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may renegotiate terms of this Agreement to account for such changes and if the Parties cannot reach
mutually agreeable terms, the Manager shall have the right to terminate this Agreement.
3. Management Services. The District contracts with the Manager to provide the functions
outlined below, to the extent permitted by law, related to operating the School:
(a) Academic Progress Reporting. The Manager shall report academic progress
annually to the District, consistent with State requirements, and provide regular updates at District
meetings if so requested by the District. The Manager shall timely comply with all requirements
of local, State and federal laws relating to public schools, and all audits and requests by the State
relating to the demonstration of these requirements must be successfully completed. The District
shall give reasonable allowance under the circumstances for appropriate time for documentation,
reporting, analysis, and rectification of any non-compliance and complaints.
(b) Curriculum and Assessment.
(i) The Manager shall provide the Model to the District for use at the School,
ensure that the Model is aligned with applicable law, and continuously monitor and
assess the implementation of the Model at the School. The Model includes curriculum,
assessment tools, a learning management system, a student information system and a
content management system in all subjects and grades Manager generally offers to its
managed programs customers; and additional curriculum or educational programs
Manager recommends to achieve the goals of the School.
(ii) The Manager shall identify its gifted education and special education
plans to the District consistent with the requirements of the District and shall report to
the District at regular meetings and seek the District's prior written approval of any
material changes or modifications to the programs.
(c) Professional Development for School Administrators and Teachers.
(i) The Manager shall establish and maintain on a continuous basis teacher
development program to define teacher qualifications and performance requirements
as the Manager deems appropriate. The Manager shall implement a professional
development program to improve the effectiveness of each teacher's ability to help
students' learning, in general.
(ii) The Manager shall provide teacher training with respect to technology,
curriculum, and program as is reasonably necessary to deliver the Model.
(iii) The Manager shall provide non-instructional personnel training with
respect to technology, curriculum, and program as is reasonably necessary to deliver the
Model.
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(d) Administrative Facility and Facility Management.
(i) The District will make available to Manager, at no cost or fee to Manager,
all space ("Administrative Facility") at 690 John Adams Parkway, Idaho Falls, Idaho
83401 (or such other location as shall be agreed by the Parties in writing) necessary
and reasonable for Manager to provide the products and perform the services described
in this Agreement that are not otherwise provided or performed online or remotely
from Manager’s usual place of business. Manager may provide products and perform
services elsewhere unless prohibited by applicable law.
(ii) The District shall be responsible for providing such maintenance and
custodial services for the Administrative Facility as it deems necessary or appropriate.
(e) Equipment, Technology, and Operational Support Services.
(i) The District shall make available to the Manager for continued use in the
operation of the School all furniture, technology, technical infrastructure, hardware,
software, equipment, and other personal property owned or acquired by the District for
use by the School. The Manager shall purchase or lease any additional furniture,
technology, equipment, or other personal property necessary for the operation of the
School and provision of the Model.
(ii) The Manager is solely responsible for designing, selecting, coordinating
the purchase of, implementing, and managing technology used by the School,
irrespective of the source of funding. Unless provided otherwise herein, all personal
property shall be owned and purchased by and for the Manager's own account and not
on behalf of the District. If the Manager purchases equipment on behalf of the District
using funding specifically provided by the District (other than the Continuing Fee
described in Article 7 below), the equipment will be titled in the name of the District
and owned by the District. However, in no event shall any of the Continuing Fee or
any operational grant funds be used for the purchase of District-titled equipment. All
other personal property shall be purchased and owned by the Manager. Equipment and
other property of the District may be disposed of in accordance with generally
applicable law and only after reporting of such scheduled disposal to the District.
(iii) The Manager shall purchase or lease all equipment used in operating the
School, and shall maintain the equipment in proper working order. The Manager may
sell, scrap or dispose of its personal property after determining in its sole discretion
that the property is obsolete, unneeded, excessive, broken, or inoperable.
(iv) The Manager shall determine the suitability of technology for use in
the School.
(v) The Manager shall monitor production services, i.e., the learning management
and content management systems.
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(vi) The Manager shall monitor and analyze data to fix production issues as they
arise.
(vii) The Manager shall generate reports on student academic performance,
attendance and progress.
(viii) The Manager shall develop, design, publish and maintain the School’s
website.
(ix) The Manager shall determine hardware configurations (including software
and operating systems) for the School’s technology needs.
(x) The Manager shall provide support for School administration in
troubleshooting system errors.
(xi) The Manager shall train staff and teachers in the use of any technology
used in operating the School, including procedures, forms, and systems.
(xii) The Manager shall provide other technology support services requested and
mutually agreed upon by the District and Manager.
(xiii) The Manager shall provide to the District, as requested, access to the
Manager's supply sources (including supply sources of Manager’s Affiliates) to obtain
centralized purchasing discounts for the School where applicable. “Affiliate” means
any entity that, directly or indirectly through one or more intermediaries, controls, is controlled
by, or is under common control with, the Manager whether through ownership of voting
securities, by contract interest or otherwise.
(f) Management and Management Consulting. It is the responsibility of the
Manager to perform as follows:
(i) Perform day-to-day management of the School in accordance with the
applicable laws and the District’s policies.
(ii) Provide the Model, curriculum, and program development as described in
this Agreement.
(iii) Perform other consulting and liaison services with governmental and
quasi-governmental offices and agencies as are necessary in day-to-day operations of
the School.
(iv) Advise the District regarding the School’s special education and special
needs students, programs, processes and reimbursements through the Manager's
special education department.
(v) Provide student data information management services, testing and testing
analysis required by law or otherwise deemed necessary or useful by the Manager.
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(vi) From time to time and as deemed necessary by the Manager, draft
operations manuals, forms (including applications, enrollment and similar forms), and
management procedures.
(g) Student Recruitment and Admissions. The Manager shall recruit and enroll
students subject to its recruitment and admission policies. Students shall be recruited and selected
in accordance with the District’s procedures and in compliance with all applicable federal, State
and local laws. Recruitment via lead generation, lead qualification and lead conversion to
application and enrollment will take place via a contact strategy by phone, email, and in-
person events. Manager will implement the District’s admission policy for the School,
including management of the application and enrollment process as well as orientation.
