READING DEVELOPMENT SERVICES AGREEMENT
This READING DEVELOPMENT SERVICES AGREEMENT (this "Agreement"), is entered into effective as of the effective date indicated on the signature page to this Agreement (the "Effective Date") by and between YokyWorks Foundation ("YokyWorks") and the parent or legal guardian ("Client") of the minor ("Minor") identified on the signature page to this Agreement.
ARTICLE 1 - DEFINITIONS
1.1 Certain Definitions. Capitalized terms used throughout the Agreement shall have the following definitions.
“Background Technology” shall mean (i) all information, technology, files, tools, methodologies, concepts, techniques, processes, ideas, or know-how, which are owned by YokyWorks or its personnel, contractors, licensors or suppliers; and, (ii) all general and reusable information, technology, files, tools, methodologies, concepts, techniques, processes, ideas, or know-how, created by or on behalf of YokyWorks in connection with providing the Output and Services.
"Intellectual Property Rights" shall mean all forms of legal rights and protections in any country of the world, including, without limitation, all right, title, and interest arising under common and statutory law to all: (i) patents and other rights to inventions or designs; (ii) trade secret and equivalent rights in proprietary information; (iii) copyrights or other literary property; (iv) trade names, logos, domain names, URLs, trademarks, service marks and other proprietary indicia and all goodwill associated therewith; and (vi) all applications, registrations, issuances, divisions, continuations, renewals, reissuances, and extensions of the foregoing.
ARTICLE 2 - TERM AND TERMINATION
2.1 Term. The term of this Agreement shall begin on the Effective Date and shall remain in effect until terminated.
2.2 Termination. Either party may terminate this Agreement for any reason or no reason at all upon 15 days’ prior written notice to the other party.
2.3 Payment on Termination. In the event of any termination of this Agreement, Client shall remain responsible for paying all Fees and other costs and expenses for Services provided by YokyWorks prior to such termination.
ARTICLE 3 - SCOPE OF WORK
3.1 Scope of Services. YokyWorks will provide to Minor the services (“Services”) described in the Services and Fees Schedule attached hereto. YokyWorks shall have sole and absolute authority in determining the method, details, and means of performing the Services.
3.2 YokyWorks’ Personnel. YokyWorks may subcontract portions of the Services so long as YokyWorks ensures that such subcontractors are bound by written contracts with YokyWorks requiring such subcontractors to comply with confidentiality, data security and privacy obligations substantially similar to YokyWorks’ obligations under this Agreement.
3.3 Change Requests. Client may request or propose a change by notifying YokyWorks; YokyWorks will review any Client requested changes and determine, in its sole discretion, the feasibility and the effect that the implementation of any such change will have on price and schedule. YokyWorks may, in its sole discretion, change or amend the Services, Fees, Payment, and Invoicing terms set forth in the Services and Fees Schedule (collectively, the “Service and Fee Term Changes”). YokyWorks will notify Client of any Service and Fee Term Changes by sending notice via Email (the “Change Notice”). Any Service and Fee Term Changes will be effective 15 days after the date of the Change Notice (the “Notice Period”). If Client does not agree to such Service and Fee Term Change, Client may terminate the Agreement immediately by providing notice to YokyWorks within the Notice Period; if Client does not provide notice of his/her intent to terminate within the Notice Period, the Service and Fee Term Changes shall be deemed accepted by Client.
3.4 Outside Activities. Nothing in this Agreement shall be construed as limiting or preventing Minor from receiving other training, treatment, and counseling and/or participating in other programs related to reading development (collectively, “Outside Activities”); provided, however, Client agrees to notify YokyWorks of Minor’s participation in any and all Outside Activities, including school programs that provide supplemental reading, spelling and/or writing development service. Client further agrees to keep YokyWorks reasonably informed of the results, status and/or progress of any such Outside Activities.
3.5 School Program. To the extent applicable, if Minor is, was, or will be enrolled in a YokyWorks school-affiliated program and/or receives, received, or will receive any services provided by YokyWorks offered through or in connection with Minor’s school (collectively, “School-Affiliated Services”), such School-Affiliated Services shall be separate and distinct from the Services and this Agreement, and nothing in this Agreement will modify any agreements or consents entered into in connection with the School-Affiliated Services.
ARTICLE 4 - MINOR RECORDINGS
4.1 Consent to Video and Audio Recording. YokyWorks may audio and/or video record the Minor in connection with its provision of the Services (the “Minor Recordings”). Client hereby authorizes and consents to Minor being videotaped and audio recorded.
4.2 Minor Recording Rights. YokyWorks will be the sole and exclusive owner of any and all Minor Recordings. YokyWorks may use the Minor Recordings for assessment, tracking, validation, and research purposes (the “Authorized Purposes”) without Client’s consent. Client acknowledges and accepts that he/she is authorizing YokyWorks to use Minor’s name, likeness, personal characteristics and any other proprietary and publicity rights (collectively, “Recording Rights”) as contained in any Minor Recordings, but only for the Authorized Purposes. YokyWorks will not use Minor Recordings or Recording Rights for any other purpose without obtaining Client’s prior express consent.
