This Master Services Agreement (the “Agreement”) is made and entered into by and between Blue Sky eLearn, LLC, a Delaware Corporation with its principal offices located at 5405 Morehouse Drive, Suite 340, San Diego, CA 92121 (“BSE”), and the undersigned customer (“Customer”). This Agreement is effective on the date that the Customer accepts this Agreement by signing, physically or electronically, a copy of this Agreement. In consideration of the herein promises and other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, BSE and Customer (each a “Party” and collectively, the “Parties”) hereby agree as follows:
“Active User” is defined as an individual who accesses the Path Platform at least 1 time during the month. An active user may access the site an unlimited amount of times during the month they are active. Registered users are unlimited.
“Application” shall mean the computer programs used to provide the Services, including, but not limited to Path LMS, as more fully described in the Schedules, and further includes, without limitation, all components, elements, features, interfaces, libraries, plug-ins, tools, diagnostic tools, versions and all updates, enhancements, releases, patches, modifications, error corrections, upgrades and derivative works made by BSE or on BSE’s behalf.
“BSE Materials” means technology, software, including the Application, products, materials, tools, methodologies, ideas, concepts, know-how, techniques, trademarks or other proprietary materials or information which are owned or licensed by BSE (other than the Customer Materials) or which are developed incident to the Services by or on behalf of BSE, including, but not limited to, the deliverables, results, manner of delivery or content of the Services. For the avoidance of doubt, BSE Materials specifically excludes the Customer Materials.
“Customer Materials” means the content, text, documentation, artwork, logos and other materials provided by Customer to BSE for hosting, access, display, streaming and publication through the Services.
“Event” means the live event hosted and streamed by BSE for Customer through the Application as part of the Services.
“Force Majeure” means acts or events beyond BSE’s reasonable control, including without limitation, acts of God, war, vandalism, sabotage, accidents, fires, floods, strikes, labor disputes, mechanical breakdown, Internet disruptions, utility disruptions, destruction, theft or impairment of the recording media, shortages or delays in obtaining suitable parts or equipment, materials, labor or transportation, acts of subcontractors, acts of any unit of government or governmental agency or any similar cause.
“Intellectual Property Rights” means all United States and worldwide trademarks, service marks, trade dress, logos, copyrights, rights of authorship, inventions, patents, rights of inventorship, moral rights, rights of publicity and privacy, trade secrets, rights under unfair competition and unfair trade practices laws, and all other intellectual and industrial property rights related thereto.
“Service Fees” means the fees payable by Customer to BSE for the Services, as more fully set forth in the applicable Schedule.
“Services” means the services to be performed by BSE pursuant to this Agreement, as more fully set forth in the applicable Schedule.
“Schedule” means the schedule to be entered into by the Parties, which in each case shall set forth, as applicable, the Services to be performed by BSE and corresponding Service Fees, and if applicable, deliverables, milestone delivery schedule and milestone payment schedules, as the case may be. Upon execution by both Parties, each such executed Schedule shall be attached to this Agreement and fully incorporated herein by this reference.
Adoption of Schedules. The Parties may enter into one or more Schedules for the Services that Customer desires for BSE to perform. A Schedule shall be separately agreed by both Parties to be valid. BSE shall issue each new Schedule electronically and Customer shall indicate its acceptance by signing, physically or electronically, a copy of the Schedule issued by BSE. Once a given Schedule has been agreed by the Parties, it shall be incorporated into and governed by the terms and conditions of this Agreement.
Help Desk Support Services. Unlimited email and chat support will be provided to end users during normal business hours.
Performance of Services if Customer uses BSE virtual and webinar event services.
