Terms of Service
THIS SERVICE AGREEMENT (the “Agreement“), is executed as of February 3rd, 2023 (the “Effective Date”), between you, your assigns, representatives, agents, and any intended recipient of the Services (as defined below) (the “Client“) and EduNational, LLC, a New York limited liability company with its principal office at 1131 State Rte 55, Suite #1, Lagrangeville, NY 12540 (the “Company“).
WHEREAS, the Company is in the business of offering certain language intervention and academic services (the “Services”) and the Client wishes to engage the Company for the receipt of said Services.
NOW, THEREFORE, the parties hereto agree as follows:
1. SERVICES, DUTIES, AND TERM.
1.1 Services. The Client hereby engages the Company, and the Company accepts such engagement, to provide the Services to the Client. The Client agrees and acknowledges that the Services are to be used by the intended recipient and any use of the Services by any person other than the intended recipient shall constitute a material breach of this Agreement, and that under no circumstances will the Company be liable for any Claim (as defined below) arising from or in connection with the use of the Services by any person other than the intended recipient.
1.2 Term of Engagement. Subject to termination under Section 3 below, this Agreement will be effective for an initial term of one (1) year, beginning on the Effective Date (the “Initial Term”). This Agreement will automatically renew for additional one (1) year periods (each a “Renewal Term”; the Initial Term and the Renewal Term are collectively referred to herein as the “Term”) upon the expiration of the then current Term, unless either party notifies the other party in writing no less than thirty (30) days prior to the expiration of such Term of its desire not to extend the Term for an additional period.
3.1 Termination by the Company. The Company may terminate this Agreement immediately if Client fails to timely pay Service Fees payable to the Company under this Agreement, and such failure is not fully remedied by Client within ten (10) days of Client’s receipt of written notice of such failure from the Company.
3.2 Termination by Either Party. Except for any default involving payment of money, either party may terminate this Agreement upon ten (10) days written notice to the other party setting forth a default of any material obligation of such party under this Agreement, if the defaulting party has not begun to cure such default within such ten (10) day period after receipt of written notice of such default, and thereafter diligently pursues the cure of such default.
4.1 Confidential Information. Client acknowledges from time to time he or she will be provided with certain information or services, from the Company, marked as “CONFIDENTIAL INFORMATION OF THE COMPANY” (“Confidential Information”). In recognition of the foregoing, the Client covenants and agrees:
(a) That it will keep secret all Confidential Information of the Company and not disclose any Confidential Information to anyone outside of the Company, either during or after its engagement with the Company, except with the Company’s prior written consent or as required by law;
(b) That it will not make use of any Confidential Information for its own purposes beyond the Scope of the Services, or the benefit of anyone other than the Company;
(c) That upon termination of the Term of this Agreement, at the Company’s request, or at any time the Company may otherwise request, it will return any Confidential Information to the Company; and
(d) That in the event that any Confidential Information is (i) released by the Client, or (ii) as a consequence of any actions taken or failed to be taken by the Client, such release shall be deemed to be a material breach of the terms of this Agreement unless the Client can show that the release was solely or substantially due to the actions of another party or parties, or that the Confidential Information had passed, at the time of release, into the public domain.
4.2 Enforcement. (a) If the Client commits a breach, or threatens to commit a breach, of any of the provisions of Section 4.1, the Company shall have the following rights and remedies, each of which shall be independent of the others and shall be severally enforceable, and all of such rights and remedies shall be in addition to, and not in lieu of, any other rights and remedies available to the Company under law or in equity: (i) The right and remedy to have such provisions specifically enforced by any court having equity jurisdiction, it being acknowledged and agreed that any such breach or threatened breach will cause irreparable injury to the Company and that money damages will not provide an adequate remedy at law; and in connection therewith the right to obtain, without notice to the Client and without the need to post any bond, a temporary restraining order, an injunction and any other equitable relief. Such right of injunctive relief shall be cumulative and in addition to whatever other remedies the Company may have at law or in equity, including the right of the Company to recover from the Client as set forth in Section 4.2(a)(ii) below; and (ii) The right and remedy to require the Client to account for and pay over to the Company all compensation, profits, monies, accruals, increments or other benefits (collectively “Benefits“) derived or received by him and/or anyone outside of the Company as the result of any transactions constituting a breach of any of the provisions of Section 4.1, and the Client hereby agrees to account for and pay over such Benefits to the Company.
(b) If any one, or any part, of the covenants contained in this Article is held to be unenforceable because of the duration of such provision or the area covered thereby, the parties agree that the court making such determination shall have the power to reduce the duration and/or area of such provision and, in its reduced form, said provision shall then be enforceable.
(c) The parties hereto intend to and hereby confer jurisdiction to enforce the covenants contained in this Article upon the courts of any state within the geographical scope of such covenants. In the event that the courts of any one or more of such states shall hold such covenants wholly unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect in the courts of any other states within the geographical scope of such covenants the Company’s right, to the relief for breaches of such covenants in such other states, the above covenants as they relate to each state being, for this purpose, severable into diverse and independent covenants.