Manager will maintain a call center function to facilitate recruitment and admissions.
(h) Rules and Procedures. The Manager shall adopt, implement, and enforce
reasonable rules, regulations, and procedures applicable to the School. The District shall
adopt and implement reasonable rules, regulations, and procedures for the School's internal
governance. Neither Party may unilaterally adopt or impose any rule, regulation, or
procedure, and/or amend or supplement this Agreement without the prior written approval
of the other Party, which approval may be withheld by the other Party in its sole discretion.
(i) Public Relations. Manager will coordinate and assist with any and all
advertising, branding, media and public relations efforts, including parent and community
outreach programs and local community relationship building. All public relations will be
subject to the mutual approval of both Parties, which approval may not be unreasonably
withheld.
(j) Authority. The District grants Manager the authority and power necessary to
undertake its responsibilities described in this Agreement.
(k) Subcontractors. The Manager reserves the right to subcontract services to be
provided hereunder without the District's approval provided, however, that District’s prior written
approval shall be required in the event the aggregate annual cost of any individual service exceeds
50% of the Continuing Fee. The Manager shall be solely responsible for all costs, expenses and
fees associated with all of Manager’s subcontractors.
4. Purchases with School Funds. When Manager purchases furniture, computers,
software, equipment, or other personal property for use in the operation of the School with state funds that
were paid to Manager by the District as payment for the personal property, such property is property of
the District and is not property of the Manager. When Manager purchases furniture, computers, software,
equipment, or other personal property for use in the operation of the School with Manager’s funds, such
property is property of the Manager and not property of the District. The Manager shall permanently
mark or tag with a number any property owned by the District in accordance with District policy and
keep an inventory of said property.
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5. Insurance Responsibilities.
(a) The District’s Responsibility. The District shall procure and maintain at its
expense insurance required for operation of the District and School, with limits of at least
$1,000,000, including directors and officers/school leaders insurance, employment practices
liability and errors and omission, and general liability, casualty, and property insurance for any
services provided by the District for the benefit of the School, any facility leased directly, owned
and/or managed by the District, and any capital equipment or furniture and fixtures owned by the
District.
A certificate of insurance evidencing such coverage shall be provided upon
reasonable request. All insurance policies shall (a) be issued by companies in good standing
and authorized to do business in the State and having an AM Best rating of A or better; (b) be
written in standard form; and (c) provide that the policies may not be canceled except after
thirty (30) days' written notice to the District.
(b) Workers’ Compensation Insurance. Each of the District and Manager will
obtain and maintain workers’ compensation insurance for its respective employees, as required by
applicable law.
(c) Cooperation. Upon a Party’s request, the other Party shall deliver to the
requesting Party a copy of such policies and other written confirmation acceptable to the
requesting Party, together with evidence that the insurance premiums have been paid. Each
Party will comply with any information or reporting requirements applicable to or required by
the other Party's insurer(s), to the extent reasonably practicable.
6. Budget.
(a) Projected Budget. Prior to the May 31 immediately preceding the next
academic year, the Manager shall prepare and provide the District with an annual
operating and projected budget for the School illustrating the anticipated revenue and
expenses incurred by the School.
(b) Budget Detail. The projected budget shall contain detail as required for public
auditing purposes.
(c) Approval. The projected budget shall be submitted to the District for written
approval, which approval shall not be unreasonably withheld or delayed and in all cases shall
be approved no later than June 30th of the next academic year. The approved budget is the
“Budget”. The Budget may be amended from time to time at the recommendation of the
Manager and with the District's written approval, which approval shall not be unreasonably
withheld or denied.
7. Fees.
(a) Continuing Fee. The School shall pay a monthly management, consulting and
operation fee (the "Continuing Fee") to the Manager in the amount of ninety-five and one half
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percent (95.5%) of the Qualified Gross Revenues. As used in this Agreement, "Qualified
Gross Revenues" shall mean the revenue per student (as “student” is determined by State law)
per month received by the District from the State. Qualified Gross Revenues do not include
student fees, charitable contributions, parent-teacher organization income, and other
miscellaneous revenue, which shall be retained by the District or parent-teacher organization,
respectively. Federal title programs and other federal, State and local government grant
funding that compensates the District for the education of its students, including any grants
under the American Recovery and Reinvestment Act of 2009 (collectively, "Supplemental
Revenues"), shall be paid to the Manager in full within five (5) business days of receipt by
the District, which the Manager will use in compliance with the grant of such funds.
The Continuing Fee shall be paid via electronic funds transfer within five (5) business
days of receipt by the District of any Qualified Gross Revenues. The Continuing Fee shall be
subject to an annual reconciliation based upon actual enrollment and actual revenue received
(including the final month of the Term, even though the payment may be made beyond
expiration or termination of the Term). If the District receives written notice of a review of the
enrollment being completed by the State, the District shall provide Manager with a copy of the
written notice upon receipt of same. If the review results in a finding that additional funding is
owed to the District, the District shall make payment to Manager of ninety-seven percent of the
amount received or such other amount due to Manager within five (5) business days after receiving
an invoice from Manager for such amount. If the review results in a finding that the District owes
money to the State, the District will work with the Manager to initiate an appeal of the State’s
determination in accordance with the applicable laws. Manager shall select legal counsel and a
strategy for the appeal and pay any and all expenses and costs related to the appeal including
attorneys’ fees. The District shall cooperate with Manager and selected legal counsel’s efforts to
appeal. Should the review result in the District owing money to the State, Manager agrees to
contribute the amount overpaid to Manager.
(b) Notwithstanding the foregoing, prior to paying the Continuing Fee, the School shall
be permitted to retain funds necessary to pay the actual salaries and benefits of the mutually agreed
upon District-employed staff assigned to work for the School with amounts being on a pro-rata
basis commensurate with the amount of time such personnel is tasked with dedicating to work for
the School.
(c) Payment of Costs. Except as otherwise provided in this Agreement, the Manager
shall pay all costs incurred in providing the Model at the School. Such costs include, but are
not limited to:
• compensation of all personnel employed by Manager;
• curriculum materials and textbooks;
• technology and other equipment such as computers, monitors and computer
peripherals (excluding District-titled equipment);
• supplies;
• maintenance; and
• capital improvements required in providing the Model.
