HomeMy WebLinkAbout2012-342 Library - Tutor.com for Electronic Resources $ 4,500 Please return this copy to the Clerk's to the Board's
—office for permanent agenda file.
Master Service Agreement Between Orange County Public Library and Tutor.com
THIS MASTER SERVICE AGREEMENT, made as of September 1, 2012 ("Effective Date")by and
between Tutor.com, Inc. ("Tutor.com")with its principal offices at 9 East 40"' Street, 2nd Floor,New
York,NY 10016, and Orange County Public Library(the"Client")with its principal offices at 137 W.
Margaret Ln, Hillsborough,NC 27278 sets forth the agreement and mutual understandings of
Tutor.com and the Client with respect to the delivery by Tutor.com and the purchase by the Client of
the services as set forth in the then current service order(each a"Service Order"and collectively,the
"Service Orders"),the first of which is attached hereto as Exhibit A(the"Services"). For purposes of
the parties' understanding the"Agreement" between the parties shall consist of the terms and
conditions set forth in this Master Service Agreement,the Service Orders, and any other agreements
attached hereto or subsequently signed by both of the parties and that reference this Master Service
Agreement(collectively"the Agreement").
1. License.
a. Grant. Tutor.com hereby grants to the Client a non-exclusive non-transferable, limited license
to use the Services during the Term(as defined below), subject to the terms and conditions set
forth in this Agreement. Tutor.com hereby grants to the Client the right to permit its
authorized users to use the Services in accordance with the terms of the Client's permitted use
under this Agreement.
b. Limitation to Grant. Except as set forth herein or in any attachment to this Agreement, the
Client shall not use the Services in any manner to provide communication Services to any
third party, nor shall the Client sublicense, transfer or distribute the Services, or any portion
thereof, to any third party. Client acknowledges that no source code or technical level
documentation is licensed under this Agreement, and that Tutor.com reserves all other rights
to the Services, including without limitation the right to access and modify the Services for
training,maintenance, upgrades, and security purposes.
2. Setup.
a. Tutor.com shall set up and deliver to the Client the Services for launch on a date mutually
agreeable to the parties.
b. The Client shall provide Tutor.com with all information needed to develop and launch the
Services.
3. User Information Is Strictly Confidential Absent Extraordinary Circumstances. Tutor.com
will not disclose to any third party any personal information that would permit identification
of a User without first obtaining the prior written consent of the Client unless Tutor.com
believes that an immediate disclosure may be necessary to protect someone's physical safety
(for example if a User tells a tutor that he "has a gun and is going to shoot someone"), or if
otherwise required by law(such as a court order).
4. Payment. The Client hereby agrees to pay Tutor.com the amounts set forth in the Service
Orders. Payment shall be made to Tutor.com within 30 days of properly submitted invoice. In
the event that the amount of an invoice is disputed, Client may withhold payment of the
disputed amount until the parties resolve the dispute. Payment obligations shall survive
termination of the Term.
5. Representations. Each of Tutor.com and the Client represents, warrants and covenants to the
other that:
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a. It has, and will have, the full power, authority, and legal right to enter into and perform fully
its obligations under this agreement.
b. Neither the execution and delivery of this Agreement nor the consummation of transactions
contemplated hereby does or will (i) violate any provision of the charter or by-laws of such
Party, or any laws, ordinances, rules, regulations, codes or policies to which such Party is
subject to or (ii) conflict with, result in breach or violation of, constitute a default under, or
require any notice under any agreement to which such Party is party or by which it is bound or
to which any of its assets is subject.
c. It shall comply at its own expense with all applicable laws, ordinances,rules,regulation,codes
and policies in connection with its performance under this Agreement; and
d. It has all rights and authorizations necessary to grant the rights and licenses set forth herein.
6. Term, Renewal, and Termination.
a. The initial Term of this Agreement shall be for one year unless otherwise noted in Exhibit A..
b. Either Party may terminate this Agreement at any time if. (1) the other Party commits a
material breach of this Agreement that remains uncured for a period of thirty (30) days
following written notice thereof; (2) fails to pay any amounts owed to the other when due,
except as provided in Section 4 or(3)with the mutual written Agreement of the other Party.
