Effective Date: August 5, 2016

IMPORTANT -- READ CAREFULLY BEFORE USING THIS SOFTWARE: THESE TERMS OF SERVICE (‘Terms’’) AS SET FORTH IN THIS MASTER SERVICES AGREEMENT (“Agreement” or “MSA”), AS AMENDED FROM TIME TO TIME, ARE A BINDING CONTRACT BETWEEN YOU, WHETHER PERSONALLY OR ON BEHALF OF AN ENTITY (‘‘you’’) AND eCHALK INC.(‘‘eChalk’’, or ‘‘we’’). eChalk Inc. IS A DELAWARE CORPORATION AND THESE TERMS ARE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.

eCHALK’S USE OF PERSONAL INFORMATION YOU PROVIDE TO eCHALK AND USAGE DATA IS GOVERNED BY THE eCHALK PRIVACY POLICY (“Privacy Policy”) AT www.echalk.com/privacy-policy.

YOU MUST SUBMIT A FULLY EXECUTED SERVICE ORDER AND READ AND AGREE TO THE PRIVACY POLICY AND THESE TERMS GOVERNING YOUR USE AS AN “AUTHORIZED USER” AND COLLECTIVELY WITH OTHERS, AS “AUTHORIZED USERS” OF eCHALK’S WEB-BASED LEARNING MANAGEMENT SYSTEM, CONTENT MANAGEMENT SYSTEM AND COMMUNICATION SYSTEM AS WELL AS SUPPORT AND ONLINE AND IN PERSON TRAINING SERVICES INCLUDING THE eCHALK.COM WEBSITE AND OTHER WEBSITES CENTRAL TO YOUR USE OF OUR SERVICES, IF ANY (THE ‘‘WEBSITE(S)’’), ANY eCHALK MOBILE APPLICATIONS, FEATURES OR FUNCTIONALITY AND SOFTWARE (COLLECTIVELY, THE ‘‘eCHALK SERVICES’’), BEFORE USING THE eCHALK SERVICES. BY SUBMITTING A SIGNED SERVICE ORDER OR ACCESSING OR OTHERWISE USING THE eCHALK SERVICES, YOU AGREE TO THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT ACCESS OR OTHERWISE USE THE eCHALK SERVICES. eCHALK’S SERVICES AS WELL AS ITS PRIVACY POLICY, MSA AND RELATED AGREEMENTS HAVE BEEN DEVELOPED AND MAINTAINED TO REFLECT OUR COMMITMENT TO COMPLIANCE WITH THE STUDENT ONLINE PERSONAL INFORMATION PROTECTION ACT (“SOPIPA“), CHILDREN’S ONLINE PRIVACY PROTECTION ACT (“COPPA”), THE CHILDREN'S INTERNET PROTECTION ACT (“CIPA”), AND THE FAMILY EDUCATIONAL RIGHTS AND PRIVACY ACT (“FERPA”). PLEASE REVIEW THE PRIVACY POLICY FOR FURTHER INFORMATION.

THIS MASTER SERVICES AGREEMENT governs the relationship, between eChalk, Inc., as the service provider (“eChalk”) and you as the client (the “Client”) as the individual or entity that purchased the eChalk Services as set forth in each service order, as amended or renewed from time to time (each a “Service Order”, and collectively, “Service Orders”). The Client’s submission of a signed Service Order to eChalk and use of any eChalk Services constitutes acceptance of the terms and conditions of the Service Order and of this MSA. The complete Agreement between the parties shall consist of the terms and conditions set forth in each Service Order, this MSA, and the following related documents, which along with each Service Order are incorporated herein by reference as exhibits to the MSA (each an “Exhibit and collectively, “Exhibits”): 1) The eChalk Service Level Agreement; 2) eChalk Privacy Policy, accessed at www.echalk.com/privacy-policy; 3) Description of Services s; and 4) any Statement of Work or other agreement signed by both parties and attached to, linked to this Agreement or submitted with the Service Order. In the event of any conflict between the terms and conditions of any Service Order and this Master Services Agreement or an Exhibit comprising part of this Agreement, the terms and conditions of this Master Services Agreement shall govern, except to the extent in conflict with the applicable Service Order or any other signed agreement with the Client which expressly states its terms control over this Master Services Agreement. Any terms and conditions contained in a purchase order, RFP or other documents issued by the Client shall not be controlling unless expressly stated in a Service Order signed by eChalk. Use of the Website(s) and/or eChalk Services is also subject to eChalk’s Privacy Policy available at www.echalk.com/privacy-policy, which explains how eChalk collects and uses your information. We reserve the right to email you important information relating to your account in accordance with Section 17 below, including copyright or regulatory communications.