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(d) Grants and Other Financial Assistance. The District and Manager will
collaborate to apply for grants, discount programs, and other financial assistance in the District
or School's name to obtain additional funding, improvements, District assets, services, and
programs for the School, or provide additional goods, services, and programs to the students.
Such grants or other assistance may be on an advance funding or reimbursement basis. The
District shall not unreasonably withhold or delay approval of any application.
Within five (5) business days following the District's receipt of reimbursement funds
from the applicable funding source and following presentation of an invoice to the District by
the Manager, the entire amount of such funds shall be paid to the Manager via electronic funds
transfer. In the case of advance funded grants or other financial assistance, the District shall
pay the Manager for the additional goods, services, and programs within five (5) business days
following presentation of an invoice to the extent such additional goods, services, and
programs have been provided or acquired. The District shall cooperate with the Manager to
establish any necessary accounts, authorizations and procedures so that the District can
automatically transfer the applicable funding to the Manager as soon as the funds are available
in the District's accounts.
The District shall cooperate with the Manager to establish accounts and procedures for
grant funding.
This Section 7 shall survive any expiration or termination of this Agreement until all
payments earned prior to the date of such expiration or termination have been paid in full.
(e) District Funds. After the payment of the Continuing Fee, the District shall retain
all remaining Qualified Gross Revenues into a bank account that the District controls (the
“District Bank Account”), which shall be maintained by the District. From the District Bank
Account, the District shall pay the fees and expenses it decides to incur including, without
limitation:
• its operational expenses;
• its taxes, if any;
• its legal, insurance, accounting, auditing, and other professional fees;
• the cost of any annual audit by the Auditor of the State, or any special or
independent audits; and
• the purchase price of equipment deemed necessary or appropriate by the
District for District operations that are separate from the day-to-day
operation of the School.
Any property purchased with funds from the District Bank Account shall be titled in
the name of District.
8. Personnel and Training.
(a) Personnel Responsibilities. The District shall employ all teachers necessary to
implement the Model. The Manager shall employ the Head of School and all other personnel
necessary to implement the Model. The Manager shall determine staffing levels and salaries
of all personnel assigned to work at the School, and salaries shall be in accord with the
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District’s then-current pay schedule, as applicable. Manager will create job postings, review
applications, select candidates for interviews, and extend offer letters to final candidates,
Manager will be responsible for conducting reference checks, employment checks, criminal
background checks and unprofessional conduct checks on its employees and subcontractors
to the extent required by applicable laws and regulations as if the employees and
subcontractors were employed by the School. Upon request, Manager will prepare teacher
contracts that include reference to Section 08.02.02.121, Idaho Code, and the Danielson
model for teacher evaluation.
(b) School Administrator. The Manager shall select, employ, and supervise the
Head of School (“HOS”) and hold him or her accountable for the success of the School. The
District may, at its discretion, appoint a member of its human resources department to work
with the Manager in the hiring process for the selection of the HOS, including being present
during interviews. The Manager has final approval and authority to make a determination as
to the appropriate HOS. The HOS will supervise personnel assigned to work at the School
regarding the day-to-day operation of the School and execution of the Model.
(c) Teachers. Subject to the terms of the District requirements, Manager shall
determine grade levels to be offered at the School. The Manager shall determine the necessary
level of teaching staff for operation of the School, and all such teachers shall report to the
HOS. The District and Manager shall collaborate to select, evaluate, assign, discipline,
transfer, and terminate teachers for the School, consistent with State and federal law. All
teachers shall be licensed in accordance with State and federal law. The curriculum taught
by such teachers shall be the curriculum developed pursuant to Section 3(b) hereof. During
the Term, teachers assigned to work for the School shall be dedicated to providing services
solely for the School and not for other District schools.
(d) Support Staff. Prior to the commencement of the first school term under this
Agreement, and from time to time thereafter, the Manager shall determine the number and
functions of support staff, qualified in the areas required, as are required for operation of the
School and by State law. The Manager may employ staff on a full- or part-time basis, at its
sole discretion.
(e) Training. The Manager shall train teachers in its methods, curriculum, program,
and technology on a regular and continuous basis. Non-instructional personnel shall receive
such training as the Manager deems reasonable and necessary under the circumstances.
(f) Salary and Benefits. For the Manager's employees, the Manager assumes full
responsibility and liability for benefits, salaries, worker's compensation, unemployment
compensation, and liability insurance. District shall assume full responsibility and liability for
benefits, salaries, worker’s compensation, unemployment compensation and liability
insurance for District’s employees.
(g) Additional Programs. The District and the Manager may mutually decide to
provide programs in addition to the Model.
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9. Termination by the District. The District may, at its option, terminate this
Agreement prior to its expiration upon the occurrence of any of the following events:
(a) The Manager materially fails to comply with a specific and material
requirement of this Agreement and does not cure the failure within thirty (30) days of
receiving written notice of the failure from the District. However, if the Manager determines
that the failure cannot be reasonably cured within thirty (30) days, and the Manager promptly
undertakes and continues efforts to cure the failure within a reasonable time, the failure shall
not be grounds for termination. Notwithstanding the foregoing, if the Manager's failure to
comply with a specific and material requirement of this Agreement creates an imminent
danger to the life of students, parents, or others, the failure must be cured immediately upon
written notice from the School; or
(b) Termination shall be effective immediately upon notice if the Manager files
for bankruptcy, has a bankruptcy suit filed against it that is not dismissed within ninety (90)
days, is insolvent, ceases its operations, fails to pay its debts when they become due, or has a
receiver appointed for the benefit of its creditors.
Termination by District will not relieve the District of any obligations to pay Manager amounts
accrued, pending or outstanding as of the date of termination or liability for financial damages
suffered by Manager as a consequence of the District's breach (or of Manager's termination as a
result thereof) of this Agreement.
