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Agreement

This is a legal Agreement (the “Agreement”) made effective as of the date of today [date] (the “Effective Date”), by and between Wyzant, Inc. a corporation with its principal place of business at 1714 North Damen Ave, 3rd floor, Chicago, IL 60647 (“Wyzant”) and you (“Company”). Each of Wyzant and Company are sometimes referred to in this Agreement as a “Party,” and together as the “Parties.” The parties expressly agree to transact and enter into this Agreement by electronic means within the meaning of the Uniform Electronic Transactions Act (“UETA”).

RECITALS

WHEREAS, Wyzant owns and operates a nationwide online tutoring marketplace along with certain technologies; and Company maintains a website service for advertising tutor profiles and tutoring services, among other purposes; and

WHEREAS, the Parties agree to provide certain services to each other as more fully described herein.

NOW THEREFORE, the parties hereto, in consideration of the foregoing and other good and valuable consideration recognized by the parties, hereby agree as follows:

1 DEFINITIONS

The following terms shall have the following meanings for the purpose of this Agreement:

  1. 1.1. “Affiliate” means, as used with respect to a party, any corporation or entity worldwide that controls (direct or indirect ownership of at least 50%) such party, that such party controls, or that is under common control with such party.
  2. 1.2. “Wyzant Content” means information, images and other data and content available via the Web Services API, as more fully described in Exhibit B (attached hereto and made a part hereof).
  3. 1.3. “Tutor Network” means the tutors that have contracted with Wyzant to have their profiles listed to provide tutoring services.
  4. 1.4. “Wyzant Services” means the Wyzant owned and operated nationwide online tutoring marketplace.
  5. 1.5. “Wyzant Website” means www.wyzant.com, all other Wyzant mobile platforms, website or applications that are owned or operated by Wyzant as of the Effective Date and thereafter.
  6. 1.6. “Intellectual Property Rights” means any and all rights, titles and interests, whether foreign or domestic, in and to any and all trade secrets, patents, copyrights, service marks, trademarks, know-how, software, company systems or other intellectual property rights, as well as any and all moral rights, rights of privacy, publicity and similar rights of any type under the laws or regulations of any governmental, regulatory, or judicial authority, foreign or domestic.
  7. 1.7. “Marks” means trademarks, service marks, trade names, logos or other source identifiers owned by a party.
  8. 1.8. “User” means a user of the Company Site.
  9. 1.9. “Web Services API” means Wyzant’s application programming interface in the form provided by Wyzant to Company to enable Company to interface with the Tutor Network that provides the Wyzant Content and other services.
  10. 1.10. “Company Site” means the websites, mobile platforms and other content technologies operated or authorized by Company.