1. License.

1.1 Grant. eChalk hereby grants to the Client, exercisable by and through its Authorized Users, a non-exclusive, non-transferable, limited license to use the eChalk Services for the Term (as defined below), subject to the terms and conditions set forth in this Agreement. eChalk hereby grants to the Client the right to permit Authorized Users (as defined below in Section 3.1) to use the eChalk Services in accordance with the terms of the Client’s permitted site designated uses deemed acceptable under the applicable Acceptable Use Policy, Service Order and under the Terms of this Agreement.

1.2 Limitations to Grant. Except as set forth in this Agreement, the Client shall not: (a) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make any eChalk Services or eChalk Property or eChalk Materials available to any third party, except as expressly permitted by this Agreement or in any Service Order; (b) use or authorize the use of the eChalk Services or Documentation in any manner or for any purpose that is unlawful under applicable Law; or (c) use the eChalk Services in any manner to provide web-based communication services to any third party.

1.3 Reservation of Rights. eChalk reserves all other rights to the eChalk Services, including without limitation the right to access and modify the eChalk Services for training, maintenance, upgrades and security purposes.

2. Set-up.

2.1 eChalk’s Responsibilities. eChalk shall set up and deliver to the Client and otherwise provide the Client with access to the eChalk Services for launch as set forth in the Service Order on a date mutually agreeable to the parties.

2.2 Client’s Responsibilities. The Client shall provide eChalk with all information needed to develop and launch the eChalk Services and shall assign a contact who shall be responsible for coordinating the set-up of the eChalk Services. The Client is responsible for, and shall also implement and maintain, reasonable organization, physical and technological safeguards, security and protection for its systems respecting the eChalk Services.

3. Proprietary Rights.

3.1 Client Property. The eChalk Services shall allow the Client and the Client’s authorized administrators, teachers, faculty, staff, students, and the parents or legal guardians of Client students (collectively the “Authorized Users”) to post Authorized User information and content to the eChalk Services and on the Client’s eChalk websites (collectively the “Client Property”). The Client shall retain all rights to the Client Property.

3.2 eChalk’s Property. Except for the Client Property, all aspects of the eChalk Services, in whole and in part, including but not limited to the look and feel of the eChalk template pages, all eChalk source code, and all intellectual property and/or proprietary rights therein, including without limitation, copyright, moral rights, patent rights (including patent applications and disclosures), trademarks, rights of priority, publicity rights, and trade secret rights, recognized in any country or jurisdiction in the world, are the sole and exclusive property of eChalk (collectively, the “eChalk Property”). The eChalk Property shall include all changes and additions to the eChalk Services and all derivative works thereof.

3.3 eChalk’s Materials. All devices, documents, data, know-how, methods, processes, software and other inventions, works, technologies and materials, including any and all eChalk Services software (“Services Software”), documentation used for the Services Software (“Documentation”), computer hardware, programs, reports and specifications, client software and deliverables that are proprietary to eChalk and provided or used by eChalk in connection with performing the eChalk Services are the confidential materials owned and disclosed to the Client by eChalk (collectively, the “eChalk Materials”) subject to the confidentiality provisions of Section 24 below. 3.4 Proprietary Notices. The Client shall not delete or in any manner alter the copyright, trademark or other proprietary notices of eChalk and its licensors, if any, appearing on the eChalk Services as delivered to the Client. The Client shall reproduce such notices on all copies it makes of the eChalk Services, eChalk Materials or any other eChalk Property.

3.5 Obligation to Protect. The Client shall use reasonable efforts to protect eChalk’s proprietary rights to the eChalk Services, eChalk Materials and other eChalk Property and to cooperate in eChalk’s efforts to protect such proprietary rights. The Client shall promptly notify eChalk of any known or suspected breach of eChalk’s proprietary rights to the eChalk Services that may come to the attention of the Client

3.6 Passwords. When you or those under your administration and management make use of the eChalk Services create or are provided authorized access to an account with eChalk (“Authorized User Account”), you or they will be asked to supply a password. You must keep your password confidential and should instruct all Authorized Users to do likewise, and are responsible for all use of your passwords and Authorized User Accounts.

4. Authorized User Information. eChalk shall not disclose to any third party except its authorized contractors and service providers required to provide the eChalk Services any personal information that would permit identification of an individual, unless so required by a court or administrative authority of competent jurisdiction. The Client acknowledges that upon the execution of a Service Order or upon use of the eCHALK SERVICES the client has provided consent in accordance with SOPIPA, COPPA, CIPA and FERPA. The Client acknowledges that eChalk may, in accordance with applicable law and as more specifically set forth in the Privacy Policy, use or disclose aggregate usage, demographic and other information on a de-identified and anonymized basis (which does not permit any person to attribute identities on the basis of such data) relating to usage by the Client and its Authorized Users of the eChalk Services for the purpose of: (i) improving the product; (ii) informing the Client of its use of the eChalk Services to improve adoption of the eChalk Services within the Client; or (iii) demonstrating usage of the Services to other Clients (potential clients) and eChalk investors. The Client hereby grants eChalk the right to use the name of the Client and approved quotes from Authorized Users regarding the eChalk Services for the limited purpose of marketing and public relations. However, eChalk shall not publish any press releases regarding the Client’s use of the eChalk Services or quotes from the Authorized Users without obtaining the prior written consent of the Client or the Authorized Users, as applicable. eChalk has adopted and conducts its business in accordance with its Privacy Policy with respect to the use of personal information as amended from time to time. The eChalk Privacy Policy is available at the following URL: www.echalk.com/privacy-policy.

