Program Agreement

1. BACKGROUND

1.1 Our Mission

The Program was created by Summit Public Schools to prepare a diverse student population for success in college, career and life, and to be thoughtful, contributing members of society. Inspired by the vision to equip every student to lead a fulfilled life, Summit Public Schools developed its approach to teaching and learning - the Program - over the course of 15 years. Today, Summit Learning, under license with Summit Public Schools, works to have broader impact by helping schools bring the Program to their classrooms for free.

1.2 History of the Program

Since 2015, the Program has grown to support more than 380 schools across the nation, helping them bring Summit Learning to their classrooms, for free. Developed by teachers for teachers, the Program gives schools the tools, resources and professional development to implement and tailor Summit Learning for their communities.

1.3 Our Organization

Gradient Learning is a California nonprofit public benefit corporation founded in 2018. Gradient Learning is organized and operated for charitable and educational purposes as described in Section 501(c)(3) of the Internal Revenue Code of 1986, as amended. Working with Teachers, Learners, and education Partners, Gradient Learning provides knowledge, tools, and training to schools across the country through the Program. Together, we are helping educators achieve their goals, students realize their full potential, and schools serve their diverse communities

1.4 Selection & Agreement to Participate

Summit Learning has selected the Partner School to receive Services hereunder and invites the Partner School to participate in and to access the Program. By signing this Program Agreement, the Partner School agrees to all terms and conditions contained in this Program Agreement, the Summit Learning Platform Partner School Terms of Service (the "Partner School Terms of Service") and the Data Privacy Addendum (the "Data Privacy Addendum"), which are incorporated herein (collectively the "Agreement").

• The Program Agreement establishes a collaboration between Summit Learning and the Partner School and sets forth the legal terms governing the Program and the Services.
• The Partner School Terms of Service, attached as Exhibit A hereto, set forth the requirements as of the date hereof that the Partner School is required to follow in order to use the Services. The Partner School Terms of Service shall be updated, from time to time, and posted on the Summit Learning Website (as defined herein) and when posted shall be incorporated into the Agreement by this reference. By accepting the Partner School Terms of Service, Partner School acknowledges and agrees that its teachers, employees, officials, agents, and the parents and legal guardians of currently enrolled students (collectively, "Licensed Users") will agree to a User Agreement (the current version is posted on the Summit Learning Website) in order to use the Services.
• The Data Privacy Addendum attached as Exhibit B hereto governs Student Data (as defined therein) transmitted to Summit Learning from the Partner School pursuant to this Program Agreement and the Partner School Terms of Service.

1.5 Collaboration

By signing this Program Agreement, Summit Learning and the Partner School agree to work together in good faith to implement personalized learning supported by the Program and the Services. In connection with the Partner School's participation in the Program, Summit Learning expects the Partner School to communicate regularly about needs, opportunities, and progress, as well as goals, priorities, and timelines for the ongoing evolution of the Program and the Services. If Participating Schools are set forth on Schedule I, the LEA hereby warrants and represents to Summit Learning that it has the authority to bind, and hereby through its execution of this Program Agreement, hereby binds such Participating Schools to the terms and conditions of the Agreement and agrees that the LEA shall be liable for any breaches of any of the terms and conditions of the Agreement by any of its Participating Schools.

1.6 Cost

There is no cost to the Partner School, and Summit Learning will not charge the Partner School or its s (defined herein) to use the Program or the Services.

2. GRANT OF THE PROGRAM AND THE SERVICES

2.1 Curriculum and Assessments

Summit Learning will provide access to the Base Curriculum (the "Base Curriculum"), which will include projects, playlists of content, and assessments from which the Partner School can build upon and modify in order to meet the needs of their communities, district and/or state. The Base Curriculum includes standards-based curricula and assessments for English, math, science, and social studies (grades 4–12) and a sampling of additional elective courses.

