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Services Agreement

This Order (“Agreement”) between the Company and the Client (“Client”) is effective as of the Effective Date above.  This Agreement includes and incorporates this Order Form, as well as the Terms and Conditions [attached hereto as Exhibit A OR available here (insert link)]and contains, among other things, warranty disclaimer, and liability limitations.  There shall be no force or effect to any different terms of any related purchase order or similar form even if signed by the parties after the date hereof.

[Exhibit A]

Terms and Conditions


The Order Form and these Terms and Conditions, along with any other executed orders or scopes of work between the parties incorporated herein (collectively the “Agreement”) shall govern the provision of Services.  This Agreement shall commence on the Effective Date of Client’s first executed Order (“Effective Date”) and will continue for the Term indicated in the Order or until otherwise terminated in accordance with Section 12 below.


1.  Definitions.


“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. "Control," for purposes hereof, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity. 


“Authorized Contractors” means independent contractors, licensors or subcontractors. 


"Client Data" means all data, records, test results, notes, files, images, graphics, audio, video, photographs, reports, forms and other content and material, in any format, that are submitted, stored, posted, displayed, transmitted or otherwise used by or for Client to provide and deliver the Services. 


“Deliverable'' means any work product, deliverables, programs, interfaces, modifications, configurations, reports, or documentation developed or delivered in the performance of Services.


“Order” or “Order Form” means an ordering document or online order specifying the Services or materials to be provided hereunder that is entered into between Drizzle Effect, LLC (hereinafter “Drizzle Effect” or “Company”)  and Client from time to time, including any addenda and supplements thereto. Client Affiliates may purchase Services subject to this Agreement by executing Orders hereunder. 


“Services” means the professional services that Client may purchase under an Order or SOW and as further described therein.


“Statement of Work” or “SOW” means a statement of work or services reflected in an Order entered into and executed by the parties describing Services to be provided by Drizzle Effect to Client. 


“Service Term” means the term of Services purchased by Client which shall commence on the start date specified in the applicable Order and continue for the service term specified therein and any renewals thereto. 


2.  Services.  Drizzle Effect will make the Services available to Client pursuant to this Agreement and the relevant Order Form during the Term, solely for Client’s internal business purposes. Drizzle Effect’s Affiliates and its Authorized Contractors may perform certain aspects of the Services and access Client Data provided that Drizzle Effect remains fully liable for same and responsible for ensuring that any of Drizzle Effect’s obligations under this Agreement performed by its Affiliates and its Authorized Contractors are carried out in accordance with this Agreement. Client’s Affiliates and its Authorized Contractors may access certain aspects of the Services provided that Client remains fully liable for same and responsible for ensuring that any of Client’s obligations under this Agreement performed by its Affiliates and its Authorized Contractors are carried out in accordance with this Agreement. 


3.  Security and Data Privacy


3.1  Security and Internal Controls.   Drizzle Effect shall (i) maintain a security framework of policies, procedures, and controls that includes administrative, physical, and technical safeguards for protection of the security and integrity of the Services, and of any Client Data contained within the Drizzle Effect’s platforms or systems, using the capabilities of currently available technologies and in accordance with prevailing industry practices and standards and (ii) access and use the Client Data solely to perform its obligations in accordance with the terms of this Agreement. 


3.2  Data Privacy. In performing the Services, Drizzle Effect will comply with its Privacy Policy incorporated herein by reference. The Drizzle Effect Privacy Policy is subject to change at Drizzle Effect’s sole and absolute discretion; however, Drizzle Effect’s policy changes will not result in a material reduction in the level of protection provided for Client Data during the Term. Where Client’s use of the Services includes the processing of California Consumer’s Personal Information by Drizzle Effect that are subject to the California Consumer Protection Act of 2018, and its implementing regulations, as amended or superseded from time to time (“CCPA”), such data processing by Drizzle Effect as a “service provider” complies with the requirements of the CCPA. Drizzle Effect shall process personal data and personal information on behalf of and in accordance with Client’s instructions consistent with this Agreement and as necessary to provide the Services and will reasonably cooperate with Client in its efforts to respond to requests by data subjects and/or California Consumers to exercise their rights under the CCPA and to otherwise comply with the CCPA.  


3.3  Compliance with Law.   Drizzle Effect will comply with all laws applicable to the provision of the Services, including applicable data security, confidentiality and security breach notification laws, but not including any laws applicable to the Client’s industry that is not generally applicable to educational services.