7. WARRANTY DISCLAIMERS AND LIMITATIONS ON LIABILITY.
a. OTHER THAN AS EXPRESSLY PROVIDED HEREIN, THE TUTOR.COM PROPERTY
IS PROVIDED ON AN "AS IS" BASIS WITHOUT, AND TUTOR.COM EXPRESSLY
DISCLAIMS, ANY AND ALL OTHER REPRESENTATIONS AND WARRANTIES,
WHETHER EXPRESS OR IMPLIED, WHETHER ARISING BY STATUTE OR
OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE,
INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF ACCURACY,
COMPLETENESS, PERFORMANCE, CURRENCY, MERCHANTABILITY, OR FITNESS
FOR A PARTICULAR PURPOSE. EXCEPT AS EXPRESSLY SET FORTH IN THIS
SECTION, TUTOR.COM MAKES NO WARRANTY OR REPRESENTATION THAT THE
TUTOR.COM PROPERTY OR SERVICES WILL MEET CLIENT'S REQUIREMENTS OR
WILL WORK IN COMBINATION WITH ANY HARDWARE OR APPLICATIONS
PROVIDED BY THIRD PARTIES, THAT THE OPERATION OF THE TUTOR.COM
PROPERTY OR SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT
ALL DEFECTS IN THE TUTOR.COM PROPERTY OR SERVICES WILL BE
CORRECTED. TO THE FULL EXTENT ALLOWED BY LAW, THE FOREGOING
WARRANTIES AND REMEDIES ARE EXCLUSIVE AND ARE IN LIEU OF ALL
OTHER WARRANTIES, TERMS, OR CONDITIONS, EXPRESS OR IMPLIED, EITHER
IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE. THIS
LIMITATION OF LIABILITY AND EXCLUSION OF CERTAIN DAMAGES SHALL
APPLY REGARDLESS OF THE SUCCESS OR EFFECTIVENESS OF OTHER
REMEDIES. EXCEPT FOR ANY LIABILITY ARISING OUT OF OR RELATED TO THE
VIOLATION OF ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHTS BY
TUTOR.COM, IN NO CASE SHALL TUTOR.COM'S AGGREGATE LIABILITY FOR
ALL MATTERS ARISING OUT OF THE SUBJECT MATTER OF THIS AGREEMENT,
WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEED THE AMOUNTS
ACTUALLY RECEIVED BY TUTOR.COM UNDER THIS AGREEMENT.
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b. In the event of a defect in the Services or Tutor.com Property, Client's sole remedy shall be to
have Tutor.com use commercially reasonable efforts to correct any nonconformity in the
Tutor.com Property computer code, either by modification to such Tutor.com Property
computer code, or via workaround. Tutor.com shall have no obligation to correct
nonconformities resulting from (i) any modifications of Tutor.com Property not authorized by
Tutor.com; (ii) any use or misuse thereof contrary to Tutor.com's specifications; (iii)
Tutor.com Property that has been installed or operated in contravention of requirements
contained in such specifications; (iv) Tutor.com Property that has been obviated by later
versions, updates, upgrades or releases lacking such nonconformity; (v) Tutor.com Property
which operates properly in combination with third party software or hardware recommended
by Tutor.com; or(vi) Tutor.com Property which has been modified by Client or a User not in
accordance with the Tutor.com's specifications or applicable guidelines.
