Proximity Learning Inc. Terms of Service
I. Parties to the Agreement / Terms of Service
- Proximity Learning, Inc. (“Proximity”)
- Participating school, district, institutional client, or individual customer (“Customer”)
These Terms of Service (the “Agreement”) take effect on the date (“Effective Date”) that the Customer signs or otherwise accepts a price quote or other proposal provided by Proximity. Customer and Proximity (each a “Party” and, collectively, the “Parties”) wish to enter into this Agreement whereby Customer shall purchase, and Proximity shall provide, e-learning solutions for instruction in world languages or other subjects areas, or other products and services agreed upon by the Parties.
The term of this Agreement shall begin on the Effective Date and expire at the end of the last day on which services or product is provided by Proximity to Customer.
The following Sections will survive any termination or expiration of this Agreement: VIII. REIMBURSEMENT OF EXPENSES, IX. INVOICING/PAYMENT OF FEES, X. PAYMENT TERMS, XII. CONFIDENTIALITY AND WORK PRODUCT, XIV. STUDENT EDUCATION RECORDS, XVI. DISCLAIMER OF WARRANTY and XXII. MISCELLANEOUS.
IV. Proximity Obligations
Proximity shall render Products and Services to the Customer under this Agreement as described in Section VI. Such Products and Services shall cover components that are provided by Proximity, which may include such elements as e-learning platform, instruction, curriculum, and technical support. All Proximity instructors shall hold all necessary certifications required by applicable laws, regulations, and Customer policies. Proximity shall work in good faith to facilitate interaction between the Customer and Proximity instructors at remote locations.
V. Customer Obligations
The Customer shall provide a venue to facilitate the Products and Services described in Section VI. At the Customer’s option, students shall be allowed to take the classes described herein at a location of their choosing not controlled by the Customer (e.g. home, library, etc.). If classes are provided at Customer’s location, Customer shall also
provide individuals qualified under applicable laws, regulations, and Customer policies (“Individuals”) to facilitate the Products and Services described in Section VI..
Such Individuals shall be physically present to oversee classroom-based e-learning activities and shall provide periodic feedback to Customer and Proximity regarding service/instruction quality. The Customer understands and agrees that if classes are conducted at the Customer’s location, it must provide computer systems and other hardware and equipment that meet the specifications provided in Section VII.
VI. Products and Services
Proximity shall provide e-learning solutions for world language instruction or other subject areas as enumerated in the quote or proposal provided to the Customer. Unless otherwise specified, e-learning solutions and services provided by Proximity will include all required online platforms, curriculum, materials, etc., as well as instruction provided by qualified teachers if applicable.
Proximity will also provide technical and implementation support for systems provided by or maintained by Proximity. Customer will be responsible for providing necessary venues, equipment, adequate Internet access and bandwidth, technical support, etc. as described in Section V and Section VII.
Proximity will record class sessions and provide them for access to only the students and teachers assigned to the class that was recorded in a secure environment. All videos will automatically be deleted after 90 days unless Customer requests the videos to stay active longer. Customer has the right to request that no classes will be recorded.
VII. Equipment to be Provided by Customer
If classes are conducted at the Customer’s location, Customer shall provide, solely at its own expense, the equipment necessary for Proximity to provide the Products and Services described in this Agreement. Such equipment shall include Internet connectivity with sufficient bandwidth, computers, Web cameras, two-way headsets, computer software and any other equipment required at the Customer’s location and in each venue in which instruction shall be delivered. If classes are conducted at a location not under the Customer’s control, such as the home of the student, then the student or parent shall be responsible for meeting the requirements of this Section VII.
VIII. Reimbursement of Expenses
During the term of the Agreement, the Customer shall, within forty-five (45) days after its receipt of appropriate documentation from Proximity, reimburse Proximity for certain reasonable and necessary out-of-pocket expenses, which are approved in advance by the Customer, properly documented, and incurred by Proximity in connection with the Products and Services rendered hereunder, which are beyond the scope of this Agreement. Such reimbursement shall only be for the actual cost incurred by Proximity.
IX. Invoicing/Payment of Fees
Proximity shall bill the full fee for core Products and Services upon receipt of a signed/accepted quote, valid Purchase Order (the “PO”) or other valid form of
authorization from the Client. Customer shall pay for each semester’s Products and Services in full, within forty-five (45) days of invoice date.
X. Payment Terms
When implementing a synchronous classroom, the Customer has the ability to end the contract after sixty (60) days with thirty (30) days’ written notice. Post 60 days all billing will be based on the month of service.
