Master Services Agreement

Before you (“School”) order and/or use any of the products or services provided by Try Once, Inc. ("Once”), you must agree to the terms of this Master Services Agreement (this "Agreement").

1. Definitions

1.1 “Agreement” means this Master Services Agreement together with any exhibits and any Order Form(s).

1.2 “Authorized Student” means a student for whom School has purchased the right to use the Services.

1.3 “Confidential Information” means any business, financial or technical information disclosed by one party to the other party, including Data, provided that it is identified as confidential at the time of disclosure or that under the circumstances, a person exercising reasonable business judgment would understand it to be confidential or proprietary.

1.4 “Curriculum Materials” has the meaning set forth in the Order Form.

1.5 “School Materials” means School’s trademarks and logos provided to Once by School (if any), and any other materials, data, and similar information, owned or licensed by School that are provided by School to Once in connection with the Services. For the sake of clarity, Resultant Data shall not be deemed to be School Materials.

1.6 “Data” has the meaning set forth in the DSA (as defined below).

1.7 “Fees” has the meaning set forth in the Order Form.

1.8 “Instructor” means a teacher, other staff member or volunteer of the School who will be using the Services to provide tutoring to Authorized Students as part of the Program.

1.9 “Intellectual Property Rights” means patent rights (including, without limitation, patent applications and disclosures), copyrights, trade secrets, moral rights, know-how, and any other intellectual property rights recognized in any country or jurisdiction.

1.10Losses” means any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys’ fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.

1.11 “Order Form” means a document that School uses to order the Services that is signed by both School and Once.

1.12 “Program” has the meaning set forth in the Order Form.

1.13 “Services” collectively means (i) the Curriculum Materials provided by Once to School, (ii) related training, coaching and other services provided by Once to School as specified in an Order Form and (iii) Once’s proprietary platform (if any) used to facilitate the delivery of tutoring services by Instructors to Authorized Students. For the sake of clarity, any third-party platforms or online tools used to provide tutoring services to Authorized Students shall not be considered to be a part of the Services.

1.14 “Resultant Data” means any information, data and other content that is derived or generated by, from or through the Recordings or School’s, an Authorized Student’s or an Instructor’s use of the Services or participating in the Program, including but not limited to, analyses, metrics and reports based on Data, whether alone or in combination with data from other sources, that is not reasonably capable of being associated with identifiable student data.

1.15 “Session” has the meaning set forth in the Order Form.‍

2. Services

2.1 Services
. Subject to School carrying out its obligations set forth in any Order Form, School and its Authorized Users may access and use the Services during the Term (as defined below) solely to carry out the Program in accordance with this Agreement.  School will cooperate with Once in good faith and provide to Once the information and personnel that Once reasonably requests and requires to provide the Services. School will comply with all applicable laws, rules and regulations in exercising its rights under this Agreement. School hereby acknowledges and agrees that (Once may use third-party tools to provide the Services (“Third-Party Products”).

2.2 Data.  School is responsible for obtaining any necessary right and licenses for use of the Data by School and Once as necessary to carry out the Program.  School represents and warrants that it has the legal right and authority to access, use and disclose to Once any Data. School authorizes Once to access, process, and use the Data as necessary to perform and fulfill its obligations hereunder and hereby grants Once a non-exclusive, royalty-free, worldwide license to use, transmit, distribute, modify, reproduce, display and store such Data for such purposes. Once will process all Data in accordance with (i) the Data Sharing and Processing Agreement(the “DSA”) and (ii) all applicable laws, rules and regulations.

2.3 Recordings. School hereby acknowledges and agrees that all Sessions will be recorded (both audio and video) (the “Recordings”) with appropriate permission obtained from parents or guardians. School is responsible for obtaining any necessary consents and rights from the parents and guardians with respect to the Recordings. School represents and warrants that it: (i) has obtained all necessary consents, permissions and approvals of the parents and guardians of Authorizes Students required under all applicable laws for the Recordings; (ii) School will promptly notify Once if a parent or guardian revokes any of the foregoing consents, permissions or approvals it has given to School. If a parent or guardian refuses to allow their child to be captured in Recordings, then Once may require that such child be removed from the Program.