5. Payment. The Client agrees upon execution of a Service Order to be invoiced by and to pay eChalk the amounts set forth in the Service Order. Payment shall be made to eChalk within (30) days of the invoice date. eChalk Services are subject to suspension for nonpayment. All overdue payments will bear interest at the rate of 10% per annum or at the maximum rate allowable by law, whichever is lower. All invoices will be provided via email, unless otherwise requested in writing by Client; such requests may be sent by email to billing@echalk.com. All fees for renewal terms are invoiced on or about 30 days prior to the start of the renewal term.

6. Authorized Users.

6.1 Acceptable Use. The Client shall be solely responsible for adopting and maintaining reasonable guidelines regarding use of the eChalk Services in the form of an "Acceptable Use Policy" that contains restrictions and imposes obligations upon Authorized Users regarding proper use of the eChalk Services and that prohibits activities that violate this Agreement or applicable laws and regulations. The Client shall make the Acceptable Use Policy applicable and available to all Authorized Users. Upon request, eChalk shall provide the Client with guidelines to assist the Client in developing its own Acceptable Use Policy, provided, however, that at all times, the Client shall be solely responsible for the steps it has taken to restrict unauthorized access to its systems and the Client acknowledges that eChalk shall not have responsibility for any actions or omissions by Client or any Authorized Users. The Client shall also be solely responsible for the implementation of a electronic records retention policy (“Retention Policy”) respecting any Authorized User information electronically stored by Client and shall advise eChalk from time to time concerning any periodic routine requirement to delete any Authorized User Information and data in accordance with such policy, or in the event such policy or a Client’s records are or become subject to a ”litigation hold” overriding such Retention Policy due to pending litigation. eChalk will at the written request of Client delete Authorized User Account information from our live databases and all personally identifiable Information and data stored for such Account. eChalk will not have any liability whatsoever for any termination of the Authorized User Account or related deletion of Authorized User Information and data. When we delete Information, it will be deleted from our active databases but may remain in our archives.

6.2 Prohibited Activities. The Client and its Authorized Users may not access or use the eChalk Services for any other purpose than that for which eChalk makes them available. Certain activities (“Prohibited Activities”), even if legal, may violate a reasonable Acceptable Use Policy and ethical and privacy principles of an online educational support services Website governing data systems for students 18 years of age and under, including, but not limited to, user generated content and communications with children under 13, as determined by eChalk in eChalk’s sole discretion. Prohibited activities include, but are not limited to:

i. criminal or tortious activity, including child pornography, fraud, trafficking in obscene material, drug dealing, gambling, harassment, stalking, spamming, copyright infringement, patent infringement, trademark infringement, or theft of trade secrets;

ii. advertising to, or solicitation of, any Authorized User to buy or sell any products or services;

iii. transmitting chain letters or junk email to other Authorized Users;

iv. using any information obtained from the eChalk Services in order to contact, advertise to, solicit, or sell to any Authorized User without their prior explicit consent;

v. engaging in any automated use of the systems operated by the eChalk Services, such as using scripts to add friends or send comments or messages;

vi. interfering with, disrupting, or creating an undue burden on the eChalk Services or the networks or services connected to the eChalk Services;

vii. attempting to impersonate another Authorized User or person;

viii. using the identity, persona or Authorized User name of another Authorized User;

ix. selling or otherwise transferring your profile;

x. using any information obtained from the eChalk Services in order to harass, abuse, or harm another person;

xi. displaying an advertisement, or accepting payment or anything of value from a third person in exchange for your performing any commercial activity on or through the eChalk Services on behalf of that person, such as posting user generated content with a commercial purpose; and

xii. using the eChalk Services in a manner inconsistent with any and all applicable laws and regulations.

