NATIONAL CYBERSCHOOL PROGRAM AGREEMENT

1. The School District (the “District”) and National Cyberschool LLC (“Cyberschool”), are hereby entering into this Statement of Agreement (“Agreement”) whereby, by entering into a Quote Form referencing this Agreement, District has agreed to contract with Cyberschool to receive access to certain virtual education products through the Acellus Learning System, a learning management system (LMS) licensed to Cyberschool, along with associated support services, as more fully set forth herein (collectively “the Education Program”), said Education Program to be offered to Students through a District-operated online school (“School”).

Capitalized terms within the Agreement, not otherwise defined herein, have the meanings ascribed to them in the attached Exhibit A: Defined Terms.

1. a.

   Education Program. Provide the Curriculum which shall include, at a minimum, the following:

   1. i.

      Cyberschool standard Course offerings, including core (including grade appropriate mathematics, science, language arts, social studies) and elective subjects.

   2. ii.

      In accordance with the license terms set forth in Section 5 below, a license to use all required curricular and instructional materials that are part of Cyberschool’s standard offering, including lesson manuals, lesson videos and other instructional resources (collectively “Instructional Materials”).

2. b.

   Acellus Learning System Access.

   1. i.

      In accordance with the license terms set forth in Section 5 below, a license for the duration of the Term to access and use the Acellus technology platform, known as Acellus Learning System, for purposes of utilizing the Education Program.

   2. ii.

      Access will be provided to the Acellus Learning System, including the student information system, live class monitor, messaging system; and the ability to track Student educational progress.

3. c.

   Promotion via Cyberschool Website.

   1. i.

      Cyberschool will add District to its database so that Caretakers who are browsing the National Cyberschool Website (acellus.com/schools/nationalcyberschool) may request to enroll Student(s) into the Education Program.

   2. ii.

      Promotion via the Cyberschool Website does not guarantee or suggest that any Student or Students will necessarily request or be enrolled in the Education Program.

4. d.

   Technical Support Services.

   1. i.

      Provide technical support through live phone support to Teachers and Administrative Staff Monday-Friday 8:30 a.m. to 5:00 p.m. (CST), excluding holidays.

1. a.

   Oversight. The District shall be responsible for adopting any necessary policies to comply with state law in oversight of the School, enrollment procedures, and to promptly inform Cyberschool of any obligations or deficiencies in the School’s operations and to provide oversight of the Education Program in a manner that fully implements the Education Program as designed by Cyberschool.

2. b.

   Abide by Established Protocols, Policies and Procedures. Abide by all Cyberschool established protocols, policies and procedures in connection with the Education Program. The District shall not impose any additional enrollment requirements, academic obligations, or communication protocols on Students or Caretakers beyond those inherent in the Cyberschool Education Program and District’s standard enrollment process for all students, unless expressly approved in writing by Cyberschool or required by applicable law.

3. c.

   Diplomas. Grant diplomas based on attainment of minimum requirements for graduation with a School diploma.

4. d.

   Enrollment. Enroll each Student into the School in accordance with local, state, and federal law.

5. e.

   Reporting. File all information directly with the State, or other regulatory authorities associated with the operation of the School, as required by any applicable state or federal law, regulation, or requirements. In correlation with the District’s reporting responsibilities, the District shall seek to report all Students for all funding sources for which such Students are eligible in the same manner as the District reports and receives money for other students enrolled in the District.

6. f.

   Standardized Testing Administration. The District shall be responsible for administering any required standardized tests at its own cost, including all State required testing and other State mandated assessments.

7. g.

   Teacher of Record. The District shall be responsible for the operation and integrity of the Education Program (“School Operations”), including the recruitment and employment of licensed and/or credentialed teachers in accordance with state law. School Operations shall be carried out in accordance with federal and state law.

8. h.

   Provision of Computer Technology for Students. The District may, in its sole discretion and at its own expense, make available to the Students, Computer Technology for each eligible Student who is enrolled, or to a household, if more than one Student in a household is Enrolled.

9. i.

   Counseling and Related Services. Make available academic counseling and other related services to Students, including assisting in the development of protocols and providing consultative support in connection therewith.

10. j.

    Services to Students with Disabilities. It is the responsibility of the District to ensure that the Education Program complies with the requirements of the Individuals with Disabilities Education Improvement Act of 2004 (“IDEA”) and any and all state and federal regulations promulgated in connection therewith with respect to each Student. To that end, the District will provide all Special Education Services in a manner that complies with state and federal law.

    1. i.

       Admission Process/Procedure. To ensure that the needs of Students with Disabilities are met, the District is responsible for obtaining the most recent IEP or Section 504 Plan for any Student with Disabilities and evaluating any Student with Disabilities for compatibility with the Education Program and their IEP or Section 504 Plan.

11. k.

