AGREEMENT FOR APP AND SUPPORT SERVICES
This Agreement for the Smithfield School App and Support Services (this “Agreement”) is made and entered into to be effective as of the latest date set forth on the signature lines below (the “Effective Date”), by and between PB and J Cincinnati LLC, DBA as mobleWorks, an Ohio limited liability company (“Developer”), and the undersigned school or school system located at the address set forth on the signature lines below (the “School System”).
Recitals. The School System desires to engage Developer to provid a web-based application (the “App”) to empower communication between schools, administrators, teachers, students and parents. In addition, the School System desires to engage Developer to provide ongoing support services to the School System during its use of the App.
Condition Precedent. The School System acknowledges that Developer’s ability to perform under this Agreement is dependent upon the School System providing pertinent documents, information and staff support. Each School System shall provide a single point of contact to populate the App with the required information specific to the School System. The School System shall provide all such information to the best of its ability, in a timely manner, upon Developer’s request. Failure to provide such information in a timely manner will delay the development and launch of the App and its use by the School System.
App Features. The individual users of the App will include the administrators, teachers, students and parents of the School System, who will download the App for free from either the Apple App Store or the Google Play Store. The App shall include the following functions and features:
- Incident reporting
- School System newsfeeds
- School System-wide announcements
- Directory of faculty and administration
- Search functions
- Security features
- Training on the App’s functions
Support Services. Developer will provide ongoing support services including e-mail-based technical support, maintenance, troubleshooting, encryption, updates, upgrades, enhancements, and regular training. Developer reserves the right to update and change the App from time to time without notice. Continued use of the App shall constitute the School System’s consent to such changes. Any new features that augment or enhance the App, including the release of new tools and resources, shall be subject to the terms of this Agreement.
Term. The initial term of this Agreement shall commence on the Effective Date and continue for three (3) years, unless earlier terminated as provided herein (the “Initial Term”). This Agreement shall automatically renew for an additional one-year term (each, a “Renewal Term”) unless either party provides written notice not to renew the Agreement at least sixty (60) days prior to the expiration of the Initial Term or such Renewal Term, as the case may be (the Initial Term and all Renewal Terms, if any, are referred to hereinafter, collectively, as the “Term”).
Fees. There shall be no initiation or set-up fees for creation, development and registration of the App. The School System shall pay Developer a regular subscription fee beginning on the first day of the first month after the App has become available for download on the Apple App Store and Google Play Store (the “Launch Date”). The School System shall pay Developer, in advance, as follows:
- $79 per month, due on the first day of each month during the Term;
- $237 per calendar quarter, due on the first day of each third month of the Term; or
- $948 per year, due on the Launch Date and each anniversary during the Term thereafter.
Termination of Agreement. The School System may terminate this Agreement immediately if Developer fails to resolve any material problems with the App within thirty (60) days after receiving written notice of such issues from the School System, and shall receive a refund prorated for the remaining days for which the School System had paid in advance.
Intellectual Property Rights.
The School System shall retain all intellectual property rights and all other ownership rights for all content populated to the App or otherwise provided to Developer for the development or support of the App. In addition, although Developer is the creator of the App, Developer agrees that the School System holds a non-exclusive license for the App developed on its behalf. By entering into this Agreement, the School System is agreeing to allow the administrators, teachers, students and parents of the School System to download and use the App. There is no limit to the number of downloads of the App. The School System may limit the use of the App to only those individuals affiliated with the School System.
Developer and its contractors shall retain all intellectual property rights and all other ownership rights for the design, software code, algorithms, structure and format of the App. The School System shall not duplicate, copy, modify, adapt, alter, translate, decompile, disassemble, reverse engineer, reuse or otherwise attempt to derive source codes (or the underlying ideas, algorithms, structure or format) as to any portion or design elements of the App without the express written consent of Developer.
Disclaimer of Warranties. Except as otherwise provided in this Agreement, the App and Developer’s support services are provided “as is” and with all faults, and Developer and its contractors specifically disclaim any and all warranties, either express or implied, including, but not limited to, implied warranties of non-infringement, merchantability, title and fitness for a particular purpose, or that the App or the support services will produce any level of benefit or cost-savings. Neither party will be liable to the other for any indirect, incidental, punitive, special or consequential damages, whether based in contract, tort or otherwise, even if the party has warned or been warned or is otherwise aware of the possibility of any such loss or damage. In no event shall Developer be liable for any amount in excess of the fees actually paid to Developer under Section 6 of this Agreement.