10. Termination by the Manager. The Manager may, at its option, terminate this
Agreement upon the occurrence of any of the following events:
(a) The School fails to make any payment of money due to the Manager within
five (5) business days of written notice from Manager to District that such payment is
overdue, excluding overdue payments resulting from a payment dispute or delay between
the District and any funding entity, and such termination shall be effective at the end of the
then-current school year;
(b) The Manager suffers operating deficits related to the operation of the School
for the academic year, provided that any notice of termination delivered by the Manager to
the District after the School opens for the school year shall not be effective until the end of
that academic year;
(c) The District is in material default under any other condition, term or provisions
of this Agreement (except late payment which is addressed above) or in violation of applicable
law, and the default or violation remains uncured for thirty (30) days after the District receives
written notice from the Manager or government or quasi-government authority, as applicable,
of the default or violation, and such termination shall be effective at the end of the then-current
school year. However, if the default or violation cannot be reasonably cured within thirty (30)
days, and the District promptly undertakes or continues efforts to cure the material default
within a reasonable time, the failure shall not be grounds for termination. Notwithstanding the
foregoing, if the District’s default or violation creates an imminent danger to the health,
welfare or safety of students, parents or others, the failure must be cured immediately upon
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notice from the Manager, and Manager may terminate the Agreement effective immediately
if not so cured; or
(d) Any adverse and material change in local, State or federal funding for the
School's students; provided that any notice of termination delivered to the District based upon
an adverse and material change in funding shall be effective when the funding change goes
into effect or such later date as designated by the Manager.
(e) Manager may terminate this Agreement effective immediately upon written notice
to the District in the event that the School or District adopts or amends a policy, and the effect of
such amendment or policy would reasonably be determined by Manager to materially increase the
financial risk to Manager arising from its performance of its obligations hereunder, thus rendering
Manager’s performance economically unviable. In the event the School or District adopts such an
adverse policy in the middle of the school year, Manager agrees to use its best efforts to complete its
obligations for the then-current school year without waiving any rights and remedies hereunder.
(f) Manager may terminate this Agreement effective immediately upon written notice
to the District in the event that the District or School undergoes adverse change that makes the
District or School financially unviable.
11. Change in Applicable Law.
(a) Notice. If any federal, State or local law or regulation, court or administrative
decision or Attorney General's opinion enacted or issued after the date hereof could reasonably be
expected to have an adverse effect on the ability of either Party to carry out its obligations under
this Agreement, such Party, upon written notice to the other Party, may request renegotiation of
this Agreement. That notice may be given at any time following enactment of such change in
applicable law, whether or not such change is effective on the date of such enactment or on a later
date.
(b) Renegotiation. Renegotiation will be undertaken in good faith. If the Parties are
unable to renegotiate and agree upon revised terms within thirty (30) days after notice of
renegotiation, then this Agreement will be terminated effective at the end of the academic year in
which such notice was given, unless earlier termination is necessary to protect the health, welfare,
or safety of students.
(c) Termination. Manager may terminate this Agreement effective immediately upon
written notice to District in the event Manager undergoes or is required to undergo a change that
makes Manager, as determined in its sole judgment, financially unviable.
(d) Termination by Operation of Law or Loss of School Approval. This Agreement
will terminate (i) by operation of law if the School is no longer certified to be operational pursuant
to applicable State law or (ii) upon the termination or final determination by the highest court in
the State the School is no longer approved.
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12. Duties Upon Expiration or Termination.
(a) Upon expiration or termination of this Agreement for any reason whatsoever,
the District shall immediately pay to the Manager and/or any of the Manager's Affiliates any
amounts accrued, pending or outstanding to such person or entity and return to the Manager all
materials purchased by the Manager pursuant to Section 3 above. Manager shall return to the
District all student educational records and all District-titled equipment and material (if any).
This Section 12(a) shall survive any expiration or termination of this Agreement.
(b) The following provisions shall survive termination or expiration of this Agreement:
Fees (to the extent they relate to amounts accrued for periods through the expiration or termination
of this Agreement), Duties Upon Expiration or Termination, License, Proprietary Rights,
Confidentiality and Non-Disclosure, Non-Solicitation, Injunctive Relief/Dispute Resolution,
Notices, Severability, Waiver and Delay, Governing Law and Jurisdiction, Indemnification,
Limitations on Liability, Waiver of Jury Trial, Amendment and Cumulative Effect, Assertion of
Claims, Counterparts, Construction, and any provision that, based on its nature, should survive.
(c) Each Party shall have all rights and obligations arising out of any breach of this
Agreement prior to such expiration or termination.
13. License. The Manager licenses or developed and owns proprietary rights to the Model
and the Protected Materials, as defined in Section 14 below. The Manager hereby grants the District a
limited revocable license to use the Model and the Protected Materials in connection with the School
during the Term. When this Agreement is terminated or expires, the license granted herein shall
automatically terminate and the District shall immediately cease using the Protected Materials and the
Model. This Section 13 shall survive any expiration or termination of this Agreement.
14. Proprietary Rights. The copyrights and intellectual property rights for all methods
documents, curricula and materials developed by the Manager prior to and during the course of
operating the School (collectively, the "Protected Materials") shall be the sole and exclusive property
of the Manager. The District shall not have any right to any of the same either as a "Work Made for
Hire" (as such are defined under the U.S. and international copyright laws) or otherwise. The
Manager shall exclusively own all United States and international copyrights, trademarks, patents
and all other intellectual property rights in the Protected Materials. The District may not use the
Protected Materials for any purpose other than strictly within the scope of the license granted under
Section 13 without the prior written consent of the Manager.
The District acknowledges that Manager owns the intellectual property rights and interests to the
name “ACCEL™” (such name being a trademark of Manager). The District acknowledges and agrees that
it has no intellectual or property interest or claims in the name and has no right to use the name unless
expressly agreed to in writing by Manager. In accordance with all laws and regulations, Manager shall
have the right to install signs on the Administrative Facility, including under the name of the School,
describing the services provided by Manager or its assignees, including "Managed by ACCEL Schools"
or "Educational Services Provided by ACCEL Schools." Upon any expiration or termination of this
Agreement, those signs shall be promptly removed.