    English Language Learners. At its sole cost, the District shall provide resources and support for Students who are English language learners (“ELLs”) designed to enable ELLs to acquire sufficient English language proficiency to participate in a mainstream English language instructional program.

12. l.

    Attendance. Reviewing and verifying attendance is the sole responsibility of the District. The District shall maintain such records as are required to comply with all attendance rules and apportionment requirements specified by applicable law.

13. m.

    District Administrator. The District shall designate one individual who shall serve as District Administrator, and shall be the primary interface with Cyberschool staff, for the provision of services under this Agreement.

14. n.

    Repository of School Records. The District shall be the official repository of all Permanent Student Records and other permanent School records required by law.

15. o.

    Caretaker Course Selection Rights. Caretakers shall retain the right to select specific Courses from all Cyberschool standard offerings for their Students. The District may not withhold Courses from a Student except as required by applicable local, state, or federal law (e.g., for credit requirements or special needs accommodations).

1. a.

   License to Access the Acellus Learning System and Instructional Materials. Cyberschool hereby grants to the District a non-exclusive, nontransferable, royalty-free, limited license during the Term of the Agreement for Authorized Users to access and use the Acellus Learning System and the Content and Instructional Materials contained in the Acellus Learning System in connection with the receipt of Educational Products and Services hereunder (collectively the “Licensed Collateral”). The Authorized Users right to access and use the Licensed Collateral is solely for the intended purpose for which such access is granted and is subject to the Intellectual Property provisions set forth in Sections 11 and 12 below. Cyberschool, or its partners, may update the features and functions of the Acellus Learning System from time to time. Any right to use the Content and Instructional Materials shall be solely for the applicable Course for which a Student is Enrolled, or that an Authorized User is otherwise authorized to access.

2. b.

   Standard Acellus Terms of Use. Additionally, District agrees to be bound by and accept the Terms of Use governing use and access to the Acellus Learning System. In the event of any conflict between the provisions in the Terms of Use and this Agreement, this Agreement shall control.

Neither Cyberschool nor the District will discriminate against any person on the basis of race, creed, color, sex, national origin, religion, ancestry, sexual orientation or disability, or any other basis prohibited by federal or state law.

1. a.

   Payments. During the Term, the District shall pay Cyberschool the fees as set forth in the applicable Quote Form provided by Cyberschool and accepted by the District (the “Quote”). The Quote specifies the per-Student fee per month unless another pay period is specified in the Quote and any other applicable charges. Cyberschool reserves the right, in its sole discretion, to modify or adjust the fees (including the per-Student fee) effective at the beginning of each subsequent school year. Any such modified fees shall apply automatically upon renewal of the Term unless the Agreement is terminated prior to the renewal date.

2. b.

   Invoicing.

   1. i.

      Cyberschool shall invoice the District monthly for any and all Students whose accounts in the Cyberschool Learning System were Enrolled at any time during the prior month. The amount of the invoice shall equal the then-current per-Student fee (as set forth in the then-applicable Quote or as modified pursuant to Section 8(a)), multiplied by the number of such Students. The District shall remit payment to Cyberschool for these invoices within thirty (30) days of receipt. The Parties may establish alternate payment arrangements by mutual agreement. In no event shall failure by Cyberschool to invoice the District constitute an abrogation of the District’s obligation to make payment to Cyberschool as provided for in Section 8(b).

   2. ii.

      Cyberschool may charge interest at the rate of one-half percent (0.5%) per month for any invoices paid more than thirty (30) days after the date of the invoice, unless such failure to pay is the result of: (i) funds being withheld from the District due to a failure by Cyberschool to perform under the terms of this Agreement; or (ii) the District disputes any charges. The District shall notify Cyberschool of any dispute, and the basis for any dispute within five (5) days of receipt of the invoice, and shall work to resolve the dispute within thirty (30) days. All amounts other than any amounts in dispute shall be paid according to the terms herein.

3. c.

   Termination of District’s Payment Obligations. The funding for Cyberschool shall constitute a current expenditure of the District. The District’s funding obligation under this Agreement will be from year-to-year only, and shall not constitute a multiple fiscal year direct or indirect debt, or other financial obligation of the District. The District’s obligation to fund Cyberschool shall terminate upon non-appropriation of funds for that purpose by the State for any fiscal year, any provision of this Agreement to the contrary notwithstanding.

4. d.

   Sales Tax. The District shall provide Cyberschool with documentation evidencing the District’s tax-exempt status. To the extent that the District is not tax exempt, the District shall be responsible for federal, state, or local taxes assessed, if any, based on the Educational Products and Services provided to the District under this Agreement.

Each Student (or each household as applicable) shall be required to have access to the Internet for a sufficient amount of time to complete the instructional program (including assignments, online communication, research and access to supplemental online resources).

1. a.

