective date and continue until the expiration of the Academic Period, GreenFig reserves the right to increase the Minimum Revenue Share applicable to any renewal term upon written notice to Customer, provided, such notice is given at least sixty (60) days prior to such renewal term.
6.2 Termination. Either party may terminate this Agreement upon written notice if the other party materially breaches the Agreement and does not cure such breach (if curable) within thirty (30) days after written notice of such breach. Upon the expiration or termination of this Agreement for any reason, (a) any amounts owed to GreenFig under this Agreement will become immediately due and payable; and (b) each party will return to the other all property of the other party; provided that, each Student may retain one (1) copy of any Courseware downloaded by such Student prior to the expiration or termination of this Agreement. Sections 1, 2.4, and 3-10 will survive the termination of this Agreement.
To the maximum extent permitted by applicable law: (a) the GreenFig Service, including without limitation the Core Offering and documentation are provided strictly on an“as is” and “as available” basis; and (b) GreenFig and its suppliers make no warranties, express or implied, by operation of law or otherwise, including, without limitation, any implied warranties of merchantability, non- infringement, compliance, or fitness for a particular purpose with respect to the GreenFig service.
8.1 By GreenFig. If any action is instituted by a third party against Customer based upon a claim that the GreenFig Service or Courseware, as delivered, infringes any third party’s intellectual property rights, GreenFig shall defend such action at its own expense on behalf of Customer and shall pay all damages attributable to such claim which are finally awarded against Customer or paid in settlement. If the GreenFig Service or Courseware is enjoined or, in GreenFig’s determination is likely to be enjoined, GreenFig shall, at its option and expense (a) procure for Customer the right to continue using the GreenFig Service or Courseware, (b) replace or modify the GreenFig System or Courseware so that it is no longer infringing but continues to provide comparable functionality, or (c) terminate this Agreement and Customer’s access to the GreenFig Service and Courseware, and refund any amounts previously paid for the GreenFig Service and Courseware attributable to the remainder of the then-current term. This Section sets forth the entire obligation of GreenFig and the exclusive remedy of Customer against GreenFig for any claim that the GreenFig Service and Courseware infringes a third party’s intellectual property rights.
8.2 By Customer. If any action is instituted by a third party against GreenFig relating to Customer’s breach of this Agreement or the conduct of Customer’s activities or business (i.e. any claim that would not be otherwise be indemnified by GreenFig pursuant to Section 8.1), Customer will defend such action at its own expense on behalf of GreenFig and shall pay all damages attributable to such claim which are finally awarded against GreenFig or paid in settlement of such claim. This Section set forth the entire obligation of Customer and the exclusive remedy of GreenFig for any third party claim.
8.3 Procedure. Any party that is seeking to be indemnified under the provision of this Section 8 (an “Indemnified Party”) must (a) promptly notify the other party (the “Indemnifying Party”) of any third-party claim, suit, or action for which it is seeking an indemnity hereunder (a “Claim”), and (b) give the Indemnifying Party the sole control over the defense of such Claim.
except as set forth in this Section 9, to the extent permitted by law, in no event shall GreenFig or Customer be liable for special, incidental, consequential or punitive damages or lost profits in any way relating to this Agreement. In no event shall GreenFig’s or Customer’s aggregate, cumulative liability in any way relating to this Agreement exceed the amount of Fees actually received by GreenFig from Customer during the twelve (12) months preceding the claim. The foregoing limitations shall not apply to payment, confidentiality and indemnity obligations. the parties would not have entered into this agreement but for such limitations. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, NOTHING HEREIN SHALL WAIVE OR LIMIT GREENFIG’S LIABILITY FOR INTELLECTUAL PROPERTY INFRINGEMENT, PERSONAL INJURY, INCLUDING DEATH, OR DAMAGE TO TANGIBLE PROPERTY. General Provisions.