6.3 Authorized User Behavior. The Client shall implement and maintain mechanisms and policies which periodically put Authorized Users on notice of the Acceptable Use Policy and all revisions thereto. The Client is responsible for requesting and obtaining Authorized User’s permissions, consents and acknowledgements respecting Authorized User’s agreement to, and compliance with, the Acceptable Use Policy. The Client acknowledges that it is responsible for obtaining parental consent and that it is conveying and granting such consent to eChalk in accordance with SOPIPA, COPPA, CIPA and FERPA. The Client acknowledges and agrees that eChalk is not responsible for monitoring uses of the eChalk Services and/or for enforcing compliance by Authorized Users with the Client’s Acceptable Use Policy, the Prohibited Activities and applicable laws and regulations. The Client shall also honor all revocations of permission or consent by Authorized Users or requests from Authorized Users for information updates and corrections, and shall make reasonable efforts to ensure that all such information is complete, accurate and up to date. The Client shall provide timely notice of all such revocations, updates or corrections to eChalk. The Client shall indemnify and hold harmless eChalk its subsidiaries and affiliates, if any, and their respective officers, agents, partners and employees from any and all claims, demands, liabilities, obligations, taxes, losses, fines, costs, expenses, royalties, litigation, deficiencies or damages (including reasonable attorneys’ fees and costs of litigation) arising out of any Authorized User’s use of the eChalk Services and/or arising from a breach of this Agreement and/or any breach of your representations and warranties set forth below and/or if any content that any Authorized User post’s on a website or mobile application accessed through the eChalk Services causes eChalk to be liable to a third party. The Client shall maintain during the Term reasonable insurance protection for claims arising out of Authorized Users’ use of the eChalk Services.

7. Compliance by Schools and Authorized Users. The Client shall cause each of the Client’s users to be bound by and comply with any applicable Acceptable Use Policy and the terms and conditions of this Agreement.

8. Representations and Covenants. Each of eChalk and the Client represents, warrants and covenants that:

(a) Such party has, and will have, the full power, authority and legal right to enter into and perform fully its obligations under this Agreement;

(b) Neither the execution and delivery of this Agreement nor the consummation of transactions contemplated hereby will (i) violate any provision of the charter, bylaws or other governing documents of such party, or any laws, ordinances, rules, regulations, codes or policies to which such party is subject, or (ii) conflict with, result in breach or violation of, constitute a default under, or require any notice under any agreement to which such party is party or by which it is bound or to which any of its assets is subject;

(c) Such party shall comply at its own expense with all applicable laws, ordinances, rules, regulation, codes and policies in connection with its performance under this Agreement; and

(d) Such party has all rights and authorizations necessary to grant the rights and licenses set forth herein.

(e) When executed and delivered by both parties, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms.

9. Term; Termination.

9.1 Term. This Master Services Agreement shall become effective upon the earlier to occur of the Effective Date of the Client’s initial Service Order or Client’s first access to the eChalk Services and shall remain in force until terminated.

9.2 Termination.

(a) This Agreement may be terminated by either party at any time if the other party commits a material breach of this Agreement that remains uncured for a period of thirty (30) days following written notice of such breach.

(b) eChalk may terminate this Agreement (i) if the Client fails to pay any amounts owed to eChalk when due, or (ii) at any time when the parties have not entered into a Service Order or timely renewed a Service Order or other agreement pursuant to which the Client is obligated to pay eChalk fees for eChalk Services to be provided. In case of termination of this Agreement by eChalk under this clause (b) or under clause (a) above, all fees that would otherwise have become due during the remainder of the Term during which the termination occurred, shall immediately become due and payable.

(c) Prior to exercising eChalk’s termination right authorized above and in addition to pursuing any other available rights and remedies, eChalk may, in its sole discretion and without additional notice to the Client, suspend performance of any and all eChalk Services provided to the Client (including disabling the Client’s and all Authorized Users’ use of the eChalk Services) until and to the extent eChalk determines (in its sole discretion) to resume performance of some or all of the suspended eChalk Services or to terminate this Agreement as authorized above.

(d) The Client agrees, accepts and acknowledges that it has no right to terminate this Agreement for convenience and that it is committing to a binding obligation to pay for all fees due during the Initial Term and each renewal Term.