Customer Responsibilities. Customer shall be responsible for providing to BSE in an accurate and timely manner all Customer Materials as necessary for BSE to perform the Services. Unless agreed otherwise, Customer Materials should be delivered at least TWO business days prior to the corresponding Event. Customer shall provide BSE with reasonable support and assistance in connection with the provision of Services by BSE under this Agreement, including, without limitation, access to the Event speakers, Event coordinators and other required resources. Any changes to the initial Event information must be received in writing at least 2 business days prior to the Event. BSE shall not be responsible for any failure to comply with Customer’s reasonable change request without 2 business days’ written notice of each such changes. Customer agrees to provide the necessary Event material via direct upload to BSE’s Path LMS, email or CD-ROM in advance of the Event if BSE is responsible for delivering the Event material. Customer agrees to work with BSE to ensure attendees have adequate access to login/conference call information and any other details attendees need before any web Event. If Customer has additional handouts or material for the post-Event archive, BSE may delay the production of the archive until it is received. BSE shall not be responsible for any delay or partial or full nonperformance caused by the failure or delay of Customer in providing the necessary Customer Material. A Customer will be considered in Inactive status if BSE does not get a response from Customer within 7 days from BSE’s request. An Inactive Customer will be removed from the working project calendar and will be placed back on the project calendar at the next available opening when the communication and/or materials are received by BSE. Any corrections performed by BSE to materials used for an Event arising from Customer’s first round of comments shall be included in the contracted Service Fees. Additional requests for corrections and changes outside of the initial correction request from Customer will be billed at $150/hr.
Telephone Help Desk Support Services. Events that include technical support will be staffed on the assumption that no more than 5% of participants will contact Technical Support during the Live Event. Phone support will be provided during regular business hours and for after-hours Events, and technical support will be started from one hour prior to the Event to 30 minutes after the conclusion of the Event. For Events that require special technical support staffing, BSE can provide additional support at $75 per dedicated Support Technician per hour.
Changes and Corrections of Archived Web Event. All changes and corrections sent by Customer for the archive will be in electronic format only. BSE will use commercially reasonable efforts to deliver an archived product without errors. However, if errors are found, BSE will promptly correct all the errors for no charge as long as all corrections are delivered by the Customer in the Customer’s first round of comments following BSE’s delivery of the archived product. Additional Corrections that were not requested by Customer in its initial comments following BSE’s delivery of the archived product are considered “Changes” and will be billed at our production rate of $150/hr.
Changes. Customer shall be responsible for any Changes to the archive beyond BSE’s standard product. Changes include any additional editing, reformatting or color adjustments from the native content received by BSE. Additional requests for cuts or edits, regardless of reason, are considered Changes. All Changes will be billed at the $150/hr rate. Notwithstanding the foregoing, BSE shall not be required to make any Changes to the work product after it has delivered the final archived product to Customer. Any Changes will be communicated by BSE in a Change Order and, upon Customer’s signature to such Change Order, will become a referenced addendum to the Agreement. BSE will not perform any Changes without Customer’s prior approval of the corresponding Change Order.
Events Rescheduling or Cancellations
Rescheduling Fee – Less than 24 hours from the Event start……………………………………………………………………..15% or minimum $150
Cancellation Fee – Less than 24 hours from the Event start………………………………………………………………………..50%
Cancellation Fee – More than 24 hours, but less than 90 days from the Event start ……………………………….15% or minimum $150
No-Show Cancellation Fee – Less than 30 minutes from Event start…………………………………………………………100%
Event Training Sessions with presenters
Rescheduling Fee – Less than 24 hours of the training start…………………………………………………………………………$35
Cancellation Fee – Less than 24 hours of the training start……………………………………………………………………………$35
No-Show Cancellation Fee – Less than 30 minutes from training start……………………………………………………….$75
Minimum Event Commitment. In the event you agree to a minimum Event commitment for use of the Services during the term of the Agreement (“Minimum Event Commitment”) and do not meet your Minimum Event Commitment in any given month, quarter or year, as applicable, Blue Sky eLearn shall invoice for, and you shall pay, upon receipt of invoice, the shortfall equal to the difference between the Minimum Event Commitment during each applicable term less any Service Fee payments for Events BSE delivered as part of the Services during each applicable period during the term of the Agreement.
Participant and Duration Overages. BSE will not be held responsible for Event duration or audience capacity. Should the Event duration exceed the contracted terms, BSE will provide a grace period of 15 minutes. Once the grace period has been exceeded, the Customer will be charged the price of the additional 30-minute bundle according to the current price sheet, unless special pricing was given to the Customer. Customer will be charged for additional 30-minute bundles for each duration extension thereafter.