   Limitations on Use. The Cyberschool Learning System and all technology, software, programs, services, and materials hosted thereon, the Curriculum, all tangible and intangible education materials, all trademarks and copyrighted works contained therein or otherwise provided by Cyberschool are the intellectual property of Cyberschool or its Affiliates or licensors. The District’s right to use and benefit from said intellectual property is limited to its license rights set forth in this Agreement and shall terminate automatically with the termination or expiration of the Agreement.

2. b.

   No Sale. Nothing in this Agreement shall be interpreted to be a sale or transfer of ownership interest in Intellectual Property from Cyberschool or its affiliates.

3. c.

   No Use of School Funds to Develop or Procure. No School funds shall be used by Cyberschool or its affiliates to develop or procure Courses or Content or Instructional Materials or improvements to the Acellus Learning System, provided, however, any District funds paid to Cyberschool for provision of the Educational Products and Services hereunder, once paid, shall not be deemed to be School funds.

4. d.

   Derivative Works. Any works created by the School Staff which are derived from or otherwise based on Cyberschool’s Intellectual Property shall be deemed the property of Cyberschool, and the School agrees to extend all reasonable and appropriate measures to assist Cyberschool in securing and perfecting its ownership interest in such derivative works.

5. e.

   Aggregated Data. Student specific data, including corresponding Caretaker data, is the property of the District, Student and/or the Caretaker (“Student Information”), Cyberschool will not use any such District owned Student Information for any non-school related purpose except for the performance of its responsibilities as provided hereunder. Cyberschool may freely aggregate School owned Student Information so long as such aggregated use does not reveal identifying characteristics that would enable a third party to determine the identity of any individual Student, including the Student’s Caretaker. All such aggregated data shall be the property of Cyberschool and District hereby consents to Cyberschool identifying its source as being the District.

1. a.

   Confidential Information. The receiving party shall use the Confidential Information of the disclosing party only in connection with the furtherance of the business relationship between the parties, and the receiving party shall make no further use, in whole or in part, of any such Confidential Information. The receiving party agrees not to disclose, deliver or provide access to all or any portion of the disclosing party’s Confidential Information to a third party or to permit a third party to inspect, copy, or duplicate the same. The receiving party will disclose Confidential Information only to its employees and agents who have a need to know such Confidential Information in connection with the performance of the Agreement and who are under a written obligation to protect the confidentiality of such Confidential Information. The receiving party will treat the Confidential Information with the same degree of care and confidentiality that the receiving party provides for similar information belonging to the receiving party that the receiving party does not wish disclosed to the public, but not less than holding it in strict confidence.

2. b.

   Protection of Student Records. The Parties acknowledge and agree that under state law and under 20 U.S.C. 1232g, the Family Educational Rights and Privacy Act (“FERPA”), and including any regulations promulgated thereunder, each Party has certain obligations with regard to maintaining the security, integrity and confidentiality of “education records,” as that term is defined by FERPA, and not rereleasing to third parties who are not authorized under FERPA, and that have no legitimate educational interest for access to Student Records. The Parties (including the District, Cyberschool, and the School) shall each designate their respective staff volunteers and third-party providers who are providing any educational or administrative services to the Student, as agents of the District and have a legitimate educational interest, shall each be entitled to access to educational records related to the applicable Student. The Parties agree that they shall perform their obligations under this Agreement in compliance with FERPA, and any regulations promulgated thereunder. The Parties shall also maintain Student Records in accordance with any other applicable state, local and federal laws and regulations, including District’s responsibility with respect to Permanent Student Records as provided above.

3. c.

   Exceptions. The foregoing restrictions shall not prevent the receiving party from disclosing Confidential Information that must be disclosed by operation of law, provided, to the extent permitted by law: (i) the receiving party shall promptly notify the disclosing party of any such request for disclosure in order to allow the disclosing party full opportunity to seek the appropriate protective orders; and (ii) the receiving party complies with any protective order (or equivalent) imposed on such disclosure. It is understood and agreed that this section 10.c is not intended to permit the disclosure of education records referenced in 10.b, unless permitted by applicable law.

4. d.

   Return of Confidential Information. Except for Student Records, which is addressed in subsections 10.b and 10.c above, the receiving party agrees that it will, within ten (10) days after written request by the disclosing party, return to the disclosing party, or at the option of the disclosing party, destroy and certify in writing the destruction of, all Confidential Information received from the disclosing party, including copies, reproductions, electronic files or any other materials containing Confidential Information.

5. e.

   Remedy for Breach. The parties acknowledge that monetary damages may not be a sufficient remedy for unauthorized disclosure of Confidential Information and that a disclosing party shall be entitled, without waiving any other rights or remedies, and without the posting of bond or other equity, to such injunctive or equitable relief as may be deemed proper by a court of competent jurisdiction.

