Last Updated: July 14, 2023

By executing an order form that references or is incorporated into this Master Services Agreement (respectively, the “Order Form” and “MSA”), the entity that executes and enters into such Order Form (“Client”) accepts and agrees to be bound by the terms of this MSA, including all Schedules attached, as of the effective date of the initial Order Form (the "Effective Date") entered between 21Skills, Inc., a Delaware corporation ("YaizY") and Client. 

WHEREAS, YaizY is an educational services company that provides Career and Technical Education (CTE) and high-interest electives courses and curriculum for in-demand digital careers ("Courses"). YaizY provides live online and asynchronous lessons led by qualified teachers on its immersive digital platform ("Platform") (the provision and access to the Courses and Platform and related services, collectively, "Services");

WHEREAS, Client is a school, school district, education services provider, or distributor for any of the foregoing, in the business of providing educational programs and supporting students, and desires to receive Yaizy's Services to supplement its education program.

NOW THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth, the Parties agree as follows:

1.              DEFINITIONS

Capitalized terms have the meanings ascribed to them in this MSA or in the Definitions Schedule, attached hereto as Schedule A, which is hereby incorporated into and made part of this MSA. Schedules and Order Forms may have specific terms defined relevant to the service or scope governed by that Schedule or Order Form.

2.              YAIZY'S RESPONSIBILITIES

2.1.          The following is a high-level description of YaizY's Services that may be provided:

(a)      CTE and high-interest electives courses, curriculum and/or course pathways aligned with industry and school requirements for digital careers;

(b)     access to qualified teachers aligned with requirements of the Client;

(c )      access to the online Platform for a high-quality learning experience;

(d)     Student data security, online practices designed to ensure privacy, and compliance with the law.

2.2.          The Services being provided are further detailed under one or more Order Form(s) entered into by the Parties under this MSA.

3.              CLIENT RESPONSIBILITIES

Client shall:

(a)        together with YaizY, co-create a vision for excellence in online learning and community, with appropriate pedagogical and learning supports;

(b)       ensure effective School-based implementation; by fulfilling its responsibilities detailed in the applicable Order Form, including ensuring in-person Student supports as needed;

(c )        provide its Students with necessary equipment and internet access as required in the Equipment Requirements Policy, attached hereto as Schedule B, which may be updated from time to time in YaizY's sole discretion, and is hereby incorporated into and made part of this MSA;

(d)       work closely with YaizY Personnel to prepare computers and software for its Classes and ensure access to required websites and applications, in order to access and use the Platform and Services as contemplated under this Agreement;

(e)        use the Platform, Courses, and YaizY Materials in accordance with YaizY's Acceptable Use Policy as may be updated from time to time, attached to this MSA as Schedule C, and which is hereby incorporated into and made part of this MSA.

4.              MONITORING

During the Term, YaizY may monitor Client's and its Authorized Users' usage of and logs in the Platform and related Services, including any Client Materials, in relation to Client's and its Authorized User's compliance with the terms of this Agreement and for security purposes. Client agrees to provide reasonable cooperation where requested by YaizY in its monitoring efforts. Additionally, YaizY may monitor or observe the Classes.

5.              FEES AND PAYMENT

5.1.          Fees and Expenses. 

YaizY shall invoice and Client shall pay all fees and expenses as set forth in the applicable Order Forms. All payments made hereunder shall be in United States currency drawn on a United States bank.  Should Client wish to dispute an invoice, Client shall: (a) make such dispute in writing providing sufficient detail of the reason for the dispute within 15 days of the date of the invoice; (b) make best efforts to resolve such dispute in a timely manner; and (с ) timely pay the full amount of any undisputed amounts in the invoice.

5.2.          Taxes. 

Client shall be responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity on any amounts payable by Client hereunder; provided, that, in no event shall Client pay or be responsible for any taxes imposed on, or with respect to, YaizY's income, revenues, gross receipts, personnel, or real or personal property or other assets.

6.              INTELLECTUAL PROPERTY

6.1.          License to Marks

Each Party hereby grants the other Party (a) a limited, non-exclusive, non-transferrable, royalty free, revocable license during the Term to use the granting Party’s names, logos, service marks or trademarks (collectively, the “Marks”), and (b) a license to use the granting Party’s name as a reference in the other Party’s marketing and other promotional materials; in each case solely for purposes of performing the other Party’s obligations and exercising the other Party’s rights under this Agreement.

