General Terms of Business

Revision of March 9, 2023

Introduction

Noodle Partners, PBC. (“Noodle”), a  Delaware corporation with offices at 60 Chelsea Piers, New York, NY 10011, is pleased to set out these General Terms of Business (“Agreement”), which will govern the services and products offered to the client entity (“Client”) in the Statement of Work (“SOW”).

Once the SOW is signed by both the Client and Noodle, these General Terms of Business and the SOW form the entire Agreement between the Parties. Each subsequent SOW will be deemed to be part of this Agreement. 

In consideration of the promises and the mutual covenants herein set forth, Noodle and Client (each a “Party,” collectively “Parties”) hereby agree as follows:

1) Definitions

Capitalized terms shall have the respective meanings ascribed to such terms herein or as set forth below:

a. Affiliate” of a Party means any other party that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Party. The term “control” (including the terms “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a party, whether through the ownership of voting securities, by contract or otherwise

b. “Change in Control” means (a) any merger, consolidation, acquisition or similar transaction(s) resulting in the stockholders of Noodle, immediately before such transaction or transactions, not retaining a majority of the voting power of the surviving entity (but excluding a change in ownership resulting from the sale of greater than fifty (50%) of ownership in Noodle as part of a public offering), or (b) a sale of all or substantially all of Noodle’s assets.

c. “Personal Information” means (i) any educational record of a student or applicant, or (ii) non-public personal information that relates to applicants, students, or Client’s personnel that could be used, either directly or indirectly, to identify any such person.

d. “Program(s)” means the academic courses or the degree or certificate programs designed by Client and supported by Noodle.

e. “Platforms” it means, where applicable in an SOW, the technology platforms created or licensed by Noodle that serve Client’s students, instructors, administrators, and staff for (i) program and service administration and management, (ii) delivery and consumption of learning content and media or (iii) marketing and recruitment of prospective learners. The Platforms handle collection of data from various systems, visualization of that information, and tools that facilitate communication and management of the programs.

f. “Services” are the services and products provided by Noodle under this Agreement and described in a SOW. 

2) Statements of Work

1. Contents of SOWs: The Parties shall describe each individual deliverable to be provided under this Agreement in a SOW. The SOW should include the following: 

a. The Parties shall describe each individual deliverable to be provided under this Agreement in a SOW. The SOW should include the following: 

1. A complete description of the deliverable 
2. The applicable fees and fee schedule, including any milestones and milestone payments for the deliverable. 
3. The service levels and acceptance criteria for the deliverable. 
4. The applicable materials or access that the Parties will provide for the particular deliverable. 
5. A timeline for providing the deliverable.
6. The term of the SOW
7. An explicit reference to this Agreement. 

b. Integration: An SOW signed by both Parties, and making explicit reference to this Agreement, shall be deemed to form an integral part of this Agreement. 

c. The Parties may terminate any individual SOW without affecting the Agreement or any other SOW. 

d. Conflict of Terms: If there is a conflict between the terms of this Agreement and a SOW, the SOW shall control unless explicitly stated otherwise in the applicable SOW, and in that case the conflicting terms in such SOW apply to that SOW only.

e. Changes to Statements of Work

1. Proposing Changes: Either Party may propose amendments to the SOW deliverable, fees or schedule by giving written notice to the other Party. 
2. Finalizing Changes: If the Parties agree to change the deliverable, fees, or schedule of a SOW the Parties shall cooperate to execute a written amendment to the relevant SOW detailing the changes. 

f. Additional SOWs 

1. Request Additional Services: The Client may request additional services by sending a written notice to Noodle reasonably detailing the services requested. 
2. Assess the Request: Immediately after receiving a request for additional services from the Client, Noodle shall evaluate the request to determine whether there are circumstances preventing it from providing the requested services and, if there are no circumstances preventing it from providing the requested services, shall provide the Client with the estimated fees and timelines for such requested services. 
3. Execute New Statement of Work: If after receiving Noodle’s estimate, the Client still would like to proceed with the requested services, the Parties shall execute a new SOW according to the requirements of Section 2 “Contents of SOWs.”

g. Acceptance and Rejection 

1. Inspection Period: The Client shall have an “Inspection period” of 10 working days after Noodle has provided the deliverable (or sooner as stated in the SOW) to review and verify that the deliverable meets the acceptance criteria as set out in the applicable SOW (the “Inspection Period”). 
2. Acceptance: If in the Client‘s reasonable opinion the deliverable meets the acceptance criteria, the Client must accept the deliverable and notify Noodle that it is accepting the deliverable. 
3. Deemed Acceptance: The Client shall be deemed to have accepted the deliverable if the Client fails to notify Noodle by the end of the inspection period, or if, during the inspection period, the Client uses or attempts to use the deliverable beyond what is necessary for the inspection and testing, in a manner that a reasonable person would consider compatible with the Client having accepted deliverable from Noodle. 
4. Rejection: If in the Client’s reasonable opinion, the deliverable does not materially meet the acceptance criteria, the Client may reject the deliverable by delivering to Noodle a written list detailing each failure to satisfy the acceptance criteria. 

3) Term and Termination

a. Term: The term of this Agreement begins on the signature date of the SOW and continues until the latest termination date of a SOW, or until such time as this Agreement is terminated by either Party in accordance with its terms. All Fees are nonrefundable.

1. Termination for Cause: If either Party breaches any of its material obligations under this Agreement or any SOW (the “Non-Performing Party”), the other Party may provide notice to such Non-Performing Party describing, in detail, such non-performance.  If, after receipt of such notice, the Non-Performing Party has not cured such breach within fifteen (15) business days, then such other Party may terminate this Agreement and/or any SOW(s) effective upon delivery of notice of termination to the Non-Performing Party or such other date set forth in the notice of termination. 

b. Effect of Termination: 

1. Accrued Rights: Termination or expiration of this Agreement or any SOW shall not prejudice either Party’s rights to any sums due or accrued under this Agreement or any SOW prior to such termination. Upon termination of this Agreement or any SOW for any reason, any and all costs, fees and expenses due to Noodle prior to the termination or expiration of the Agreement or any SOW shall become immediately due and payable.  
2. Survival: Any provisions of this Agreement that are intended to survive for a period after termination shall survive termination or expiration of this Agreement. 

4) Payment Terms

1. Payment Term: Invoices are payable within 30 days of receipt. A one-and-a-half percent (1.5%) late fee per month per payment (or portion thereof) will be applied to the net due amount of any invoice from Noodle that is not paid within thirty (30) days of the payment due date, with the exception of any specific amount that is the subject of a good faith dispute by Client.
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2. Invoice Disputes: In the event that Client disputes any portion of an invoice, Client shall submit to Noodle the timely full payment of the undisputed portion of the invoice, along with written documentation detailing the disputed amount. Dispute documentation must be received by Noodle within thirty (30) days of the payment due date or the right to dispute that payment obligation will be deemed waived by Client.
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3. Inflation: The fees under this Agreement and SOW(s) and any subsequent renewals thereof will be adjusted each July 1st in accordance with the change in the Consumer Price Index (CPI-U).

5) Assignment

1. Except as provided herein, neither Party may assign this Agreement or any rights and obligations hereunder, without the prior written consent of the other Party, not to be unreasonably withheld; however, either Party may assign this Agreement, or any of its rights or obligations, to an Affiliate of such Party or in connection with a Change in Control, without any consent of the other Party. However, if a proposed Change in Control is to an entity that would cause a material adverse change to the academic reputation of either Party, the non-assigning Party may terminate the Agreement with 60 days’ written notice.

6) Confidentiality

1. Announcements: Client authorizes Noodle to announce the existence of its relationship with Client to the general public, but not to disclose any of Client’s Confidential Information as set forth below. 
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2. Confidential Information: The Parties acknowledge that they may, in connection with the Services exchange information that relates to Noodle’s, or Client’s research, development, trade secrets or business affairs (“Confidential Information”).  The Party receiving Confidential Information is referred to herein as “Recipient,” and the party disclosing Confidential Information is referred to herein as “Discloser.”  Confidential Information shall not include: (i) the existence of this Agreement; (ii) information communicated that was already known to Recipient without the obligation to keep it confidential at the time of its receipt from Disclosure; (iii) information communicated that was received by Receiver in good faith from a third party not known by Recipient to be prohibited from disclosing such information to Recipient by a contractual, fiduciary or other legal obligation to the Disclosure; (iv) information communicated that was generally known or easily ascertainable by third parties or has become publicly known other than by a breach of this Agreement or other action by Recipient; or (v) information that was or is independently developed by Recipient or on behalf of Recipient without use of or reference to the information and without a breach of this Agreement. Recipient will not, without prior consent from Discloser, duplicate and/or use Confidential Information for any purpose or disclose any of Discloser’s Confidential Information, including information, reports and summaries of the activities of the Parties related to the Services to any person or entity, etc., other than for direct fulfillment of its responsibilities under this Agreement. Recipient shall keep Discloser’s Confidential Information strictly confidential by using the same care and discretion that Discloser would use to protect its own Confidential Information. This Section shall survive termination of this Agreement.  Any provision herein notwithstanding, this Agreement shall not prohibit disclosure of Confidential Information in response to due legal process.
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3. FERPA: Noodle acknowledges that, in providing the Services it may have access to student identity and educational record information, and that such information is the confidential property of Client and is also governed by the Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. § 1232g and other federal and state law relating to privacy of information, and, any provision herein notwithstanding, Noodle will comply with any and all of such applicable laws and regulations and cause each of its employees with access to any such information to agree to comply with same. 
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4. Personal Information: If Personal Information will be collected and processed pursuant to Noodle’s Data Protection
   Agreement (“DPA”). The DPA is applicable to the processing and collection of Personal Information, as defined in the DPA, that falls under and that is required to provide the Services specified in any SOW. 
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5. Remedies: Any material breach or threatened breach by either Party of any provision of this Section will cause irreparable harm to the other Party and shall entitle such other Party to apply to any court of competent jurisdiction to enjoin such breach or threatened breach.

7) Amendment and Waiver

1. Amendment: The Parties may modify this Agreement and any SOW only by a written instrument executed by both Parties.  
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2. Waiver: No waiver of any term, provision or condition of this Agreement or any SOW whether by conduct or otherwise in any one or more instances shall be deemed to be or construed as a further or continuing waiver of any such term, provision or condition, or of any other term, provision or condition of this Agreement.

8) Independent Contractor

Each Party shall be an independent contractor of the other Party hereto. This Agreement shall not create a legal partnership and shall not authorize either Party hereto to bind the other Party in any manner.

9) Representations and Warranties

‍a. Industry Standards: The Services will be performed in a commercially reasonable manner in accordance with the standards generally prevailing in the industry.

b. Entire Agreement: This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes any and all other prior or contemporary oral or written representations or agreements between the Client and Noodle regarding such subject matter. 

1. No Violation of Other Agreements: Neither this Agreement nor Noodle’s performance of its obligations hereunder will place Noodle in breach of any other contract or obligation and will not violate the rights of any third party.
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2. Standing: Each Party represents and warrants to the other that each has the corporate power and authority to enter into and perform this Agreement and any SOW and that the person executing this Agreement on behalf of such Party has been duly authorized and empowered by all necessary corporate actions to execute this Agreement.
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3. Binding Nature: This Agreement shall be binding upon and inure to the benefit of the Parties, their successors, assigns, personal representatives, distributes, heirs, and legatees. 
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4. Control of Programs: Nothing in this Agreement is intended to diminish or impair the role of Client’s faculty in establishing and maintaining the curriculum, grading, admissions decisions, and student discipline decisions related to the Programs.

10) Severability

Except as otherwise provided in this Agreement, if any term or provision of this Agreement is held to be illegal or invalid, said illegality or invalidity shall not affect the remaining terms or provisions hereof, and each term and provision of this Agreement shall continue to the fullest extent permitted by law.  

11) Limitation of Liability of the Parties

In no event shall either Noodle or Client (the “Responsible Parties”), or any of their respective directors, officers, subsidiaries, and Affiliates, be liable to the other Party for any indirect, incidental, special, consequential, exemplary, or punitive damages arising out of or relating to its obligations under this Agreement, even if the other has been advised of the possibility of such damages. Notwithstanding the foregoing, each of the Responsible Parties will be liable to the other for any direct damages: (a) resulting from the breach of any warranty set forth in this Agreement; (b) related to personal injury, death, or tangible personal property damage caused by it in its performance of this Agreement; and (c) any indemnification obligation in this Agreement.

12) Indemnity 

Each Party (the “Indemnifying Party”) shall indemnify, defend, and hold harmless the other Party and the other Party’s directors, officers, employees, affiliates, subsidiaries, successors, and assigns (collectively, the “Indemnified Parties”) from and against any claim, demand, action, judgment, decree, loss, damage, liability, cost, and expense (including reasonable and documented out-of-pocket legal fees and expenses) (“Losses”) incurred by such Indemnified Parties in connection with any claim to the extent arising from, relating to, or alleging that the Indemnifying Party (i) breached any of its representations, warranties, or covenants, or (ii) violated any third party’s intellectual property right in connection with this Agreement. Moreover, the Indemnifying Party agrees to indemnify the Indemnified Party for any claim by a third party against the Indemnified Party that arises from the conduct, negligence or willful misconduct of the Indemnifying Party in connection with this Agreement

Prompt notice must be given of any claim. The Party that is providing the indemnification will have control of any defense or settlement, subject to the approval of the other Party, not to be unreasonably withheld.

13) Force Mature

If either Party is unable to perform its obligations under this Agreement due to the occurrence of an event beyond its control (such as acts of God, government actions, pandemic, etc.) that Party will not be in default of this Agreement. Each party agrees to use all reasonable efforts to enable performance to continue under this Agreement. 

14) Non-Solicitation 

1. Client Employees: Noodle will not during the Term and for a period of one year thereafter employ any of Client’s employees who, to Noodle’s knowledge, shall have provided services or otherwise had material interactions with Noodle’s personnel in connection with the Services. During such period, Noodle will also not negotiate with any such employees for any such employment.
     
2. Noodle Employees: Client will not during the Term and for a period of one year thereafter employ any of Noodle’s employees who have provided, directly or indirectly, services to Client (or to Noodle) in connection with the Services or any of the Programs (collectively, “Covered Personnel”).  During such period, Client will also not negotiate with any Covered Personnel for any such employment. 
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3. Liquidated Damages: The Parties agree that quantifying losses arising from Client’s breach of this Section is inherently difficult to determine, and therefore the Parties agree that as liquidated damages Client’s obligation to pay all of the costs, fees and expenses set forth in the SOW shall continue in full for any period after the expiration or termination of the Agreement during which Client shall be in breach of this Section. The Parties stipulate that payment of such sums is not a penalty, but rather a reasonable measure of damages, based on the Parties’ experience and the nature of losses that may result.
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4. Definition of Employee: The terms “employee”, “employ,” “retain,” “employment” and “retention” as used in this Section shall be broadly construed to include the direct or indirect employment, hiring, or retention of a person or entity as a full-time employee, part-time employee, independent contractor, subcontractor, agent, consultant, advisor or any similar classification. 

15) Proprietary Rights of Client

1. Subject only to Noodle’s right to generate and provide reports with non-Personally Identifiable Information pursuant to this Agreement and any SOW, Client shall have sole and exclusive ownership of all right, title and interest in and to any and all content of the Program, including content used in its courses, and student Personal Information disclosed by Client to Noodle (“Student Data”). 
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2. Except to the extent necessary to perform and analyze the Services, Noodle shall not publish, circulate, or disseminate Student Data without the prior written consent of Client, which consent may be withheld in Client’s sole discretion. Any provision herein notwithstanding, to the extent permitted by applicable law, Noodle may use Student Data and other data from the Programs in an aggregated, non-personally identifiable manner.
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3. Upon the completion of the Services described in the SOW, Client’s acceptance of the deliverables thereto, and Noodle’s receipt of all payments, Noodle shall transfer all right, title and interest in the deliverables, including copyrights and trademarks to Client unless those copyrights, and trademarks are owned by Noodle. Noodle agrees to promptly execute whatever documents might be required to complete this transfer of rights. Upon prior written approval by Client for each instance, Noodle may display and reproduce the deliverables for professional portfolio purposes.
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4. Client hereby grants to Noodle a license in its trademarks, service marks and trade names used in connection with the Programs (the “Brand”) to use in connection with the content or appearance (to users) of the Programs, including in connection with the promotion and marketing of the Programs. Noodle shall have the right to sublicense use of the Brand solely in connection with the Programs.
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5. Client warrants that any materials provided to Noodle for use in the development of the deliverables, including images, logos, and media files are the property of Client, are free of any third-party claims, and does not infringe on any third-party rights. Client agrees to indemnify and hold harmless Noodle for any claims or lawsuits arising from any breach of this warranty.

16) Proprietary Rights of Noodle

Noodle shall have sole and exclusive ownership of all right, title, and interest in and to the specific proprietary materials and methodology used by Noodle for providing the Services hereunder (for clarity, excluding the substantive teaching content of the Programs); all media and documentation relating to the design, development, operation, testing, or use of the Services or any additions or modifications thereto; all media and documentation relating to the training and evaluation of Noodle’s personnel; all data and analyses related to Noodle’s performance or improvements of the Services; and all intellectual property rights associated therewith (including, without limitation, rights to patents, copyrights, trade secrets, and know-how).

Noodle shall have sole and exclusive ownership of all right, title, and interest in, but not necessarily limited to: (i) its Platforms and (ii) any software that Noodle creates and does not expressly identify as a work made for hire for Client.

17) Administrative Access

To the extent required for Noodle to provide the Services, Client shall provide Noodle the necessary access and data from the appropriate sources or systems required to create and manage the Services. The required access, if applicable, will be specified in each SOW.

18) Authorized Representative

Noodle and Client will each designate a person for each SOW (each, an “Authorized Representative”) whom shall serve as each Party’s primary point of contact regarding the planning, implementation and provision of the Services, and who will have the authority to act on behalf of his or her Party, and whose actions may be relied upon by the other Party. 

19) Data Security

Noodle represents that it implements the appropriate technical and organizational measures to ensure a level of security appropriate to the risks for the rights and freedoms of persons, taking into account the nature of processing and the information made available to Noodle. The program shall include administrative, technical, and physical safeguards that utilize commercially available industry standard practices and meet or exceed applicable laws. Without limiting the foregoing, Noodle will utilize encryption for all personal data transferred or stored by Noodle on behalf of Client, including personal data on any mobile device, including but not limited to smart phones, laptop computers, thumb drives, backup tapes, and/or zip drives. Upon request, Noodle shall provide reasonable documentation of its information security program.

20) Incentive Compensation Rule 

Noodle shall compensate its employees engaged in the recruitment of students, or in the supervision of such employees, only in accordance with the provisions of 34 CFR § 668(b)(22), (“the Incentive Compensation Rule”). 

21) Headings

The headings and subheadings in this Agreement and in a SOW are for convenience of reference only and shall not constitute a part hereof or define, limit or otherwise affect the meaning of any of the terms or provisions hereof.

22) Agreement to Mediate and Arbitrate Disputes

Should a dispute between Noodle and Client arise in connection with this Agreement, Noodle and Client agree to use their reasonable commercial efforts to resolve the dispute through negotiation.  If the Parties cannot resolve the dispute through negotiation, Noodle and Client agree to submit the dispute to mediation with a mediator chosen jointly and all costs of the mediation shared equally.  If the Parties are not able to resolve the dispute through mediation, or the Parties agree mutually to waive mediation, such dispute shall be finally adjudicated by arbitration with the American Arbitration Association in New York County.

23) Governing Law

This Agreement and all matters arising out of or relating to this Agreement will be governed by and construed in accordance with the laws of the State of New York, without regard to principles relating to conflicts of law. The state and federal courts in New York, New York will have exclusive jurisdiction over the parties with respect to any dispute, controversy, or claim between them arising out of or relating to this Agreement and, by execution and delivery of this Agreement, the parties to this Agreement submit to the jurisdiction of those courts.