The Parties recognize that Cyberschool and its Affiliates have invested substantial money and resources in developing a nationally recognized virtual education program under the “Acellus” brand, as well as “National Cyberschool” and other related trademarks. Therefore, Cyberschool has inherent interest in protecting the goodwill generated in correlation therewith, as well as the academic integrity of the Education Program. The Parties also recognize that the District has vested interest in Cyberschool protecting such goodwill, as well as the academic integrity of the Education Program in relation with its mission to advance the education interests of its Students. Accordingly, as part of its responsibilities, Cyberschool is hereby authorized to perform ongoing and periodic reviews of School records documenting the manner in which the Program is delivered to Students, including documentation of interaction between Teachers and/or Administrative Staff with Students, and Caretakers.

This Agreement will begin on the date the District approves this agreement or an associated quote and remain in effect for a one (1) year term, which shall renew automatically unless terminated by either party.

1. a.

   Termination. Either party may terminate this Agreement at any time, with or without cause, immediately upon written notice to the other party. Cyberschool reserves the right at any time, and from time to time, to discontinue, temporarily or permanently, the Education Program, the Acellus Learning System, or any part thereof, or terminate the District’s or any Authorized User’s access to the Acellus Learning System or any part thereof. Cyberschool may also modify, delete, or adapt the Acellus Learning System, Curriculum, or Instructional Materials at any time without any notice or obligation to the District at Cyberschool’s sole discretion. The District’s and Authorized Users’ right to access and use the Acellus Learning System and Licensed Collateral is automatically terminated if the District or any Authorized User violates the terms of this Agreement. The parties agree that neither party will be liable to the other or any third party for any modification, suspension, discontinuation, or termination of the Education Program or any part thereof, provided that such action is taken in accordance with this Section. Upon termination for any reason of the District’s right to access and use the Education Program, the District must immediately cease all use of the Education Program. All provisions of this Agreement regarding limitation and disclaimer of warranties, limitation of liability, Cyberschool’s ownership rights, and the District’s representations and indemnities shall survive termination.

2. b.

   Effect of Termination. Upon termination of the Agreement, except as expressly provided otherwise in this Agreement, (i) all rights, licenses, consents, and authorizations granted by either party to the other will immediately terminate; (ii) the District shall immediately cease all use of any Services provided by Cyberschool; and (iii) Cyberschool will immediately disable all access to the Services provided to the District.

3. c.

   Post-Termination Student and Caretaker Relationships. In the event this Agreement is terminated by either party for any reason:

   1. i.

      The Parties acknowledge and agree that each Caretaker and Student shall have an unrestricted right to pursue their education following any termination of this Agreement, including to pursue education solely with the District or through Cyberschool or its Affiliate’s programs, to the extent permitted by applicable State law, without interference from the other party.

   2. ii.

      Cyberschool or its Affiliates shall have the unrestricted right to contact any Caretaker and to re-enroll any Students previously enrolled in the Education Program through another partnering district, school, or directly via Cyberschool’s or its Affiliate’s own programs (including but not limited to Acellus Academy or equivalent offerings), without any obligation to the District.

   3. iii.

      Nothing in this subsection shall authorize Cyberschool to access, use, or disclose protected Student Records or personally identifiable information in violation of FERPA, state law, or Section 10 of this Agreement. Cyberschool may rely on aggregated/de-identified data (per Section 10.e.) and any non-confidential contact information obtained through lawful means (e.g., via the Cyberschool Website promotion in Section 3.c.).

1. a.

   Indemnification Obligations. To the extent permitted by applicable law, each party shall defend, indemnify, save and hold harmless the other party, its Affiliates, Parent, subsidiaries and its respective directors, officers, agents and employees (together “Indemnified Party”) against and from any and all claims, actions, liabilities, costs, expenses, damages, injury or loss (including reasonable attorney’s fees) made, brought, incurred, or alleged by any third party (“Claim”) to which the indemnified Party, its Affiliates and their respective directors, officers, agents and employees may be subject to liability by reason of any wrongdoing, misconduct, negligence, willful misconduct or default by the indemnifying Party, its agents, employees, subcontractors, or assigns in connection with the performance of this Agreement. This indemnification, defense and hold harmless obligation on behalf of Indemnifying Party shall survive the termination of this Agreement.

2. b.

   Indemnification Procedure. The Indemnified Party will: (a) promptly notify the Indemnifying Party in writing of any claim, loss, damages, liabilities and costs, and for third party claims; (b) allow the Indemnifying Party to control the defense; and (c) reasonably cooperate with the Indemnifying Party in the defense and any related settlement negotiations. In addition to any defense provided by the Indemnifying Party, the Indemnified Party may, at its expense, retain its own counsel. If the Indemnifying Party does not promptly assume the Indemnified Party’s defense against any third-party claim, the Indemnified Party reserves the right to undertake its own defense at the Indemnifying Party’s expense.