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Immediately upon expiration or termination of this Agreement or upon the Manager's earlier
request, the District shall deliver all originals and copies of the Protected Materials (regardless of the
media on which they are stored) to the Manager, and shall delete all Protected Materials from all
databases and storage media maintained by the District. This Section 14 shall survive any expiration
or termination of this Agreement.
15. Relationship of the Parties.
(a) Independent Contractors. The Parties acknowledge that their relationship is
that of each Party being independent contractors. No employee, consultant or compensated
individual of either Party shall be deemed an employee, consultant, or compensated individual
of the other Party. Nothing contained herein shall be construed to create a partnership or joint
venture between the Parties.
(b) District Meetings. Manager shall use commercially reasonable efforts to attend
District meetings in person and, if unable to attend in person, may attend them telephonically. The
District shall use reasonable efforts to schedule any regular, special or emergency District meeting
so that Manager has the opportunity to attend the same. The District shall provide Manager with
notice of any regular, special or emergency meeting of the District when it provides members of
the District with notice of the meetings.
(c) No Related Parties or Common Control. Manager will not have any role or
relationship with the District that, in effect, substantially limits the District's ability to exercise its
rights, including cancellation rights, under this Agreement. Any director, officer or employee of
Manager shall be prohibited from serving for the District. None of the voting power of the District
will be vested in Manager or its directors, members, managers, officers, shareholders and
employees, and none of the voting power of the District or shareholders of Manager will be vested
in the District or its directors, members, managers, officers, shareholders (if any) and employees.
Furthermore, the District and Manager will not be members of the same control group, as defined
in Section 1.150-(f) of the regulations under the Internal Revenue Code of 1986, as amended (or
its successor) (the “Internal Revenue Code”), or related persons, as defined in Section 144(a)(3)
of the Internal Revenue Code.
(d) Other Schools. The Parties acknowledge that this arrangement is not exclusive.
Manager will have the right to render similar services to other persons or entities including other
public or private schools or institutions.
(e) Exclusivity. During the Term, Manager and its Affiliates shall be the sole providers
of the services set forth herein for the School unless otherwise waived in writing by an authorized
officer of Manager.
16. Confidentiality and Non-Disclosure. Without the prior written consent of the other
Party, neither Party will at any time: (a) use for its own benefit or purposes or for the benefit or
purposes of any other person, corporation or business organization, entity or enterprise; or (b)
disclose in any manner to any person, corporation or business organization, entity or enterprise any
trade secret, proprietary information, data, know-how or knowledge (including but not limited to
curricula information, financial information, marketing information, cost information, vendor
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information, research, marketing plans, educational concepts and employee information), whether
transferred in writing or other tangible form, or transferred orally, visually, electronically or by any other
means, belonging to, or relating to the affairs of a Party or any Affiliates (the "Disclosing Party") or
received through association with the Disclosing Party (collectively, "Confidential Information"),
whether the Confidential Information was received before or after this Agreement. Confidential
Information does not include information a Party receives (the “Receiving Party”) and can show that
it: (i) was known to the Receiving Party prior to its association with the Disclosing Party; (ii) had
become available to the public other than by a breach of this Agreement by the Receiving Party; or
(iii) was disclosed to the Receiving Party by a third person or entity that was not prohibited by a
contractual, fiduciary or other legal obligation to the Disclosing Party from disclosing the
Confidential Information.
The Receiving Party will use at least the same degree of care to prevent unauthorized use and
disclosure of Confidential Information as that Party uses with respect to its own confidential information
(but in no event less than a reasonable degree of care); use Confidential Information only in performance
of its obligations under this Agreement; and not disclose or grant access to such Confidential Information
to any third party except on a need-to-know basis and based on a confidentiality agreement with terms at
least as strict as those contained in this Agreement. This Agreement does not prohibit the Receiving Party
from disclosing Confidential Information it is legally compelled to disclose by oral questions,
interrogatories, requests for information or documents, subpoenas, investigative demands, judicial
orders or similar process. However, if the Receiving Party is legally compelled to disclose any
Confidential Information, the Receiving Party covenants to use its best efforts to provide the
Disclosing Party with prompt written notice (not more than forty-eight (48) hours after learning it
will be compelled to disclose) so that the Disclosing Party may seek a protective order or other
appropriate remedy and/or waive compliance with the provisions of this Agreement. In the event a
protective order or other remedy is not obtained, or the Disclosing Party waives compliance with the
provisions of this Agreement, the Receiving Party covenants to furnish only that portion of the
Confidential Information that the Receiving Party is legally required to disclose, and to exercise its best
efforts to obtain reliable assurance that the Confidential Information will be treated confidentially.
17. Non-Solicitation. During the Term and one (1) year thereafter, each Party agrees not to
directly or indirectly solicit, recruit for employment, offer employment to, offer subcontracting
opportunities to, or otherwise employ or use the services of any current or former consultant or employee
of the other Party or its Affiliate if that consultant or employee or former consultant or employee had been
assigned to or worked under this Agreement.
(a) Remedies. In the event of such unpermitted use or engagement by a Party of such
consultant or employee whether directly or indirectly, in contravention of the clause immediately
above, the other Party, at its option, may seek:
(i) receipt of a sum equivalent to one hundred percent (100%) of that
consultant, employee, former consultant or former employee’s compensation during their
first year with the new employer; or
(ii) any legal or equitable relief against such actions, including, but not be
limited to, the remedies set forth in Section 18(a).
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(b) Not Considered Solicitation. For the avoidance of doubt, newspaper, periodical
or Internet-based listings of employment opportunities by a Party shall not be considered direct or
indirect solicitation of a consultant, employee, former consultant or former employee of the other
Party or Affiliates. However, such Party shall continue to be precluded from engaging or otherwise
using a Party's and Affiliates’ employee or former employee as provided for in this Section 17.
This Section 17 shall survive any expiration or termination of this Agreement. The one (1)
year period of time in this Section will be extended by the amount of time that a Party engages in any
activity in violation of this Agreement and while the aggrieved Party seeks enforcement of this
Agreement. The School acknowledges and agrees that no past uncollected fees shall be issued by Manager
to cover any penalty, damages or other relief owed by the School upon a violation of this provision.
18. Injunctive Relief and Dispute Resolution.
(a) Injunctive Relief. The District acknowledges that the covenants set forth in
Sections ”License”, “Proprietary Rights”, “Confidentiality and Non-Disclosure” and “Non-
Solicitation” above are reasonable in scope and content and necessary to protect the Parties and
their business interests. Each Party understands and agrees that the breach or threatened breach of
Sections “License”, “Proprietary Rights”, “Confidentiality and Non-Disclosure” or “Non-
Solicitation” of this Agreement would give rise to the other Party suffering irreparable harm which
harm would be inadequately compensable in money damages. Accordingly, in addition to any
other remedies available to it, the aggrieved Party shall be entitled to a restraining order and/or an
injunction prohibiting the breach or threatened breach of any provision, requirement or covenant
of this Agreement, without the requirement of posting a bond, in addition to and not in limitation
of any other remedies which may be available in law or equity.
(b) Dispute Resolution Procedure. The Parties agree that they will attempt in good
faith to settle any and all disputes arising in connection with this Agreement amicably in the
ordinary course of business. If a dispute is not resolved in the ordinary course of business, the
aggrieved Party will submit its dispute in writing to the District’s Superintendent and Manager’s
Chief Operating Officer or equivalent who shall have ten (10) business days to seek resolution of
the matter. The dispute resolution procedures described herein will be deemed complete upon the
earlier to occur of the following:
(i) the Parties mutually agree in writing to discontinue the dispute resolution
procedures herein; and
(ii) the relevant dispute is not resolved within the time periods provided herein.
(c) Arbitration. Subject to the provisions of Sections 18(a) and 18(d), any dispute
arising out of or relating to this Agreement, including but not limited to the breach, termination or
validity hereof, shall be settled by binding, confidential arbitration in accordance with the rules of
JAMS with an arbitration panel consisting of a single arbitrator. The need for and scope of formal
discovery will be determined by agreement of the Parties or, if the Parties are unable to agree, the
arbitrator. The arbitrator will render an opinion/award within thirty (30) days from the date of the
hearing, and the opinion/award shall be written and include findings of fact and conclusions of
law. The Parties agree that an arbitration award ("Underlying Award") may be appealed pursuant
16
to JAMS's Optional Arbitration Appeal Procedure ("Appeal Procedure") which the Parties adopt
as it exists on the effective date of this Agreement; that the Underlying Award shall, at a minimum,
be a reasoned award; and that the Underlying Award shall not be considered final until after the
time for filing a notice of appeal pursuant to the Appeal Procedure has expired. Appeals must be
initiated within thirty (30) days of receipt of an Underlying Award, as defined by JAMS, by filing
a Notice of Appeal with the arbitrator. The arbitration will be governed by the Federal Arbitration
Act, 9 U.S.C. §§1-16, and judgment upon the award rendered by the arbitration panel or, if
applicable, a decision rendered under the Appeal Procedure, may be entered by any court having
jurisdiction thereof. The arbitrator is not empowered to award any damages or losses described in
the “Limitations of Liability” Section and each Party expressly waives and foregoes any right to
the damages or losses.
(d) Exceptions. Notwithstanding anything else in this Agreement, claims for
monies due and claims for injunctive relief as provided for in Section 18(a) above, and/or
claims for grant or financial assistance reimbursement due may at either Party's option be
brought separately and immediately in a court of competent jurisdiction or pursued through
arbitration as set forth above.
(e) Shared Fees and Expenses. The fees and expenses of the arbitration panel should
be shared equally by the Parties before the arbitration award is made. The arbitration award shall
require the Party which does not prevail in the arbitration to reimburse the prevailing Party for the
one half of the fees and expenses of the arbitration panel paid by the prevailing Party.
This Section 18 shall survive any expiration or termination of this Agreement. Actions for
money damages may be brought without terminating this Agreement.
19. Notices. Either Party may change the address to which notice to it, or copies
thereof, shall be addressed by giving notice thereof to the other Party hereto in conformity with
the following. Any notice permitted or required by this Agreement shall be in writing sent via any
of the following methods and shall be deemed to have been duly given or made the third day after mailing,
if sent by registered or certified mail, postage prepaid, return receipt requested; upon delivery, if sent by
hand delivery with written confirmation; upon delivery, if sent by nationally recognized overnight carrier,
with a record of delivery; or the day it is sent, if sent by facsimile (with written confirmation of
transmission by sender’s facsimile machine and a copy simultaneously sent by nationally recognized
overnight courier) on a business day during normal business hours, or the next business day thereafter if
sent on a non-business day or after normal business hours, to the other Party when addressed as follows:
If to Manager, to: Accel Online West LLC
Attn: Chief Operating Officer
1750 Tysons Boulevard, Suite 1300
McLean, VA 22102
With a copy to: Accel Schools LLC
Attn: General Counsel
1750 Tysons Boulevard, Suite 1300
McLean, VA 22102
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And legal@pansophiclearning.com
If to District, to: Lara Hill, Chair
Idaho Falls School District #91
690 John Adams Parkway
Idaho Falls, Idaho 83401
Facsimile:
With a copy to:
Facsimile:
20. Severability. If any term, condition or provision of this Agreement is invalid, illegal or
incapable of being enforced by any rule of law or public policy, all other terms, conditions and provisions
of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner adverse to either Party.
Upon such determination that any term, condition or provision is invalid, illegal or incapable of being
enforced, the Parties shall negotiate in good faith to modify this Agreement so as to affect the original
intent of the Parties as closely as possible in an acceptable manner to the extent that the transactions
contemplated hereby are fulfilled to the extent possible.
21. Waiver and Delay. Except to the extent that a Party hereto may have otherwise
agreed in writing, no waiver by that Party of any condition of this Agreement or breach by the other
Party of any condition of this Agreement or breach by the other Party of any of its obligations or
representations hereunder or thereunder shall be deemed to be a waiver of any other condition or
subsequent or prior breach of the same or any other obligation or representation by the other Party,
nor shall any forbearance by a Party to seek a remedy for any noncompliance or breach by the other
Party be deemed to be a waiver by the first Party of its rights and remedies with respect to such
noncompliance or breach.
22. Governing Law and Jurisdiction. This Agreement shall be governed by and
construed in accordance with the laws of the State without regard to conflict of law principles.
Jurisdiction and venue are proper in the county in which the Administrative Facility is situated.
23. Assignment. Neither Party may assign this Agreement without the prior written consent
of the other Party (which consent shall not be unreasonably withheld). Notwithstanding the foregoing,
Manager may, without prior written consent from or notice to the School, assign this Agreement to its
Affiliates or in connection with a merger, acquisition, asset sale or corporate reorganization, and may
without the consent of the District delegate the performance of but not responsibility for any duties and
obligations of Manager hereunder to any affiliate, independent contractors, experts or professional
advisors.
24. Independent Activity. The Parties understand that Manager's business is to operate
and manage schools in multiple states. As such, the Parties agree that Manager and its Affiliates may
operate and manage other, including charter, schools in multiple states including the State.
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25. Representations and Warranties.
(a) Mutual Representations and Warranties. Each Party hereby represents and
warrants to the other Party as follows:
(i) The Party is duly organized, validly existing, and in good standing under
the laws of the state of Delaware (as to Manager) and the State (as to District). It has
the authority to carry on its business as now being conducted and has the authority to
execute, deliver, and perform this Agreement.
(ii) The Party has taken all actions necessary to authorize the execution,
delivery, and performance of this Agreement. This Agreement is a valid and binding
obligation of the Party enforceable against it in accordance with its terms, except as
may be limited by federal and State laws affecting the rights of creditors generally, and
except as may be limited by legal or equitable remedies.
(iii) The Party has made, obtained, and performed all registrations, filings,
approvals, authorizations, consents, licenses, or examinations required by any
government or governmental authority, domestic or foreign, in order to execute,
deliver and perform its obligations under this Agreement.
(iv) There are no pending actions, claims, suits or proceedings, to its
knowledge, threatened or reasonably anticipated against or affecting it, which if
adversely determined would have a material adverse effect on its ability to perform its
obligations under this Agreement.
(b) District’s Representations and Warranties. District further represents and
warrants to Manager that:
(i) The District has authority under applicable laws and regulations to
contract with a private entity to perform the services under this Agreement and to incur
the obligations provided for herein;
(ii) The District will adopt any and all further resolutions or expenditure
approvals required for the execution of this Agreement, provided, however, that with
regard to expenditures, such resolutions and approvals shall be required only if the
relevant information is available to the District, and it has sufficient funds in the
approved Budget to pay for such expenditures; and
(iii) The District shall not, after the Effective Date, incur any indebtedness
outside the ordinary course of business or enter into any factoring or other debt
arrangement without the prior written consent of the Manager.
(c) THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER
WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT
NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS
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FOR A PARTICULAR PURPOSE. MANAGER AND ITS AFFILIATES MAKE NO
GUARANTEES AS TO THE GRADES OR TEST RESULTS TO BE OBTAINED BY THE
STUDENTS. WITHOUT LIMITING THE FOREGOING, MANAGER AND ITS AFFILIATES
MAKE NO GUARANTEES AND SHALL NOT BE LIABLE FOR NON-ACCESIBILITY OF
ANY WEBSITE (NOT AN ADA REFERENCE), SYSTEM OR PROGRAM, END-USER
CONNECTION SPEED OR CONNECTIVITY PROBLEMS, REGARDLESS OF THE
REASON.
26. Indemnification of the Parties.
(a) Indemnification of Manager. To the extent permitted by State law, the District
will indemnify, defend and save and hold Manager and its Affiliates and all of their respective
employees, officers, directors, subcontractors and agents (collectively, “Representatives”)
harmless against any and all third-party penalties, claims, demands, suits or other forms of liability
(any of which are a “Claim”) (including reasonable attorney’s fees and costs) that may arise out
of, or by reason of, any wrongdoing, misconduct or negligence by the District or its
Representatives; noncompliance by any of them with any agreements, covenants, or undertakings
of the District contained in or made pursuant to this Agreement; any misrepresentations of the
District contained in or made pursuant to this Agreement; any action or omission by the District
or its Representatives that results in injury, death or loss to person or property; and any
violation by them of applicable law. In addition, the District will reimburse Manager, its
Affiliates and their Representatives for any and all reasonable legal expenses and costs associated
with the defense of any third-party Claim. Further, the Parties acknowledge and agree that Manager
and its Affiliates shall have no liability or responsibility for activities of the District that occurred
prior to the Start Date, including, but not limited to, management of the School or District by any
third-parties. This indemnification obligation shall survive the termination or expiration of this
Agreement.
(b) Indemnification of District. Manager will indemnify, defend and save and hold
the District and its Representatives harmless against any and all third-party Claim (including
reasonable attorney’s fees and costs) that may arise out of, or by reason of, any wrongdoing,
misconduct, or negligence of Manager, its agents, employees or assigns or noncompliance by
Manager with any agreements, covenants, or undertakings of Manager contained in or made
pursuant to this Agreement, and any misrepresentation of Manager contained in or made pursuant
to this Agreement. In addition, Manager will reimburse the District for any and all reasonable legal
expenses and costs associated with the defense of any third-party Claim. This indemnification
obligation shall survive the termination or expiration of this Agreement.
(c) Defense. A Party seeking indemnification under this Section 26 (the
"Indemnitee") shall give notice to the indemnifying Party (the "Indemnitor") of a Claim or
other circumstances likely to give rise to a request for indemnification, promptly after the
Indemnitee becomes aware of the same. The Indemnitor, with Indemnitee’s consent which
shall not be unreasonably withheld, conditioned or delayed, shall be afforded the opportunity
to undertake the defense of and to settle by compromise or otherwise any Claim for which
indemnification is available under this Section 26. The Indemnitor's selection of legal counsel
is subject to the Indemnitee's approval which approval shall not be unreasonably withheld,
conditioned or delayed. If an Indemnitor so assumes the defense of any Claim, the Indemnitee
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may participate in such defense with legal counsel of the Indemnitee's selection and expense.
