OpenSciEd Project - License for Commercial Use of Curriculum Materials v1.0 by openscied

OpenSciEd Project - License for Commercial Use of Curriculum Materials v1.0

This License for Commercial Use of Curriculum Materials (this “Agreement”) is between you and the National Center for Civic Innovation, 121 Avenue of the Americas 6th Floor, New York, NY 10013 (“OpenSciEd”) and supplements the CC-BY-NC License and applies to any Commercial Use of the Licensed Materials (as deﬁned below).

BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE, EXECUTING OR OTHERWISE ENTERING INTO AN ORDER THAT REFERENCES THIS AGREEMENT, USING THE CURRICULUM MATERIALS FOR A COMMERCIAL PURPOSE, OR OTHERWISE AFFIRMATIVELY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT. The date on which you accept this Agreement is referred to as the “Eﬀective Date.” You may not use the Curriculum Materials for a Commercial purpose unless you have consented to be bound by the terms of this Agreement. Notwithstanding the foregoing, nothing in this Agreement is intended to limit or otherwise restrict uses of the Curriculum Materials permitted under the CC-BY-NC License.

IF YOU ARE AN INDIVIDUAL ENTERING INTO THIS AGREEMENT ON BEHALF OF, OR FOR THE BENEFIT OF, ANY CORPORATION, PARTNERSHIP, ORGANIZATION OR OTHER ENTITY WITH WHICH YOU ARE ASSOCIATED (AN “ORGANIZATION”), THEN YOU ARE AGREEING TO THIS AGREEMENT ON BEHALF OF SUCH ORGANIZATION, AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND SUCH ORGANIZATION TO THIS AGREEMENT. References to “you,” “your” and

“Licensee” in this Agreement will refer to both the individual entering into this Agreement and to any such Organization.

1. Deﬁnitions

a. “Commercial” means primarily intended for or directed towards commercial advantage or monetary compensation.

b. “Curriculum Materials” means the artistic or literary work, database, curriculum materials, course materials, textbooks, teaching guides, study guides, tests, test answers, practice materials, kit lists (i.e., materials required for experiments) or other materials made available by OpenSciEd to you.

c. “Distribute” means to distribute, share, provide or otherwise make available the Licensed Materials or access thereto to any third party.

d. “End User” means any student, teacher, school district, employee or other individual, organization or entity to which Licensee makes available the Licensed Materials hereunder.

e. “Fee Threshold” means the point at which the use of the Licensed Materials for a Commercial purpose triggers the payment of fees to OpenSciEd.

f. “Licensed Materials” means the Curriculum Materials and the Modiﬁed Curriculum Materials.

g. “Modified Curriculum Materials” means a work that (i) is based on the Curriculum Materials and (ii) recasts, transforms or adapts the Curriculum Materials. For clarification, a work that consists of editorial revisions, annotations, elaborations or other modifications of the Curriculum Materials that, as a whole, represent an original work of authorship, shall constitute Modified Curriculum Materials.

h. “Moral Rights” means any right to claim authorship of a work, any right to object to any distortion or other modiﬁcation of a work, and any similar right, existing under the law of any country in the world.

i. “Semester” means, in any given year, the time period between (i) July 1st and December 31st; and (ii) January 1st and June 30th.

2. License.

a. Grant. Subject to the terms and conditions of this Agreement, OpenSciEd hereby grants to Licensee a non-exclusive, worldwide, non-sublicensable right and license to (i) reproduce, Distribute, make available, publicly display, publicly perform and otherwise use the Curriculum Materials; and (ii) create Modiﬁed Curriculum Materials, in each case of (i) and (ii), for any Commercial purpose.

b. End Users. You hereby agree that you are responsible for all End Users, their access to and use of the Licensed Materials and their compliance or failure to comply with the terms of this Agreement. Without limiting the foregoing, the parties understand that any use of the Licensed Materials by an End User shall be considered a use by Licensee hereunder and any breach by an End User of the terms of this Agreement shall be considered a breach by Licensee hereunder.

c. No Endorsement. Nothing in this Agreement shall be construed as permission to assert or imply that OpenSciEd or other contributors to the Curriculum Materials sponsors, endorses, or is otherwise connected with (i) Licensee or any End Users, entities, institutions and organizations with which Licensee is aﬃliated; or (ii) the Modiﬁed Curriculum Materials created by Licensee.