2 LICENSE, RESTRICTIONS AND STRUCTURE

  1. 2.1. Web Services API License. Wyzant hereby grants Company, during the Term a non-exclusive, non-transferable, royalty-free, non-sublicenseable, revocable license to use the Web Services API. Wyzant reserves the right to modify, change, update and/or enhance the Web Services API, the Tutor Network, and/or the Wyzant Website at any time in Wyzant’s sole and exclusive discretion.
  2. 2.2. Restrictions on Use of Web Services API. Company must not knowingly,
    1. 2.2.1. Use the Web Services API in a manner that is directly competitive in nature with the Wyzant Website.
    2. 2.2.2. Copy (other than incidental copying to perform the services under this Agreement), rent, lease, sell, transfer, This includes, but is not limited to, the search results or listings otherwise displayed by Wyzant’s search engine not be aggregated whatsoever with any other search results or listings displayed by any other search engine for online tutoring marketplaces; and assign, sublicense, dissemble, reverse engineer or decompile (except to the limited extent expressly authorized under applicable statutory law), modify or alter any part of the Web Services API; attempt or provide a means to execute any "bulk download" operations; reproduce any information retrieved from the Web Services API such that Company can display the retrieved information (“API Response”) within its Company Site, and/or modify any API Response that is not otherwise authorized under this Agreement; “frame” or otherwise impose editorial comment, commercial material, or any type of identification on any API Response and the display thereof, or “cut and paste” or otherwise reproduce any API Response except as authorized herein without obtaining the prior written consent of Wyzant; and permit or assist any third party in doing any of the foregoing.
  3. 2.3. License of Wyzant Marks. Wyzant hereby grants to Company a non-exclusive, non-transferable, non-sublicenseable, revocable license during the Term, to use and display the Wyzant Marks in connection with this Agreement.
  4. 2.4. General Relationship Structure.
    1. 2.4.1. Wyzant will provide all necessary content and data from the Web Services API, as more fully described in Exhibit B (attached hereto and made a part hereof), to Company to enable its Users to view the Tutor Network and link to the Wyzant Services through the Company Site.
    2. 2.4.2. Wyzant has the right to limit, modify, or remove the Wyzant Content that is displayed on the Company Website at any time in Wyzant’s sole and exclusive discretion.
    3. 2.4.3. Company shall use the Wyzant provided link(s) to send traffic to the Wyzant Website from the Company Website. The content and data in the feed is regularly updated by tutors and Wyzant with their most current information (including for example to add skills or tutoring subjects, modify payment information, or remove their profile.) Company must regularly update/refresh the feed contained in the Web Services API to ensure the most accurate content and data is presented on the Company Site. Company agrees to refresh the feed in the Web Services API no less than once a month.
  5. 2.5. Compliance with this Agreement and Wyzant’s Policies. Company must comply with this Agreement, the Wyzant Terms of Use, and Wyzant Privacy Policy (together, the Wyzant Policies”) in all uses of the Web Services API, the Tutor Network, Wyzant Marks, and/or the Wyzant Website (“Wyzant Materials”). If Wyzant believes, in its sole discretion, that Company has violated or attempted to violate any term, condition, or the spirit of this Agreement, Company’s license to and ability to use and access the Wyzant Materials may be temporarily or permanently revoked with or without notice.

3 PAYMENT AND REPORTING

  1. 3.1 Payment. Commencing on the date on which Company allows Users to access the Tutor Network from the Company Site and ending on the effective date of Termination as specified below, the sole and exclusive consideration (in U.S. dollars) Wyzant shall make to Company for its services, is set forth in Exhibit A (attached hereto and made a part hereof).
  2. 3.2 Data. Wyzant will provide Company with certain performance data and metrics regarding the Wyzant Content and Student leads (“Performance Data”), provided that sharing of such data or information is consistent with the Wyzant then current Privacy Policy and Terms of Use. Company may use this information solely to validate Fees. Company will provide Wyzant information regarding popularity of various business and related activities in conjunction with the Wyzant Content (“Activity Data”). Performance Data and Activity Data shall be considered Confidential Information (as defined below).

4 OWNERSHIP

  1. 4.1 Web Services API, Wyzant Marks Wyzant Website, Wyzant Content, Tutor Network. As between Wyzant and Company, Wyzant retains all rights, title and interest in (including all Intellectual Property Rights embodied in or pertaining to) the Web Services API, Wyzant Marks, Wyzant Website, Wyzant Content, Tutor Network, and any and all Wyzant services and any content created or derived therefrom, but specifically excluding content therein that is described in Section 4.2 below and any other Intellectual Property Rights owned by Company (collectively “Wyzant IP”). Company receives no rights to the Wyzant IP other than those specifically granted in Section 2.
  2. 4.2 Company Sites. Company retains all rights, title, and interest in and to all Intellectual Property Rights embodied in or pertaining to the Company Marks and Company Site and any and all Company services and any content created or derived therefrom, but specifically excluding content therein that is described in Section 4.1 above and any other Intellectual Property Rights owned by Wyzant.

5 TERM AND TERMINATION

  1. 5.1 Term. The Term of this Agreement shall commence on the Effective Date and end on the effective date of Termination as specified below.
  2. 5.2 Termination. Unless this Agreement is terminated earlier as provided below, either Party may terminate this Agreement upon written notice to the other Party of no less than seven (7) business day (“Termination”).
  3. 5.3 Survival; Effect of Termination. Provisions of this Agreement that by their nature and context are intended to survive the termination of this Agreement (such as, but not limited to, payment, confidentiality, disclaimers, indemnification, limitation of liability, public announcement and assignment) shall survive termination of this Agreement. All other rights and obligations of the parties shall cease upon expiration or termination of this Agreement and Company shall cease use of the Web Services API as of the effective date of Termination. Notwithstanding anything to the contrary contained herein, any archived or stored API Response shall be completely deleted or otherwise removed by Company from its storage upon termination of this Agreement within ninety (90) days of termination or expiration of the Agreement.

6 CONFIDENTIAL INFORMATION

  1. 6.1 Confidential Information. Each party and their respective Affiliates, directors, officers, employees, authorized representatives, agents and advisors (including attorneys, accountants, consultants, bankers and financial advisors) shall keep confidential Performance Data, Activity Data, all information concerning the other party’s proprietary business procedures, present and future products, services, operations, marketing materials, fees, technology, policies or plans of the other party that is received or obtained during the negotiation or performance of the Agreement, whether such information is oral or written, and whether or not labeled as confidential by such party (collectively "Confidential Information").
  2. 6.2 Use of Confidential Information. For as long as Confidential Information of the disclosing party is in possession of the receiving party, the receiving party shall take reasonable steps, at least substantially equivalent to the steps it takes to protect its own proprietary information, to prevent the use, duplication or disclosure of Confidential Information other than in accordance with this Agreement. Each party may disclose Confidential Information of the other party to its employees or agents who are directly involved in negotiating or performing this Agreement and who are apprised of their obligations under this Section and directed by the receiving party to treat such information confidentially, or as required by law or by a supervising regulatory agency of a receiving party. Neither party shall disclose, share, rent, sell or transfer to any third party any Confidential Information of the other party except as expressly permitted by this Agreement. The receiving party shall use Confidential Information of the other party only as necessary to perform this Agreement.
  3. 6.3 Exceptions. Notwithstanding anything to the contrary, the obligations of the receiving party set forth in this Section 6 shall not apply to any information of the disclosing party that: (a) is or becomes a part of the public domain through no wrongful act of the receiving party; (b) was in the receiving party’s possession free of any obligation of confidentiality at the time of the disclosing party’s communication thereof to the receiving party; (c) is developed by the receiving party completely independent from the Confidential Information of the disclosing party; or (d) is required by law or regulation to be disclosed, but only to the extent and for the purpose of such required disclosure after providing the disclosing party with advance written notice if reasonably possible such that the disclosing party is afforded an opportunity to contest the disclosure or seek an appropriate protective order.
  4. 6.4 Remedies. Upon the request of the disclosing party following the termination of this Agreement, the other party shall promptly return all Confidential Information of the disclosing party in its possession, and shall promptly destroy such materials containing such information (and any copies, extracts, and summaries thereof) and shall further provide the other party with written confirmation of such return or destruction upon written request. In the event a party discovers that Confidential Information of the other party has been used in an unauthorized manner or disclosed in violation of this Section, the party discovering the unauthorized use or disclosure shall promptly notify the other party of such event. In addition, the non-disclosing party shall be entitled to all other remedies available at law or equity, including injunctive relief.