When implementing an asynchronous course, the Customer may add or drop students without penalty within the first thirty (30) days. After the thirty (30) day period, the Customer is responsible for all tuition and payments for all currently enrolled students or the number of enrollments agreed upon by the Customer and Proximity, as well as any fees for other services provided by Proximity at the Customer’s request. Customer is responsible for notifying Proximity of additional enrollments or dropped students before the thirty (30) day period is complete, or the Customer will be charged for the current student enrollment as of day twenty-nine (29). Customer agrees to remit payment to Proximity within forty-five (45) days of invoice date. Proximity may offer to the Customer, at Proximity’s sole discretion, alternative payment terms to be agreed upon in writing.
XI. Independent Contractor
The Parties acknowledge that Proximity is a skilled e-learning solutions provider who will be rendering professional services pursuant to this Agreement. Proximity will use professional judgment and expertise to accomplish the details of the work. Proximity is, and shall for all purposes be considered, an independent contractor, and nothing in this Agreement shall be deemed to create or imply an agency or employment relationship between Proximity and the Customer (or any affiliate of the Customer). In this respect, Proximity acknowledges and agrees that they shall have no right or authority to commit or obligate the Customer in any way to any third party or parties unless specifically authorized to do so by an authorized officer of the Customer.
The Parties acknowledge that Proximity is free to perform services for other persons or entities and that this agreement is not an exclusive arrangement for the services of Proximity. The Parties also acknowledge that, at the time of entering this agreement and during the Contract Term, or any renewal period, Proximity is or may be engaged to perform services for any other Customer, organization or individual without the permission of the Customer. Further, Proximity acknowledges and agrees that they will not be entitled to any benefits generally provided by the Customer to its employees (including, without limitation, health insurance, retirement, severance, vacation, and disability) or any compensation other than what is set forth in Section VII above.
XII. Confidentiality and Work Product
- Subject to state and/or federal laws related to public records/ information, and subject to (b), without the prior written consent of Proximity, Customer specifically agrees that they will not at any time during or after the term of this Agreement divulge any confidential information (information not available to the public or which would be generally known by knowledgeable individuals in the industry who do not work for the Customer) obtained by Customer during the Contract Term, including, but not limited to, Proximity’s methods of operation, designs, concepts, processes, instructional methods, new developments, cost data, price data, trade secrets, formulas, financial condition, or any other information which came to Customer’s attention by reason of Proximity’s performance hereunder.
- Any and all work product, inventions, discoveries, formulas, patterns, devices, compilations, codes, moral rights, developments, trade secrets, know-how, show-how, mask work right, patents, copyrights, trade or service marks, trade names, work made for hire, presentations, seminars, compliance material, position papers, contract forms, document forms, or intellectual property protection or intangible legal rights or interests, developed or acquired in the course of providing Products and Services pursuant to this Agreement, shall be the property of Proximity, and Proximity shall have the right to use such information or rights freely without the permission of or compensation to the Customer.
XIII. Customer Property
Other than property and rights covered by Section XII, the Customer and Proximity understand and agree that all Customer records, files, documents, drawings, specifications, equipment, books and other similar items relating, in any manner whatsoever, to the business of the Customer shall remain the exclusive property of the Customer. All such books, records, data, logs, programs and records in Proximity’s possession or under Proximity’s control belonging to the Customer shall be immediately returned by Proximity to the Customer upon any termination of this Agreement or upon any request for such documents and materials by the Customer.
To the extent that such books, records, data, logs, programs and records in Proximity’s possession or under Proximity’s control belonging to the Customer also represent a work product of Proximity, as defined in this Agreement, Proximity may keep a copy of such items, subject to the restrictions and rights of the Proximity and the Customer as provided in Section XII this Agreement.
XIV. STUDENT EDUCATION RECORDS
Customer may disclose to Proximity’s staff student-related records and personally identifiable information contained in such records (collectively, “Student Records”). Pursuant to its obligations under the Family Educational Rights and Privacy Act, 20 USC §1232g, and its implementing regulations, 34 CFR pt. 99, as each may be amended from time to time (“FERPA”), Customer hereby acknowledges that, in the course of providing the services, Proximity is a school official with legitimate educational interests in the Student Records disclosed to Proximity’s staff, pursuant to 34 CFR §99.31(a)(1).
Each party shall keep in strict confidence as required and to the fullest extent required by any applicable law, including but not limited to FERPA, any and all records and information, in whatever form or format received, pertaining to the Customer’s individual students and children, including but not limited to any academic or grade information, attendance, truancy, discipline, receipt of special education services or supplementary educational services, social security or public benefits, or information as to race, ethnicity or disability.