BSE offers an allowance of 15 available audience logins, (“seats”) beyond the contracted audience size. Should the number of seats exceed the allowance, Customer will be charged the price of the appropriate product according to the current price sheet.
International Callers. BSE will provide phone numbers for various countries throughout the world. BSE is not responsible if a participant is unable to properly connect to these calls.
License Grant to Services. Subject to all terms and provisions of this Agreement, including timely payment of the Service Fees, BSE hereby grants to Customer a non-exclusive, non-transferable, revocable license, without the right to sublicense except as specifically set forth below, to use the Services as more fully set forth on the Schedules. Customer may not assign, rent, lease, sublease, grant a security interest in license or sublicense or otherwise transfer any rights in the use of the Services except that Customer may extend the right to access certain Services to Customer’s members, employees or other designees solely as necessary to use the Services for the purposes as described in the applicable Schedule. Customer is responsible for obtaining and maintaining all computer hardware, software and communications equipment needed to access any portion of the Services made available via the Internet, and for paying all third-party access charges incurred while using the Service.
BSE Ownership. Customer agrees that BSE shall own and retain all right, title, and interest to the Services, and all components thereof, including the Application, the source code to the Application and all related programming and code, and to all other BSE Materials and to all Intellectual Property Rights related thereto, but excluding specifically any Customer Materials as may be hosted, stored or displayed through the Services.
Prohibitions and Restrictions on Use. Customer is prohibited from reselling the Services or acting as a service bureau capacity. Customer shall not attempt to reverse engineer, modify, decompile, disassemble, translate or seek to derive source code from any part of the Services, the Application or any related software. Customer shall not remove, alter or obscure any of BSE’s or its licensors’ copyright or proprietary rights notices delivered, provided or displayed incident to the Services.
License Rights to Customer Materials. Customer hereby grants to BSE, for the term of this Agreement, a non-exclusive, fully-paid, royalty-free, worldwide license, with the right to sublicense, to record, adapt, edit, host, cache, store, archive, index, crawl, create algorithms based on, modify, transcode, reproduce, distribute copies of, perform and display the Event and Customer Materials solely as necessary to deliver the Services.
Customer’s Rights. Customer retains ownership of all right, title and interest in and to the Customer Materials and shall retain the copyright to any archived versions of the Event and any Customer Materials stored, published and performed as part of the Services.
Customer is responsible to ensure that all Customer Materials do not infringe any Intellectual Property Rights of third parties, including by way of violation of copyrighted video, audio, photographs or other images. Customer will be responsible for collecting the Event slides that are approved for publishing. Notwithstanding the foregoing, Customer agrees that BSE shall have the irrevocable right to use Customer’s name and identity information as well as general descriptions regarding Events performed during Services hereunder for BSE’s marketing and business development purposes, including but limited to, using such information in BSE’s marketing materials, customer listing and advertisements.
Digital Millennium Copyright Act. The Application is solely a platform that allows Customer to upload, modify, view and provide access to Customer Materials. In the event Customer uploads content not owned by Customer or that Customer is not legally entitled to use, and upon receipt of a claim regarding the same from the copyright owner of such material, BSE may remove such material in compliance with the Digital Millennium Copyright Act. Customer understands that BSE adheres to the Digital Millennium Copyright Act.
Handling of Customer Materials. After delivery of the final Event archive to Customer and termination of this Agreement, BSE may in its sole discretion delete or remove from its servers and files all information or materials it has gathered or formulated to create and to otherwise provide the Services under this Agreement. BSE shall have no responsibility to notify Customer that it will be deleting or removing the information and materials as set forth herein. If Customer has provided BSE with additional Customer Material to be used for the Event or archive, BSE will use commercially reasonable efforts to return these materials at Customer’s shipping expense upon completion of the production, provided that BSE may retain and use one copy thereof incident to the license granted herein to BSE.