6.2.          YaizY IP.

YaizY owns the Services, Platform, YaizY Materials, any work products, and inventions and innovations made by or on behalf of YaizY, all derivatives thereof, and all worldwide intellectual property, property, and confidential information rights in or associated with the foregoing (collectively, "YaizY IP").  No ownership rights in YaizY IP are transferred to Client as a result of this Agreement. Except to the extent as may be expressly set forth in an Order Form for services provided under such Order Form, THIS AGREEMENT IS NOT A WORK-FOR-HIRE AGREEMENT. 

6.3.          Client IP

(a)       Ownership and License. Client owns all rights, title, and interest, including intellectual property rights to Client Materials. Client hereby grants to YaizY the non-exclusive and sublicensable (to YaizY's contractors, suppliers, and vendors engaged in the provision of Services where applicable) right and license to receive, retrieve, process, transmit, use, display, modify, perform, reproduce, and distribute any Client Materials necessary to perform Services and exercise its rights under this Agreement, including to create and compile Aggregate Data for insights, analyses, statistics, and the like.

(b)       Responsibility.  Client acknowledges and agrees that Client shall be solely responsible for and shall have all liability for and with respect to all Client Materials. YaizY shall have no responsibility or liability in any way for or in connection with Client Materials including, without limitation, with respect to any copyright infringement or violation, or the violation of any third party rights, or the violation any legal requirements, including, without limitation, any legal requirements relating to infringement or misappropriation of intellectual property, privacy, or other property rights of any third party arising from, or relating to, the Client Materials.

(c )       Compliance. Client agrees to fully comply, and require Client Personnel and Authorized Users to comply with all legal requirements, as well as with all requirements imposed by this Agreement with respect to all Client Materials. 

6.4.       Feedback. 

In the event that Client, any of Client Personnel, or Authorized Users provides YaizY with any suggestions, ideas, improvements or other feedback with respect to the Services, including the Platform or Courses (“Feedback”), the Feedback will not be considered confidential information of the Client. YaizY shall be free to use any part of the Feedback without limitation, without any attribution or compensation to any party, and for any purpose. Client hereby assigns, and shall cause Client Personnel and Authorized Users to assign to YaizY all right, title, and interest in, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback.

7.              CONFIDENTIALITY AND NON-DISCLOSURE

7.1.          Non-Disclosure Obligations

The Receiving Party shall:

(a)   safeguard such Confidential Information by using at least the same degree of care and discretion that the receiving Party uses with its own like information that it regards as confidential and using no less than the industry standard of care to protect the confidentiality of the information;

(b)   keep any Confidential Information in strict confidence and prevent disclosure, publication, or dissemination of such except as otherwise expressly permitted in this section;

(c )    only use the Disclosing Party’s Confidential Information to fulfill its obligations under this Agreement;

(d)   only disclose the Disclosing Party’s Confidential Information to Receiving Party’s employees, Affiliates, subcontractors, suppliers, consultants, and legal and financial advisors who have a “need to know”, who have been apprised of the confidential nature of the information, and who are themselves bound by nondisclosure obligations at least as restrictive as those set forth in this section;

(e)   not to disclose or otherwise make available Confidential Information of the Disclosing Party to any third party not listed in Section 7.1(d) without the prior written consent of the Disclosing Party; and

(f)    promptly notify the Disclosing Party in the event it becomes aware of any loss or disclosure of any of the Confidential Information of Disclosing Party.

7.2.          Compelled Disclosure

Notwithstanding the foregoing, if the Receiving Party is compelled by law to disclose any Confidential Information it shall provide the Disclosing Party with prompt written notice (where legally permissible), and if requested, cooperate with the Disclosing Party to obtain a protective order or other appropriate remedy. If Parties cannot obtain a protective order, other appropriate remedy, or otherwise fail to quash the legal process requiring disclosure, the Receiving Party shall disclose the requested Confidential Information only to the extent necessary to satisfy the request. In addition, Receiving Party may disclose the other Party's Confidential Information to the extent reasonably necessary to establish its legal rights and enforce the terms of this Agreement.