4.  Client Obligations


4.1  Responsibilities.  Client shall (i) access and use the Services in accordance with this Agreement and applicable laws and government regulations and (ii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Drizzle Effect promptly of any such unauthorized access or use.


4.2  Client Data.  Client has and shall maintain all rights as are required to allow Drizzle Effect to provide the Services to Client as set forth in this Agreement, including without limitation to send the Client Data to Drizzle Effect pursuant to this Agreement and to allow Drizzle Effect to access, use, and store Client Data and any other information required to provide the Services pursuant to this Agreement. Client is responsible for its legal and regulatory compliance in its use of any Services.  If so required, Client hereby designates Drizzle Effect as a “School Official” under FERPA.


4.3 Restrictions.  Client shall not (i) license, sublicense, sell, resell, rent, lease, transfer, distribute or otherwise similarly exploit the Services, (ii) use or permit others to use any security testing tools in order to probe, scan or attempt to penetrate or ascertain the security of the Services, (iii) copy, create a derivative work of reverse engineer, reverse assemble, disassemble, or decompile the Services or any part thereof or otherwise attempt to discover any source code or modify the Services and (iv) create a competitive offering based on the  Services. 


4.4 Canceled Appointments.  Client shall be responsible for all charges in place and as updated by Drizzle Effect from time to time that are associated with any appointment that is canceled with less than twenty-four hours’ notice or for which the Client or its designee is a no-show.


5.  Professional Services


5.1  Professional  Services.  A description of Drizzle Effect’s Professional Services offerings are as may be identified in an Order or Statement of Work that may be appended to this Agreement or as otherwise available online via the Drizzle Effect’s webpage. Each Order or Statement of Work for professional services will include, at a minimum (i) a description of the Professional Services and any Deliverable to be delivered to Client; (ii) the term for the provision of such Professional Services; and (iii) the applicable fees and payment terms for such Professional Services, if not specified elsewhere. 


5.2. Change Orders.  Changes to an Scope of Work or Order Form will require, and shall become effective only when, fully documented in a written change order or  amendment  (each a “Change Order”) signed by duly authorized representatives of the parties prior to implementation of the changes. Such changes may include, for example, changes to the scope of work and any corresponding changes to the estimated fees and schedule. Change Orders shall be deemed part of, and subject to, this Agreement. 


5.3. Designated Contact and Cooperation.  Each party will designate in each Order of Scope of Work an individual who will be the primary point of contact between the parties for all matters relating to the Professional Services to be performed thereunder. Client will cooperate with Drizzle Effect, will provide Drizzle Effect with accurate and complete information, will provide Drizzle Effect with such assistance and access as Drizzle Effect may reasonably request, and will fulfill its responsibilities as set forth in this Agreement. If applicable, while on Client premises for Professional Services, Drizzle Effect personnel shall comply with reasonable Client rules and regulations regarding safety, conduct, and security made known to Drizzle Effect. 


6.  Fees and Payment


6.1. Fees.  Client shall pay all fees specified in each Order and any applicable additional fees if Client exceeds the allotted capacity or other applicable limits specified in the Order. Except as otherwise specified herein or in an Order (i) fees are payable in United States dollars, (ii) fees are based on Services purchased, regardless of usage, (iii) payment obligations are non-cancelable and fees paid are non-refundable, (iv) all Services shall be deemed accepted upon delivery, and (v) the Services purchased cannot be decreased during the relevant Service Term. Client shall reimburse Drizzle Effect for out-of-pocket expenses incurred by Drizzle Effect in connection with its performance of Services. Drizzle Effect will provide Client with reasonably detailed invoices for such expenses. All amounts payable under this Agreement will be made without setoff or counterclaim, and without any deduction or withholding. 


6.2. Invoicing and Payment.  Unless otherwise specified in an Order, fees for Services specified in an Order will be invoiced in advance, fees for overages or additional fees will be calculated and invoiced monthly in arrears, and, unless otherwise set forth in an Agreement, all fees and expenses for standard Professional Services as described in Section 5.1 shall be invoiced as stated in the Order. Except as otherwise stated in the applicable Order, Client agrees to pay all invoiced amounts within thirty (30) days of invoice date. If Client fails to pay any amounts due under this Agreement by the due date, in addition to any other rights or remedies it may have under this Agreement or by matter of law (i) Drizzle Effect reserves the right to suspend the Services upon ten (10) business days’ notice, until such amounts are paid in full, and (ii) Drizzle Effect will have the right to charge interest at a rate equal to the lesser of one and one-half percent (1.5%) per month or the maximum rate permitted by applicable law until Client pays all amounts due, together with all costs and expenses (including without limitation reasonable attorneys' fees and disbursements and court costs) incurred by Drizzle Effect in collecting such overdue amounts or otherwise enforcing Drizzle Effect's rights hereunder; provided that Drizzle Effect will not exercise its right to charge interest if the applicable charges are under reasonable and good faith dispute and Client is cooperating diligently to resolve the issue. 