Payment. Customer shall pay either the full annual amount of the Service Fees set forth on the corresponding Schedule in advance or, with the written approval of BSE, may make monthly payments of the corresponding Service Fees. If BSE approves monthly payments, the Customer hereby authorizes BSE to make an automatic, recurring monthly charge for that month’s Service Fees as set forth on the schedule. Such charge may be made via credit card, debit card, wire transfer, ACH transfer or such other method as will permit BSE to process such payments. If at any time Customer is delinquent in the payment of any invoice or otherwise is in breach of this Agreement, BSE may refuse to provide further Services until such time as such delinquent payment is paid in full or such breach is remedied to BSE’s sole satisfaction, and may require Customer to prepay any additional Services. If Customer stops or voids any payment to BSE, claims a credit for credit card payments for Services already rendered, or in any way impedes BSE’s ability to collect Service Fees for Services already rendered, BSE shall be entitled to interest in the amount of 1.5% per month, plus the cost of collections and related attorneys’ fees until all due amounts are paid in full. Any features or upgrades to the Services will be provided as agreed in writing.
Should Client exceed 1TB of bandwidth usage in one month, Blue Sky reserves the right to charge an overage fee.
Infringement Warranties. Customer hereby represents and warrants to BSE that Customer either owns or has obtained written permission or other authorization from the rightful owner of all Customer Materials provided to BSE, and is legally entitled to provide such Customer Materials to BSE and to grant to BSE all license rights herein without violating any duties, or obligations to any third party or infringing on any third party’s Intellectual Property Rights. Customer further represents and warrants to BSE that Customer has obtained or will obtain, prior to each Event, all licenses, releases, assignments and transfers of rights in all multimedia presentations and related materials (including, without limitation, handouts,
Presentation slides and any included video, audio, photographs or other images) from such speakers or other persons that will be recorded, or such other third persons as are necessary for BSE to perform the Services without violating any Intellectual Property Rights of third parties.
Content Warranties. Customer hereby represents and warrants to BSE that Customer will not publish, post, upload, record or otherwise transmit content that (i) violates any law, statute or ordinance; (ii) is defamatory, trade libelous, unlawfully threatening or unlawfully harassing; (iii) is profane, indecent, obscene, harmful to minors or contains pornographic depictions; (iv) contains any viruses, Trojan horses, worms, time bombs, cancelbots, corrupted files or other computer programming intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information or property of another (“Malware”). BSE reserves the right to cease distribution of any Customer Materials or Event at any time in its sole discretion. Customer further warrants to BSE that BSE’s use of the Customer Materials for the Services, including, but not limited to, the duplication, distribution, streaming or publication of such materials, as permitted herein, will not violate any laws applicable to such materials.
Mutual Indemnification. Each Party agrees to indemnify, defend and hold harmless the other Party and its Affliates, and their directors, officers, employees, agents, successors and assigns (collectively, the “Other Party Indemnitees”) from and against all liabilities, losses, damages and costs (including reasonable attorneys’ fees) (collectively, “Losses”) they may suffer as the result of third party claims, demands, actions, suits or judgments against them resulting from or arising out of:(i) any breach of the indemnifying Party’s representation or warranties under this Agreement, (ii) any violations of laws or regulations applicable to the indemnifying Party’s products or services or any product liability or other claims associated with the indemnifying Party’s products or services, and/or (iii) negligence or willful misconduct of the indemnifying Party or its employees. Without limiting the foregoing, Customer shall be solely responsible at its own expense for obtaining all necessary licenses or permissions required by BSE to perform the Services hereunder relating to the audio or visual content provided to Company. BSE may, at its discretion and upon reasonable belief, take any reasonable action it deems necessary if Customer’s conduct or Content fails to conform with this Agreement or may create liability for BSE or its suppliers.