7.3.          Privacy and Security

Each Party shall abide by the terms of its published privacy notices and policies in handling any "personally identifiable information," "personal data," "personal information," "nonpublic personal information," or the like, as such terms are defined under the applicable data privacy laws ("Personal Information"). Personal Information provided by Client and its Authorized Users through the Platform or otherwise to YaizY will be handled in accordance with YaizY's privacy policy and notice available at: https://YaizY.io/us/legal/privacy-policy, which may be updated from time to time by YaizY. To the extent a separate data processing agreement ("DPA") is required, Parties shall negotiate, enter into, and incorporate the DPA as a Data Processing Agreement Schedule under the applicable Order Form. Such DPA shall govern any matters relating to the handling of Personal Information, and any other subject matters specifically covered in the DPA. In addition, each Party agrees to implement and maintain commercially reasonable administrative, technical, and physical safeguards to protect its systems, data, and the other Party's Confidential Information.

8.              NON-SOLICITATION

8.1.          Non-Solicitation of Employees

(a)     Prohibited Solicitation.  During the term of this Agreement and for a period of one (1) year after Termination of this Agreement, Client shall not without prior written consent of YaizY, directly or indirectly, such as through a recruitment service: (i) solicit, induce for employment, hire for itself or on behalf of another entity, or contract with any person whom Client or Client Personnel came into contact with in relation to this Agreement and who is an employee or independent contractor of YaizY or its affiliate; nor (ii) induce, influence, or encourage to terminate employment or a contract with YaizY, any person whom Client or Client Personnel came into contact with in relation to this Agreement and who is an employee or independent contractor of YaizY or its affiliate.

(b)    Exclusions.  The following scenarios will not be considered prohibited solicitation, inducement, influence, encouragement, or hiring for purposes of Section 8.1(a): (i) hiring or contracting with a person who responds to a general solicitation of employment or engagement, unless such solicitation was undertaken as a means to circumvent the above restrictions; or (ii) hiring or contracting with a person who has been terminated by YaizY or its affiliate before the person and the Client has discussed any employment or engagement opportunity.

9.              TERM, TERMINATION, AND SUSPENSION

9.1.          Term

This MSA shall commence as of the Effective Date and unless sooner terminated pursuant to this section, shall continue in effect until the termination or expiration of all Order Forms entered hereunder.

9.2.          Termination

In addition to any termination rights that may be provided for herein in or in an Order Form, either Party may terminate this MSA or any or all Order Forms entered hereunder upon providing the other Party written notice of the other Party's material breach of any terms of this Agreement, and such Party does not cure said breach within thirty (30) days of its receipt of the written notice.

9.3.          Effects of Termination

Upon termination: (a) Client shall immediately, but no later than the termination date, pay all accrued and unpaid fees and expenses outstanding under the terminated Order Forms, including the fees and expenses due YaizY for the Services to be delivered or provided through the termination date; (b) Client’s and all Authorized Users' access to the Services, including access to the Platform, covered under the applicable Order Form will also be terminated as of the termination date; (c) all licenses granted herein will terminate except where explicitly stated to survive termination; (d) Client shall cease using and return (or where permitted by YaizY, destroy) YaizY Materials and YaizY's Confidential Information in Client's and its Authorized Users' possession; and (e) YaizY shall cease using and return (or where permitted by Client, destroy) Client Materials and Client's Confidential Information in YaizY's possession. Notwithstanding the foregoing, Receiving Party may retain to the extent needed, Confidential Information that the Receiving Party is required to maintain in accordance with its recordkeeping policies to fulfill its legal, bookkeeping, or audit purposes. Any such retained Confidential Information shall be destroyed as soon as retention is no longer necessary to fulfill such purposes and all confidentiality obligations survive termination and shall continue to apply to any such retained Confidential Information.

9.4.          Survival of Termination

The expiration or termination of this Agreement for any reason shall not release either Party from any obligation or liability to the other Party, including any payment obligation that has already accrued hereunder. The following sections remain enforceable and are intended to survive the termination of the Agreement: Section 1 and Schedule A (Definitions); Section 6 (Intellectual Property), except for the licenses granted therein, which shall not survive termination; Section 7 (Confidentiality and Non-Disclosure); Section 8 (Non-Solicitation); Sections 9.3 - 9.4 (Effects of Termination and Survival of Termination);  Section 10.3 (Disclaimers); Section 11 (Indemnification); Section 12 (Limitation of Liability); Section 13 (Dispute Resolution and Governing Law); Section 14 (Equitable Remedies); Section 16 (Notice); Section 17 (Assignment and Delegation); Section 19 (Severability); Section 20 (Modifications and Amendment); and Section 21 (Entire Agreement).