d. Ownership.

i. Curriculum Materials. OpenSciEd owns and retains all right, title and interest (including all intellectual property rights) in and to the (i) Curriculum Materials and any materials created, developed

or provided by OpenSciEd in connection with this Agreement; and

(ii) the names, logos, and trademarks of OpenSciEd.

ii. Modiﬁed Curriculum Materials. As between the parties, Licensee owns all right, title and interest (including all intellectual property rights in) and to any Modiﬁed Curriculum Materials created by Licensee in connection with this Agreement.

e. Unauthorized Use. In addition to any other remedies available to it, if OpenSciEd determines that Licensee’s use of the Curriculum Materials is not within Licensee’s rights under the CC-BY-NC License or this Agreement, OpenSciEd may, in its sole discretion: (i) terminate the CC-BY-NC License and/or this Agreement; (ii) require Licensee to cease and desist such unauthorized use; (iii) require that Licensee pay to OpenSciEd any fees that would have been previously been due hereunder; and/or (iv) require that Licensee license the Curriculum Materials on terms that accurately reﬂect Licensee’s use of such Curriculum Materials.

3. Other Rights.

a. Moral Rights. Moral Rights are not licensed to Licensee under this Agreement. To the extent possible, OpenSciEd waives and/or agrees not to assert any Moral Rights it may have in and to the Licensed Materials solely to the extent necessary to allow Licensee to exercise the rights granted to Licensee pursuant to Section 2(a) above in accordance with the terms and conditions of this Agreement.

b. Patents and Trademarks. Licensee acknowledges and agrees that Patent and trademark rights are not licensed to Licensee under this Agreement.

4. Fees.

a. Fee Thresholds. If, during any Semester in the Term, Licensee’s Commercial use of the Curriculum Materials (including any Curriculum Materials incorporated into Licensee’s Modiﬁed Curriculum Materials):

i. generates $150,000 or more in gross revenue; or

ii. results in the Curriculum Materials being made available, at any time during the applicable Semester, to (1) 15,000 students or more; (2) 100 teachers or more; (3) 50 schools or more; or (4) 15 total school districts;

Licensee shall pay to OpenSciEd the applicable fees as set forth in Schedule A (“Fees”). For the avoidance of doubt, if Licensee’s use of the Curriculum Materials is Non-Commercial or does not meet any threshold described in subsections (i) or (ii) above at any point during a Semester, Licensee’s use of the Licensed Materials during such Semester will not trigger any obligation to pay Fees to OpenSciEd under this Section 4.

b. Payment. For each Semester during the Term for which Licensee is obligated hereunder to pay any Fees, Licensee shall pay such Fees to OpenSciEd no later than thirty (30) days after the last day of the applicable Semester. All Fees and other payments to OpenSciEd hereunder are exclusive of any and all taxes, duties or levies, which shall be assumed and paid for by Licensee. Fees that are more than fourteen (14) days overdue will be subject to a ﬁnance charge of one and one half percent (1.5%) per month simple interest, with such interest charges starting on the day after the due date for such Fees, plus any related collection and legal costs actually incurred by OpenSciEd in connection with its collection of such Fees.

c. Reports. For each Semester during the Term, no later than thirty (30) days after the last day of the applicable Semester, Licensee will, at no cost to OpenSciEd, electronically deliver to OpenSciEd a true, accurate and complete usage and revenue report detailing Licensee’s use of the

Licensed Materials in the applicable semester (each, a “Report”). The Reports shall be substantially in the form specified in Schedule B and shall contain a sufficient level of detail regarding Licensee’s use of the Licensed Materials, and any revenue generated or received in connection therewith, in order to allow OpenSciEd to determine, for each Semester, whether Fees are owed for such Semester and, if Fees are owed, the amount of such Fees. The Reports shall not contain any personally identifiable information. Licensee agrees that OpenSciEd may create derivative works and internal analyses based on the Reports (collectively, the “Derived Data”), and that OpenSciEd shall own all right, title and interest, including all intellectual property rights, in and to the Derived Data. If a Report reveals that Licensee has underpaid OpenSciEd, Licensee shall promptly pay to OpenSciEd the underpaid amount (together with interest from the date such amount would have been due, in accordance with Section 4(b)).

d. Confidentiality of Reports. OpenSciEd agrees to take commercially reasonable measures to prevent unauthorized use and disclosure of the Reports and will use at least the same measures to prevent such unauthorized use and disclosure as it uses to protect its own similar confidential information. OpenSciEd shall not share the Reports with other licensees. Notwithstanding the foregoing, OpenSciEd may share the Reports with any of its agents, contractors, employees, representatives, advisors (including financial and legal advisors) or other third parties who OpenSciEd reasonably believes to have a need to access or use the Reports in furtherance of its business and/or business interests. For clarity, the confidentiality obligations in this Section 4(d) shall not apply to the Derived Data, which shall constitute confidential information of OpenSciEd.