In no event will either party, or such party’s Affiliates, directors, officers, employees, or agents, be responsible or liable for the debts, acts or omissions of the other party or such party’s Affiliates, directors, officers, employees or agents. Absent intentional misconduct or omission, in no event shall Cyberschool’s cumulative liability under this Agreement exceed the amount paid by District to Cyberschool in the twelve (12) months preceding occurrence of the incident giving rise to such liability.

All notices under this Agreement will be in writing and will be deemed given upon: (a) personal delivery; (b) the second business day after certified mailing; (c) the second business day after sending by facsimile; or (d) the second business day after sending by email. Notices to us will be addressed to the attention of our representative, as listed on the Quote Form. Notices to you will be addressed to the attention of the person signing the Quote Form for you.

THE AGREEMENT AND THESE STANDARD TERMS AND ANY SALE HEREUNDER WILL BE GOVERNED BY THE LAWS OF THE STATE OF MISSOURI, WITHOUT REGARD TO CONFLICTS OF LAWS RULES. MISSOURI LAW SHALL APPLY TO ANY AND ALL CLAIMS, WHETHER ARISING OUT OF TORT OR CONTRACT.

ANY AND ALL CLAIMS, WHETHER ARISING OUT OF TORT OR CONTRACT, MUST BE BROUGHT IN JACKSON COUNTY, MISSOURI. CUSTOMER CONSENTS TO THE JURISDICTION OF THE FEDERAL AND STATE COURTS LOCATED IN JACKSON COUNTY, MISSOURI. CUSTOMER SUBMITS TO THE JURISDICTION THEREOF AND WAIVES THE RIGHT TO CHANGE VENUE. CUSTOMER FURTHER CONSENTS TO THE EXERCISE OF PERSONAL JURISDICTION BY ANY JACKSON COUNTY COURT WITH RESPECT TO ANY SUCH PROCEEDING. ARBITRATION BROUGHT IN CONFORMITY WITH SECTION 20 OF THESE STANDARD TERMS SHALL ALSO BE VENUED AND CONDUCTED IN JACKSON COUNTY, MISSOURI.

YOU AGREE THAT REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO USE OF THE CYBERSCHOOL EDUCATION PROGRAM, OR ANY PART THEREOF, OR THESE STANDARD TERMS MUST BE FILED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE OR BE FOREVER BARRED.

THIS CONTRACT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE ENFORCEABLE BY THE PARTIES.

1. a.

   NOTWITHSTANDING ANY PROVISION IN THIS AGREEMENT TO THE CONTRARY, THE DISTRICT SHALL HAVE THE RIGHT TO OPT OUT OF THE ARBITRATION REQUIREMENTS SET FORTH IN THIS SETION 21 BY PROVIDING WRITTEN NOTICE TO CYBERSCHOOL WITHIN TEN (10) DAYS AFTER THE EFFECTIVE DATE OF THIS AGREEMENT. SUCH NOTICE SHALL BE DEEMED VALIDLY GIVEN BY FORMAL WRITTEN NOTICE BY PERSONAL DELIVERY OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO CYBER SCHOOL’S NOTICE ADDRESS. THE OPT-OUT NOTICE SHALL CLEARLY STATE THE DISTRICT’S INTENTION TO OPT OUT OF THE ARBITRATION REQUIREMENTS. CYBERSCHOOL SHALL HAVE THE RIGHT TO TERMINATE THIS AGREEMENT THEREAFTER AT ANY TIME UPON WRITTEN NOTICE.

2. b.

   Any claim, dispute, or controversy (whether arising out of contract, tort, statute, common law or otherwise; and whether preexisting, present or future) arising from or relating to this Agreement, or the breach thereof, that cannot be settled amicably by the parties, except for any claim for injunctive relief pertaining to a party’s use, misappropriation, or disclosure of the Cyberschool Educational Program (including the Acellus Learning System), Student Data, or Confidential Information, shall be settled by arbitration (the “Arbitration”). This arbitration provision is bilateral and applies equally to all parties to this Agreement.

3. c.

   The Agreement shall be governed by and interpreted in accordance with the laws of the State of Missouri. The Arbitration proceedings, however, will be administered by the American Arbitration Association (“AAA”) in accordance with its Commercial Arbitration rules, which you can find at www.adr.org. To the extent the applicable AAA rules conflict with this Agreement, this Agreement shall be binding.

4. d.

   This binding arbitration provision means all Claims will be resolved by a neutral arbitrator rather than a judge or jury. You should be aware that normal court procedures and rules may not apply. Additionally, your right to appeal may no longer exist or may be significantly limited.

5. e.