10.           REPRESENTATIONS AND WARRANTIES

10.1.       Mutual Representations and Warranties

Each Party represents and warrants that: (a) it is duly organized, validly existing and in good standing as a corporation or other entity as represented herein under the laws and regulations of its jurisdiction of incorporation, organization or chartering; (b) it has the full right, power and authority to enter into this Agreement, to grant the rights and licenses granted hereunder and to perform its obligations hereunder; (c) the execution of this Agreement by its representative whose signature is set forth at the end hereof has been duly authorized by all necessary corporate action of the Party; and (d) when executed and delivered by such Party, this Agreement will constitute the legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms.

10.2.       Additional Client Warranties

Client hereby represents and warrants that: (a) Client Materials does not and will not infringe upon or otherwise violate the rights of any third party; (b) Client Materials and Client and its Authorized Users' use of the Services does not and will not violate applicable laws; (c) Client (and its Authorized Users as applicable) are the legal custodian of the Client Materials and it has the right and authority to use the Services in connection with Client Materials; (c) anyone submitting Client Materials to the Platform or otherwise to YaizY for use in connection with the Services has the legal authority to do so, either through ownership of the Client Materials or by obtaining appropriate authorizations therefor, and that submission of Client Materials does not violate any third-party rights, contracts, agreements, or any applicable laws.

10.3.         Disclaimers

(a)       General. EXCEPT FOR THE EXPRESS WARRANTIES IN THIS SECTION 10, THE SERVICES AND YAIZY MATERIALS ARE PROVIDED “AS IS".  EACH PARTY HEREBY DISCLAIMS ALL OTHER WARRANTIES, EITHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, UNDER THIS AGREEMENT. YAIZY SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. YAIZY MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES, YAIZY MATERIALS, OR RESULTS OF THE USE THEREOF, WILL MEET CLIENT'S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. CLIENT SHALL NOT GIVE OR MAKE WARRANTIES OR REPRESENTATIONS ON BEHALF OF YAIZY AS TO QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, OR ANY OTHER FEATURES OF THE SERVICES OR YAIZY MATERIALS WITHOUT YAIZY'S EXPRESS WRITTEN CONSENT.

(b)       Third-Party Sites and Services. The Platform may contain links to third-party websites or services that are not owned or controlled by YaizY. YaizY has no control over, and assumes no responsibility for the content, privacy policies, or practices of any third-party websites or services. YaizY does not warrant the offerings of any of these entities, individuals, or their websites. CLIENT HEREBY ACKNOWLEDGES AND AGREES THAT YAIZY SHALL NOT BE RESPONSIBLE OR LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY DAMAGE OR LOSS CAUSED OR ALLEGED TO BE CAUSED BY OR IN CONNECTION WITH USE OF OR RELIANCE ON ANY SUCH CONTENT, GOODS, OR SERVICES AVAILABLE ON OR THROUGH ANY SUCH THIRD-PARTY WEBSITES OR SERVICES.

11.           INDEMNIFICATION

11.1.       Indemnification by YaizY

(a)     IP Infringement Indemnification.  YaizY shall defend, indemnify, and hold harmless Client from and against all Losses awarded against Client in a final judgment based on a third-party claim that the Services or Client's receipt or use of such in accordance with this Agreement infringes, misappropriates, or otherwise violates an intellectual property right of a third party arising under the laws of the United States; provided, however, that YaizY shall have no obligations under this section with respect to such claims to the extent arising out of: (i) any Client Materials or any instructions provided by Client in writing to YaizY; (ii) use of the Services in combination with any materials or equipment not supplied to Client or specified by YaizY in writing, if the violation would have been avoided by the use of the Services not so combined; (iii) Client's or Authorized User's breach of this Agreement, including its representations and warranties; (iv) Client's or Authorized User's negligence or more culpable conduct; (v) any modifications or changes made to the Services by or on behalf of any person or entity other than YaizY or YaizY Personnel ((i)-(v) collectively, "Client Indemnification Obligations"); or (vi) third-party products, services, or websites.

(b)    IP Infringement Mitigation.  If such a claim for indemnification under this Section 11.1(a), is made or appears possible, Client agrees to permit YaizY, at YaizY's sole discretion, to: (i) modify or replace the Services or component or part thereof, to make it non-infringing, or (ii) obtain the right for Client to continue use.  If YaizY determines that none of these alternatives is reasonably available, YaizY may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Client.

(c )     SOLE REMEDY. THIS SECTION 11.1 SETS FORTH CLIENT'S SOLE REMEDY AND YAIZY'S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS. 