8. Proprietary Rights.
a. Tutor.com Property. All aspects of the Services, including but not limited to the look and feel
of the Tutor.com template pages, and all intellectual property and/or proprietary rights therein,
including without limitation, copyright, moral rights, patent rights (including patent
applications and disclosures), trademarks, rights of priority, publicity rights, and trade secret
rights, recognized in any country or jurisdiction in the world, and all session transcripts,
survey data and usage information, are the sole and exclusive property of Tutor.com (the
"Tutor.com Property"). The Tutor.com Property includes all changes and addition to the
Services and all derivatives works thereof. Client acknowledges and agrees that this
Agreement in no way shall be construed to provide to Client, or any other person or entity, any
express or implied license to use, copy, reverse engineer, or otherwise exploit the Tutor.com
Property or Services or any portion thereof (including any intellectual property embodied
therein) other than as specifically set forth in this Agreement.
b. Protection of Proprietary Notices. The Client shall not delete or in any manner alter the
copyright, trademark, or other proprietary notices of Tutor.com, if any, appearing on the
Services as delivered to the Client. The Client shall reproduce such notices on all copies it
makes of the Services. The Client shall use commercially reasonable efforts to protect the
Tutor.com Property and Tutor.com's rights therein and to cooperate in Tutor.com's efforts to
protect its proprietary rights. The Client shall notify Tutor.com promptly of any known or
suspected breach of Tutor.com proprietary rights to the Services that comes to its attention.
9. Confidentiality.
a. Except as may be otherwise required by any applicable laws, each Party shall retain in strict
confidence the Confidential Information of the other Party. Client hereby acknowledges that
the Tutor.com Property is Confidential Information of Tutor.com, and that Confidential
Information also includes, without limitation, trade secrets, Tutor.com Property
documentation, specifications, designs, development plans, business plans, sales projections,
business records, prices and customer lists. The obligations of confidentiality set forth in this
Section 9 shall survive termination of the Term. In the event of any breach of the provisions
of this Section 9, Client agrees that Tutor.com would suffer irreparable harm and shall
therefore be entitled to obtain injunctive relief against Client in addition to any other rights
and remedies available to Tutor.com at law or in equity, or otherwise.
b. Tutor.com acknowledges that Cient is a North Carolina political subdivision and this
Agreement and any documents, memorandum, data, reports, analyses, compilations, records,
pricing and evaluation of all or any portion of the transactions contemplated by thei
Agreeement may be deemed public records and subject to disclosure, in whole or in part,
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pursuant to the North Carolina Public Records Law. Client will provide Tutor.com with
prompt notice of any intended disclousures or requests for disclosure pursuant to the North
Carolina Public Records Law and an appropriate opporutity to seek protection of Tutor.com's
confidentially and propriety information consistent with all applicatble laws and regulations.
In the event Tutor.com objects to the disclosure of any information, Tutor.com agrees to
indemnify and hold harmless the Client from all loss, liability, claims or expense, including
attorney's fees, arising out of or related to the Client's failure to disclosure the records
requested.
10. Miscellaneous Provisions.
a. Indemnification. Tutor.com shall indemnify the Client for claims relating to the negligent,
improper or illegal use of the Service by any Tutor.com tutor. For such indemnity to apply
Client must notify Tutor.com promptly of a claim. Tutor.com will defend, indemnify and hold
Client harmless from and against any loss, cost and expense that Client incurs because of a
claim that use of Tutor.com's proprietary software infringes any United States copyright of
others. Tutor.com's obligations under this indemnification are expressly conditioned on the
following: (i) Client must promptly notify Tutor.com of any such claim; (ii) Client must in
writing grant Tutor.com sole control of the defense of any such claim and of all negotiations
for its settlement or compromise (if Client chooses to represent its own interests in any such
action, Client may do so at its own expense, but such representation must not prejudice
Tutor.com's right to control the defense of the claim and negotiate its settlement or
compromise); and (iii) Client must cooperate with Tutor.com to facilitate the settlement or
defense of the claim. If any component of the Services provided by Tutor.com becomes the
subject of a United States copyright infringement claim, then Tutor.com, at its sole option and
expense, will either: (A) obtain for Client the right to continue using the Services under the
terms of this Agreement; or (B) refund to Client the portion of the license fee paid to
Tutor.com. THE FOREGOING IS TUTOR.COMS EXCLUSIVE OBLIGATION WITH
RESPECT TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
b. Authentication. Client shall ensure that access to the Services is properly limited to Client's
authorized users.