4.3 Survival. The terms of Section 4.1 and 4.2 shall survive termination of this Agreement.
5. MISCELLANEOUS PROVISIONS.
5.1 Assignment. This Agreement shall not be assignable, in whole or in part, by the Client without the written consent of the Company. The Company may assign this Agreement at its sole discretion.
5.2 Governing Law. This Agreement is made under and shall be governed by and construed in accordance with the laws of the State of New York, without regard to the conflict-of-laws provisions thereof.
5.4 Successors. This Agreement shall extend to and be binding upon Client, his legal representatives, heirs, and distributees and upon the Company and its successors and assigns.
5.5 Amendments. The Company reserves the right to amend or modify this Agreement. Any such amendment and/or modification shall be considered effective upon the Company’s written notice to Client of such amendment or modification. No amendment or modification of this Agreement by the Client shall be effective unless in writing and signed by the parties hereto.
5.6 Waiver. No term or condition of this Agreement shall be waived, nor shall there be any estoppel to enforce any provisions of this Agreement, except by a statement, in writing, signed by the party against whom enforcement of the waiver or estoppel is sought. Any written waiver shall not be a continuing waiver unless specifically stated, shall operate only as to the specific term or condition waived, and shall not constitute a waiver of such term or condition for the future or as to any act other than specifically waived.
5.7 Severability. To the extent any provision of this Agreement shall be invalid or unenforceable, it shall be considered modified to the extent necessary to become valid and enforceable or, if such modification is impracticable, deleted from this Agreement; and the remainder of such provision and of this Agreement shall be unaffected and shall continue in full force and effect.
5.8 Headings. The section headings of this Agreement are solely for the convenience of reference and shall not control the meaning or interpretation of any provisions in this Agreement.
5.9 Notice. All notices required or permitted hereunder shall be in writing and may be personally delivered, or mailed by registered or certified mail, postage prepaid, or forwarded by any nationally recognized overnight courier service, to such address as may be from time to time designated by the respective parties. Notice shall be effective upon receipt.
5.10 Counterparts. This Agreement may be executed in one or more counterparts, each of which, when executed and delivered, shall be an original, but such counterparts shall together constitute one and the same instrument.
5.11 Gender. Words in the singular include the plural and in the plural include the singular and a reference to any gender includes other genders.
6.1 Indemnification by the Company. The Company hereby agrees to indemnify, defend and hold harmless Client and the Client’s successors and assigns from and against and in respect of any and all losses, damages, claims, liabilities, judgments, actions, suits, proceedings and costs and expenses of defense thereof, including reasonable attorneys’ fees, suffered or incurred by any such party by reason of or arising on account of the gross negligence of the Company.
6.2 Indemnification by the Client. The Client, hereby agrees to indemnify, defend and hold harmless the Company and its successors and assigns from and against and in respect of any and all losses, damages, claims, liabilities, judgments, actions, suits, proceedings and costs and expenses of defense thereof, including reasonable attorneys’ fees (“Claims”), suffered or incurred by the Company and the Company’s successors and assigns, by reason of or arising on account of (i) any breach by the Client of its agreements and covenants under this Agreement, including but not limited to Section 7.3, below, and/or (ii) any act or omission of Client save where arising out of gross negligence, or willful default of the Company.
6.3 Limitation of Liability. IN NO EVENT SHALL THE COMPANY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SERVICES, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES RESULTING FROM LOSS OF USE, DATA, OR PROFITS, WHETHER OR NOT THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ON ANY THEORY OF LIABILITY. THE COMPANY’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT, THE COMPANY’S WEBSITE, OR THE WEBSITE CONTENT, WHETHER IN CONTRACT, TORT, OR OTHERWISE, SHALL NOT EXCEED THE LESSER OF (I) FIFTY DOLLARS, OR (II) THE MINIMUM AMOUNT ALLOWED BY THE CONTROLLING JURISDICTION’S LAW.
7. INFORMED CONSENT.
7.1 Informed Consent. By voluntarily accepting below, the Client acknowledges that it has read, or has had read to them, and understands the terms of this agreement and the sensitive and confidential nature of the Services being provided to the Client by the Company. Further, by voluntarily signing below, the Client acknowledges its intent to have this consent cover the entire period of time during which Services are and after which the Services have been rendered to the Client by the Company.
7.2 Affirmation of Age. By voluntarily accepting below, the Client represents that either (i) the Client is at least eighteen (18) years of age, or, (ii) this Agreement has been read, understood, and accepted by a person of at least (18) years of age, with the undisputed legal power to act in such manner on behalf of the Client.
7.3 Disclaimer. I hereby confirm that no warranty, guarantee or other assurance has been made to me, covering the results of the Services, and I hereby release and hold harmless the Company, its officers, employees and agents from any consequences of the Services provided. I fully understand that the administration of the Services involves working with a unique individual and that therefore no specific results are guaranteed to be attainable and prior results with other clients are not indicative of what my results may or may not be. I understand that this consent is being given by me, voluntarily, in advance of any provision of Services.IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by the Company and the Client as of the Effective Date.