Subject to this Program Agreement and the Partner School Terms of Service, Summit Learning grants permission to teachers, employees, officials, and agents at the Partner School to adapt or create new focus areas and projects. In connection therewith, Summit Learning will provide to the Partner School, on an as-available basis (i) access to the curriculum team; (ii) access to support when building out resources and projects that are in line with Summit Learning; and (iii) the ability to submit resources for Summit Learning to review and consider for addition to the Base Curriculum.

2.2 Ongoing Support

Summit Learning shall provide ongoing support and coaching to the Partner School through the provision of a mentor (a "Summit Learning Success Manager") during school years in which the Partner School participates in the Program. In connection therewith, Summit Learning agrees to make available to the Partner School, on an as-available basis:

• A Summit Learning Success Manager who will provide support through regular coaching calls, and to the extent the Partner School and Summit Learning deem necessary, school visits, in order to support the Partner School through the change management process as the Partner School implements Summit Learning;
• Access to a nationwide community of Summit Learning educators and an invitation to share best practices, challenges and more;
• Access to a library of resources (e.g. presentation templates for parent nights, Summit Learning classroom posters, etc.); and
• Access to webinars, on-demand training sessions, and in-person training sessions and workshops from a range of Summit Learning teams, including engineering and communications.

2.3 Professional Development

Pursuant to this Program Agreement, Summit Learning shall provide, on an as-available basis, mandatory and optional professional development services for the teachers and administrators whom the Partner School designates to participate in the implementation and launch of Summit Learning at the Partner School (collectively, the "Implementation Team"). The Partner School and the Implementation Team shall follow the professional development requirements posted on the Summit Learning Website under the caption "Professional Development Requirements", which are incorporated by reference into this Program Agreement. Summit Learning may at any time change the timing, cadence or frequency of the professional development services.

2.4 Additional Schools

If the LEA is a school district and Summit Learning approves the participation of additional schools within such school district in the Program, then Summit Learning and the LEA agree to update Schedule I to this Program Agreement and each such additional school shall become a Participating School subject to the terms and conditions of this Agreement. Additionally, if the LEA and Summit Learning agree to the removal of a Participating School from Schedule I to this Agreement, such school shall no longer be a Participating School upon removal of such school from Schedule I. Notwithstanding any update to Schedule I, both parties acknowledge the Effective Date of this Program Agreement will be the date originally set forth above. Further, the Parties hereto agree and acknowledge that any change to Schedule I does not and will not constitute an amendment or waiver of any of the material terms and conditions contained in this Program Agreement.

3. GRANT REQUIREMENTS AND COMPLIANCE

3.1 General

In connection with and as a condition to its receipt of Services and in order to launch and implement the Program in the Partner School, Partner School agrees to:

• Follow the program requirements posted on the Summit Learning Website under the caption "Program Requirements", which are incorporated by reference into this Program Agreement;
• Follow the technical requirements posted on the Summit Learning Website under the caption "Technical Requirements", which are incorporated by reference into this Program Agreement;
• Follow the professional development requirements posted on the Summit Learning Website under the caption "Professional Development Requirements", which are incorporated by reference into this Program Agreement; and
• Communicate regularly with the Summit Learning Success Manager.

3.2 Access to the Services

Partner School agrees to limit access to the Program and the Services to students currently enrolled in the Partner School with an account on the Services ("Student Users"). In addition, Partner School agrees to limit access to the Program and the Services to the parents and legal guardians of Student Users, and the teachers, employees, officials, or agents of the Partner School (collectively, "Licensed Users") who have accepted the User Agreement. The Student Users and Licensed Users are, collectively, referred to herein as the "Users".

3.3 Compliance with Program Agreement, Data Privacy Addendum, Partner School Terms of Service and User Agreement

he Partner School's use of the Services must be in compliance with the Agreement. The Partner School will provide information and education, and where needed, create policies and regulations, to ensure that all of its Users comply with the User Agreement, and where applicable this Program Agreement and Data Privacy Addendum. Partner School acknowledges and agrees that all content shared by its Users on the Services is the responsibility of the Partner School and the User from whom the User Content originated.