c. The Remote Home Access option, if selected, allows authorized users to access the Services
from their personal computers in residential settings. If the Remote Home Access option is
not selected, authorized users may use the Services only from computers physically located at
Client locations. Access from non-residential settings always requires a separate license. For
example, if Client is a public library and selects the Remote Home Access option, its
authorized users may access the Services in the library and from their home computers, but
not from a school unless the school has arranged for its own site license.
d. All marketing, promotional materials, and other communications that refer to this program
must acknowledge Tutor.com as the service provider: All printed materials must include
reference to Tutor.com using the "Powered by Tutor.com" logo. If use of graphic logos may
be inappropriate (such as in press releases), the text phrase "Powered by Tutor.com" may be
substituted. All references to Live Homework Help®must include the registration mark, and a
statement that"Live Homework Help® is a registered trademark of Tutor.com, Inc."
e. Waivers. No term or provision shall be deemed waived and no breach excused unless such
waiver or consent is in writing and signed by the Party claimed to have waived or consented.
The waiver of either Party hereto of any right hereunder or of the failure to perform or of a
breach by the other Party shall not be deemed a waiver of any other right hereunder or of any
other breach or failure by such other Party whether of a similar nature or otherwise.
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f. Order of Precedence Between Documents. In the event of any conflict between the terms and
conditions of this Agreement and any subsequent agreement between the parties, which does
not specifically amend this Agreement or Service Order of the Master Service Agreement, this
Agreement shall take precedence. In the event of a conflict between this Master Service
Agreement and the terms and conditions in any subsequent Service Order, the Master Service
Agreement shall control unless Tutor.com expressly agrees in writing to the specific
modification. This agreement may be amended only by a written instrument signed by both
parties.
g. Assignment. This Agreement may not be assigned by a Party hereto without the prior written
consent of the other Party; provided that Tutor.com may assign its rights and obligations under
this Agreement(without the prior written consent of Client)to any surviving Party in a merger
or consolidation in which Tutor.com is a Party or to any Party that acquires all or substantially
of Tutor.com's capital stock or assets.
h. Counterparts. This Agreement may be executed in one or more counterparts, each of which
will be deemed an original, but all of which together will constitute one and the same
instrument; however, this Agreement will be of no force or effect until executed by both
parties.
i. Tutor.com acknowledges that Client is governmental entity, and the validity of this Agreement
is based upon the availability of public funding under the authority of its statutory mandate. In
the event that public funds are unavailable and not appropriated for the performance of
Client's obligations under this Agreement, then this Agreement shall automatically expire
without penalty to Client immediately upon written notice to Tutor.com of the unavailability
and non-appropriation of public funds. It is expressly agreed that Client shall not activate this
non-appropriation provision for its convience or to circumvent the requirements of this
Agreement, but only as an emergency fiscal measure during a substantial fiscal crisis. In the
event of a change in the Client's statutory authority, mandate and/or mandated functions, by
state and/or federal legislative or regulatory action, which adversely affect Client's authority
to continue its obligations under this Agreement, then this Agreement shall authomatically
terminate without penalty to Client upon written notice to Tutor.com of such limiatation or
change in Client's legal authority.
j. Governing Law. This Agreement and the duties, respnsibilites, obligations and rights of
respective parties hereunder shall be governed by the law of the State of North Carolina.
k. Dispute Resolution. The Parties agree that jurisdiction and venue for any matter arising out of
or pertaining to this Agreement shall be proper only in the state and federal courts located in
Orange County and the Middle District of the State of North Carolina, United States of
America, and the Parties hereby consent to such jurisdiction and venue. The Parties may agree
to nonbinding mediation of any dispute prior to the bringing of such suit or action.
1. Severability. If any provision of this Agreement is held as a matter of law to be unenforceable,
the remainder of this Agreement shall be valid and binding upon the Parties.
IN WITNESS WHEREOF, the Parties, by and through their authorized agents, have hereunder set
their hands and seal, all as of the day and year first above written.
TvToR•coµ
ORANGE COUNTY: PROVIDER: 1—da key,Inc.