2.4 Instructors. School will be responsible for providing, selecting, supervising and managing all Instructors. School will ensure that all Instructors have undergone such background checks as are required by applicable law prior to participating in the Program. Once reserves the right, in its reasonable discretion, to require that the School remove any Instructor from participating in the Program if Once has a valid reason therefor. Once will train such removed Instructor’s replacement at no additional cost to School, or if School is unable to replace such removed Instructor, then Once will provide a prorated refund of any Fees for future Sessions that cannot be completed as a result thereof.

3. Fees; Expenses; Taxes

3.1 Fees.
School will pay to Once the amounts specified in the applicable Order Form (the “Fees”) in accordance with the terms set forth in such applicable Order Form and this Section 3.

3.2 Invoices; Payment. Once will invoice School for the Services as set forth in the Order Form and each invoice will be due and payable within thirty (30) days of receipt by School. All payment obligations are non-cancellable, and other than as provided in the Agreement, all amounts paid are non-refundable. Once will be entitled, in its sole discretion, to withhold performance and discontinue School’s access to the Services until all undisputed amounts past due are paid in full. With regard to any undisputed invoiced amount that is not paid when due, Once reserves the right to charge, and School agrees to pay, a late fee of one and one-half percent (1-1/2%) per month or the maximum rate permitted by applicable law, whichever is less, from the due date until paid, plus any attorney’s fees and collection costs.

3.3 Taxes. All Fees and other amounts stated or referred to in this Agreement are exclusive of all taxes and other governmental charges (collectively, “Taxes”). School will be responsible for payment of all Taxes and any related interest and/or penalties resulting from any payments made hereunder, other than any taxes based on Once’s net income.

4. Proprietary Rights

4.1 School Property
. School owns and retains: (a) the Data, (b) the School Materials and (c) all enhancements, improvements, developments, derivative works made to any of the foregoing and all Intellectual Property Rights in and to any of the foregoing.  School hereby grants to Once a limited, nonexclusive, worldwide, royalty-free, fully paid-up, sublicensable, transferable (in accordance with Section 10.9) license to use, store, adapt, modify, translate, publish, reproduce and distribute the School Materials during the Term as necessary for Once to provide the Services or exercise its rights under this Agreement.  

4.2 Once Property. Once owns and retains: (a) the Services (including all Curriculum Materials); (b) the Recordings; (c) the Resultant Data (subject to Section 4.4); (d) any software, applications, tools, processes, methodologies, know-how, material, curriculum, inventions or other technology developed by Once in connection with providing the Services; (e) Once’s name, logo, and other trademarks; (f) Once’s Confidential Information; and (g) all enhancements, improvements, developments, derivative works made to any of the foregoing and all Intellectual Property Rights in and to any of the foregoing.  All rights not expressly granted to School in this Agreement are reserved by Once and its licensors. School and its Instructors and Authorized Students will not (i) copy, modify or create derivative works or improvements of the Curriculum Materials; (ii) share, resell, sublicense, distribute, publish, or otherwise make available the Curriculum Materials to any third party; (iii) remove, delete, alter or obscure any copyright, trademark, patent or other intellectual property or proprietary rights notices from the Curriculum Materials; or (iv) access or use the Curriculum Materials for purposes of the development, provision or use of a competing product.

4.3 Feedback. If School provides suggestions, feedback or other input to Once concerning the Services (collectively, “Feedback”), then School hereby grants Once and its affiliates a perpetual, irrevocable, worldwide, royalty-free, fully paid-up right and license to all Feedback and all Intellectual Property Rights therein (except patent rights and trademark and branding rights) to use, perform, display, reproduce, create derivative works, and otherwise exploit such Feedback for any purpose.  The foregoing license shall be fully transferable and sublicensable.

4.4 Resultant Data. Notwithstanding anything to the contrary set forth herein, Once shall have the right to collect and analyze Resultant Data, and Once will be free (during and after the Term hereof) to (i) use such Resultant Data internally, including to improve and enhance the Services and for other development, diagnostic, evaluation and corrective purposes in connection with the Services and other Once offerings; (ii) disclose such data solely in an aggregated and de-identified form in connection with its business (including for marketing purposes).