In the event a User violates this Program Agreement, Data Privacy Addendum, or User Agreement, the Partner School shall promptly notify Summit Learning and shall cooperate with Summit Learning in taking reasonable steps to remediate such violations. In the event that the Partner School fails to correct the violation after notice from Summit Learning, Summit Learning may terminate or suspend the Users' access to the Services, in whole or in part, as necessary to stop the violation. Partner School agrees and acknowledges that if Partner School or any of its Users violates this Program Agreement, Data Privacy Addendum, or Partner School Terms of Service, Summit Learning shall bear no responsibility or liability for any damages or claims resulting from or in connection with such actions. Notwithstanding the foregoing, Summit Learning reserves the right to immediately suspend any User or the Partner School, in Summit Learning's sole discretion for any reason (with or without cause) and terminate the Partner School in accordance with Section 5 hereof.

4. INTELLECTUAL PROPERTY

4.1 Intellectual Property

The Program and Services may contain material derived in whole or in part from material supplied by Summit Learning as well as other sources, and such material is protected by United States copyright laws, international treaty provisions, trademarks, service marks and other intellectual property laws. All rights to the Program and the Services not expressly granted in the Agreement or User Agreement are reserved by Summit Learning. The Partner School and its Users shall abide by the intellectual property provisions set forth in the Partner School Terms of Service and User Agreement and all applicable copyright and other intellectual property laws.

5. TERM AND TERMINATION

5.1 Term

1. This Agreement shall commence on the Effective Date, and shall terminate in accordance with subsections 5.1.B or 5.1.C, as applicable, or on such earlier date as set forth in Section 5.2, Section 5.3, and Section 5.4 hereof.
2. If the Partner School is an individual school, this Agreement will terminate on the date that is four (4) years after the date on which the Partner School's students first begin using the Services.
3. If the Partner School is a school district, this Agreement will terminate on the date that is four (4) years after the date on which the students attending the first Participating School to join Summit Learning first begin using the Services under this Agreement.

5.2 Notice of Intent to Terminate

Either Party may terminate this Agreement for its convenience, by giving at least thirty (30) days' written notice to the other Party.

5.3 Breach of Agreement

Either Party (the "Non-breaching Party") may terminate this Agreement, effective immediately upon delivery of written notice to the other Party ("Breaching Party") if the Breaching Party materially breaches any provision of this Program Agreement or any other part of the Agreement, as the case may be, and does not cure the breach within thirty (30) days after receiving written notice thereof from the Non-breaching Party.

5.4 Compliance with Program Requirements

To the extent Summit Learning determines that Partner School is not substantially in compliance with the Program Requirements, Summit Learning reserves the right to suspend or terminate this Agreement effective immediately.

5.5 Survival

In the event of termination of this Agreement, the following provisions of this Program Agreement will survive: Section 7 (Representation and Warranties of Summit Learning), Section 8 (Limitation on Liability), Section 9 (Notices), Section 10 (Governing Law), and Section 11 (General Provisions).

6. INDEMNIFICATION

6.1 Scope

To the extent permissible under applicable state law, each Party (the "Indemnifying Party") shall defend, indemnify, and hold harmless the other Party (the "Indemnitee), its officers, employees, and agents, assignees and successors-in-interest from and against third party claims and will pay the resulting non-appealable judgments, fines, settlements, court costs and reasonable attorneys' fees ("Indemnified Loss") resulting from or arising out of (a) the Indemnifying Party's performance under this Program Agreement, Partner School Terms of Service and Data Privacy Addendum, but only in proportion to and to the extent such Indemnified Loss is caused by the negligence, recklessness, willful misconduct, or intentional acts or omissions of the Indemnifying Party, its officers, employees, or agents, or, additionally, with respect to the LEA, its Participating Schools and their respective officers, employees, agents or Users; and (b) allegations that the Indemnifying Party has infringed a third party's intellectual property rights. Such indemnification shall be subject to the limitation of liability in Section 8.