ARTICLE 5 - FEES, INVOICES, PAYMENT
5.1 Fees/Compensation. The Services shall be provided in exchange for fees (the “Fees”) payable by Client to YokyWorks, in accordance with Services and Fees Schedule attached hereto.
5.2 Travel Expenses; Third Party Costs. Unless specifically indicated in Services and Fees Schedule, Client will not be responsible for the reimbursement of any direct expenses, including but not limited to, travel, materials and suppliers, and any third party pass-through expenses.
ARTICLE 6 - PROPRIETARY RIGHTS
6.1 Minor Data. YokyWorks will be the sole and exclusive owner of any and all data obtained as a result of the Services, including, but not limited to, assessment results and observations (the “Minor Data”). YokyWorks may use the Minor Data for the Authorized Purposes and may share the Minor Data with the School attended by the Minor and its teachers without Client’s consent. YokyWorks will not use Minor Data for any other purpose without obtaining Client’s prior express consent.
6.2 Background Technology and Client Feedback. YokyWorks retains all right, title, and interest, including all Intellectual Property Rights, in and to the Services and any Background Technology used in connection with the Services or made available to Minor and/or Client in connection with this Agreement. In addition, Client hereby grants to YokyWorks, a royalty-free, perpetual, worldwide, non-exclusive, irrevocable right to use or incorporate into the Services, without restriction or obligation, any suggestions, enhancements, recommendations or other feedback provided by Client and/or Minor with respect to the Services.
6.3 Output. YokyWorks shall own all right, title and interest, including all Intellectual Property Rights, in and to any and all data, information, results, reports, observations, deliverables, and the like, produced in connection with the Services, but specifically excluding any Minor Confidential Information (“Output”), regardless of whether the Output is requested by Client and/or Minor.
ARTICLE 7 - CONFIDENTIALITY
7.1 Confidentiality. YokyWorks will have access to or be directly or indirectly exposed to Minor’s confidential information, including, but not limited to, Minor Recordings, and Minor Data (collectively, the “Minor Confidential Information”). YokyWorks shall maintain any and all Minor Confidential Information in accordance with Applicable Law. Except as expressly permitted by this Agreement, YokyWorks will not disclose to any unauthorized person any Minor Confidential Information without Client’s prior consent, unless required by law or court order. This Section 7.1 shall survive the termination or expiration of this Agreement for any reason.
ARTICLE 8 - WARRANTIES AND DISCLAIMERS
8.1 Authority. Client represents and warrants that he/she is the parent or legal guardian of the Minor and has the legal authority and power to execute this Agreement on behalf of the Minor.
8.2 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED UNDER THIS AGREEMENT, YOKYWORKS DOES NOT MAKE ANY WARRANTY OF ANY KIND, AND YOKYWORKS SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
8.3 No Guarantees. YokyWorks does not guarantee that the Services will produce or generate any outcomes and/or results. YokyWorks does not guarantee that the Minor will benefit from the Services.
ARTICLE 9 - LIMITATIONS OF LIABILITY
IN NO EVENT WILL YOKYWORKS BE LIABLE FOR ANY INCIDENTAL, INDIRECT OR SPECIAL DAMAGES, PUNITIVE, OR OTHER CONSEQUENTIAL DAMAGES. YOKYWORKS’ TOTAL LIABILITY AND CLIENT'S SOLE AND EXCLUSIVE REMEDY FOR ANY DAMAGE OR LOSS IN ANY WAY CONNECTED WITH THE SERVICES, SHALL BE, AT YOKYWORKS’ OPTION, RE-PERFORMANCE OF SERVICES, OR RETURN OR CREDIT OF THE APPROPRIATE PORTION OF ANY FEES PAID BY CLIENT. IN NO EVENT SHALL YOKYWORKS’ ENTIRE AGGREGATE LIABILITY IN CONNECTION WITH THIS AGREEMENT EXCEED THE ACTUAL TOTAL AMOUNT PAID HEREUNDER BY CLIENT TO YOKYWORKS. THE LIMITATIONS SET FORTH IN THIS SECTION SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
ARTICLE 10 - ARTICLE VII - GENERAL PROVISIONS
10.1 Entire Agreement, Partial Invalidity. The Agreement embodies the entire understanding of the parties and supersedes any previous agreements or understandings, written or oral, in effect between the parties. If any part, term, or provision of the Agreement shall be held unenforceable, the validity of the remaining portions shall not be affected thereby. This Agreement is intended to create an independent contractor relationship and is not intended to be, nor will it be construed as, a joint venture, partnership, employment, or other form of business organization or agency relationship.
10.2 Waiver of Breach. The waiver of a breach of the Agreement or the failure of a party to exercise any right under the Agreement shall in no event constitute a waiver or prevent the exercise of any right under the Agreement.
10.3 Choice of Law. This Agreement shall be governed by and interpreted in accordance with the law of the State of California, without regard to principles of conflicts of laws.
10.4 Survival Period. The provisions of Articles 5, 6, 7, 9 and 10 and Sections 2.3, 8.2, and 8.3 of this Agreement shall survive the termination of this Agreement.