5. Confidentiality

5.1 Obligations
.  Each party (the “Receiving Party”) acknowledges that by reason of its relationship to the other party (the “Disclosing Party”) under this Agreement, the Receiving Party will have access to certain Confidential Information of the Disclosing Party. The Receiving Party agrees that it shall not use in any way for its own account or the account of any third party, nor disclose to any third party, any such Confidential Information revealed to it by the Disclosing Party, except as expressly otherwise provided in this Agreement or the DSA. The Receiving Party shall treat the Disclosing Party’s Confidential Information in confidence and protect it with the same degree of care as the Receiving Party uses to protect its own confidential or proprietary information, but with no less than reasonable care.

5.2 Exclusions.  Confidential Information does not include any information that the Receiving Party can demonstrate by written records: (i) was rightfully known to the Receiving Party prior to its disclosure under this Agreement by the Disclosing Party; (ii) is independently developed by the Receiving Party without use of, or reference to, any Confidential Information of the Disclosing Party; (iii) is or becomes publicly known through no wrongful act of the Receiving Party; (iv) has been rightfully received from a third party whom the Receiving Party has reasonable grounds to believe is authorized to make such disclosure without restriction; or (v) has been approved for public release by the Disclosing Party’s prior written authorization.  In addition, either party may disclose the existence and terms of this Agreement (a) to existing and potential investors who are performing due diligence in connection with a fundraising round, or (b) in connection with a potential acquisition of substantially the entire business, assets and/or equity of such party or a private or public offering of such party’s securities; provided, however, that in each case the Receiving Party ensures that the party to receive such Confidential Information of the Disclosing Party has executed a nondisclosure agreement containing restrictions at least as protective as those set forth in this Section 5. Notwithstanding any of the foregoing, The Receiving Party may disclose Confidential Information of the Disclosing Party if such Confidential Information is required to be produced or disclosed pursuant to applicable law, regulation or court order,  or upon request by an examiner, auditor or regulator provided that the Receiving Party provides prompt advance notice thereof to enable the Disclosing Party to seek a protective order or otherwise prevent such disclosure

5.3 Return. Upon the earlier of the Disclosing Party’s request or the termination or expiration of this Agreement, the Receiving Party shall, at the Disclosing Party’s option, promptly return to the Disclosing Party or destroy all Confidential Information including all copies thereof, in whatever medium in its possession or control; and in either event, will, upon request, certify in writing to the Disclosing Party that such actions have all been completed. Notwithstanding the foregoing, the Receiving Party may retain (i) any Confidential Information required to be retained to comply with applicable laws or regulatory requirements; and (ii) any Confidential Information contained in computer files maintained pursuant to the Receiving Party’s customary archiving or back-up procedures; provided, however, that all such retained Confidential Information shall continue to remain subject to the provisions of this Section 5.

5.4 Injunctive Relief.  The Receiving Party acknowledges that disclosure of Confidential Information could cause substantial harm for which damages alone may not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party, the Disclosing Party will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.

6. Warranty

6.1 Mutual Warranties
. Each party represents and warrants to the other that it has the right, power, and authority to enter into this Agreement and perform its obligations hereunder.  

6.2 Warranty for Services. Once warrants solely to School that (a) the Services will materially conform to the description set forth in the applicable Order Form and will be performed in a professional and workmanlike manner; and (b) the Services will comply with all applicable laws. As Once’s sole and exclusive liability and School’s sole and exclusive remedy for any breach of the warranties set forth in this Section 6.2, Once will (i) use commercially reasonable efforts to modify or reperform the Services to correct the non-conformity or (ii) if Once reasonably determines that it is unable to do so,  refund to School a prorated portion of the Fees paid by School for the non-confirming Services.

6.3 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, ONCE MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES, THE SERVICES ARE PROVIDED FOR “AS IS,” AND Once HEREBY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. Once will have no liability for any claims, losses, or damages caused by errors or omissions in any Data or other information provided to Once by School in connection with the Services or any actions taken by Once at School’s direction. Once also disclaims all liability for any Third-Party Products.