Any Proximity staff that may access any personally identifiable information from educational records (“PII”) as defined by the FERPA shall properly manage and maintain PII from education records including, but not limited to, any requirements that may be applicable regarding parental consent and confidentiality requirements concerning the sharing and release of personally identifiable information regarding Customer students and families.
Any notice provided or permitted to be given under this Agreement must be in writing, but may be served by deposit in the mail, addressed to the party to be notified, postage prepaid, and registered or certified, with a return receipt requested. Notice given by registered mail shall be deemed delivered and effective on the date of delivery shown on the return receipt. Notice may be served in any other manner, including e-mail, fax, etc., but shall be deemed delivered and effective as of the time of actual delivery. For purposes of notice the addresses of the parties shall be as follows:
If to the Customer, to:
Customer’s published address, or other address provided to Proximity by the Customer.
If to Proximity, to:
Proximity Learning, Inc.
1800 E. 4th street, Suite 131
Austin, TX 78702
Such addresses may be changed from time to time, by written notice to the other party.
XVI. Disclaimer of Warranty
The courses, services and all materials are provided “as is” and “as available.”
XVII. Force Majeure
Proximity shall not be liable in damages, and the customer shall not have the right to terminate this Agreement, for any delay or default in performing the obligations enumerated in this agreement if such delay or default is caused by conditions beyond the Proximity’s control. Such conditions may include, but are not limited to Acts of God, Government restrictions (including the denial or cancellation of any necessary license), wars, insurrections, extreme weather, foreign currency exchange fluctuations, political upheaval, epidemic/pandemic, and/or any other cause beyond the reasonable control of the Party whose performance is affected.
This agreement shall be administered by, and all orders shall be placed, with Proximity.
Proximity may assign this Agreement, and this Agreement shall inure to the benefit of, and be binding upon, Proximity, its successors and assigns, including without limitation any entity which may acquire substantially all of Proximity’s assets and business, or with or into which Proximity may be consolidated or merged. The Customer is not permitted to assign this Agreement without the express written consent of Proximity.
The Parties acknowledge that e-learning operations may be affected by numerous factors such as damage, loss, malfunction, or destruction of equipment outside of Proximity’s control. As such, in the event Proximity is unable to perform under this Agreement due to a condition beyond its reasonable control, Proximity shall give prompt notice to the Customer and shall have the right to terminate this Agreement. In the event of termination, the Customer shall receive a refund for any unused courses, or unused portions of courses already in progress.
The Parties agree to make a good faith effort to resolve any and all disagreements through voluntary, non-binding mediation before seeking any legal remedies against the other party. The Parties shall share the cost of the mediation equally.
- Governing Law: This agreement shall, for all purposes, be governed by and interpreted and enforced in accordance with the laws of the State of Texas.
- Severability: The provisions of this Agreement are severable only through mutual written consent of both Parties. The invalidity or unenforceability of one or more of the provisions herein shall not have any effect upon the validity or enforceability of any other provision.
- No Coercion: The Parties acknowledge they have entered into this Agreement as a free and voluntary act and not as the result of coercion of any kind.
- Amendments or Modifications: Proximity reserves the right to modified or update the terms of the Agreement at any time without notice. Proximity will endeavor to notify the Customer of any changes to the Terms of Service, but the Customer should also periodically review the Terms of Service published online. Services, products, pricing, fees, etc. enumerated in a quote or proposal provide by Proximity and signed or otherwise accepted by the Customer shall not be changed, waived, discharged, or terminated except by written agreement signed by both Parties.
- Headings: The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.
- Ambiguities: In the event that it shall be determined that there is any ambiguity contained herein, such ambiguity shall not be construed against either party hereto as a result of such party’s preparation of this Agreement but shall be construed in light of all of the facts, circumstances and intentions of the parties at the time this Agreement is entered into.
- Counterparts: This Agreement and any related quotes, proposals, etc. may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same Agreement.
- Entire Agreement: This Agreement contains and constitutes the entire Agreement between the Parties and
supersedes and cancels any prior agreements, representations, warranties, or communications, whether oral or written, between the Parties relating to any of the transactions contemplated by this Agreement.
When a Proximity Learning Inc. student reaches 18 years of age or attends a postsecondary institution, he or she becomes an “eligible student,” and all rights formerly given to parents under FERPA transfer to the student. The eligible student has the right to have access to his or her education records, the right to seek to have the records amended, the right to have control over the disclosure of personally identifiable information from the records (except in certain circumstances specified in the FERPA regulations, some of which are discussed below), and the right to file a complaint with the Department. The term “education records” is defined as those records that contain information directly related to a student and which are maintained by an educational agency or institution or by a party acting for the agency or institution. Improper disclosure of personally identifiable information derived from education records is prohibited by Proximity Learning Inc.. Thus, information that an official obtained through personal knowledge or observation, or has heard orally from others, is not protected. This remains applicable even if education records exist which contain that information, unless the official had an official role in making a determination that generated a protected education record. Proximity Learning Inc. is required to provide certain privacy protections for those education records that it does maintain. Also, unless there is an outstanding request by an eligible student to inspect and review education records, FERPA permits the school to destroy such records without notice to the student.
Access to Education Records – Eligible
Proximity Learning Inc. students will have the opportunity to inspect and review his or her education records within 45 days following its receipt of a request. Proximity Learning Inc. is required to provide and make arrangements for an eligible student to have copies of their education records. Proximity Learning Inc. is not required to provide information that is not maintained or to create education records in response to an eligible student’s request. Accordingly, Proximity Learning Inc. is not required to provide an eligible student with updates on his or her progress in a course (including grade reports) or in school unless such information already exists in the form of an education record.
Amendment of Education Records
Under FERPA, an eligible Proximity Learning Inc. student has the right to request that inaccurate or misleading information in his or her education records be amended. While Proximity Learning Inc. is not required to amend education records in accordance with an eligible student’s request, we are required to consider the request. If the school decides not to amend a record in accordance with an eligible student’s request, the school must inform the student of his or her right to a hearing on the matter. If, as a result of the hearing, Proximity Learning Inc. still decides not to amend the record, the eligible student has the right to insert a statement in the record setting forth his or her views. That statement must remain with the contested part of the eligible student’s record for as long as the record is maintained. Proximity Learning Inc. will conform to fair recordkeeping practices. Eligible Proximity Learning Inc. students have the right to seek to amend education records which contain inaccurate information, but this right cannot be used to challenge a grade or an individual’s opinion, or a substantive decision made by Proximity Learning Inc. about a student.
Disclosure of Education Records
Proximity Learning Inc. will generally not disclose personally identifiable information from an eligible student’s education records to a third party unless the eligible student has provided written consent. Under the exception below, Proximity Learning Inc. will disclose personally identifiable information from education records without consent.
First, Proximity Learning Inc. officials,” including teachers, with Proximity Learning Inc. can obtain access to personally identifiable information contained in education records provided it has been determined that they have “legitimate educational interest” in the information. A school must inform eligible students of how it defines the terms “school official” and “legitimate educational interest” in its annual notification of FERPA rights. A school official generally has a legitimate educational interest if the official needs to review an education record in order to fulfill his or her professional responsibility. Additional information about the annual notification of rights is found below in this guidance document. Secondly, Proximity Learning Inc. will provide educational records to another school in which the student seeks or intends to enroll. The sending school may make the disclosure if it has included in its annual notification of rights a statement that it forwards education records in such circumstances. Proximity Learning Inc. will provide an eligible student with a copy of the records that that was released if requested by the student. Thirdly, we will provide to organizations conducting studies for or on behalf of Proximity Learning Inc. making the disclosure for the purposes of administering predictive tests, administering student aid programs, or improving instruction.
Complaint Regarding Access
If an eligible student believes that Proximity Learning Inc. has failed to comply with his or her request for access to education records, the student may complete a FERPA complaint form and should include the following specific information: the date of the request for access to the education records; the name of the school official to whom the request was made (a dated copy of any written request to the school should be provided, if possible); the response of the school official, if any; and the specific nature of the information requested.
Complaint Regarding Amendment
If an eligible student believes that Proximity Learning Inc. has failed to comply with his or her request for amendment of inaccurate information in education records or failed to offer the student an opportunity for a hearing on the matter, the student may complete a FERPA complaint form and should include the following specific information: the date of the request for amendment of the education records; the name of the school official to whom the request was made (a dated copy of any written request to the school should be provided, if possible); the response of the school official, if any; the specific nature of the inaccurate information for which amendment was requested; and evidence provided to the school to support the assertion that such information is inaccurate.
Complaint Regarding Disclosure
If an eligible student believes that Proximity Learning Inc. has improperly disclosed personally identifiable information from his or her education records to a third party, the student may complete a FERPA complaint form and should include the following specific information: the date or approximate date the alleged disclosure occurred or the date the student learned of the disclosure; the name of the school official who made the disclosure, if that is known; the third party to whom the disclosure was made; and the specific nature of the education records disclosed.