Indemnitor may not settle any Claim against Indemnitee or otherwise consent to any final
order or judgment regarding same if such settlement, final order or judgment includes an
admission of wrongdoing in Indemnitee’s or its Affiliate’s name unless Indemnitee or its
Affiliate, as applicable, consents in writing. If the Indemnitor, upon the expiration of the
fifteen (15) days after receipt of notice of a Claim by the Indemnitee under this Section 26,
has not assumed the expense of the defense thereof, the Indemnitee may thereupon undertake
the defense thereof on behalf of, and at the risk and expense of, the Indemnitor, with all
reasonable costs and expenses of such defense to be paid by the Indemnitor.
27. Limitations on Liability.
(a) Immunities and Statutory Limitations. The District will assert all immunities
and statutory limitations of liability in connection with any third-party Claims arising from its
operations, and will not waive any immunities or limitations without the prior written consent
of Manager. Notwithstanding this Section 27, to the fullest extent permitted by law, the District
will waive the defense of governmental immunity in any dispute between the Parties.
(b) MAXIMUM OBLIGATION. EXCEPT AS TO THE PARTIES’
INDEMNIFICATION OBLIGATIONS, TO THE EXTENT PERMITTED BY LAW EACH
PARTY'S MAXIMUM LIABILITY AND OBLIGATION TO THE OTHER PARTY AND THE
EXCLUSIVE REMEDY FOR ANY CAUSE WHATSOEVER, REGARDLESS OF THE FORM
OF ACTION, WHETHER IN CONTRACT OR IN TORT, INCLUDING NEGLIGENCE,
RELATING TO THIS AGREEMENT SHALL BE LIMITED TO THE RECOVERY OF
ACTUAL DIRECT DAMAGES UP TO THE AMOUNT OF FEES PAID UNDER THIS
AGREEMENT TO MANAGER DURING THE TWELVE (12) MONTHS IMMEDIATELY
PRECEDING THE DATE A CLAIM IS MADE.
(c) ECONOMIC DAMAGES. EXCEPT IN CONNECTION WITH ITS
INDEMNITY OBLIGATIONS EXPRESSLY SET FORTH HEREIN, NEITHER PARTY
SHALL BE LIABLE FOR ANY INDIRECT, EXEMPLARY, PUNITIVE, SPECIAL,
INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION,
ANY LOST SAVINGS, LOST PROFITS, LOST SALES, BUSINESS INTERRUPTIONS,
DELAY DAMAGES, OR LOST OR DESTROYED DATA, EVEN IF THAT PARTY HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(d) REASONABLENESS. NEITHER OCCASIONAL SHORT TERM
INTERRUPTIONS OF SERVICE WHICH ARE NOT UNREASONABLE UNDER
COMPARABLE INDUSTRY STANDARDS NOR INTERRUPTIONS OF SERVICE
RESULTING FROM EVENTS OR CIRCUMSTANCES BEYOND MANAGER'S
REASONABLE CONTROL SHALL BE CAUSE FOR ANY LIABILITY OR CLAIM
AGAINST MANAGER HEREUNDER, NOR SHALL ANY SUCH OCCASION RENDER
MANAGER IN BREACH OF THIS AGREEMENT.
28. Force Majeure. In the event that either Party shall be delayed, hindered, or prevented
from performing any act required under this Agreement by reason of fire or other casualty, acts of
God, strike, lockout, labor dispute, inability to procure services or materials, failure of power, riots,
21
terrorism, insurrection, war, pandemic or other reason of a like nature not the fault of the delayed
Party, its performance shall be excused for the period of the delay and the time for performance shall
be extended for a period equivalent to the period of the delay. This Section shall not excuse the
District from prompt payment of any amounts required by the terms of this Agreement. As soon as
practicable, the Party experiencing a force majeure event shall: (a) notify the other Party about the event,
and (b) resume performance of its obligations under this Agreement upon conclusion of the event.
29. Amendment and Cumulative Effect. This Agreement will not be altered, amended,
modified or supplemented except in a written document approved by the District and signed by both the
Superintendent or other authorized officer of the District and an authorized officer of Manager. The rights
and remedies of the Parties hereto are cumulative and not exclusive of the rights and remedies that they
otherwise might have now or hereafter, at law, in equity, by statute or otherwise.
30. Waiver of Jury Trial. The Parties each waive any right to trial by jury in any litigation
involving this Agreement, including breach, interpretation or performance thereof.
31. Assertion of Claims. No Party shall bring any claim relating to this Agreement beyond
one year after the date on which the Party became aware, or should reasonably have become aware, of the
facts giving rise to any alleged liability of the other Party and, in any event, no later than two (2) years
after (a) the last day of the Term, or (b) the earlier termination of this Agreement for any reason. The
provisions of the preceding sentence shall not apply to claims for payment of amounts due under the
“Fees” Section of this Agreement.
32. Counterparts. This Agreement may be executed in several counterparts, with each
counterpart deemed to be an original document and with all counterparts deemed to be one and the
same instrument. Each Party may rely on facsimile signature pages as if such facsimile pages were
originals.
33. Construction. The Parties acknowledge and agree that this Agreement is the result
of extensive negotiations between the Parties and their respective counsel, and that this Agreement
shall not be construed against either Party by virtue of its role or its counsel’s role in the drafting
hereof. Paragraph captions or headings of various articles, sections and other subdivisions are used
herein for convenience of reference only and are not intended to be used, nor shall they be used, in
interpreting this instrument or modifying, defining or limiting any of the terms or provisions hereof.
34. Integration, Entire Agreement, and Third-Party Beneficiaries. This Agreement
(together with any exhibits, schedules or documents referred to herein) sets forth all of the promises,
covenants, agreements, conditions and undertakings of the Parties with respect to the subject matter
hereof, and supersedes all prior and contemporaneous agreements and understandings, negotiations,
inducements or conditions, express or implied, oral or written, if any, between the Parties with respect to
the subject matter hereof. Except as limited by Section 23 (Assignment), this Agreement shall be binding
upon and is for the exclusive benefit of the Parties, Affiliates, successors and permitted assigns, and not
for the benefit of any third party, nor shall it be deemed to confer or have conferred any rights, express or
implied, upon any other third party including a relationship in the nature of a third party beneficiary or
fiduciary.