11.2.       Indemnification by Client

Client shall defend, indemnify, and hold harmless YaizY, its affiliates, and their officers, directors, employees, agents, successors and permitted assigns from and against all Losses arising out of or resulting from an Action by a third-party (including from a Student, School, or school district where applicable) against YaizY resulting from Client Indemnification Obligations.

11.3.       Indemnification Procedures

Indemnitee shall promptly notify the Indemnitor in writing of any Action, provided, that failure to give such notice will only relieve the Indemnitor of liability hereunder to the extent the Indemnitor has suffered actual material prejudice by such failure. The Indemnitor may assume, at its sole option, control of the defense and investigation of such Action at the Indemnitor’s expense, including Attorneys’ fees, costs, and disbursements.  Should Indemnitor assume control of the defense, Indemnitee shall cooperate with the Indemnitor in the defense and the Indemnitor shall not settle any Action in a manner that adversely affects the rights of the Indemnitee without the Indemnitee’s prior written consent.  Such consent shall not be unreasonably withheld or delayed.  The Indemnitee may participate in and observe the proceedings at its own cost and expense. Should Indemnitor not assume control of the defense and investigation, Indemnitor shall reimburse Indemnitee promptly and periodically for the reasonable costs properly incurred in defending against the Action, including reasonable attorneys’ fees, expenses, and costs. 

12.           LIMITATION OF LIABILITY

12.1.       Exclusion of Indirect Damages

EXCEPT AS OTHERWISE PROVIDED IN THE EXCEPTIONS SET OUT IN SECTION 12.2, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT, LOSS OF DATA, OR FOR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, PUNITIVE, OR ENHANCED DAMAGES, WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

12.2.       Exceptions to Exclusion

The exclusions of indirect damages set out in Section 12.1, shall not apply to the following: (a) Losses arising out of or relating to a Party's failure to comply with its obligations under Section 6 on Intellectual Property; (b) Losses arising out of or relating to a Party's failure to comply with its obligations under Section 7 on Confidentiality and Non-Disclosure; (c) a Party's obligations under Section 11 on Indemnification; (d) Losses arising out of or relating to a Party's gross negligence or willful misconduct; and (e) a Party's obligation to pay attorneys' fees and court costs under Section 13.

12.3.       Maximum Monetary Liability

TO THE MAXIMUM EXTENT ALLOWED UNDER APPLICABLE LAW, AND EXCEPT FOR A PARTY'S INDEMNIFICATION OBLIGATIONS IN SECTION 11 AND LIABILITY DUE TO A PARTY'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, EACH PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT OR TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE THEORY, SHALL IN NO EVENT EXCEED THE TOTAL AMOUNTS PAID OR PAYABLE BY CLIENT TO YAIZY UNDER THE APPLICABLE ORDER FORM DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

13.           DISPUTE RESOLUTION AND GOVERNING LAW

Parties shall first attempt to resolve any disputes arising out of this Agreement by negotiation of Party representatives at the senior executive levels. If the Parties are unable to resolve the dispute by negotiation, the Parties shall attempt resolution by mediation with a neutral third-party mediator acceptable to both Parties.  Mediation expenses will be shared equally by the Parties. If Parties are not able to resolve the dispute by mediation within forty-five (45) days from the date of the written notice of the dispute, Parties shall settle the dispute by binding arbitration administered by the AAA under its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction. There shall be three arbitrators. One arbitrator shall be appointed by each Party within twenty (20) days of receipt by respondent of a request for arbitration or in default appointed by the AAA in accordance with its Commercial Rules, and the third presiding arbitrator shall be appointed by agreement of the two Party-appointed arbitrators within fourteen (14) days of the appointment of the second arbitrator or, in default of such agreement, by the AAA.  The arbitration shall be held in New York, New York.  Any decision by the arbitration panel must be accompanied by a written opinion setting forth the findings of fact and conclusions of law, supported by evidence, that were relied upon in reaching the decision. The prevailing Party in the arbitration is entitled to receive, in addition to all other damages to which it may be entitled, the costs incurred by such Party in conducting the proceeding, including reasonable attorneys' fees, expenses, and costs. This Agreement, and any disputes arising out of this Agreement, shall be governed by and construed in accordance with the laws of the State of New York.