6.2 Status and Defense of Claims

The indemnifying Party shall keep the other Party reasonably apprised of the continuing status of the claim, including any proceedings resulting from it, and shall permit the indemnified Party, at its expense, to participate in the defense or settlement of the claim, provided, however that the indemnifying Party has the sole control of the defense. The indemnified Party shall reasonably cooperate with the indemnifying Party in defending the action, and the indemnifying Party will not agree to settle or otherwise resolve the action without the consent of the indemnified Party, which consent shall not be unreasonably withheld.

7. REPRESENTATIONS AND WARRANTIES OF SUMMIT LEARNING

7.1 General

Summit Learning represents and warrants that the following shall be true and correct as of the Effective Date of this Program Agreement and shall continue to be true and correct during the Term of this Program Agreement:

1. Program and Service Operation. During the term of this Agreement, Summit Learning shall use commercially reasonable efforts to ensure that the Program and the Services shall be provided in compliance with Summit Learning's then-most current documentation for the Program or written specifications for the corresponding other Services, as the case may be. Summit Learning shall use commercially reasonable efforts to correct, as soon as practicable, any failure of the Program and the Services to be provided in compliance with Summit Learning's then-most current documentation for the Program or written specifications for the other corresponding Services, as the case may be.
2. Changes to Program and the Services. From time to time, Summit Learning may implement changes and improvements to the Services, including by conducting maintenance, updating the functionality and look of the Services, and adding or removing functionalities or features. Summit Learning may also stop providing the Services to the Partner School or its Users, or add or create new limits to the Services or restrict access by Partner School or its Users access to all or a part of the Service at any time.
3. Publicity. Summit Learning shall not issue publicity news releases, grant press interviews, or use any Student Data or Content, including but not limited to the logos of the LEA or a Participating School, without the prior express written consent of a representative from the LEA or Participating School. Furthermore, Summit Learning may not photograph or film or cause others to photograph or film within any of the facilities of the LEA or a Participating School without the prior express written consent of the LEA or Participating School.

7.2 Additional Obligations Regarding Treatment of Student Data

Summit Learning agrees to the obligations set forth in the Data Privacy Addendum regarding the handling of Student Data and Personally Identifiable Information.

8. LIMITATION ON LIABILITY

IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER OR, WITH RESPECT TO SUMMIT LEARNING, ADDITIONALLY WITH RESPECT TO ALL PARTICIPATING SCHOOLS COLLECTIVELY, FOR (A) CONSEQUENTIAL, INDIRECT, SPECIAL, OR PUNITIVE DAMAGES ARISING FROM ANY CLAIM OR ACTION BASED ON CONTRACT, TORT OR OTHER LEGAL THEORY; OR (B) DAMAGES IN EXCESS OF $10,000 IN THE AGGREGATE. SUMMIT LEARNING SHALL NOT BE LIABLE FOR PARTNER SCHOOL'S INABILITY TO USE THE PROGRAM OR THE SERVICES DUE TO (I) SCHEDULED DOWNTIME; (II) UNAVAILABILITY DUE TO FACTORS OUTSIDE OF SUMMIT LEARNING'S REASONABLE CONTROL, INCLUDING WITHOUT LIMITATION, ACTS OF GOD, ACTS OF GOVERNMENT, FLOOD, FIRE, EARTHQUAKES, CIVIL UNREST, ACTS OF TERROR, STRIKES OR OTHER LABOR PROBLEMS; (III) UNAVAILABILITY THAT RESULTS FROM EQUIPMENT AND/OR SOFTWARE OF THIRD PARTIES WHERE SUCH EQUIPMENT AND/OR SOFTWARE IS NOT WITHIN THE REASONABLE CONTROL OF SUMMIT LEARNING; (IV) UNAVAILABILITY CAUSED BY ABUSE OR MISUSE OF THE SERVICES OR PROGRAM (OR ANY COMPONENT THEREOF) BY THE LEA, ANY PARTICIPATING SCHOOL OR THEIR RESPECTIVE USERS; OR (V) UNAVAILABILITY CAUSED BY USE OR MAINTENANCE OF THE SERVICES OR PROGRAM BY PARTNER SCHOOL IN A MANNER NOT MATERIALLY CONFORMING TO THE GUIDANCE PROVIDED BY SUMMIT LEARNING OR IN THIS PROGRAM AGREEMENT. DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS OF LIABILITY WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