7 REPRESENTATIONS AND WARRANTIES

  1. 7.1 Company. Company represents and warrants that it has the full corporate right, power and authority to enter into this Agreement.
  2. 7.2 Wyzant. Wyzant represents and warrants that it has the full corporate right, power and authority to enter into this Agreement; and that Wyzant Content will materially conform with the description and specifications set forth in Exhibit B, unless otherwise agreed-to in writing by the Parties.
  3. 7.3 Disclaimer of Other Warranties. EXCEPT FOR THE WARRANTIES EXPRESSLY SET FORTH IN THIS SECTION, 7, THE PARTIES EXPRESSLY AGREE THAT WYZANT AND COMPANY PROVIDE THEIR SERVICES AS CONTEMPLATED HEREIN ON AN “AS IS” BASIS, WITHOUT WARRANTY, REPRESENTATION, OR GUARANTEE OF ANY KIND, EXPRESS OR IMPLIED, AND THAT EACH PARTY’S USE OF THE OTHER’S MATERIALS OR SERVICES THEREOF IS AT SUCH PARTY’S OWN RISK. EACH PARTY HEREBY DISCLAIMS ON BEHALF OF ITSELF AND ALL OF ITS AFFILIATES AND LICENSORS, PARTNERS, LICENSEES, CONTRACTORS AND AGENTS AND THIRD PARTY SERVICE PROVIDERS ANY AND ALL WARRANTIES, REPRESENTATIONS, CONDITIONS OR GUARANTEES, INCLUDING ANY WARRANTIES, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

8 INDEMNIFICATION AND LIMITATION OF LIABILITY

  1. 8.1 Wyzant Indemnification. Wyzant will indemnify, and at Company’s request defend, Company, its Affiliates and each of their respective officers, directors, employees, permitted successors, agents and representatives, from and against all party claims, damages, losses, liabilities, costs, expenses, and reasonable attorneys’ fees (collectively “Damages”) incurred in connection with any and all claims, actions or other proceedings brought by a third party arising out of breach of any warranty set forth in Section 7.2. Wyzant shall not settle any Damages without the express written consent of Company, which shall not be unreasonably withheld. Wyzant shall have the opportunity to participate in the defense at its own cost.
  2. 8.2 Company Indemnification. Company will indemnify, and at Wyzant’s request defend, Wyzant, its Affiliates and each of their respective officers, directors, employees, permitted successors, agents and representatives, from and against all Damages incurred in connection with any and all claims, actions or other proceedings brought by a third party arising out of a (i) breach of any warranty set forth in Section 7.1, (ii) breach of this Agreement by Company, or (iii) gross negligence, misconduct or criminal acts of Company. Company shall not settle any Damages without the express written consent of Wyzant, which shall not be unreasonably withheld. Company shall have the opportunity to participate in the defense at its own cost.
  3. 8.3 Limitation of Liability. (A) UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF SUCH DAMAGES ARE FORESEEABLE OR THAT PARTY HAS BEEN ADVISED OR HAS CONSTRUCTIVE KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM OR RELATED TO THIS AGREEMENT, INCLUDING LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS. (B) EACH PARTY’S AGGREGATE LIABILITY ARISING FROM OR RELATED TO THIS AGREEMENT, INCLUDING ANY RELATED CAUSE OF ACTION, SHALL BE LIMITED TO THE AMOUNTS PAID OR OWING TO COMPANY UNDER THE COMMERCIAL TERMS HEREOF AS OF THE DATE OF THE EVENT GIVING RISE TO THE INITIAL CLAIM FOR WHICH DAMAGES ARE RECOVERED HEREUNDER. NOTWITHSTANDING THE FOREGOING, THE LIMITATIONS SET FORTH IN THIS SECTION 8.3(B) SHALL NOT LIMIT A PARTY’S LIABILITY UNDER SECTION 6 (CONFIDENTIALITY) OR SECTIONS 8.1 AND 8.2 (INDEMNIFICATION).