5. Conditions to the Right to Distribute.

a. Notices. If Licensee Distributes the Curriculum Materials for a Commercial purpose in any form (including as part of any Modiﬁed Curriculum Materials), such Curriculum Materials must:

i. include a copy of or a link to this Agreement and the CC-BY-NC License; and

ii. if the Curriculum Materials are Distributed as part of any Modified Curriculum Materials, contain prominent copyright notices identifying the modified portions and stating that Licensee has modified the Curriculum Materials. Such notices will be in the form below:

1. “This curriculum has been adapted from the OpenSciEd Curriculum originally developed and authored by The OpenSciEd Project of the National Center for Civic Innovation. © 2023 NATIONAL CENTER FOR CIVIC INNOVATION. The OpenSciEd name and logos are trademarks of the National Center for Civic Innovation. ALL RIGHTS RESERVED.”

b. Attribution. Except as otherwise expressly permitted under this Agreement, Licensee must keep intact, and Licensee may not modify or remove, any notices, disclaimers, or attributions included in or provided with the Curriculum Materials. In addition, where Licensee makes the Curriculum Materials available through a website, mobile app or other digital means, Licensee must include a prominent hypertext link back to the OpenSciEd website at www.openscied.org for the webpage where the Curriculum Materials are made available. An example of this attribution is:

1. “This curriculum has been adapted from the OpenSciEd High School Curriculum originally developed and authored by The OpenSciEd Project of the National Center for Civic Innovation. © 2023 NATIONAL CENTER FOR CIVIC INNOVATION. It is licensed under the Creative Commons Attribution Non-Commercial 4.0 International License (CC-BY-NC) and the License for Commercial Use of Curriculum Materials v1.0

https://www.openscied.org/commercial-license/. The

6. Term and Termination.

a. Term. This Agreement will commence on the Eﬀective Date and continue in eﬀect until either party terminates this Agreement in accordance with the provisions herein (the “Term”).

b. Termination.

i. OpenSciEd. OpenSciEd, in the event of Licensee’s breach of any term of this Agreement, will provide Licensee thirty (30) days to cure such breach. If the breach is not cured within thirty (30) days, OpenSciEd may immediately terminate this Agreement.

ii. Insolvency. This Agreement will terminate automatically (A) upon the institution by or against Licensee of insolvency, receivership or bankruptcy proceedings or any other proceedings for the settlement of Licensee’s debts that is not dismissed within ninety (90) days of being ﬁled or instituted; (B) upon Licensee’s making a general assignment for the beneﬁt of creditors as a result of its inability to pay its debts as they come due; or (C) upon Licensee’s dissolution, winding up or ceasing to conduct business in the normal course, without a solvent successor to this Agreement.

c. Effect of Termination. Upon any termination of this Agreement, all licenses and rights granted to Licensee under this Agreement will automatically terminate, all outstanding Fee payments will become immediately due and payable to OpenSciEd, and Licensee will (i) promptly destroy all Curriculum Materials [(including any Curriculum Materials incorporated in Modified Curriculum Materials)] in its possession; and (ii) cease all use of the Curriculum Materials [(including any Curriculum Materials incorporated in Modified Curriculum Materials)]. Sections 2(b), 2(c), 2(d), 2(e), 3(b), 4, 6(c), 7, 8, 9, and 12 will survive any termination of this Agreement. If OpenSciEd terminates this Agreement for a breach of

the terms herein by Licensee, then Licensee agrees not to seek or obtain, either from OpenSciEd or a third party, a new license to the Curriculum Materials (or any portion thereof) under this Agreement, the CC-BY-NC License or otherwise for a period of sixty (60) months from the date of such termination.