10. DISCLAIMERS. THE CLIENT HEREBY AGREES AND ACKNOWLEDGES THAT NO eCHALK PARTY (AS DEFINED BELOW) SHALL BE LIABLE IN ANY WAY TO THE CLIENT, ANY AUTHORIZED USER OR ANY OTHER PERSON FOR ANY CLAIMS, DEMANDS, LIABILITIES, OBLIGATIONS, TAXES, LOSSES, FINES, COSTS, EXPENSES, ROYALTIES, LITIGATION, DEFICIENCIES OR DAMAGES ARISING FROM ANY SUCH PERSON’S ACTION OR FAILURE TO ACT IN ACCORDANCE WITH THE ACCEPTABLE USE POLICY THE PROHIBITED ACTIVITIES, eCHALK’S TERMS OF SERVICE OR ANY APPLICABLE LAWS, REGULATIONS OR POLICIES REGARDING THE eCHALK SERVICES. THE TERM "eCHALK PARTY" MEANS eCHALK AND ANY OF ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, CONTRACTORS, AFFILIATES, INFORMATION PROVIDERS, LICENSORS, GOVERNMENTAL AUTHORITIES OR OTHER SUPPLIERS PROVIDING ANY DATA, INFORMATION, NEWS, MESSAGES, OPINIONS OR OTHER MATERIALS RELATING TO THE SERVICES. YOU AGREE THAT YOUR USE OF THE eCHALK SERVICES WILL BE AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW. eCHALK, FOR ITSELF AND ON BEHALF OF THE eCHALK PARTIES DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE eCHALK SERVICES AND YOUR USE THEREOF. eCHALK MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE WEBSITE’S OR eCHALK SERVICES’ CONTENT. CONTRIBUTIONS, OR THE CONTENT OF ANY WEBSITES LINKED TO THE WEBSITE OR ACCESSED THROUGH THE eCHALK SERVICES AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (A) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT AND MATERIALS, (B) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF OUR WEBSITE OR THE eCHALK SERVICES, (C) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (D) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE WEBSITE OR THE eCHALK SERVICES, (E) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE WEBSITE OR THE eCHALK SERVICES BY ANY THIRD PARTY, AND/OR (F) ANY ERRORS OR OMISSIONS IN ANY CONTENT AND MATERIALS OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE WEBSITE OR THE eCHALK SERVICES. eCHALK DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE WEBSITE OR THE eCHALK SERVICES OR ANY MOBILE APPLICATION, HYPERLINKED WEBSITE OR CONTENT FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND eCHALK WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE eCHALK SERVICES, EXPRESSLY INCLUDING ANY MOBILE APPLICATIONS OR OTHER SOFTWARE IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE AND ANY SERVICES PERFORMED OR PROVIDED BY THE SOFTWARE ("PERFORMANCE") ARE PROVIDED "AS IS" AND "AS AVAILABLE", WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND. EXCEPT AS SET FORTH IN SECTION 8, eCHALK HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE PERFORMANCE, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. eCHALK DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE PERFORMANCE, THAT THE FUNCTIONS CONTAINED IN, OR SERVICES PERFORMED OR PROVIDED BY THE PERFORMANCE WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE PERFORMANCE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE PERFORMANCE WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY eCHALK OR ITS AUTHORIZED REPRESENTATIVE(S) SHALL CREATE A WARRANTY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU.

11. Limitation of Liability.

11.1 Acts or Omissions by the Client and its Authorized Users. The Client hereby releases eChalk from all obligations and liability relating to any claims, demands, liabilities, obligations, taxes, losses, fines, costs, expenses, royalties, litigation, deficiencies or damages arising from or relating to (i) the Client’s or Authorized Users’ use of the eChalk Services or (ii) the Client’s conduct of its business.

11.2 Online Content. eChalk cannot control the nature of the content available through the eChalk Services. By providing and operating the eChalk Services, eChalk does not represent or imply that eChalk endorses any comments, user generated content contributed to any website of mobile application (a “Contribution” pr collectively, “Contributions”) or other content available on or linked to by the eChalk Services, including without limitation content hosted on third party Websites; or that eChalk believes Contributions, comments or other content to be accurate, useful or nonharmful.

11.3 DAMAGES. THE CLIENT AGREES AND ACKNOWLEDGES THAT eCHALK SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL, INDIRECT OR PUNITIVE DAMAGES, EVEN IF eCHALK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE OR REASONABLY COULD HAVE BEEN FORESEEN. NOTWITHSTANDING THE FOREGOING, eCHALK SHALL BE LIABLE TO THE CLIENT FOR ANY LOSS TO THE EXTENT IT IS DIRECTLY ATTRIBUTABLE TO THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF ANY eCHALK PARTY. IN NO EVENT SHALL eCHALK’S TOTAL CUMULATIVE LIABILITY TO THE CLIENT EXCEED THE AGGREGATE AMOUNT PAID BY THE CLIENT TO eCHALK UNDER THE APPLICABLE SERVICE ORDER DURING THE PRECEDING 12-MONTH PERIOD.

12. Service Orders. Each Service Order shall be subject to the following terms and conditions with respect to such Service Order in addition to any other terms and conditions set forth therein.

12.1 Changes to Service Orders. Service Orders will be effective only when signed by Client and eChalk. Any modifications or changes to the eChalk Services under any executed Service Order will be effective only if and when memorialized in a mutually agreed written change order ("Change Order") signed by eChalk and delivered to the Client, provided, however, that for any eChalk Services provided on a limited basis (for example, on a per user, per site or named-user basis), Client may, at any time, increase the number of its licenses hereunder subject to a corresponding forward-going adjustment of the Fees to reflect these changes in accordance with the pricing set forth in the applicable Service Order.

12.2 Termination of Service Orders. A Service Order may be terminated at any time by mutual written agreement by eChalk and the Client. If either party fails to cure any breach of its obligations under a Service Order within thirty (30) days following receipt of written notice of such breach from the other party, then such other party may terminate the Service Order by providing the defaulting party with written notice of termination. eChalk may terminate a Service Order upon prior written notice if the Client fails to pay the amounts due thereunder within thirty (30) days of receipt of an invoice. Upon termination of any Service Order by eChalk under this section, all fees that would otherwise have become due during the remainder of the Term shall immediately become due. The Client understands and agrees that it has no right to terminate the Service Order for convenience and that it is assuming a committed obligation to pay for all fees due under the Service Order.