14.           EQUITABLE REMEDIES

Parties acknowledge that breach or threatened breach by the other Party of its obligations under the below listed sections would give rise to irreparable harm for which monetary damages would not be an adequate remedy: Section 6 (Intellectual Property), Section 7 (Confidentiality and Non-Disclosure), Section 8 (Non-Solicitation), Section 17 (Assignment and Delegation). In such instances, Parties acknowledge that the non-breaching Party is entitled, in addition to any and all other rights and remedies available to the Party at law, equity, or otherwise, in respect to such breach, to equitable relief without any requirement to: (a) post a bond or security, (b) prove actual damages, or (c) prove that monetary damages will not afford an adequate remedy. Notwithstanding the Dispute Resolution provisions in Section 13, either Party may bring suit in any court of competent jurisdiction for equitable relief as provided for herein.

15.           FORCE MAJEURE

No failure, delay or default in performance of any obligation of a Party (except the payment of money) shall constitute a default or breach to the extent that such failure to perform, delay or default arises out of a cause, existing or future, beyond the control (including, but not limited to: action or inaction of governmental, civil or military authority; fire; strike, lockout or other labor dispute; flood; war; riot; theft; earthquake; natural disaster or acts of God; national emergencies; unavailability of materials or utilities; sabotage; viruses; or the act, negligence or default of the other Party) and without negligence or willful misconduct of the Party otherwise chargeable with failure, delay or default.  Either Party desiring to rely upon any of the foregoing as an excuse for failure, default or delay in performance shall, when the cause arises, give to the other Party prompt notice in writing of the facts which constitute such cause; and, when the cause ceases to exist, give prompt notice of that fact to the other Party.  This Section 14 shall in no way limit the right of either Party to make any claim against third parties for any damages suffered due to said causes.  If any performance date by a Party under this Agreement is postponed or extended pursuant to this Section 14 for longer than ninety (90) calendar days, the other Party, by written notice given during the postponement or extension, and at least thirty (30) days prior to the effective date of termination, may terminate this Agreement.

16.           NOTICE

Unless otherwise agreed to by the Parties in a writing signed by both Parties, all notices required under this Agreement shall be deemed effective when made in writing and sent to the other Party, by either: (a) a reputable overnight courier, specifying next day delivery to the address specified in the Order Form, which address may be updated where communicated to the other Party in writing; or (b) email to the address where stated in the Order Form or such other email address provided by a Party, without receipt of a notice of failed delivery.

17.           ASSIGNMENT AND DELEGATION

Client shall not assign its rights or delegate its obligations under this Agreement without YaizY's prior written consent, and, absent such consent, any purported assignment or delegation by Client shall be null, void and of no effect. This Agreement shall be binding upon and inure to the benefit of the Parties and their successors and permitted assigns. 

18.           INDEPENDENT CONTRACTOR RELATIONSHIP

Parties are independent contractors and neither Party may act as the agent for nor bind the other to any obligation.  Nothing in this Agreement constitutes nor creates a partnership, joint venture, employer/employee relationship, affiliation, or an agency relationship between the Parties. 

19.           SEVERABILITY

If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, Parties shall negotiate in good faith to modify this Agreement so as to affect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated be consummated as originally contemplated to the greatest extent possible.

20.           MODIFICATIONS AND AMENDMENTS

YaizY has the right to modify any provision in the MSA and its Schedules at any time, solely with prospective effect, by posting the modified terms of the MSA and Schedules on yaizy.io/msa. YaizY will provide Client with notice of any changes via email at the email address linked to the Client's account or through other reasonable means. The modifications shall come into effect thirty (30) days after YaizY notifies Client of the changes. Client's continued use of the Services or Platform more than thirty (30) days after YaizY's notification constitutes YaizY's acceptance of the modified MSA and Schedules; provided however, for any modifications of the MSA that have a material impact on the Client, Client may send a notice of objection to the modification ("Objection Notice") in writing (email to suffice) within such thirty (30) day period, and Parties shall make good faith efforts to find mutually agreeable terms related to the proposed modification and enter into a written amendment signed by both Parties reflecting the mutually agreed upon terms. Where Parties are unable to find mutually agreeable terms and enter into said amendment within forty-five (45) days from Client's Objection Notice despite both Parties' good faith efforts, either Party may terminate this Agreement by written notice to the other. Customer's continued use of the Services or Platform more than thirty (30) days after YaizY notifies Client of the modifications as provided for in this section without sending an Objection Notice during such thirty (30) days constitutes Client's acceptance of the terms of the modified MSA. Client can access a copy of the then-current MSA and Schedules on the referenced URL at any time. Client may find when the MSA was last updated by checking the “Last Updated” date posted at the beginning of the MSA. Client may find when Schedule B (Equipment Requirements Policy) or Schedule C (Acceptable Use Policy) was last updated by checking the version number near the top of the policy. Except as stated above, no other amendment to the MSA, Schedules, or the Order Form shall be valid unless such amendment is made in writing and is signed by the authorized representatives of the Parties. The foregoing does not limit YaizY's right to make changes to its product or services offerings, programs, or other operational changes, including providing updates to its Platform, which impacts all or substantially all users of the Platform or similarly situated customers of YaizY. Where Client notifies YaizY of any material harmful impact or degradation in quality caused by such changes, and YaizY is able to confirm such impact, Parties agree to make best efforts to address a workaround.