DISCLAIMER. BSE DOES NOT MAKE ANY WARRANTIES, AND EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR OTHERWISE, CONCERNING THE APPLICATION AND/OR ANY SERVICES PROVIDED HEREUNDER, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE, WARRANTIES OF MERCHANTABILITY, OR OF MERCHANTABLE QUALITY, OR OF FITNESS FOR ANY PURPOSE, PARTICULARLY, SPECIFIC OR OTHERWISE, OR OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS. BSE FURTHER DISCLAIMS ANY WARRANTY THAT THE SERVICES WILL BE FREE OF MALWARE OR WITHOUT INTERRUPTION. BSE ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY ERRORS OR OMISSIONS IN THE APPLICATION OR THE SERVICES.
LIMITATION OF LIABILITY. BSE SHALL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND WHETHER DIRECT, CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL OR EXEMPLARY, INCLUDING, WITHOUT LIMITATION, ANY LOSS OF USE, LOSS OF BUSINESS OR LOSS OF PROFIT OR REVENUE THAT ARISES OUT OF OR IN CONNECTION WITH THIS AGREEMENT IN ANY MANNER, INCLUDING, BUT NOT LIMITED TO, THE SERVICES PROVIDED OR TO BE PROVIDED BY BSE. THIS LIMITATION APPLIES WITHOUT REGARD TO THE FORESEEABILITY OF DAMAGES. ALL LIMITATIONS SET FORTH IN THIS SECTION APPLY TO ALL CAUSES OF ACTION AND CLAIMS BY CUSTOMER. BSE DOES NOT CONTROL, NOR CAN IT CONTROL, THE FLOW OF DATA TO OR FROM INTERNET SERVICE PROVIDERS, TELECOMMUNICATIONS PROVIDERS AND OTHER PORTIONS OF THE INTERNET OR THE CUSTOMER’S OWN INTERNAL SYSTEMS, INCLUDING INTRANETS AND OTHER WIDE AND/OR LOCAL AREA NETWORKS (COLLECTIVELY, “INTERNAL SYSTEMS”) AND ACCESS SYSTEM. SUCH FLOW DEPENDS IN LARGE PART ON THE PERFORMANCE OF INTERNET AND INTERNAL SERVICES PROVIDED OR CONTROLLED BY THIRD PARTIES INCLUDING, WITHOUT LIMITATION, THE CUSTOMER (COLLECTIVELY, FOR THE PURPOSES OF THIS DISCLAIMER, “THIRD PARTIES”). AT TIMES, ACTIONS OR INACTION CAUSED BY SUCH THIRD PARTIES MAY PRODUCE SITUATIONS IN WHICH A PARTY’S CONNECTIONS TO THE INTERNET, ACCESS SYSTEM, OR INTERNAL SYSTEMS (OR PORTIONS THEREOF) MAY BE IMPAIRED OR DISRUPTED, AND BSE CANNOT GUARANTEE THAT SUCH EVENTS WILL NOT OCCUR. ACCORDINGLY, BSE DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO SUCH EVENTS. BSE SHALL NOT BE LIABLE TO THE CUSTOMER, ANY AUTHORIZED USER, OR ANY OTHER THIRD PARTY FOR ANY CLAIMS OR DAMAGES THAT MAY BE SUFFERED BY THE CUSTOMER, ANY AUTHORIZED USER OR ANY SUCH THIRD PARTY, INCLUDING, BUT NOT LIMITED TO, LOSSES OR DAMAGES OF ANY AND EVERY NATURE, RESULTING FROM THE LOSS OF DATA, INABILITY TO ACCESS THE INTERNET OR INTERNAL SYSTEMS, OR INABILITY TO TRANSMIT OR RECEIVE INFORMATION, CAUSED BY, OR RESULTING FROM, DELAYS, NON-DELIVERY, OR SERVICE INTERRUPTIONS, WHETHER OR NOT CAUSED BY THE FAULT OR NEGLIGENCE OF BSE. BSE SHALL NOT BE RESPONSIBLE FOR THE SERVERS NOT BEING ACCESSIBLE ON THE INTERNET OR ON ITS INTERNAL SYSTEMS DUE TO CIRCUMSTANCES NOT IN THE DIRECT CONTROL OF BSE SUCH AS, WITHOUT LIMITATION, THE CUSTOMER’S OR ANY OTHER THIRD PARTIES, INCLUDING AN INTERNET SERVICE PROVIDER’S, EQUIPMENT CAPABILITIES.
