CL PM 1.20.2014 COMMENTS TO CL DRAFT 1.17.2014

SERVICES AND LICENSING AGREEMENT

This Services and Licensing Agreement (“Agreement”) is between The New America Schools Network, a Colorado nonprofit corporation (“The Network”).andname of school, a ______nonprofit corporation (“School”), dated effective ______, 20___ (“Effective Date”).

RECITALS

A.The Network was established to create a network of public charter schools with the mission to empower new immigrants, English Language Learners and academically underserved students with the educational tools and support they need to maximize their potential, succeed and live the American dream (“Mission”).

B.The Network has proprietary ownership over a unique and successful model of public charter school educational programs that embody the Mission and which includes the NAS School Design (as defined below) (the NAS School Design and the Mission are collectively referred to herein as the “Model”).

C.In order to accomplish the Mission,The Network desires to replicate the Model by partnering with other public charter schools.

D.In connection with the Model, The Network owns certain proprietary information, including Copyrights, Marks, and Processes (as defined below) (collectively, “Intellectual Property” or “IP”) that have been used by the existing NAS network of schools since2004.

E.The parties to this agreement acknowledge the necessity for setting out their legal relationship to ensure that the School has the tools and support systems required to implement its charter, which charter incorporates the Model as the School’s educational model, contemplates the use of the The Network’s Intellectual Property, and relies on the proprietary educational and management practices of The Network as its organizational structure.

For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

AGREEMENT

SECTION ONE: Definitions

Terms not defined herein shall have the meaning assigned to them in this Agreement.

“Copyrights” meansall copyrights, including both registered and unregistered copyrights, owned by The Network which developed for use in connection with the Model, including but not limited to all written, auditory, visual and other materials, including the Materials.

“Copyright License” has the meaning set forth in Section 5.1.

“FERPA” means the Family Educational Rights and Privacy Act.

“IDEA” means the Individuals with Disabilities Education Improvement Act of 2004.

“Intellectual Property” or “IP” includes all Copyrights, Marks, Logos, and Processes now or hereafter owned by The Network, including any and all proprietary information developed for use in connection with the Model. The Network may from time to time agree to include additional intellectual property assets within the scope of the rights licensed under this Agreement.

“Logos” meansThe Network’s proprietary logos as set forth on Exhibit A, attached hereto and incorporated herein by reference.

“Licenses” means, collectively, the Copyright License and the Mark License set forth in Section Five.

“Marks” shall mean the proprietary unregistered trade name “New America School” and any variations thereof, including all common law rights, and including internet sites, domain names, trade names, trademarks, service marks and Logos with respect to the name “New America School,” including but not limited to that which is set forth on Exhibit A.

“Mark License” has the meaning set forth in Section 5.2.

“Materials” means those proprietarymaterials set forth on Exhibit Battached hereto and incorporated herein by reference, and any additional proprietary materials provided by The Network to the School pursuant to the terms of this Agreement.

“NAS School Design” means a written document that describes the design elements of schools that are or may become Network Schools that describes the Model and The Network’s educational program and unique Mission, and which when taken together differentiate The Network school design from other school educational programs. The NAS School Design is a fundamental aspect of the School’s charter agreement with its authorizer[CL1]. [PM2]Exhibit C

“Network School” means a public charter school which has become affiliated with The Network by executing this or a similar Services and Licensing Agreement,which includes the intent to replicate the Model and follow the Mission with fidelity according to the terms of such agreement.

“Network Standards” means the stated expectations for meeting the minimum requirements for complying with The Network licensing requirements as described in Section Six.

“Processes” meansall of The Network’s proprietary know-how, practices, plans, specifications, methodologies, marketing and recruitment strategies, business practices, design elements of each school, trade dress, and all other proprietary information developed for use in connection with the Model.

“Schedule of Fees for Services and Materials” means a document to be provided to the School each school year by The Network which will specify negotiated fees for the services to be provided by The Network in support of the School’s operation as a Network School. The Schedule of Fees for Services and Materials is attached hereto as Exhibit Cand incorporated herein by reference.