9. NOTICES

9.1 General

Unless stated otherwise in this Agreement or User Agreement, all notices required by or relating to this Agreement shall be in writing and shall be sent by means of certified mail, postage prepaid, to Summit Learning and the Partner School, including any participating school therein, if any, and addressed to Summit Learning as set forth below or addressed to the Partner School and any school therein, if any, as set forth in Schedule I or addressed to such other address as may have been given by written notice in accordance with this provision:

If to Summit Learning:
Gradient Learning, c/o Procopio Law Firm,
1117 California Ave #200, Palo Alto, CA 94304;
or legal@summitlearning.org

All notices, communications, or consents required by or relating to this Agreement may also be communicated by electronic mail to Summit Learning at support@summitlearning.org and to the Partner School at the email address set forth on Schedule I, provided that the sender receives and retains confirmation of successful transmittal to the recipient. Notices shall be effective three (3) business days after receipt of delivery by the U.S. Post Office or one (1) day after deposit with a commercial overnight courier.

9.2 Principal Contact Person

Any notices, communications, or consents required by or relating to this Agreement from Summit Learning to the Partner School will be sent to the attention of the person(s) listed on Schedule I (the "Principal Contact Person"). The Principal Contact Person shall be authorized to act on behalf of the Partner School and to make decisions for the Partner School.

10. GOVERNING LAW

Unless the LEA is a United States public and accredited educational institution, (a) this Agreement will be governed by and construed in accordance with the laws of the State of California without regard to conflict of law principle; and (b) any litigation or other dispute resolution between the LEA and Summit Learning arising out of related to this Agreement, the Services, or the LEA's (or a Participating School's) relationship with Summit Learning will take place exclusively in the state or federal court seated in San Mateo County, California and the LEA (on its own behalf and on behalf of each Participating School) and Summit Learning hereby submit to and waive any objections to the exclusive personal jurisdiction of and venue of such courts.

If the LEA is a United States public and accredited educational institution, then (a) this Agreement will be governed and construed in accordance with the laws of the state (within the United States) in which the LEA is domiciled, except that body of law concerning conflicts of law; and (b) any litigation or other dispute resolution between the LEA and Summit Learning arising out of or relating to this Agreement, the Services, or the LEA's (or a Participating School's) relationship with Summit Learning will take place exclusively in federal court within the Northern District of California, and the LEA (on its own behalf and on behalf of each Participating School) and Summit Learning hereby submit to and waive any objections to the exclusive personal jurisdiction of and venue of such court unless such consent is expressly prohibited by the laws of the state in which the Partner School is domiciled.

11. GENERAL PROVISIONS

11.1 Entire Agreement; No Waiver

This Agreement, including the exhibits attached hereto, constitute the final and entire agreement between the Parties regarding its subject matter, and supersede all other related oral or written agreements or policies. Neither failure nor delay on the part of any Party in exercising any right, power, or privilege hereunder shall operate as a waiver of such right, nor shall any single or partial exercise of any such right, power, or privilege preclude any further exercise thereof or the exercise of any other right, power, or privilege unless expressly waived in writing and signed by duly authorized representatives of both Parties. No single waiver shall constitute a continuing or subsequent waiver.