Neither party may assign any rights or obligations arising under this Agreement, without the prior written consent of the other; except that either party may assign this Agreement without consent of the other party in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Any attempted assignment or transfer in violation of the foregoing will be null and void. Notices will be deemed to have been given upon receipt (or when delivery is refused) and may be (a) delivered personally, (b) sent by recognized courier service, or (c) sent by mail. In the event that any provision of this Agreement is held to be invalid or unenforceable, the valid or enforceable portion thereof and the remaining provisions of this Agreement will remain in full force and effect. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. All waivers must be in writing. The parties to this Agreement are independent contractors, and no agency, partnership, franchise, joint venture or employee-employer relationship is intended or created by this Agreement. This Agreement may be executed in counterparts, which taken together shall form one legal instrument.
The parties agree that anyterm or condition stated in a Customer purchase order or in any other Customerorder documentation (excluding Order Forms) is void. In the event of any conflict or inconsistencyamong the following documents, the order of precedence shall be: (1) thisAgreement; (2) the applicable Order Form, and (3) the Documentation. Titles and headings of sections of thisAgreement are for convenience only and shall not affect the construction of anyprovision of this Agreement.
SUPPORT AND SERVICE LEVELS
1.1 General. During the Term, GreenFig shall use commercially reasonable efforts to provide telephone and email support in connection with the GreenFig Service to designated support persons Monday – Friday 9am-5pm PST, excluding U.S. federal holidays, and during all regularly scheduled class hours.
1.2 Contact Persons. Customer is responsible for designating at least one individual who will act as the point of contact with Customer regarding support issues related to the GreenFig Services. Customer may change designated contacts at any time by providing email or written notification to GreenFig of such change.
1.3 Severity Classifications. GreenFig will use commercially reasonable efforts to remedy reported and verifiable errors in the GreenFig Services so that the GreenFig Services perform in all material respects with the functions as described in its associated documentation. GreenFig recognizes two severity levels of GreenFig Service errors or issues and response times:
Severity Level 1 – Critical Issue: A critical issue occurs when: (i) the case of the Online Platform or Virtual Live Classroom, Customer and Students are unable to access the Online Platform and/or Virtual Live Classroom; and (ii) in the case of all other GreenFig Services, the GreenFig Services fail to conform with their associated documentation in such a manner as to cause a high business impact on Customer.
Severity Level 2 – All Other Issues: Any issue that is not a Severity Level 1 issue will be deemed a Severity Level 2 issue and subject to Severity Level 2 response times.
1.4 Response Times. GreenFig will provide Customer with an initial response to reported support issues that meet the severity level descriptions above in accordance with the timelines below:
Severity Level 1:
Initial Response Time – 1 business hour
Severity Level 2:
Initial Response Time – 2 business days
1.5 Escalation. Support issues may be escalated by Customer as follows. Customer may request severity escalation of a support issue by notifying GreenFig’s support resources of extenuating circumstances that cause the support issue to have an adverse impact on Customer’s ability to conduct business. If approved in GreenFig’s reasonable discretion, such escalation will result in GreenFig treating the support issue as a higher severity level than would otherwise apply per the severity level definitions set forth herein. The request to escalate the severity of a support issue may be initiated by an email to support@greenfig.net with the word ESCALATION in the subject line and will be accommodated once approved.
1.6 Support Exclusions. The following issues are outside the scope of support services provided by GreenFig: (i) non-compliance by Customer with any provision of this SLA; (ii) incompatibility of Customer’s equipment or software with the GreenFig Service; (iii) actions or inactions of Customer or third parties; (iv) Customer’s use of the GreenFig Service after GreenFig has advised Customer to modify its use of the GreenFig Service, if Customer did not modify its use as advised; (v) acts or omissions of Customer or Customer’s employees, agents, contractors, or vendors, or anyone gaining access to the GreenFig Service by means of Customer’s passwords or equipment; (vi) performance of Customer’s systems or the Internet; (vii) any systemic Internet failures; or (viii) network unavailability or Customer’s bandwidth limitations.