“Services” means those services provided by The Network to the School pursuant to Section 3.1.

SECTION TWO: Term

The initial term of this Agreement shall commence on the Effective Date and shall automatically be renewed each year on the anniversary of the Effective Date unless otherwise terminated pursuant to Section 8 below.

[FOR NM ONLY]– The initial term of this Agreement shall be for a period of four years[or balance of charter term]from the Effective Date subject to available funding and unless terminated pursuantto Section 8 below.

SECTION THREE: Provision of Services and Materials.

  1. The Network shall provide various contracted services to the School as set forth on Exhibit Dattached hereto and incorporated herein by reference (collectively, “Services”). The Services shall include services to be negotiated and provided on an hourly fee as set forth in Section 4.1 below.
  1. Materials. The Network shall provide the School with the Materials, and grant the School a Copyright License under Section 5 to use the same, and the School agrees to use all Materials solely for the purpose of operating a Network School.

SECTION FOUR: Royalties and Fees

  1. Service Fees. For the provision of the Services set forth in Section 3 above, the School shall pay The Network the Educational Consultant and Professional Management Services Fees set forth on Exhibit C.
  1. Royalty. For the Licenses set forth in Section Five, including the use of the Materials, the School shall pay The Network a one-time royalty fee of $______(“Royalty”). The Royalty shall be payablein equal annual installmentsfor [__]years. The Network shall invoice the School annually and payment is due by no later than thirty (30) days from the date of the invoice.[Note: waiver of such fee to Colorado due to its donation of the intellectual property to the Network.][PM3]
  1. Annual Membership Dues. The School shall pay The Network an annual membership due of $ ______(“Annual Dues”). The Network shall invoice the School each [school year/quarter/month-I suggest a one-time annual payment made before the school year] for the Annual Dues and payment is due by no later than thirty (30) days from the date of the invoice[CL4].[PM5]

SECTION FIVE: Grant of License

The Network hereby grants to the School nontransferable, non-exclusive Licenses as set forth in this Section 5 to the Intellectual Property to use in connection with the operation of a Network School until such time this Agreement is terminated pursuant to the provisions of Section8.

  1. License to Use Copyrights and Processes. Subject to the terms and conditions of this Agreement, The Network hereby grants to School a non-exclusive,non-transferable, non-sublicenseablelicense to the Copyrights and Processes (“Copyright License”) solely for the School to use in the operation of a Network School in the state of <state of school (“Territory”). As part of the Copyright License, The Networks shall provide School with access to password protected locations on The Network’s website (subject to the respective sites’ website use requirements) so that School may access the Materials.
  1. License to Use Marks.
  2. Subject to the terms and conditions of this Agreement, The Network herby grants to School the non-exclusive, non-transferable, and non-sublicenseablelicense to use the Marks in the Territory and on the Internet solely in connection with the operation of a Network Schoolin the Territory (“Mark License”).
  3. As part of the Mark License, School has the right to modify the Mark so that it is called “The New America School <name of state> and it may reference itself as a “New America School” and use the Logo on its publications, materials, and website.
  1. Additional Terms for Use of Intellectual Property.
  2. As to the Licenses granted in this Section 5, School shall not use any of the Intellectual Property in any manner not connected to the operation of a Network School, including but not limited to the following: (a) any use in connection with the provision of educational services not contemplated by the School’s charter; (b) in any manner that is determined in The Network’s sole discretion to disparage or otherwise threaten the goodwill and reputation associated with the Marks and The Network; or (c) in any manner that may result in liability for the School’s obligations or debts being imposed on The Network.
  3. From time to time The Network may provide new or different versions of any of the Intellectual Property, including but not limited to the NAS School Design,Marks and Logos, and make them available for the School’s use under the same terms and conditions of this Agreement. These new or different versions may require that the School observe new or different practices with respect to the use of such Intellectual Property. The School will be responsible for all costs and expenses of implementing any new or different version of the Intellectual Property.
  1. Linking License. Each party hereto grants to the other a non-exclusive and royalty-free license to provide a hypertext reference link to the initial top level display of its website as identified by the following Uniform Resource Locators:

The Network: <add Network website address

School: <add Network website address

  1. Proprietary Rights. Each party hereto acknowledges and agrees that, except as otherwise set forth herein, the Intellectual Property and the Model is proprietary to The Network, protected under copyright and other intellectual property laws, and may not be reproduced, transmitted, displayed, published or distributed except as set forth on this Agreement or with the express written consent of The Network.
  1. Collaboration/Right to Modify Content/License to Network. The Network and the School mutually agree to collaborate to improve the Model and the services and materials of both The Network and the School and to assist each other and all Network Schools as reasonably necessary to achieve the replication of the Model as contemplated by this Agreement. School, [[with the prior written permission of The Network]], may modify the Copyrights (which include the Materials) and Processes (“Modifications”). However, the Modifications remain the property of The Network and the School hereby transfers all right, title and interest into any such Modifications to The Network as part of this Agreement. The School shall be given appropriate recognition for development of any Modifications developed by the School and used by other Network Schools.
  1. Rights Expressly Reserved. The Licenses granted herein are not intended to be (and shall not be construed as) an assignment, and nothing herein confers on School any right (other than set forth herein), title or interest in the Intellectual Property or the Model. All rights not expressly granted herein by The Network, including without limitation, copyrights, trademarks, trade secrets, patents, and the right to obtain and to own all worldwide intellectual property rights in and to the subject matter embodied in this Agreement are reserved by The Network.
  1. Acknowledgement. School shall acknowledge that is a Network School on any printed, audio, visual or other materials (including any media, display or, in the case of audio or online works, describe any of the Marks) must include a notice of ownership (“Notice”). For audio, visual, textual or electronic works, the Notice must appear in at least one prominent location within the materials advising that, as to each Mark displayed, that it is a (or they collectively are) “trademark(s) of The New America School Network, used under license.”All copyright materials shall include and retain a statement reading “© {date(s) of first publication and substantive revision}, The New America School Network.”
  1. Security Measures. In all events, the School shall use all reasonable security precautions to prevent unauthorized copying, disclosure, or use of the Intellectual Property by its own employees, agents, representatives, affiliates, assignees and/or any third party.

SECTION SIX: Maintaining Network Standards

The parties agree that the following Network Standards shall be adhered to during the term of this Agreement and violation thereof may result in termination of this Agreement by either party:

  1. High Ethical Standards. Neither party shallknowingly engage in any activities which damage the reputation of the Network, the School, other Network Schools, or the Model. The Network and the School shall endeavor to observe high ethical standards of operation that are reasonably calculated to maintain the image, quality, public goodwill and reputation of the other party, other Network Schools or the Model, and not knowingly engage in any activity that may harm the reputation or impair the value of the same.
  1. Policies and Procedures. The School shall at all times use reasonable efforts to adhere to the policies and procedures that are part of the Model and licensed to the School pursuant to this Agreement, as they are modified from time to time.
  1. Mutual Cooperation. The parties, their employees, staff and agents shall cooperate in order to facilitate the efficient delivery of Services and Materialsprovided to School by Network under this Agreement.
  1. Compliance with Laws. The parties shall comply with all applicable laws, rules and regulations, including those which relate to the receipt of federal, state and local funds.
  1. Quality standards. The School shall maintain a high level of quality standards, including but not limited to the following:
  2. Maintaina healthy and safe environment as governed by federal, state and local laws and rules;
  3. Disclose to The Network the existence and results of any regulatory or governmental agency investigations or disciplinary action initiated against the School;
  4. Follow to the satisfaction of The Network, the Model, The Network Standards and other program guidelines;[PM6]
  5. Participate in The Network-provided professional development[CL7]; [PM8]
  6. Respond in a timely fashion to reasonable requests by The Network for information about the School’s financial, business management and operations;
  7. Provide student achievement data;
  8. Follow the School’s charter contract and maintain acceptable levels of compliance with the School’s authorizer’s standards and performance goals;
  9. Permit The Network to publish information about the School;
  10. Comply with all other terms of this Agreement; and
  11. [OTHER?][PM9]
  1. Monitoring/Reasonable Access. The School expressly authorizes The Network, and any of its agents or representatives, upon reasonable advance notice and by appointment, to enter the School’s premises at any time during normal business hours so that The Network may monitor and evaluate the School for adherence to the Network Standards and the terms of this Agreement. The Network agrees to abide by the School’s rules and procedures respecting Sponsor's premises.[PM10]