7. Representations and Warranties; Disclaimer.

a. Licensee Warranties. Licensee represents and warrants to OpenSciEd that:

(i) it has all licenses, consents, authorizations, and approvals necessary to perform its obligations hereunder; (ii) the execution, delivery and performance by Licensee of this Agreement does not and will not violate any applicable law, third party intellectual property or property right, or any applicable order of any court or other governmental agency; (iii) it shall not make or purport to make any representations or warranties to End Users on behalf of OpenSciEd; and (iv) it shall not impose or purport to impose any obligations on OpenSciEd with respect to End Users.

b. Disclaimer. UNLESS OTHERWISE MUTUALLY AGREED BY OPENSCIED IN WRITING, OPENSCIED OFFERS THE CURRICULUM MATERIALS AS-IS AND MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WITH REGARD TO THE CURRICULUM MATERIALS, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. OPENSCIED DOES NOT REPRESENT OR WARRANT THAT THE CURRICULUM MATERIALS WILL BE ERROR FREE AND DOES NOT PROMISE THAT ANY SUCH ERRORS WILL BE CORRECTED.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE FOREGOING MAY NOT APPLY TO CERTAIN LICENSEES.

Limitation of Liability.

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL OPENSCIED BE LIABLE WITH RESPECT TO THE CURRICULUM MATERIALS, THE MODIFIED CURRICULUM MATERIALS AND/OR ANY OTHER SUBJECT MATTER OF THIS AGREEMENT UNDER ANY LEGAL THEORY FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES HOWEVER CAUSED AND WHETHER OR NOT ADVISED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES. OPENSCIED’S ENTIRE AGGREGATE LIABILITY ARISING FROM OR RELATING TO THIS AGREEMENT OR ANY SUBJECT MATTER THEREOF, UNDER ANY LEGAL THEORY SHALL BE LIMITED TO THE GREATER OF (A) THE TOTAL AMOUNT OF FEES PAID OR PAYABLE BY LICENSEE TO OPENSCIED UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THE DATE OF THE CLAIM; OR (B) FIVE HUNDRED DOLLARS ($500).

9. Indemniﬁcation.

Licensee will indemnify, defend and hold harmless OpenSciEd from and against any and all third-party claims arising out of or related to (a) Licensee’s breach or alleged breach of this Agreement, including any of Licensee’s representations, warranties or obligations hereunder; (b) any modiﬁcations, updates or changes to the Curriculum Materials made by or on behalf of Licensee; (c) any use or exploitation of the Licensed Materials for any Commercial purpose by Licensee or any End Users, employees or agents in a manner not permitted by this Agreement, including any violation or claimed violation of a third party’s rights (including intellectual property rights) resulting in whole or in part from use of the Licensed Materials under this Agreement; (d) the combination or use of Licensed Materials with materials not furnished by OpenSciEd for any Commercial purpose; (e) use of, or access to, the Licensed Materials by any End Users; or (f) any negligent act or omission by, or willful misconduct of, Licensee, its employees or agents.

10. Audit.

OpenSciEd reserves the right to audit, during the Term and for a period of six (6) months after the termination of this Agreement, no more than once per calendar year at OpenSciEd's expense, Licensee’s use of the Licensed Materials and payment of amounts due hereunder. OpenSciEd shall schedule any audit at least thirty (30) days in advance, and Licensee shall provide such auditors any assistance that they may reasonably require. Any such audit shall be conducted during normal business hours, as applicable, and shall not unreasonably interfere with Licensee’s business activities. If such audit reveals that Licensee’s use of the License Materials is not in accordance with the terms and conditions of this Agreement, Licensee shall promptly cease such unauthorized use or take such other action as is necessary to comply with this Agreement, and OpenSciEd reserves the right to terminate the Agreement for breach and/or charge Licensee, reasonable license fees for any such unauthorized use. If such audit reveals that Licensee, has underpaid amounts due hereunder, Licensee, as applicable, shall promptly pay the diﬀerence. If the amount of the underpayment exceeds ﬁve percent (5%), then Licensee shall reimburse OpenSciEd the cost of the audit.

11. Notices.

Any notice required to be given under this Agreement will be eﬀective only if it is in writing and sent to the appropriate party via email (if to OpenSciEd to info@openscied.org). Either party may change its address for receipt of notice by notice to the other party in accordance with this Section. Notices are deemed given two business days following the date of mailing or one business day following delivery to a courier. All communications and notices to be made or given pursuant to this Agreement will be in the English language.