21.           ENTIRE AGREEMENT

This MSA together with all Schedules and Order Forms entered under and incorporated herein, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained, and supersedes all prior and contemporaneous oral and written understandings, agreements, representations, and warranties, with respect to the subject matter. In the event of any direct and irreconcilable conflicts between the provisions of this MSA including Schedule A (Definitions), YaizY's policies in Schedule B or Schedule C, or any Order Form, the following order of precedence shall govern: (a) the Order Form, but only for the scope of Services provided under such Order Form; (b) the terms of this MSA including Schedule A (Definitions); and (c) the remaining Schedules but only for the subject matter and scope covered under such Schedule.

SCHEDULE A

DEFINITIONS

“AAA” stands for American Arbitration Association.

“Action” means a claim, suit, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity, or otherwise.

"Aggregate Data" means aggregated and anonymized data derived from Client Materials, and which, once aggregated and anonymized, does not contain any Personal Information or Client's Confidential Information.

“Agreement” means the MSA together with all Order Form(s), Schedules, and policies attached to, referencing, or incorporated into an Order Form or the MSA.

“Authorized User(s)” means a Student, employee, or contractor of Client or School who Client permits access to and use of the Platform pursuant to Client's rights to access under the terms of this Agreement.

“Confidential Information” means any information that is designated or marked as confidential or would reasonably be understood to be confidential by the circumstances of disclosure or nature of the information.  Confidential Information does not include any information that at the time of disclosure, as proved by the written records of the contesting party: (a) is now or which at any time in the future becomes generally known by the public through no fault of the receiving Party, (b) was in the receiving Party’s lawful possession before receipt from the disclosing Party, (c) was independently developed by either Party by lawful means, or (e) was rightfully received from a third party without a duty of confidentiality.

“Client” means the entity identified as such in the introductory paragraph of the MSA.

"Client Learning Coach" means a learning coach provided by Client.

“Client Personnel” means all employees and contractors on staff with the Client, Schools, and School district, including but not limited to Client Program Leader, School-Based Partner, and the Client Learning Coach.

"Class(es)" means the classes that are taught and held as part of the Program under this Agreement.

"Client Program Leader" means Client's dedicated program leader.

"Content" means information, text, graphics, videos, or other material that are posted, linked, stored, shared, and otherwise made available on or through the Platform.

"Course(s)" has the meaning as set forth in the in the recitals section (in the first page) of the MSA.

“Client Materials” means Client's Marks and any documents, data, information, Content, software, computer programs, reports, specifications, and other materials supplied by Client or its Authorized Users through the Platform or otherwise provided to YaizY to receive Services under this Agreement.

"Disclosing Party" means a party to whom the Confidential Information belongs to under this Agreement.

"Effective Date" has the meaning set forth in the introductory paragraph of the MSA.

"Feedback" has the meaning set forth in Section 6.4 of the MSA.

“Indemnitee” means the Party seeking indemnity.

“Indemnitor” means the indemnifying Party.

"Mark(s)" has the meaning as set forth in Section 6.1 of this MSA.

"MSA" means this Master Services Agreement to which this Schedule A is attached.

“Losses” means damages, interest, awards, penalties, fines, costs, disbursements, expenses, attorneys’ fees, the cost of enforcing any right under this Agreement, and the cost of pursuing any insurance providers.

"Objection Notice" has the meaning as set forth in Section 20 of the MSA.

“Order Form(s)” has the meaning as set forth in the introductory paragraph of the MSA.

"Party" means a party to this Agreement, collectively referred to as "Parties", i.e., YaizY and Client.

"Platform" has the meaning set forth in the recitals section (in the first page) of the MSA.

"Program" means the program developed and implemented jointly by the Parties to utilize the Services as part of its educational offering to Client's Schools and its Students as detailed under this Agreement.