Limited Liability. Except for intentional misconduct or grossly negligent acts, in no case shall Developer or its directors, officers, employees, affiliates, agents, contractors, principals, owners or licensors (“Developer Parties”) be liable for any direct, indirect, incidental, punitive, special, or consequential damages arising from the School System’s use of the App, or an end user’s use of the App, or any other claim related in any way to use of the App by an end-user, including, but not limited to, any errors or omissions in any content, or 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 App, even if advised of their possibility. The School System hereby releases Developer and Developer Parties from any and all liability for any damage, harm or injury caused by or related to the App or downloading of the App or otherwise incurred by users of the App.
Confidential Information. Developer shall use such reasonable efforts (as Developer uses to protect its own confidential information) to protect the confidentiality of information populated on the App or otherwise submitted to Developer by the School System in connection with the development and use of the App.
The School System shall indemnify, defend and hold harmless Developer and Developer Parties from and against all losses, penalties, damages, fines, judgments, costs and expenses, including, without limitation, reasonable attorneys’ fees and costs, arising from any claims, lawsuits, threats, allegations and demands arising out of or relating to the School System’s breach of this Agreement, the School System’s use of the App, or any end-user’s use of the App; provided, however, that Developer provides prompt written notice to the School System of any such indemnified claim and fully cooperates with the School System in the defense of such claim.
Developer shall indemnify, defend and hold harmless the School System from and against all losses, penalties, damages, fines, judgments, costs and expenses, including, without limitation, reasonable attorneys’ fees and costs, arising from any claims, lawsuits, threats, allegations and demands arising out of or relating to Developer’s breach of this Agreement or Developer’s intentional misconduct or grossly negligent acts; provided, however, that the School System provides prompt written notice to Developer of any such indemnified claim and fully cooperates with Developer in the defense of such claim.
Notices. Any notice or other communication required or provided pursuant to this Agreement must be in writing and either delivered personally, sent by overnight delivery courier, or sent by certified or registered mail, postage prepaid, return receipt requested to the addresses listed on the signature page. Notice shall be deemed given when received.
Independent Contractor. It is expressly understood that the relationship between the parties hereto shall remain that of independent contractors, each responsible for its own actions and those of its employees. Each party is interested in the results obtained under this Agreement, and accordingly, the manner and means of conducting the work provided for in this Agreement are generally within independent judgment and control of each party. As independent contractors, each party shall be solely responsible for, and pay, all self-employment, income and other taxes or sums due any federal, state or local government on account of its relationship with the other party, and will execute an affidavit to that effect if and when requested.
Headings. The headings in this Agreement are for convenience of reference only and shall not limit or otherwise affect any of the terms or provisions hereof.
Governing Law; Jurisdiction; Venue. This Agreement and the rights and obligations of the parties hereto shall be governed by and construed and enforced in accordance with the laws of the State of Ohio without consideration of that State's conflicts of laws principles. The federal and state courts serving Hamilton County, Ohio shall have exclusive jurisdiction over all disputes arising under this Agreement. Developer and the School System each hereby irrevocably submit to the personal jurisdiction and venue of such courts.
Severability. If any provision of this Agreement is held to be illegal, invalid or unenforceable under present or future laws effective during the Term hereof, such provision shall be fully severable, and this Agreement shall be construed and enforced as if such illegal, invalid or unenforceable provision never comprised a part hereof; and the remaining provisions herein shall remain in full force and effect. Furthermore, in lieu of such illegal, invalid or unenforceable provision, there shall be added automatically as part of this Agreement a provision as similar in its terms to such illegal, invalid or unenforceable provision as may be possible and be legal, valid and enforceable.
Entire Agreement; Amendments. This Agreement supersedes all prior understandings, agreements and discussions between the parties concerning this subject matter, with such prior understandings, agreements and discussions between the parties being merged into this Agreement, and this Agreement constitutes the entire agreement between the parties with regard to this subject matter. The parties have not relied upon any promises, representations, warranties, agreements, covenants or undertakings, other than those expressly set forth or referred to herein. No amendment, change, waiver or discharge hereof shall be valid unless in writing and signed by the party against whom enforcement is sought.
Assignment; Successors. The School System shall not assign this Agreement without the prior written consent of Developer. This Agreement shall apply to and bind the heirs, successors, executors, administrators, and assignees of all of the parties hereto.
Waiver. Waiver of the benefit of any provision of this Agreement must be in writing to be effective. The waiver by any party hereto of a breach of any provision hereof shall not operate or be construed as a waiver of any subsequent breach. No action taken pursuant to this Agreement shall be deemed to constitute a waiver by such party of compliance by the other party hereto with any of the covenants or other obligations contained herein.
Presumption. This Agreement or any section hereof shall not be construed against any party due to the fact that said Agreement or any section thereof was drafted by said party.
Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which, when taken together, shall constitute one and the same document. Facsimile or e-mail transmission of executed signature pages shall be sufficient to bind the executing party.