9 MISCELLANEOUS

  1. 9.1 Public Announcement. The timing and content of any advertisements, announcements, press releases or other promotional activity relating to this Agreement, and the use of each other’s name or trademarks shall be subject to the prior written approval of both parties.
  2. 9.2 Assignment. Neither party may assign this Agreement without the prior written consent of the other party provided that, without consent, either Party may assign this Agreement in connection with the sale of all or substantially all of its business. Subject to the foregoing limitation, this Agreement is binding upon and inures to the benefit of the successors and assigns of the respective parties hereto.
  3. 9.3 No Agency Relationship. The relationship between Wyzant and Company shall not be construed as a joint venture, partnership or principal-agent relationship, and under no circumstances shall any of the employees of one party be deemed to be employees of the other party for any purpose. This Agreement shall not be construed as authority for either party to act for the other in any agency or any other capacity, except as expressly set forth in this Agreement.
  4. 9.4 Third Party Beneficiaries. This Agreement is not intended and shall not be construed to create any rights or benefits upon any person not a party to this Agreement.
  5. 9.5 Costs and Expenses. Unless specifically provided for elsewhere in this Agreement, each party will bear its own costs and expenses, including legal fees, accounting fees and taxes incurred in connection with the negotiation and performance of this Agreement.
  6. 9.6 Modification; Interpretation. This Agreement may not be changed orally but only by an agreement in writing, signed by the party against whom enforcement of any waiver, change, modification, or discharge is sought. The term “including” as used herein means “including without limitation.”
  7. 9.7 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Illinois without giving effect to any conflict of law principles. The Federal and State courts located in the County of Cook, Illinois will be the exclusive venue for any disputes under this Agreement, and the parties hereby consent to the personal jurisdiction of those courts for such purposes.
  8. 9.8 Provisions Severable. If any provision of this Agreement shall be or become wholly or partially invalid, illegal or unenforceable, such provision shall be enforced to the extent that it is legal and valid and the validity, legality and enforceability of the remaining provisions shall in no way be affected or impaired. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors, legal representatives and permitted assigns.
  9. 9.9 Waivers; Cumulative Remedies. No failure or delay by a party to insist upon the strict performance of any term or condition under this Agreement or to exercise any right or remedy available under this Agreement at law or in equity, shall imply or otherwise constitute a waiver of such right or remedy, and no single or partial exercise of any right or remedy by any party will preclude exercise of any other right or remedy. All rights and remedies provided in this Agreement are cumulative and not alternative; and are in addition to all other available remedies at law or in equity.
  10. 9.10 Arbitration. Any dispute between the parties related to this Agreement shall be resolved by binding arbitration in accordance with the Arbitration provision in the Wyzant Terms of Use.
  11. 9.11 Entire Agreement. This Agreement, including any exhibits or other documents attached hereto or referenced herein, each of which is hereby incorporated into this Agreement and made an integral part hereof, constitutes the entire agreement between the parties relating to the subject matter hereof and there are no representations, warranties or commitments except as set forth herein. This Agreement supersedes all prior understandings, negotiations and discussions, written or oral, of the parties relating to the transactions contemplated by this Agreement.

Exhibit A

PAYMENT

Payment of Fee. For its services provided according to this Agreement, Wyzant will pay Company an amount equal to $8 for each Student Lead received from the Company (“Fee” or plural, “Fees”). Student Lead is defined as an email from an individual in search of a tutor that was originated via the Company Site and sent through the Wyzant Website. For clarification, the Parties agree such emails does not include requests from any of the following: (1) corporations or other entities, (2) recruiters, or (3) individuals who have made previous or multiple contacts. For (3) above, only the first, or initial, contact originating from the Company Site of an individual, counts for the payment of a Fee.

Wyzant will automatically pay such Fees on the 15th of the following month (or the subsequent business day if the 15th falls on a weekend or holiday) for all Student Leads generated during the prior month.

All Fees will be based solely on the reporting counts that are available only on the Wyzant Website, and Company agrees Wyzant may withhold any payment of Fees that are in dispute.

Exhibit B

Description of Wyzant Content

The Wyzant Content provided under the Web Services API will contain a feed with information for each tutor, as follows:

  1. name
  2. tutoring subjects
  3. hourly price
  4. any education information
  5. any specialized
  6. any travel policy
  7. description of any specialized skills
  8. any photograph, if available