"Receiving Party" means a party that receives or acquires the Confidential Information of the other Party directly or indirectly under this Agreement.

"Schedule" means a schedule attached to this MSA or Order Form and incorporated therein.

"School(s)" means Client's participating schools.

"School-Based Partner" means a site lead for each School.

“Services” has the meaning set forth in the recitals section (in the first page) of the MSA.

"Student" means the students of the Schools participating in the Program.

“Updates” means new versions, improvements, modifications, upgrades, updates, fixes, and additions to Platform that YaizY makes available to Client or to YaizY’s end users generally during the Term to correct errors or deficiencies or enhance the capabilities of the Platform, together with updates of any YaizY Materials to reflect such new versions, improvements, modifications, upgrades, fixes or additions; provided, however, that the foregoing shall not include new, separate product offerings, new modules or re-platformed Platform.

"YaizY IP" has the meaning as set forth in Section 6.2 of the MSA.

"YaizY Materials" means YaizY's Marks, the Courses, and any documents, data, information, Content, software, computer programs, reports, specifications, and other materials supplied by YaizY in its provision of the Services as part of or to use with the Services under this Agreement.

“YaizY Personnel” means YaizY's employees and contractors, including the YaizY Teachers and technical staff, engaged by YaizY to perform Services for Client under this Agreement.

"YaizY Teacher(s)" means YaizY's teaching staff.

SCHEDULE B

EQUIPMENT REQUIREMENTS POLICY

(v. March 30, 2023)

1.     Students must have laptops or PCs with a stable internet connection headphone sets with a built-in microphone and web cameras.

2.     Minimal Hardware Requirements:

●      Quad Core Intel Celeron N4000/N5000 series processor

●      7th Gen Intel i3 processor

●      6th Gen Intel i5 processor

●      AMD Ryzen 3 3300U

●      4GB memory

3.     Recommended Hardware Requirements:

●      Quad Core 6th Gen Intel i5

●      AMD Ryzen 5 3500U

●      8GB memory

4.     Internet Speed Required:

●      Strong internet connection (wi-fi or wired network are preferable). The minimum recommended internet speed is 30 Mbps per user.

●      Router has to support 30+ clients connected simultaneously and provide them with a stable minimal speed.

5.     Recommended browser: Google Chrome. Any other browser can be used as well without limitations.

6.     Additional Devices Requirements:

●      Headphone sets with built-in microphone

●      Web cameras

●      Computer mice (recommended)

●      Keyboard (recommended)

SCHEDULE C

ACCEPTABLE USE POLICY

(v. July 13, 2023)

Client agrees to abide by the terms of this acceptable use policy when accessing YaizY's Platform, Courses, and YaizY Materials.

1.     Account Management. Client shall:

(a)   limit access to, and use of, the Platform to its Authorized Users;

(b)   remain responsible for any and all acts or omissions of action of any of its Authorized Users, including Content posted, linked, or otherwise made available on or through the Platform by its Authorized Users;

(c )    promptly notify YaizY of any known actual or suspected unauthorized access or use of the Platform;

(d)   safeguard and remain responsible for the security of all usernames, credentials, passwords, and other account information required for the Authorized Users to access the Platform.

2.     Usage Restrictions. Client shall not, and shall ensure Client Personnel and Authorized Users do not:

(a) use the Services or YaizY Materials except as expressly authorized in the Agreement;

(b) decompile, disassemble or reverse engineer the Platform, or otherwise attempt to learn the source code, structure or algorithms underlying the Platform;

(c ) copy, modify, distribute, adapt, or create derivative works of the Platform or YaizY Materials;

(d) rent, lease, loan, license, assign, distribute, resell or otherwise commercially exploit the Services or YaizY Materials or make the Services or YaizY Materials available to any third party (other than Client Personnel and Authorized Users);

(e) access the Services or YaizY Materials to build a competitive product or service, or copy any ideas, features, functions, graphics of the Services or YaizY Materials;

(f)   remove or obscure any proprietary or other notices contained in the Platform or YaizY Materials;

(g) upload, transmit, or distribute to or through the Platform any computer viruses, worms, or any software intended to damage or alter a computer system or data; 

(h) transmit through or post on the Platform unlawful, immoral, libelous, tortuous, infringing, defamatory, threatening, vulgar, or obscene material or material harmful to minors;

(i)   collect information about other users, including email addresses, postal addresses, phone numbers, credit card or banking information, or similar information without their explicit consent; or

(j)   authorize or enable any third parties to do any of the above.