   Before engaging in Arbitration, all parties shall engage in good-faith efforts to resolve any claim or controversy. To this effect, they shall consult and negotiate with each other in good faith and, recognizing their mutual interests, attempt to reach a just and equitable solution satisfactory to both parties. If they do not reach such solution within a period of 60 days, then, upon notice by either party to the other, all disputes, claims, questions, or differences shall be finally settled by Arbitration.

6. f.

   The Arbitration shall be governed by the following rules: a) The Arbitration hearings shall be held in Jackson County, Missouri; b) The dispute shall be heard and determined by a single arbitrator (the “Arbitrator”) who shall be selected in accordance with the AAA’s Commercial Arbitration Rules; c) Each party will bear its own cost of any legal representation, discovery or research required to complete arbitration (all AAA fees will be divided evenly); d) The Arbitrator shall make his or her award in writing within two months of the start of the Arbitration – or within such time-period as agreed to in writing by the parties hereto; and f) The decision of the Arbitrator shall be final, conclusive, and binding upon the parties hereto. A judgment of any court having jurisdiction may be entered upon the Arbitration award.

7. g.

   Neither we nor you will have the right to litigate any Claim subject to this binding arbitration provision in court or to have a jury trial on that Claim or to engage in pre-arbitration discovery, except as provided for in the applicable arbitration rules or by agreement of the parties. Further, you will not have the right to participate as a representative or member of any class of claimants pertaining to any Claim. Any court having jurisdiction may enter judgment on the award rendered by the arbitrator(s). The existence or results of any arbitration will be treated as confidential.

8. h.

   All claims or controversies pertaining to the collection of amounts due to us arising out of sales hereunder may be litigated in court rather than through arbitration.

9. i.

   In a dispute involving $25,000 or less, the dispute shall be resolved by the submission of documents and no hearing shall be held. If the arbitrator determines there is good cause for a hearing, it shall occur telephonically unless the arbitrator decides otherwise.

10. j.

    Delegation Provision. An arbitrator shall have exclusive authority to resolve any dispute relating to the Agreement’s enforceability including any claim that all or any part of this Agreement is void or voidable.

11. k.

    Severability Clause. In the event any portion of this Arbitration agreement is found void or invalid, the remaining section shall survive and remain binding.

1. a.

   Successors and Assigns. The terms and provisions of this Agreement shall be assignable by either party only with the prior written permission of the other, which consent shall not be unreasonably withheld; provided that a change in control of Cyberschool or its managing member, notice of which shall be provided by Cyberschool to the District, shall not be deemed a violation of this agreement.

2. b.

   Complete Agreement; Modification and Waiver. This Agreement constitutes the entire agreement between the parties with respect to the matter contained herein and supersedes all prior and contemporaneous agreements, warranties and understanding of parties. There are not agreements, representations or warranties of any kind except as expressly set forth in this Agreement. No supplement, modification or amendment of this Agreement shall be binding unless executed in writing by both parties. No waiver of any provision of this Agreement will be effective unless it is in writing and signed by the party to be charged with such modification, and not such waiver will constitute a waiver of any other provision(s) or of the same provision on another occasion.

3. c.

   Force Majeure. If any circumstance should occur that is not anticipated or is beyond the control of a party or that delays or renders impossible or impracticable performance as to the obligations of such party, the party’s obligation to perform such services shall be postponed for a period equal to the time during which such circumstance shall extend, or, if such performance has been rendered impossible by such circumstance, shall be cancelled.

4. d.

   No Third party Rights. This Agreement is made for the sole benefit of the parties. Except as otherwise expressly provided, nothing in this Agreement shall create or be deemed to create a relationship among the parties or any of them, and any third party, including a relationship in the nature of a third party beneficiary or fiduciary.

5. e.

   Professional Fees and Expenses. Each party shall bear its own expenses for legal, accounting, and other fees or expenses in connection with the negotiation of this Agreement.

6. f.

   Counterparts. This Agreement may be signed in counterparts, which shall together constitute the signed original Agreement.

7. g.

   Compliance with Laws, Policies, Procedures, and Rules. Each party will comply with all applicable federal and state laws and regulations including all of the specific requirements of applicable local ordinances whether or not specifically listed in this Agreement.

8. h.

   Interpretation of Agreement. The parties hereto acknowledge and agree that this Agreement has been negotiated at arm’s length and between parties equally sophisticated and knowledgeable in the subject matter dealt with in this Agreement. Accordingly, any rule of law or legal decision that would require interpretation of any ambiguities in this Agreement against the party that has drafted it is not applicable and this Agreement shall be interpreted in a reasonable manner to affect the intent of the parties as set forth in this Agreement.

9. i.

   Headings; Exhibits. The section headings contained herein are for convenience only and shall not in any way affect the interpretation or enforceability of any provision of this Agreement. All schedules and exhibits to this Agreement are incorporated herein and shall be deemed a part of this Agreement as fully as if set forth in the body hereof.