7. Term and Termination

7.1 Term
.  Unless terminated earlier in accordance herewith, this Agreement will commence on the Effective Date and will continue for so long as there is an Order Form in effect (the “Term”).

7.2 Termination for Cause.  Either party may terminate this Agreement or any Order Form with immediate effect, in whole or in part, by giving the other party prior written notice, if the other party: (i) commits a material breach of any of its obligations under this Agreement or an Order Form, which breach is not cured within 30 days following receipt of written notice, or the parties agree (acting reasonably) cannot be cured within 30 days; (ii) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (iii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency laws; (iv) makes or seeks to make a general assignment for the benefit of its creditors; or (v) applies for or has appointed a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.  If School terminates this Agreement or and Order Form in accordance with this Section 7.2, Once will promptly refund to School a prorated portion of the Fees actually paid by School with respect to such terminated Order Form(s). The termination of this Agreement shall automatically result in the termination of all Order Forms.

7.3 Rights and Obligations Upon Expiration or Termination.  Upon expiration or termination of this Agreement, School’s and Authorized Users’ right to access and use the Services will immediately terminate and each will immediately cease all use of the Services.  

7.4 Survival. The rights and obligations of the parties contained in Sections 1, 3, 4, 5, 6, 7.3, 7.4, 8, 9 and 10 will survive any expiration or termination of this Agreement.

8. Indemnification

8.1 Indemnification by Once
.  Once shall indemnify, defend and hold harmless School and School’s officers, directors, employees, and agents (each, a “School Indemnitee”) from and against any and all Losses incurred by such School Indemnitee arising out of or relating to any claim, suit, action or proceeding (each, an “Action”) by a third party to the extent that such Losses arise from any: (i) allegation that School’s use of the Services (excluding School Materials) in compliance with this Agreement infringes a U.S. Intellectual Property Right (an “Infringement Claim”); (ii) Once’s breach of the DSA; (iii) Once’s breach of Section 5 or (iv) gross negligence or willful misconduct by Once in connection with this Agreement. Once’s obligations with respect to an Infringement Claim do not apply to the extent the Losses arise from: (a)  access to or use of the Services not in accordance with this Agreement; (b) modification of the Services other than by Once; (c)  failure to timely implement any modifications, upgrades, replacements or enhancements made available to School by or on behalf of Once; (d) portion or component of the Services made in whole or in part in accordance with School specifications; or (e) any combination of the Services with other products, processes or materials, unless the Infringement Claim would have arisen irrespective of such combination.

8.2 Mitigation. If the Services, or any portion thereof, is, or in Once’s opinion is likely to be, the Subject of an Infringement Claim, then Once may, at its option and expense: (i) obtain the right for School to continue to use the Services as materially contemplated by this Agreement; (ii) modify or replace the Services, in whole or in part, to seek to make the Services non-infringing; or (iii) by written notice to School, terminate this Agreement and require School to immediately cease any use of the Services, and provide to School a prorated refund of any prepaid Fees.


8.4 Indemnification by School. School shall indemnify, defend and hold harmless Once and each of its officers, directors, employees, and agents (each, a “Once Indemnitee”) from and against any and all Losses incurred by such Once Indemnitee in connection with any Action by a third party to the extent that such Losses arise out of or relates to any: (i) allegation that Once’s use of the School Materials in compliance with this Agreement infringes a U.S. Intellectual Property Right or violates the privacy or other rights of a third party (a “School Materials Claim”), (ii) any breach by School of Sections 2.2 or 2.3, (iii) School’s breach of Section 5 and (iv) gross negligence or willful misconduct by School or any Instructor in connection with this Agreement. School’s obligations with respect to School Materials Claim do not apply to the extent the Losses arise from: (a)  access to or use of the School Materials not in accordance with this Agreement; or (b) modification of the School Materials in a manner that is not permitted under this Agreement.

8.5 Process for Indemnity. The party seeking indemnification under this Section 8 (the “Indemnified Party”) will (a) provide the other party (the “Indemnifying Party”) with prompt written notice of any Action; (b) provide reasonable cooperation to the Indemnifying Party, at the Indemnifying Party’s expense, in the defense and settlement of such Action; and (c) give the Indemnifying Party the sole authority to defend or settle such Action, provided that it may not settle any Action in a manner that imposes any material liability upon the Indemnified Party or requires the Indemnified Party to admit wrongdoing unless the Indemnifying Party obtains the Indemnified Party’s consent (which consent may not be unreasonably withheld).

