I. Parties to the Agreement / Terms of Service
A. Proximity Learning, Inc. (“Proximity”)
B. 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 end on the last day of the
twelfth month following the Effective Date.
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
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.
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
During the first thirty (30) days of each course the Customer may add or drop students without
penalty. 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
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
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
(a) 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.
(b) 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
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.
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.
900 S. Capital of Texas Hwy.
Austin, TX 78746
Such addresses may be changed from time to time, by written notice to the other party.
XV. Disclaimer of Warranty
The courses, services and all materials are provided “as is” and “as available.”
XVI. 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, 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.
a. 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.
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.
c. 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.
d. 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.
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.
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.
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.
h. 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.