By: By: _
Fran Clifton, Manager Kevin J. Don s, SVP Operations&CFO
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This instru as pproved as to technical content.
c' a un ,bepart Director
This instrument h en pre-audited in the manner required by the Local Government Budget and
Fiscal Control Act.
Office of the Finance Director
This ins ment has been approved as to form and legal sufficiency.
A�!�
Office of the Co Ity Attorney
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EXHIBIT A
SERVICE ORDER OF MASTER SERVICE AGREEMENT
This order for the online tutoring services set forth herein constitutes a Service Order of the Master Service
Agreement dated September 1, 2012 between Tutor.com, Inc. ("Tutor.com") and Orange County Public Library
(the"Client").
Library Contact Information Tutor.com PRIMARY Tutor.com BILLING
CONTACT CONTACT
Name: Anne Pusey Name: Krissie Smith Name: Cesar Flores
Library: Orange County Public Address: 9 East 40th Street Address: 9 East 40th Street
Library
Address: 137 W. Margaret Ln, Address: 2" Floor Address: 2" Floor
City, St, Zip: Hillsborough,NC City, St,Zip: New York,NY City, St,Zip: New York,NY
27278 10016 10016
Telephone: 919-245-2534 Telephone: 843-853-0002 Telephone: 212-528-3101 x239
Fax: Fax: Fax: 646-619-4981
Email: apusey @co.orange.nc.us Email: ksmith @tutor.com Email: cflores @tutor.com
Ordered Services and Fees. Tutor.com agrees to provide the Client with the following Services and the Client
agrees to pay Tutor.com the fees set forth below.
Tutor.com Learning Suite Services include the K-12 Student Center, College Center, Adult Education Center,
and Career Center. Each center includes either Live Homework Help®(K-12)or LiveTutor(college and adult);
ProofPointTM, real-time writing help; and, 24/7 access to the SkillsCenterTm Resource Library
Client Location and Locations Start End
Description Date Date Price
Tutor.com Learning Suite with Remote Home Access ALL September 1, August 31, $4,500.00
Live Homework Help/Live Tutor Hours: 2012 2013
Tutor.com Learning Suite en Espanol with Remote
Home Access September 1, August 31, Included
Live Homework Help/Live Tutor Hours: 2PM—12 ALL 2012 2013
Midnight
Total- up to 430 Sessions $4,500.00
Notes: Go live date September 1,2012
Delivery Model (choose one)
❑ SMARTTRACK
• Tutor.com will deliver up to 430 sessions.
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Tutor.com Standard.Master Service Agreement(MSA)—revised March 2011
• Sessions are available throughout the contract period and the Tutor.com SmartTrack system
determines the number of sessions daily and hourly by looking at historical usage patterns.
• Used sessions may be rolled over.
J OPEN ACCESS
• Tutor.com will deliver up to 430 sessions.
• If all sessions are used prior to the end of the contract term, client can purchase additional sessions.
• Used sessions may be rolled over.
Tutor.com Program Contacts
Please fill out the following and fax to(646) 532-4465 along with the attached service agreement.
Your Tutor.com Client Services Manager:
Your main contact at Tutor.com. Works with program manager and technical contact on implementing
and launching your Learning Suite program.
Jeremy Klein
jklein @tutor.com
917-224-6178
Identify Program Manager
Works with Tutor.com and above Client Services Manager to organize training schedule and promotion
of the Learning Suite for the Institution.
Name:Anne Pusey
Title: Information Services Supervisor
Email: apusey @co.orange.nc.ua
Phone: 919-245-2534
Identify Billing Contact
Determines billing plan and date, receives invoice from Tutor.com.
Name: Nitya Fiorentino
Title: Admin Asst.
Email: nfiorentino @co.orange.nc.us
Phone:919-245-2538
Identify Technical Contact
Facilitates Institution's website and makes sure Learning Suite links are in place.
Sets up and tests Institutional and remote access.
Name: Jess Arnold
Title:Adult Programming
Email:jamold @co.orange.nc.us
Phone: 919-245-2534
Number of branches: 3
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Tutor.com Standard Master Service Agreement(MSA)—revised March 2011