12.3 No Obligation without Service Order. At any time when a Service Order is not in force eChalk shall be under no obligation to provide eChalk Services until the parties enter into a new Service Order, renewal or other binding agreement pursuant to which the Client is obligated to pay eChalk for such eChalk Services.

13. Professional Learning Services.

(a) eChalk cannot schedule or confirm any requested dates for Professional Learning Services (Online and In Person Training Services) without first receiving a fully executed Service Order from the Client. All scheduling requests are processed on a first-come, first-served basis.

(b) All Professional Learning Services expire as of the Service End Date as noted on the Service Order. No refunds or rescheduling will be given for cancelled, forfeited, unused, or unattended sessions and the Client will be charged the full fee for the services.

(c) All Professional Learning Services are subject to the availability of an eChalk instructor.

(d) Two-week’s notice via email is required to reschedule all eChalk Professional Learning Services except Course Tickets which require a three-week notice. If notice is not provided and confirmed by eChalk via email the Client forfeits the Professional Learning Services and no refunds or rescheduling will be provided.

(e) Professional Learning session lasting 0-3 hours are billed as a half-day. Any session lasting more than three (3) hours is billed as a full-day. Client who uses an eChalk instructor for more than seven (7) hours on a single day will be billed for additional service in half-day increments. All Professional Learning Services provide for one (1) instructor.

(f) Professional Learning Services may only be scheduled during the service period listed on an eChalk Service Order (i.e. between the Service Start Date and Service End Date).

(g) The Client is responsible for providing all necessary equipment and a facility to accommodate a one computer per participant ratio for hands-on training sessions (Participant Maximum 18). All of the computers used for a session must meet eChalk’s minimum technical requirements, be working properly, have a live Internet connection, and have a recent version of a Web browser that eChalk supports. If mobile computers are being used, they need to be fully charged, turned on, and ready for use. No refunds or rescheduling will be provided due to Client Technical issues.

(h) A Client representative who is familiar with the Client’s network, has access to the network and password access to both the network and computers provided must be available on the scheduled date to resolve any technical issues that may occur. The Client is responsible for verifying and testing access to eChalk on the computers that will be used during the session prior to the date of a session. No refunds or rescheduling will be provided due to Client Technical issues.

14. Other Services.

(a) Other Services are those services provided by eChalk, purchased by the Client and referenced on an executed Service Order excluding eChalk’s Web-Based Learning Management System, Content Management System and Communication System as well as Support and Online and In Person Training Services.

(b) Subject to these Terms and Conditions, Company agrees to provide, with the reasonable cooperation of Client’s personnel and resources, the Services described on the Service Order.

(c) Client shall respond promptly to any request from Company for information, approvals, or authorization that are reasonably necessary for Company to perform the Services in accordance with this agreement.

(d) Acceptance. (i) Unless otherwise provided in a fully executed Statement of Work, Client shall, within ten (10) days (the “Review Period”) of receipt of notice by Company’s of Service delivery notify Company in writing of non-acceptance, documenting in reasonable detail any and all material nonconformities. Client may send notice via email to contracts@echalk.com. (ii) Company shall, upon receipt of a notice of non-acceptance under Section 14(d)i above, use its reasonable efforts to correct the specified material nonconformities and shall notify Client of the completion of such obligation. Client shall, after receipt of such notice from Company, review and report to Company as provided in Section 14(d)i above. Client shall do so promptly using diligent efforts, but in no event shall such review by Client exceed ten (10) days after receipt of notice from Company. The foregoing cycle shall be repeated until such Service has been accepted by Client pursuant to this Section 14; provided, however, Client shall not unreasonably withhold or delay such acceptance and in no event may non acceptance exceed the Service End Date as noted on the Service Order.

(e) Services shall be deemed accepted by Client under this Section 14 if (i) Client notifies Company in writing of its acceptance, in which event the acceptance date shall be the date of such notice, (ii) Client fails to notify Company in writing within the Review Period of any material nonconformities as described in this Section, in which event the acceptance date shall then be the last day of said period, or (iii) Client places in productive use any portion of the Service, in which event the acceptance date shall be the first day of such placement in productive use, or (iv) at the Service End Date as noted on the Service Order.

15. Governing Law; Jurisdiction; Attorneys’ Fees. This Agreement shall be construed and governed exclusively under the laws of the State of New York without regard to conflict of law principles. Subject to the requirements of Section 15, the parties hereby consent to jurisdiction and venue in any federal or state court of competent jurisdiction located in the County of New York, State of New York, for the adjudication of any disputes under this Agreement. In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either party hereto against the other party arising out of or related to this Agreement, the prevailing party shall be entitled to recover its actual attorneys' fees and court costs from the non-prevailing party.