10. j.

    Electronic Signatures. This Agreement and related documents may be accepted in electronic form (e.g., by scanned copy of the signed document, an electronic or digital signature or other means of demonstrating assent) and each party’s acceptance will be deemed binding on the parties. Each party acknowledges and agrees that it will not contest the validity or enforceability of this Agreement and related documents, including under any applicable statute of frauds, because they were accepted or signed in electronic form. Each party further acknowledges and agrees that it will not contest the validity or enforceability of a signed scanned PDF for facsimile copy of this Agreement and related documents on the basis that it lacks an original handwritten signature. Facsimile and scanned PDF signatures shall be considered valid signatures as of the date hereof. Computer maintained records of this Agreement and related documents when produced in hard copy form shall constitute business records and shall have the same validity as any other generally recognized business records. The District’s acceptance via clickwrap (e.g., by clicking an ‘I Agree’ or similar button on an Cyberschool quote form) shall constitute a valid electronic signature under this section and applicable law.

11. k.

    Status and Relationship of the Parties. Cyberschool is a Missouri limited liability company that is wholly owned subsidiary of a non-profit corporation organized under the laws of Missouri, and is not a division or a part of the District. The District is an independent government body authorized by the State and is not a division or part of Cyberschool. The Parties intend that the relationship created by this Agreement is that of an independent contractor and not employer-employee. Except as expressly provided in this Agreement, no agent or employee of Cyberschool shall be deemed to be an agent or employee of the District. Cyberschool shall be solely responsible for its acts and the acts of its agents, employees and subcontractors, and the District shall be solely responsible for its acts and the acts of its agents, employees and subcontractors. The relationship between Cyberschool and the District is based solely on the terms of this Agreement, and the terms and conditions of any other written agreement between Cyberschool and the District.

Administrative Staff

“Administrative Staff” means any and all individuals employed by or otherwise providing services for or on behalf of the education program operated by the School.

Affiliates

“Affiliates” means any entity controlling, controlled by or under common control with another entity. With respect to Cyberschool, Affiliate shall also include its partners and suppliers. For the purposes of this definition, “control” means the possession, directly or indirectly, of the power to direct the management and policies of an entity whether through the ownership of voting securities, registered capital, contract or otherwise.

Authorized Users

“Authorized Users” shall mean the Students, Caretakers, Teachers, Administrative Staff, and District personnel who are authorized to access the Cyberschool Learning System, the Content, Instructional Materials and Courses pursuant to the terms of this Agreement.

Caretaker

“Caretaker” shall mean the parent(s), legal guardian(s) or another individual designated by a parent or legal guardian as a Student’s Caretaker.

Confidential Information

“Confidential Information” shall mean proprietary business, technical and financial information of each of the parties, including for example and without limitation, each party’s respective information concerning: (a) business strategy and operations such as business plans, methods, marketing strategies, outreach plans and sales information, pricing information and customer and project lists, the identities and locations of vendors and consultants providing services or materials to or on behalf of the disclosing party; (b) product development such as product designs and concepts; (c) financial information such as budget and expense information, economic models, pricing, cost and sales data, operating and other financial reports and analysis; (d) human resource information such as compensation policies and schedules, employee recruiting and retention plans, organization charts and personnel data; (e) unpublished educational content, curriculum, teaching outlines, lesson plans, testing processes and procedures; (f) Student Records and other student-related or parent-related personal information; (g) the terms of this Agreement; (h) login and password information for the Acellus Learning System; (i) technical information such as development methods, computer software, research, inventions, the design and operation of the Acellus Learning System; and (j) other similar non-public information that is furnished, disclosed or transmitted to the receiving party or to which the receiving party is otherwise given access by the disclosing party, orally, in written form, in any type of storage medium, or otherwise. Confidential Information, in whatever form provided, shall remain the exclusive property of the disclosing party at all times, and the parties hereby acknowledge and agree that all such Confidential Information of a party are its trade secrets. Except as specifically provided for herein, nothing contained in this Agreement shall be construed as granting or conferring any rights in any Confidential Information disclosed to the receiving party, by license or otherwise.

Acellus Learning System

“Acellus Learning System” means the website or Educational Management System (also sometimes referred to as Learning Management System, EMS or LMS) with the URL http://www.Acellus.com, or such other URL as Cyberschool or its Affiliates may designate from time to time, through with Authorized Users access Acellus Content via a secure, password protected website. The features and functions of the Acellus System may be modified and/or updated from time to time. Access to Acellus is governed by the Terms of Use

Content

“Content” means the components of a Course (as each is defined below) licenses, distend, developed, owned or provided by Cyberschool and its third party content partners and delivered in an online format through the Acellus Learning System (as defined above) or in an offline format (textbooks and other materials) to teach students in various subjects in grades K-12 and/or to deliver resources in connection with the Services (defined below). Content may include the courseware, data, documentation, text, audio, video, graphics, animation, drawings, programming, icons, images, pictures and charts, tutorials and live sessions. Cyberschool reserves the right to add Content, withdraw Content, modify and/or offer substitute Content, in its sole discretion, provided that the School will receive reasonable notification concerning any substitution or withdrawal that is substantial.