12. Miscellaneous.

a. Assignment. Licensee may not assign its rights or delegate its duties under this Agreement (in whole or in part) without the prior written consent of OpenSciEd. OpenSciEd may freely assign this Agreement and its rights and/or obligations (in whole or in part) under this Agreement without the consent of Licensee. Any purported transfer or assignment in violation of this Section shall be null and void. Subject to the foregoing, this Agreement will bind and inure to the beneﬁt of each party’s successors and permitted assigns.

b. No Relationship. The parties are independent contractors, and nothing in this Agreement creates a partnership, joint venture or agency relationship between the parties. The parties agree that neither party’s personnel are employees or agents of the other party for federal, state or other taxes or any other purposes whatsoever and are not entitled to compensation or beneﬁts of the other.

c. Compliance With Laws. During the Term, Licensee will comply with all applicable laws, rules, and regulations relating to the subject matter of this Agreement.

d. Governing Law; Disputes. This Agreement will be governed by and construed in accordance with the laws of the State of New York, without regard to its conﬂicts of law principles. The parties agree that any disputes relating to this Agreement will be resolved in, and the parties hereby consent to the exclusive jurisdiction of the federal and state courts located in the Borough of Manhattan in New York County, New York and the parties hereby waive any objection to venue in such courts and any claim that an action or proceeding brought in such courts has been brought in an inconvenient forum.

e. Severability. If any provision of this Agreement is found to be illegal or unenforceable by a court of competent jurisdiction, such provision shall be reformed to the extent necessary to make it enforceable, and the

remaining provisions of this Agreement shall continue to be valid and enforceable to the fullest extent permitted by law.

f. No Waiver. No failure or delay (in whole or in part) on the part of a party to exercise any right or remedy hereunder will operate as a waiver thereof or eﬀect any other right or remedy available to such party.

g. No Other Agreement. This Agreement is in the English language only, which language shall be controlling in all respects, and all versions of this Agreement in any other language shall be for accommodation only and shall not be binding on the parties to this Agreement. This Agreement, including the exhibits hereto, constitutes the entire agreement between the parties regarding the subject matter hereof, and supersedes and replaces any and all prior or contemporaneous discussions, negotiations, understandings and agreements, written and oral, regarding such subject matter.

h. No Modiﬁcation. This Agreement may not be modiﬁed except by a subsequently dated writing signed by an authorized representative of each party.

i. Counterparts. This Agreement may be executed in counterparts, each of which so executed will be deemed to be an original and all of which together will constitute one and the same agreement.

SCHEDULE A

FEES

In accordance with Section 4(a) of the Agreement, if, at any point during any Semester in the Term, Licensee’s Commercial use of the Curriculum Materials: (i) generates $150,000 or more in gross revenue; or (ii) results in the Curriculum Materials being made available to (1) 15,000 students or more; (2) 100 teachers or more; (3) 50 schools or more; or (4) 15 total school districts, Licensee shall pay to OpenSciEd the Fees set forth below.

1. Subscription Fees. If Fees are due in connection with Licensee’s Commercial use of the Curriculum Materials as part of the subscription to be renewed at a future data, including when bundled with other services, products or platforms, Licensee shall pay to OpenSciEd the greater of:

a. $1.00 per student;

b. $150 per teacher; or

c. $500 per school; in each case of (a)-(c), that has access to the Curriculum Materials at any point during the applicable Semester.

2. One-Time Fees. If Fees are due in connection with Licensee’s Commercial use of the Curriculum Materials as part of a one-time sale or license of such Curriculum Materials to a third party, with no obligation, real or perceived, for the third party to pay any additional amounts in order to continue to use the Curriculum Materials, Licensee shall pay to OpenSciEd two and a half percent (2.5%) of the gross revenue received by or on behalf of Licensee in connection with such sale.

3. Reduced Fees. Notwithstanding anything to the contrary in this Schedule A, if Fees for a speciﬁc Semester are due in connection with Licensee’s Commercial use of solely two or fewer units of the Curriculum Materials, Licensee shall only be obligated to pay to OpenSciEd for such

Semester one half of the Fees due pursuant to Section 1 or 2 of this Schedule

A, as applicable. For the avoidance of doubt, use of any portion of a unit shall be considered a use of that entire unit.

OpenSciEd Project - License for Commercial Use of Curriculum Materials v1.0