16. Disputes between Authorized Users. The Client is solely responsible for its conduct and the conduct of any Authorized Users accessing the Services through their association with the Client. eChalk reserves the right, but has no obligation, to monitor disputes between the Client and its Authorized Users.

17. Disputes with eChalk. ALL DISPUTES ARISING OUT OF OR RELATING TO THIS AGREEMENT (INCLUDING ITS FORMATION, PERFORMANCE, OR ALLEGED BREACH) OR YOUR ACCESS TO OR USE OF THE MATERIALS, CONTRIBUTIONS AND WEBSITE, INCLUDING WITHOUT LIMITATION YOUR OR OTHERS’ DOWNLOADING OR CONSUMPTION OF MATERIALS OR OTHER MATERIALS AVAILABLE BY MEANS OF THE eCHALK SERVICES OR THIRD PARTY APPLICATIONS OR WEBSITES, YOUR UPLOADING CONTRIBUTIONS TO THE WEBSITE, OR YOUR PURCHASING OF GOODS OR SERVICES FROM THIRD PARTIES, WILL BE EXCLUSIVELY RESOLVED UNDER CONFIDENTIAL BINDING ARBITRATION HELD IN NEY YORK COUNTY, NEW YORK BEFORE AND IN ACCORDANCE WITH THE RULES FOR ALTERNATIVE DISPUTE RESOLUTION ESTABLISHED BY THE ALTERNATIVE DISPUTE RESOLUTION FIRM ORIGINALLY KNOWN AS JUDICIAL ARBITRATION AND MEDIATION SERVICES, INC., N/K/A JAMS, THE RESOLUTION EXPERTS (“JAMS”). NOTWITHSTANDING THE FOREGOING, FOR ANY DISPUTE YOU HAVE WITH eCHALK, YOU AGREE TO FIRST CONTACT US AND ATTEMPT TO RESOLVE THE DISPUTE WITH US INFORMALLY AND eCHALK WILL HAVE THE RIGHT TO SEEK INJUNCTIVE RELIEF TO ENFORCE THIS AGREEMENT OR TO STOP OR PREVENT AN INFRINGEMENT OF PROPRIETARY OR OTHER THIRD PARTY RIGHTS. IN THE EVENT OF LITIGATION OR TO COMPEL ARBITRATION OR TO ENFORCE AN ARBITRATION AWARD UNDER THIS SECTION, OR TO OBTAIN AN INJUNCTION UNDER THIS SECTION, THE PARTIES HEREBY IRREVOCABLY CONSENT AND SUBMIT TO THE EXCLUSIVE PERSONAL JURISDICTION AND VENUE OF THE STATE AND FEDERAL COURTS LOCATED IN NEW YORK COUNTY, NEW YORK.

18. Copyright Policy. We respect the intellectual property rights in creative works and of those who create them, and take violations of those rights seriously and expect Authorized Users of the eChalk Services to do the same. eChalk does not permit copyright infringing activities and infringement of intellectual property rights on the eChalk Services, and eChalk will remove all content if properly notified under the procedures referenced in this Section that such content infringes on another's intellectual property rights. In appropriate circumstances and at eChalk’s discretion, it is also the policy of eChalk to disable and/or terminate the User Accounts of Authorized Users who repeatedly infringe or are repeatedly charged with infringing the copyrights or other intellectual property rights of others. Because eChalk takes matters of intellectual property rights violations seriously, we will respond expeditiously to claims of copyright infringement committed using the eChalk Services that are reported to eChalk’s designated copyright agent (“eChalk DMCA Copyright Agent”), identified in a Notice of Alleged Copyright Infringement Pursuant to DMCA § 512 ("DMCA Copyright Notice") discussed at http://www.echalk.com/copyright, which DMCA Copyright Notice and its related procedures set forth in the content accessed at the link above constitute an exhibit to this Agreement incorporated herein by this reference. For clarity, only DMCA Copyright Notices should go to the eChalk DMCA Copyright Agent at copyright@echalk.com; any requests for technical support, and other communications should be directed to eChalk’s technical support services via email at support@echalk.com; and all other general comments, questions or requests other communications should be directed to information@echalk.com. You acknowledge that if you fail to comply with all of the requirements of this Section, your DMCA Copyright Notice may not be valid.