2.1 Broadcast/Streaming Times and Dates. GreenFig will use commercially reasonable efforts to ensure that all scheduled Virtual Live Classroom classes are held and broadcast/streamed on the days and at the times set forth in the mutually agreed upon SOW.
2.2 Remedy. In the event any Virtual Live Classroom class is not delivered as a whole on the scheduled day, or its start time does not commence within 15 minutes of the scheduled start time, GreenFig, as its sole obligation and as Customer’s sole remedy, will reschedule the class at a mutually agreed upon time.
3.1 Definitions. The following capitalized terms will have the definitions set forth below:
(a) “Force Majeure” means any act, event, or occurrence beyond GreenFig’s reasonable control, including, without limitation, issues arising from bugs or other problems in the software, firmware or hardware of GreenFig’s suppliers, outages or issues with upstream providers or network carriers, acts of God, fires, floods, storms, landslides, epidemics, lightning, earthquakes, drought, blight, famine, quarantine, blockade, governmental acts or inaction, orders or injunctions, war, insurrection or civil strife, sabotage, explosions, labor strikes, work stoppages, and acts of terror.
(b) “Normal Business Hours” means 8 a.m. to 5 p.m. Pacific Time Monday through Friday excluding holidays.
(c) “Scheduled Downtime” means the total amount of time during any calendar month, measured in minutes, during which Customer is not able to access the Online Platform due to planned system maintenance performed by GreenFig. GreenFig will exercise reasonable efforts to perform scheduled system maintenance between the hours of [10 p.m. and 3 a.m. Pacific Time]. GreenFig will provide Customer with reasonable prior notice of such Scheduled Downtime.
(d) “Total Monthly Time” means the total minutes in the relevant calendar month less Scheduled Downtime. For any partial calendar month during which Customer subscribes to the Online Platform, availability will be calculated based on the entire calendar month, not just the portion for which Customer subscribed.
(e) “Unscheduled Downtime” means the total amount of time during any calendar month, measured in minutes, during which the Customer is not able to access the features and functions of the Online Platform, other than Scheduled Downtime, as defined above. Any downtime as a result of any circumstances set forth in Section 1.6 in this Exhibit shall not be deemed Unscheduled Downtime.
(f) “Online Platform Availability” means, with respect to any particular calendar month, the ratio obtained by subtracting Unscheduled Downtime during such month from the Total Monthly Time, and thereafter dividing the difference so obtained by the Total Monthly Time. Represented algebraically, Online Platform Availability for any particular calendar month is determined as follows:
System Availability = Total Monthly Time – Unscheduled Downtime/Total Monthly Time
3.2 Online Platform Performance
(a) Online Platform Availability: GreenFig will undertake commercially reasonable measures to ensure that Online Platform Availability equals or exceeds ninety-nine point nine percent (99.9%) during each calendar month (the “Service Standard”).
(b) Access to Support; Response Times: Customer may report Unscheduled Downtime at any time (“24x7x365”) by sending GreenFig an e-mail to support@greenfig.net. During Normal Business Hours, GreenFig will exercise commercially reasonable efforts to respond to reports of Unscheduled Downtime within [30 minutes] of each such report.
3.3 Customer Requirements. Customer is responsible for maintenance and management of its computer network(s), servers, and software, and any equipment or services related to maintenance and management of the foregoing. Customer is responsible for correctly configuring its systems in accordance with any instructions provided by GreenFig, as may be necessary for provision of access to the features and functions of the Online Platform and Virtual Online Classroom.
3.4 Remedy. In the event GreenFig fails to meet the Service Standard during three out of any rolling six month period, Customer may, as its sole and exclusive remedy, terminate the applicable SOW, and receive a pro-rated refund of the any prepaid and unused Revenue Share (in excess of the Minimum Revenue Share).