Course(s)

“Course(s)” shall be comprised of a set of lessons and assessments, including Instructional Materials, that, together with District provided additions and/or modifications, shall meet the educational content or other standards established by the State in order to be recognized for high school credit in grades 9-12 and/or for meeting educational requirements in grades K-8, as the case may be.

Curriculum

“Curriculum” means a program of instruction provided by Cyberschool, which includes Content and Instructional Materials accessed primarily through the learning management system, that, together with District provided additions and/or modifications, shall meet the educational content or other standards established by the State in order to be recognized for high school credit in grades 9-12 or for meeting educational requirements in grades K-8.

Derivative Works

“Derivative Works” include any translation, editorial revision, annotation, elaboration, or other modification, correction, addition, enhancement, extension, condensation, upgrade, improvement, compilation, abridgment or other form in which the Content or Instructional Materials or other Licensed Collateral may be recast, transformed or adapted, including but not limited to all forms in which such Derivative Works may or may not infringe any of the copyrights in the Content or Instructional Materials.

District Administrator

“District Administrator” shall mean a staff person employed by the District who shall administer and monitor the performance of Cyberschool as specified in this Agreement and provide other such services identified in Section 4.

FERPA

“FERPA” means the Family Educational Rights and Privacy Act, 20 U.S.C. § 1232 (g), as amended from time to time.

Intellectual Property

“Intellectual Property” means collectively, rights under patent, trademark, copyright and trade secret laws, and any other intellectual property or proprietary rights recognized in any country or jurisdiction worldwide, now or in the future, including but not limit to, moral rights, industrial designs rights and similar rights, and shall in all cases include Marketing Leads and materials and other related collateral developed by Cyberschool, regardless of whether such data, materials and collateral are developed specifically for the School.

Licensed Collateral

“Licensed Collateral” shall mean the Acellus Learning System and all technology, programs, services, and materials hosted there on to which Customer is granted access, the Curriculum, all tangible and intangible education materials and other proprietary and copyright protected works to which Customer is granted a right of use (whether in digital, print or both and including third party content contained therein or linked to therefrom), all trademarks of Cyberschool or its Affiliates.

Permanent Student Record

“Permanent Student Record” shall mean those records required to be maintained by the District in accordance with State law, which shall include, but may not be limited to: attendance records; test, evaluation and statewide assessment records; immunization records as required by law; records concerning the education of students with disabilities required to be collected and maintained by state or federal law; such other records as directed by the District to be included as part of the Permanent Student Record.

Related Services

“Related Services” shall mean services related to the provision of speech therapy, occupational therapy, physical therapy, counseling, social skill development, psycho-educational evaluations, closed captioning, sign language interpreting, transition and job coaching, academic support for the vision and hearing impaired, adapted physical education, assistive technology, and other services of similar nature.

Special Education Services

“Special Education Services” shall mean all necessary special education programs and services, including the development and implementation of IEPs and Section 504 plans, handling administrative proceedings and specialized services, submitting state or federal reports, applying for and administering supplemental funding, providing other Related Services and all other administrative services associated with the delivery of services to Special Needs Students.

State

“State” shall mean the state in which the District operates and shall include any state governmental agency which has jurisdiction over the District.

Students with Disabilities

“Students with Disabilities” shall mean Students (as hereinafter defined) who have been identified as disabled under the Federal Individuals with Disabilities Education Act, as amended (“IDEA”) or Section 504 of the Federal Rehabilitation Act of 1973.

Student

“Student” means any person who is Enrolled in the School.

Student Records

“Student Records” shall mean those “educational records,” as defined in subsection (a)(4)(A) of FERPA (as defined above), which the School or Cyberschool is required to retain in accordance with state law.

Teacher

“Teacher” means any and all educators involved in providing instruction, assessment and/or other educational support of Students pursuant to the terms of the Agreement.

Term

“Term” shall have that meaning set forth in section 13.

Terms of Use

“Terms of Use” means certain rules governing how Authorized Users may and may not use the Acellus Learning System and any Content and Instructional Materials accessible through the Acellus Learning System. The most current version is located at https://www.science.edu/acellus/license-terms/.

Website

“Website” means any website maintained by Cyberschool or its Affiliates, including but not limited to, the URLs https://acellus.com, https://acellusacademy.com, and https://science.edu and any subpages connected thereto.

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