19. Notice. All notices in connection with this Agreement shall be deemed given as of the day they are successfully sent, if by facsimile or e-mail, in each case, with confirmation of transmission, if sent during the addressee's normal business hours, and on the next business day, if sent after the addressee's normal business hours; and on the delivery date if sent by commercial courier, to a party at the address set forth in the applicable Service Order. Except as otherwise provided in this Agreement, eChalk will give you any notices regarding this Agreement by posting them on the Website. Since notice of any material change to this Agreement will be posted to the Website for at least 30 days, we encourage you to visit the Website at least that often. You also authorize eChalk to send notices (including notice of subpoenas or other legal process, if any) via electronic mail to either your Authorized User Account or to the email address that we have on record for you. You must check the Website for notices, and you will be considered to have received a notice when it is made available to you by posting on the Website or when sent by eChalk to your email address via electronic mail, whether or not actually read by you. eChalk may provide notice to any e-mail or other address that you provide to us. You must keep your address current and any notice sent by eChalk to the address that you have most recently provided is effective notice. With the exception of notices related to removal of licensed material and to copyright infringement as described in Section 16, you must send us any notice via our email address at: notice@echalk.com or by mailing it via U.S. mail to our address for Legal Notices which is: 25 Broadway, 9th Floor, New York, New York 10025

20. Electronic communications. For contractual purposes, you (1) consent to transact business using electronic communications, to receive notices and disclosures electronically, and to utilize electronic signatures in lieu of using paper documents; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that eChalk provides to you electronically satisfy any legal requirements that such communications would satisfy if it were to be in writing. The foregoing does not affect any statutory rights you may have.

21. Further Assurances. The parties shall, from time to time, execute and deliver such additional instruments, documents, conveyances or assurances and take such other actions as shall be necessary, or otherwise reasonably requested by the other party, to confirm and ensure the parties’ respective rights and interests contemplated by or provided in this Agreement. The parties shall act in good faith in the performance of their obligations under this Agreement.

22. Force Majeure. Performance of any obligation hereunder shall be excused to the extent performance is prevented by an act of God, act of public enemy, fire or other casualty, labor dispute, electrical shortage, failure of communications or common carrier, equipment or software malfunction or other circumstances reasonably beyond a party’s control and that it cannot overcome using reasonable efforts (“Force Majeure”). Any party so delayed in its performance shall promptly notify the other party and shall describe at a reasonable level of detail the Force Majeure circumstances causing such delay. Upon delivery of such notice, the obligations of the party giving such notice, to the extent affected by the Force Majeure event, shall be suspended during, but not longer than, the continuance of the Force Majeure event.

23. Severability. If any one or more of the provisions of this Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality or enforceability of the remaining provisions of this Agreement shall not be affected thereby.

24. Modifications. eChalk may, in its sole discretion, modify or revise this Agreement from time to time, which modifications or revisions shall be incorporated into the Agreement and become binding upon Clients and Authorized Users in accordance with the introductory text at the beginning of this Agreement. In addition to the notice provided by the change in the Effective Date of this Agreement, eChalk may, but is not obligated to, notify all Authorized Users with whom it maintains email information, of major modifications to this Agreement by means of sending an email to their most recently provided email address. Any and all changes to or restatements of this Agreement will be reflected on the Website after the words “Effective Date” at the top of this Agreement. You agree to be bound to any changes to or restatements of this Agreement when you use the eChalk Services after any such modification or Effective Date change is posted. It is therefore important that you periodically review this Agreement and keep your contact information current to ensure you are informed of any changes. Nothing in these Terms shall be deemed to confer any third-party rights or benefits.

25. No Joint Venture. Nothing in this Agreement shall make or be deemed to make the parties partners, joint venturers, agents or members of an association or other entity with the other party.

26. Assignment. Except as otherwise set forth in this Agreement, the Client may not assign any of its rights or delegate any of its duties or obligations under this Agreement to any third party without the written consent of eChalk, except to a successor to the Client’s activities pursuant to a merger, consolidation or sale of substantially all of its assets by the Client. eChalk may assign its rights or delegate its duties or obligations under this Agreement to a successor in interest to eChalk through merger, consolidation or the sale of substantially all of the assets of eChalk to a third party. This Agreement shall inure to the benefit of the parties and their respective successors and permitted assigns.

27. Confidentiality. In connection with this Agreement, each party (as the "Disclosing Party") may disclose or make available Confidential Information to the other party (as the "Receiving Party"). "Confidential Information" means information in any form or medium (whether oral, written, electronic or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party's technology, trade secrets, know-how, business operations, plans, strategies, clients, and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, in each case whether or not marked, designated or otherwise identified as "confidential". Without limiting the foregoing, (a) all Client Data (including all Personal Information) is and will remain the Confidential Information of Client and (b) the Service Software, specifications in any Service Order and Documentation are and will remain the Confidential Information of eChalk; and (c) the pricing and financial terms in any Service Order or Change Order relating to this MSA are the Confidential Information of eChalk.

28. Survival. Sections 3.1 {Client Property}, 3.2 {eChalk’s Property}, 4 {Authorized User Information}, 5 {Payment}, 6.3 {Authorized User Behavior}, 8 {Representations and Covenants}, 10 {Disclaimers}, 11 {Limitation of Liability}, and 14 through this Section 28 shall survive termination or expiration of this Agreement, as the context requires.

 

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