Term. The standard term of this Agreement shall be 3 years unless stated otherwise. Upon lapse of such initial period or any renewal period, the term of this Agreement shall automatically renew for successive renewal periods in each case unless Customer provides BSE with a written notice of cancellation at least 60 days prior to the lapse such initial period or any renewal period.
Termination. This Agreement shall automatically terminate without notice upon the occurrence of any of the following: (i) the failure by Customer to pay any amount due hereunder by the due date therefor, and failure to cure such breach within thirty (30) days after BSE’s written notice; (ii) the cessation of business by Customer; or (iii) Customer makes an assignment of Customer’s business for the benefit of creditors, a petition in bankruptcy is led by or against Customer, a receiver, trustee in bankruptcy, or similar officer is appointed to take charge of all or part of Customer’s property, or Customer is adjudicated bankrupt.
Effect of Termination. If BSE terminates this Agreement as permitted herein, Customer shall forfeit all Service Fee amounts previously paid. If Customer will be responsible for any out of pocket costs incurred by BSE, charges for remaining or completed Events and remainder of term for the Application or other Internet usage. BSE shall have no further obligation to maintain Customer’s data after termination or cancellation of this Agreement provided that BSE shall only be required to deliver a final Event archive to Customer upon receipt, on or before the date of termination, of all amounts remaining due from Customer hereunder.
Cumulative Remedies. All rights and remedies conferred herein shall be cumulative and in addition to all of the rights and remedies available to each party at law, equity or otherwise.
Entire Agreement. This Agreement, together with all Schedules which will be attached hereto, from time to time following mutual execution thereof, constitutes the entire agreement between the Parties hereto with respect to the subject matter hereof and supersedes all prior agreements and understandings, oral and written, between the Parties hereto with respect to the subject matter hereof. No amendment, modification, or waiver of this Agreement shall be binding on either Party unless accepted and signed, physically or electronically, by each Party’s respective officer.
Choice of Law. This Agreement is deemed entered into and performed in the State of California and shall be interpreted in accordance with its laws (without reference to principles of conflict of laws). The Parties hereby submit to the exclusive jurisdiction of the state and federal courts of the State of California located in San Diego, California for any and all disputes with respect to this Agreement. Each of the Parties hereby waives all rights to object to the venue or exclusive jurisdiction of such state and federal courts of the State of California located in San Diego, California.
Force Majeure. BSE is not responsible for the consequences to the quality or availability of the Event or the Services for circumstances not completely within its control, such as the effect on sound and video quality caused by ambient noise, faulty Internet connections, utility failures, speaker conduct and other unplanned events, other sound or video quality issues. BSE is further not responsible for any other delay or failure in performance of the Services caused by Force Majeure events. BSE’s performance under this Agreement shall be excused during a Force Majeure event.
Non-Solicitation of Employees. For a period of one year following the contract termination date, Customer shall not, directly or indirectly, induce or attempt to induce, any employee of BSE to end or diminish his/her relationship with such other Party, or solicit or attempt to solicit any employee of BSE for outside employment, or to any other person for the purpose of assisting any third party to solicit BSE’s employees for outside employment.
Binding Effect; Assignment. This Agreement and all of the terms, provisions and conditions hereof shall be binding upon and inure to the benefit of the Parties hereto and their respective successors and permitted assigns.
Waiver. A failure of either Party to this Agreement to enforce at any time any of the provisions of this Agreement, or to require at any time performance of any of the provisions hereof, shall in no way affect the full right to require such performance at any time thereafter. No waiver shall be deemed a waiver of any other breach of the same or any other term or condition hereof.
Severability. In the event that any one or more provisions of this Agreement shall for any reason be held by any tribunal of competent jurisdiction to be invalid, illegal or unenforceable, the remaining provisions of this Agreement shall be unimpaired, and each invalid, illegal or unenforceable provision shall be treated by the tribunal as modified to the least extent necessary to rectify its invalidity, illegality or unenforceability and shall be enforced as so modified.
Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original instrument and all of which together shall constitute a single agreement.