9. Limitation of Liability

9.1 Exclusion of Damages.  To the fullest extent permitted by law, neither School nor Once, nor their respective affiliates and suppliers, will be liable under this Agreement for indirect, special, incidental, consequential, exemplary, or punitive damages, even if the party knew or should have known that such damages were possible, even if a remedy fails of its essential purpose, and regardless of the type of action or theory of liability.

9.2 Total Liability.  To the fullest extent permitted by law, , neither party’s aggregate liability under this Agreement will exceed the Fees paid by School to Once during the twelve months prior to the event giving rise to liability.

10. General

10.1 Publicity
. Once will not issue, publish, disclose or release any information regarding its relationship with School or utilize any of School’s logos, trademarks, or service marks, or School’s name in any advertising, publicity, press release, presentation, or promotion without the express prior written consent of School, except that Once may list School as a School in written, oral and electronic materials which generally include the names of Once’s Schools without obtaining prior written consent.

10.2 Governing Law.  This Agreement will be governed by the laws of the State of California, without regard to its conflict of law provisions.  Any legal action or proceeding relating to this Agreement will be brought exclusively in the state or federal courts located in San Francisco, CA.  Once and School hereby agree to submit to the jurisdiction of, and agree that venue is proper in, those courts in any such legal action or proceeding.

10.3 Order of Preference.  In the event of a conflict between this Master Services Agreement, the DSA and an Order Form, the order of preference will be: (a) the DSA, then (b) the Order Form, then (c) this Master Services Agreement and then (d) any other exhibit to this Master Services Agreement.  

10.4 Waiver.  The waiver by either party of any default or breach of this Agreement will not constitute a waiver of any other or subsequent default or breach.  No waiver of any provision of this Agreement will be effective unless it is in writing and signed by the party granting the waiver.

10.5 Notices.  Notices will be sent to the addresses set forth in the Order Form (or such other address that is provided in accordance with this Section 10.5).  The notices will be deemed to have been given upon: (a) the date actually delivered in person; (b) the day after the date sent by overnight courier; (c) three (3) days following the date such notice was mailed by first class mail; or (d) the date sent by email.

10.6 Severability.  In the event any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement will remain in full force and effect.

10.7 Force Majeure.  Neither party will be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of money owed) on account of events beyond the reasonable control of such party, which may include without limitation denial-of-service attacks, strikes, shortages, riots, insurrection, fires, flood, storm, explosions, pandemics, acts of God, war, terrorism, governmental action, labor conditions, earthquakes, rolling blackouts, and internet connectivity disruptions.  

10.8 Relationship Between the Parties.  Once is an independent contractor of School and nothing in this Agreement will be construed to create a partnership, joint venture or agency relationship between the parties.

10.9 Assignment.  This Agreement shall inure to the benefit of each party’s successors and assigns. Neither party may assign its rights or obligations under this Agreement without the other party’s prior written consent. Notwithstanding the foregoing, either party may assign its rights and obligations under this Agreement without the other party’s consent to an Affiliate as part of a reorganization, or to a purchaser of its business entity, equity, or substantially all of its assets or business to which its rights and obligations under this Agreement pertain without the other party’s consent, provided that: (a) the purchaser is not insolvent or otherwise unable to pay its debts as they become due; and (b) any assignee is bound hereby. Other than the foregoing, any attempt by either party to transfer its rights or obligations under this Agreement will be void.

10.10 Entire Agreement.  This Agreement (including any exhibits hereto) constitutes the complete and exclusive agreement between the parties concerning its subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, concerning the subject matter of this Agreement.

10.11 Amendment.  This Agreement may not be modified or amended except in a writing signed by a duly authorized representative of each party.

10.12 No Third-Party Beneficiaries.  This Agreement is intended for the sole and exclusive benefit of Once and School and is not intended to benefit any third party. Only the parties to this Agreement may enforce it.