11.2 Relationship of the Parties

This Agreement will not be construed as creating any agency relationship, or a general partnership, limited partnership, limited liability partnership, joint venture, fiduciary duty, or any other form of legal association between the Partner School and Summit Learning, and the Partner School will not represent to the contrary, whether expressly, by implication, appearance or otherwise. Except as otherwise expressly provided in this Agreement, this Agreement is not for the benefit of any third parties. Neither Party will make any commitment, by contract or otherwise, binding upon the other Party or present that it has the authority to do so.

This Agreement will not be construed as creating any agency relationship, or a general partnership, limited partnership, limited liability partnership, joint venture, fiduciary duty, or any other form of legal association between the Partner School and Summit Learning, and the Partner School will not represent to the contrary, whether expressly, by implication, appearance or otherwise. Except as otherwise expressly provided in this Agreement, this Agreement is not for the benefit of any third parties. Neither Party will make any commitment, by contract or otherwise, binding upon the other Party or present that it has the authority to do so.

11.3 Assignment; Resale

This Agreement will be binding upon and inure to the benefit of all of Summit Learning's and the Partner School's successors and assigns, which will be bound by all of the obligations of their predecessors or assignors.

11.4 Modifications and Severability

This Program Agreement and Data Privacy Addendum may be modified only by a written amendment signed by both Parties, except to the extent Summit Learning is otherwise expressly permitted by this Program Agreement or Data Privacy Addendum. In the event that the Partner School refuses to accept such changes, Summit Learning will have the right to terminate this Program Agreement in accordance with Section 5.2 hereof. If any provision of this Program Agreement or the exhibits attached hereto is found to be unenforceable or invalid, such unenforceability or invalidity will not render this Program Agreement unenforceable or invalid as a whole and, in such event, such provision is to be changed and interpreted so as to best accomplish the objectives of such provision within the limits of applicable law.

11.5 Material Modifications to Privacy Policy

If Summit Learning makes any material changes to its Privacy Policy, it shall provide advance notice on the Privacy Policy, elsewhere on the Services, or via electronic communication to the Partner School's Principal Contact Person before the effective date of such changes.

11.6 Material Modifications to Partner School Terms of Service and User Agreement

If Summit Learning makes any material changes to the Partner School Terms of Service or User Agreement, it shall provide advance notice on the Partner School Terms of Service or User Agreement, elsewhere on the Services, or via electronic communication to the Partner School's Principal Contact Person before the effective date of such changes. If the change has a material adverse impact on the Partner School and Partner School does not agree to the change, Partner School may terminate this Program Agreement in accordance with Section 5.2 hereof.

11.7 Priority of Agreements

This Program Agreement shall govern the relationship between the Partner School and Summit Learning. If there is a conflict between this Program Agreement and the Partner School Terms of Service, Data Privacy Addendum, or any other agreement between the Partner School and Summit Learning (collectively, "Other Documents"), the terms of this Program Agreement shall apply and take precedence unless specifically provided otherwise in this Program Agreement or the Other Documents. In the event of any conflict between the terms of the Other Documents, the conflict shall be resolved in favor of the Partner School Terms of Service, unless specifically provided otherwise in the Other Documents, such as with respect to the treatment of Student Data for which the terms of the Data Privacy Addendum shall apply and take precedence.

11.8 Section Headings

Section headings have been inserted in this Program Agreement as a matter of convenience of reference only, and it is agreed that such section headings are not part of this Program Agreement and will not be used in the interpretation of any provisions of this Program Agreement.

IN WITNESS WHEREOF, the undersigned have duly authorized, executed and delivered this Program Agreement as of the date written below.

Gradient Learning
By (Signature):
Name (Printed):
Title:

[PARTNER SCHOOL NAME] ("PARTNER SCHOOL")
By (Signature):
Name (Printed):
Title:

Dated: [EFFECTIVE DATE] ("Effective Date")

SCHEDULE I PARTNER SCHOOL/PARTICIPATING SCHOOLS

Name of School Cohort Number Principal Contact Person
[Address] [City], [State] [Zip Code] Attn: _____________
Phone: Fax: Email: