PLEASE CAREFULLY REVIEW THIS AGREEMENT WHICH CONTAINS A DISPUTE RESOLUTION AND AGREEMENT TO BINDING ARBITRATION AS WELL AS A CLASS ACTION AND JURY TRIAL WAIVER AS SET FORTH IN SECTION 11 BELOW. THIS DISPUTE RESOLUTION AND ARBITRATION SECTION REQUIRES THAT YOU RESOLVE DISPUTES WITH UDACITY ON AN INDIVIDUAL BASIS THROUGH FINAL AND BINDING ARBITRATION. BY ENTERING THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND ALL OF THE TERMS OF THIS AGREEMENT.
2. Government Mentor Services
a. Government Mentoring Services. For certain of Company coursework and other Udacity offerings, authorized Company users ("Users") have access to various Government Mentor Services, which are supported by the Company Government mentor marketplace. Subject to Company's discretion, and Consultant’s continuing compliance with the terms and conditions of this Agreement, from time to time, Company may make available to you assignments to liaise between Company clients and Users on a project basis, (individually referred to as a “Project” and collectively referred to as “Projects”).
b. Performance of Services. Consultant understands that Company is interested only in the results to be obtained. Consultant agrees to utilize Consultant’s best efforts to support, grade, evaluate, assess, review, and/or communicate and interact for each such Project in accordance with industry standards, any Service level guidelines, our Honor Code, Community Code of Conduct, this Agreement, and any criteria set forth for Projects resulting from the Online Courses or other Udacity Service offering towards Governmental entities or agencies and other non-governmental organizations (the "Government Mentor Services"). Consultant also agrees to use Consultant’s best efforts to complete Government Mentor Services for each Project within the time suggested for each such Project or Online Course component and as set forth in any service levels or guidelines. To the extent that Consultant fails to initiate or complete Government Mentor Services for a particular Project within the time speciﬁed by Company for that Project, Company reserves the right to assign the Project to another Consultant and, in such an event, Consultant shall receive no fees for that Project.
c. Delivery. Consultants will deliver the deliverables, designs, modules, software, products, documentation and other materials speciﬁed for Government Mentor Services (individually or collectively, "Deliverables") in accordance with the delivery schedule and other terms and conditions set forth by Company from time to time.
d. Publicity Release. Consultant hereby permits, authorizes, and licenses Company and its affiliates, successors, and assigns, and their respective licensees, and fulfillment agencies, service providers, and the employees, officers, directors and agents of each and all of them ("Authorized Persons"), to display, publicly perform, exhibit, transmit, broadcast, reproduce, record, photograph, digitize, modify, alter, edit, adapt, create derivative works, exploit, sell, rent, license, otherwise use and permit others to use my name, image, likeness, and appearance, voice, professional and personal biographical information, and other personal characteristics and all materials ("Materials") in connection with the sale, exploitation, promotion, advertisement, and marketing of Udacity’s mentor, reviewer, or career products throughout the world and in any medium or format whatsoever now existing or hereafter created without further consent from or royalty, payment or other compensation to Consultant. Consultant hereby irrevocably transfers and assigns to the Company its entire right, title and interest, if any, in and to the Materials and all copyrights in the Materials incorporated in the Udacity services arising in any jurisdiction throughout the world, including the right to register and sue to enforce such copyrights against infringers. Consultant acknowledge and agrees that s/he has no right to review or approve Materials before they are used by the Company, and that the Company has no liability to Consultant for any editing or alteration of the Materials or for any distortion or other effects resulting from the Company's editing, alteration or use of the Materials. The Company has no obligation to use the Materials or to exercise any rights given by this Agreement.
a. Fees. Subject at all times to Sections 1 and 2 and any applicable service level requirements or guidelines for a particular Project that are set forth by Company at the time that Project is offered to Consultant, Consultant shall receive the fees stated for such Project review offer in accordance with the terms set forth in this Agreement. Consultant shall not be entitled to, and Company shall not be liable for, any other fees, expenses, or costs. The Company reserves the right to adjust fees at its discretion. Pricing of the fees will be dynamic, which means that fees will be ﬂexible among Projects based upon current market demands. Market demands may include, but are not limited to, Student volume resulting in variable Project demand, current supply of Mentors for Projects requiring special expertise, surge or time-sensitive pricing in order to accommodate high demand increases at peak-times. The dynamic pricing fee model means that fees for Projects will regularly change as a result of changing market demands. By accepting the Project, you are agreeing to the fees relating to the Project that are posted at the time of acceptance and to not make a claim relating to the adequacy of the fee pricing or your compensation at a later time.
b. Payment Terms. All fees and other amounts payable to Consultant under this Agreement, if any, are stated in and are payable in U.S. dollars and Consultant shall be responsible for the costs associated with any exchange rate converting the USD into Consultant’s local currency. Unless otherwise speciﬁed by Udacity in writing, Consultant will be paid by Company on a monthly basis for all fees payable to Consultant through the third-party payment processor of Company’s choosing. Presently, Company utilizes third party payment processing services from PayPal and/or Payoneer, but reserves the right to add or otherwise use a different payment processing service in the future. All payments made to Consultant by Company hereunder will be made through such a payment processor and are subject to and exclusive of any fees or other charges that such payment processor may charge either Company or Consultant. To the extent that Consultant resides in or is otherwise situated in a location which is not served by Company’s third-party payment process, Consultant shall not provide Government Mentor Services hereunder and Company shall have no obligations to Consultant hereunder. Consultant acknowledges and agrees that it is Consultant's sole and exclusive responsibility to establish an account with the third-party payment processor and to maintain such account in good standing. Consultant also agrees that the location associated with his or her payment processing account shall be accurate and consistent with Consultant’s application information. Company shall have no liability to Consultant for any payments due under this Agreement that are denied by payment processor, that remain unclaimed for a period of thirty (30) or more days, or otherwise are rejected by PayPal, Payoneer, or other Company provided third-party payment processing service for any reason.
4. Relationship of the Parties
b. Equipment and Schedule. Consultant understands and agrees that Udacity does not direct or control Consultant, that Udacity does not set work hours, work schedules, or location of work (or to the extent Udacity needs to set work hours, work schedules or location of work, Udacity will do so based on Consultant’s availability and Company’s needs); that Company will not provide Consultant with any equipment, Internet connections, tools, labor, training, or materials needed for Consultant to provide the Government Mentor Services under this Agreement; and Company does not provide the premises at which the Consultants will perform the work.
c. Taxes and Employee Beneﬁts. Consultant will report to all applicable government agencies as income all compensation received by Consultant pursuant to this Agreement. Consultant will be solely responsible for payment of all withholding taxes, social security, workers' compensation, unemployment and disability insurance or similar items required by any government agency. Consultant will not be entitled to any beneﬁts paid or made available by Company to its employees, including, without limitation, any vacation or illness payments, or to participate in any plans, arrangements or distributions made by Company pertaining to any bonus, stock option, proﬁt sharing, insurance or similar beneﬁts. Consultant will indemnify and hold Company harmless from and against all damages, liabilities, losses, penalties, ﬁnes, expenses and costs (including reasonable fees and expenses of attorneys and other professionals) arising out of or relating to any obligation imposed by law on Company to pay any withholding taxes, social security, unemployment or disability insurance or similar items in connection with compensation received by Consultant pursuant to this Agreement.
d. Liability Insurance. Consultant acknowledges that Company will not carry any liability insurance on behalf of Consultant. Consultant will maintain in force adequate liability insurance to protect Consultant from claims of personal injury (or death) or tangible or intangible property damage (including loss of use) that arise out of any act or omission of Consultant.
a. Disclosure of Work Product. Consultant will, as an integral part of the performance of Government Mentor Services, disclose in writing to Company all inventions, products, designs, drawings, notes, documents, information, documentation, improvements, works of authorship, processes, techniques, know-how, algorithms, speciﬁcations, biological or chemical specimens or samples, hardware, circuits, computer programs, databases, user interfaces, encoding techniques, and other materials of any kind that Consultant may make, conceive, develop or reduce to practice, alone or jointly with others, in connection with performing Government Mentor Services, or that result from or that are related to such Government Mentor Services, whether or not they are eligible for patent, copyright, mask work, trade secret, trademark or other legal protection (collectively, "Consultant Work Product"). Consultant Work Product includes without limitation any Deliverables that Consultant delivers to Company pursuant to Section 2(c).
b. Ownership of Consultant Work Product. Consultant and Company agree that, to the fullest extent permitted by applicable law, each item of Consultant Work Product will be the sole and exclusive property of Company. Consultant hereby irrevocably transfers and assigns to Company, and agrees to irrevocably transfer and assign to Company, all right, title and interest in and to the Consultant Work Product, including all worldwide patent rights (including patent applications and disclosures), copyright rights, mask work rights, trade secret rights, know-how, and any and all other intellectual property or proprietary rights (collectively, "Intellectual Property Rights") therein. At Company's request and expense, during and after the term of this Agreement, Consultant will assist and cooperate with Company in all respects, and will execute documents, and will take such further acts reasonably requested by Udacity to enable Company to acquire, transfer, maintain, perfect and enforce its Intellectual Property Rights and other legal protections for the Consultant Work Product. Consultant hereby appoints the ofﬁcers of Company as Consultant's attorney- in- fact to execute documents on behalf of Consultant for this limited purpose.
c. Moral Rights. To the fullest extent permitted by applicable law, Consultant also hereby irrevocably transfers and assigns to Company, and agrees to irrevocably transfer and assign to Company, and waives and agrees never to assert, any and all Moral Rights (as deﬁned below) that Consultant may have in or with respect to any Consultant Work Product and/or Materials during and after the term of this Agreement. "Moral Rights" mean any rights to claim authorship of a work, to object to or prevent the modiﬁcation or destruction of a work, to withdraw from circulation or control the publication or distribution of a work, and any similar right, existing under judicial or statutory law of any country in the world, or under any treaty, regardless of whether or not such right as called or generally referred to as a "moral right."
d. Related Rights. To the extent that Consultant owns or controls (presently or in the future) any patent rights, copyright rights, mask work rights, trade secret rights, or any other intellectual property or proprietary rights that may block or interfere with, or may otherwise be required for, the exercise by Company of the rights assigned to Udacity under this Agreement (collectively, "Related Rights"), Consultant hereby grants or will cause to be granted to Company a non-exclusive, royalty- free, irrevocable, perpetual, transferable, worldwide license (with the right to sublicense) to make, have made, use, offer to sell, sell, import, copy, modify, create derivative works based upon, distribute, sublicense, display, perform and transmit any products, software, hardware, methods or materials of any kind that are covered by such Related Rights, to the extent necessary to enable Company to exercise all of the rights assigned to Company under this Agreement.
6. Consultant Representations and Warranties
a. No Pre-existing Obligations. Consultant represents and warrants that Consultant has no pre-existing obligations or commitments (and will not assume or otherwise undertake any obligations or commitments) that would be in conﬂict or inconsistent with or that would hinder Consultant's performance of its obligations under this Agreement.
c. Non-infringement. Consultant represents and warrants that the Consultant Work Product or the Materials will not infringe, misappropriate or violate the rights of any third party, including, without limitation, any Intellectual Property Rights or any rights of privacy or rights of publicity, except to the extent any portion of the Consultant Work Product or Materials is created, developed or supplied by Company or by a third party on behalf of Udacity.
d. Non-Solicitation of Personnel. During the term of this Agreement and for a period of one (1) year thereafter, Consultant will not directly or indirectly solicit the services of any Company User, employee or consultant for Consultant's own beneﬁt or for the beneﬁt of any other person or entity.
e. Accurate and Updated Information. Consultant represents and warrants that he or she will provide truthful, accurate, and updated information relating to Consultant’s application, registration and other information relating to the provision of the Government Mentor Services.
Consultant and its agents and/or subcontractors, if any, will not use or disclose to any party any Confidential Information of Company, Company’s clients or Users that is obtained from Company through any means. “Confidential Information” means any information designated by Company, Company’s clients or Users as confidential or proprietary, all information or data concerning or related to Company’s offerings (including the research, improvement, development or sale thereof), processes, or business operations, including any information related to Company’s customers, Users or suppliers, and any other information that is of such a nature that a reasonable person would believe it to be confidential or proprietary. The Deliverables constitute Company’s Confidential Information. Consultant understands that, in connection with the Government Mentor Services provided for any Online Course, third party licensors may also provide data and other information solely for use in the Online Course and/or the related student projects and such information is also considered Confidential Information for the purposes of this Agreement. The provisions of this Section do not apply to any information that: (i) is rightfully known to Consultant prior to disclosure by Company, (ii) is rightfully obtained by Consultant from any third party without restrictions on disclosure, (iii) is or becomes available to the public without restrictions, or (iv) is disclosed by Consultant with the prior written approval of Company.
Consultant will defend, indemnify, and hold Company harmless from and against all claims, damages, liabilities, losses, expenses and costs (including reasonable fees and expenses of attorneys and other professionals) arising out of or resulting from:
any action by a third party against Company that is based on a claim that any Government Mentor Services performed under this Agreement, or the results of such Government Mentor Services (including any Consultant Work Product), or Company's use thereof, (a) violates any applicable law or regulation, and/or (b) infringe, misappropriate or violate such third party's Intellectual Property Rights; and
any action by a third party against Company that is based on any act or omission of Consultant and that results in: (a) personal injury (or death) or tangible or intangible property damage (including loss of use); or (b) the violation of any statute, ordinance, or regulation.
9. Term and Termination
a. Term. This Agreement will commence on the Effective Date and, unless terminated earlier in accordance with the terms of this Agreement, will remain in force and effect until terminated by either party.
b. Termination for Breach. Udacity reserves the right to terminate this Agreement immediately upon any breach of this Agreement, without any cure period.
c. Termination for Convenience. Either party may terminate this Agreement at any time, for any reason or no reason, by providing twenty (20) days’ written notice to the other party. Company may also terminate an individual Project at any time (including all Projects in process), for any reason or no reason, immediately upon written notice to Consultant.
d. Effect of Termination. Upon the expiration or termination of this Agreement for any reason: (i) Consultant will promptly deliver to Company all Consultant Work Product, including all work in progress on any Consultant Work Product not previously delivered to Company, if any; (ii) Consultant will promptly deliver to Company all Conﬁdential Information in Consultant's possession or control; and (iii) Company will pay Consultant any accrued but unpaid fees due and payable to Consultant pursuant to Section 3.
e. Survival. The rights and obligations of the parties under Sections 2(d), 3, 4(c), 4(d), 5, 6 (c)-(e), 7, 8, 9(d) and(e), 10, 11, and 12, will survive the expiration or termination of this Agreement.
10. Limitation of Liability
In no event will Udacity be liable for any special, incidental, punitive, exemplary or consequential damages of any kind in connection with this agreement, even if Udacity has been informed in advance of the possibility of such damages. Further, Consultant acknowledges and agrees Udacity makes no warranties relating to the volume or availability of Projects for Consultant or the ability to provide Services, at any time, now or in the future.
11. Dispute Resolution, ARBITRATION, CLASS ACTION WAIVER; JURY TRIAL WAIVER
Dispute Resolution. Consultant agrees that any dispute between Consultant and Company arising out of or relating to this Agreement, the Government Mentor Services, or any other Company Services (collectively, "Disputes") will be governed by the arbitration procedure outlined below.
a. Governing Law: The resolution of any Disputes shall be governed by and construed in accordance with the laws of the State of California without regard to its conﬂict of laws principles.
b. Informal Dispute Resolution: Company and Consultant agree that they prefer to try to resolved any concerns and/or Disputes without needing a formal legal case. Before ﬁling a claim against Company, Consultant agrees to try to resolve the Dispute informally by contacting support@Udacity.com. We'll try to resolve the Dispute informally by contacting you through email. If a dispute is not resolved within 15 days after submission, you or Company may bring a formal proceeding.
c. We Both Agree to Arbitrate: Consultant and Company agree to resolve any Disputes through ﬁnal and binding arbitration, except as set forth under Exceptions to Agreement to Arbitrate below.
d. Arbitration Procedures: The American Arbitration Association (AAA) will administer the arbitration under its Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes. The arbitration will be held in the United States county where Consultant lives or works, San Francisco, California, or any other location Company agrees to.
e. Arbitration Fees: The AAA rules will govern payment of all arbitration fees. Company will pay all arbitration fees for claims less than $10,000.
f. Exceptions to Agreement to Arbitrate: Either Consultant or Company may assert claims, if they qualify, in small claims court in San Francisco (CA) or any United States county where Consultant lives or works. Either party may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the Company Services, or infringement of intellectual property rights (for example, trademark, trade secret, copyright or patent rights) without ﬁrst engaging in arbitration or the informal dispute- resolution process described above.
g. No Class Actions: Consultant may only resolve Disputes with Company on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations aren't allowed under this Agreement.
h. Judicial Forum for Disputes: In the event that the agreement to arbitrate is found not to apply to Consultant or Consultant’s claim, Consultant and Company agree that any judicial proceeding (other than small claims actions) will be brought in the federal or state courts of San Francisco County, California. Both Consultant and Company consent to venue and personal jurisdiction there. Company and Consultant each agree to waive our right to a jury trial.
i. Limitation on Claims: Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to Consultant’s use of the Company Government mentor marketplace, and/or Company Services, must be ﬁled within one (1) year after such claim or cause of action arose, or else that claim or cause of action will be barred forever.