SECTION SEVEN: Confidentiality

  1. General. Neither party shall disclose or make available any information provided by the other party that is identified as confidential by the disclosing party or that from the nature of such information, would reasonably be considered to be confidential (“Confidential Information”) to any person or entity except to those employees or independent contractors of the receiving party for whom access is necessary to perform their jobs in accordance with this Agreement, and who have executed an agreement with the disclosing party not to further disclose such confidential material. The parties agree that disclosure of confidential business information shall be made only to the extent required by law.
  1. Student Records. The parties acknowledge and agree that pursuant to FERPA, IDEA or any other federal or state laws or regulations applicable to student confidentiality that both have obligations with regard to maintaining the security, integrity and confidentiality of “education records” and such other confidential information obtained about students. The parties acknowledge that each must perform it obligations under the Agreement in compliance with the above-referenced laws. The School shall designate The Network employees who are providing educational and/or administrative services to the School’s students as agents of the School having a legitimate educational interest and thus as entitled to access to educational records as defined by FERPA or IDEA. Nothing shall prevent either party from disclosure of confidential information in accordance with applicable law.

SECTIONEIGHT: Termination

  1. Termination. This Agreement may be terminated upon the occurrence of any of the following:
  2. Upon the mutual written consent of both parties.
  3. Immediately by The Network if the School: (i) dissolves, files for bankruptcy or goes into receivership; (ii) the School’s charter is revoked or not renewed by its authorizer, and such determination is final following all administrative recourse; or (iii) [anymore? For example, is under investigation by any governmental agency?][PM11].
  4. By either party upon a material breach of this Agreement by the other party, provided that the non-defaulting party provides the other party with thirty (30) days written notice to cure the default. Under this Section 8.1(b), if the default is not cured within the time period specified, the Agreement shall immediately terminate[CL12].[PM13]
  5. By The Network if after written notice (“Notification of Deficiency”) of a pending termination of this Agreement, which shall include a list of specific deficiencies, The Network determines the School no longer complies with the Model or the Network Standards, and after having up to one (1) year from the date of the Notification of Deficiency to cure violations to the sole satisfaction of The Network, the School has not cured deficiencies identified by The Network.[do we want to add that certain terminations will only occur at the end of a school year?][PM14] Except as provided in Section 1.c. termination of this Agreement shall be effective as of the last day of the school’s fiscal year in which the school failed to cure violations after Notification of Deficiencies.
  6. If in any year covered by the term of this Agreement, the School has not appropriated amounts sufficient for the performance of this Agreement, then this Agreement may terminate upon written notice of the School, however, currently appropriated expenditures of the School for this Agreement shall be paid from any legally available funds. [PM15]
  1. Effect Upon Termination. Upon termination or expiration of this Agreement for any reason, the Licenses shall immediately terminate. Absent written consent from The Network to the contrary, no later than fifteen (15) days after such termination or expiration of this Agreement, School shall cease to use or access all of the Intellectual Property, and the same shall be either destroyed or returned to The Network. Additionally, within fifteen (15) days after termination or expiration of this Agreement, each party shall return to the other party any and all (including copies of) Confidential Information of the other party and shall confirm the same in writing.
  1. Payments Upon Termination. Upon termination of this Agreement for any reason, the School shall promptly pay The Network for all Services rendered to the School up through the date of termination. Neither party will be liable for damages of any kind as a result of exercising its right to terminate this Agreement nor will termination affect any other right or remedy of either party.

SECTION NINE: Indemnification.