6.3  Taxes.  Fees for Services exclude all sales, value added and other taxes and duties imposed with respect to the sale, delivery, or use of any product or Services covered hereby. Unless Client provides a valid, signed certificate or letter of exemption for each respective jurisdiction of its tax-exempt status, Client is responsible for payment of all taxes, levies, duties, assessments, including but not limited to value-added, sales, use or withholding taxes, assessed or collected by any governmental body (collectively, "Taxes") arising from Drizzle Effect’s provision of the Services hereunder, except any taxes assessed on Drizzle Effect’s net income. If Drizzle Effect’s required to directly pay or collect Taxes related to Client’s use or receipt of the Services hereunder, Client agrees to promptly reimburse Drizzle Effect for any amounts paid by Drizzle Effect. 


7.  Proprietary Rights

7.1  Services.  Except for the rights expressly granted under this Agreement, Drizzle Effect and its licensors retain all right, title and interest in and to the Services and any associated materials and publications, including all related intellectual property rights therein. Drizzle Effect reserves all rights in and to the Services and associated materials and publications not expressly granted to Client under this Agreement. Client will not delete or in any manner alter the copyright, trademark, and other proprietary notices of Drizzle Effect.


7.2  Client Data.  As between Client and Drizzle Effect, Client is and will remain the sole and exclusive owner of all right, title and interest to all Client Data, including any intellectual property rights therein. Client hereby grants Drizzle Effect, its Affiliates and applicable Authorized Contractors all necessary rights to host, use, process, store, display and transmit Client Data solely as necessary for Drizzle Effect to provide the Services in accordance with this Agreement. Client represents that it has, and warrants that it shall maintain, all rights as required to allow Drizzle Effect to compile, use, store, and retain aggregated Client Data, including without limitation in combination with other Drizzle Effect Clients’ data, for internal or marketing uses (provided that no such marketing use shall include any information that can identify Client or its Clients). Subject to the limited licenses granted herein, Drizzle Effect acquires no right, title or interest from Client or Client licensors hereunder in or to Client Data, including any intellectual property rights therein. Client reserves all rights in and to the Client Data that are not expressly granted to Drizzle Effect pursuant to this Agreement. 


7.3  Professional Services Deliverables.  Excluding any property that constitutes Outside Property, any Professional Services Deliverables shall be the sole property of Client upon Client’s payment in full of all associated Professional Services fees. Drizzle Effect shall execute and, at Client’s written request, require its personnel to execute any document that may be necessary or desirable to establish or perfect Client’s rights to the ownership of such Deliverables. For purposes of this Agreement, “Outside Property” means any and all technology and information, methodologies, data, designs, ideas, concepts, know-how, techniques, user interfaces, templates, documentation, software, hardware, modules, development tools and other tangible or intangible technical material or information that Drizzle Effect possesses or owns prior to the commencement of Professional Services or which it develops independent of any activities governed by this Agreement, and any derivatives, modifications or enhancements made to any such property. Outside Property shall also include any enhancements, modifications or derivatives made by Drizzle Effect to the Outside Property while performing Professional Services hereunder.


7.5  Outside Property License.  To the extent that Drizzle Effect incorporates any Outside Property into any Deliverables, then Drizzle Effect hereby grants Client a limited, royalty-free, non-exclusive, non-transferable, without right to sublicense, license to use such Outside Property delivered to Client solely as necessary for and in conjunction with Client's use of the Deliverables.  Under no circumstances should any Outside Property or Services provided by considered “train the trainer” without the express, written acknowledgement of such within an Order, Scope of Work or amendment/addendum signed by both the Client and the Drizzle Effect.


8.  Confidentiality


8.1  Definition of Confidential Information.  "Confidential Information" means all confidential or proprietary information of a party ("Disclosing Party") disclosed to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or reasonably should be understood to be confidential given the nature of information and the circumstances of disclosure. Without limiting the coverage of these confidentiality obligations, the parties acknowledge and agree that Confidential Information of each party shall include the terms and conditions of this Agreement (including pricing and other terms set forth in all Order Forms and/or SOWs hereunder), related benchmark or similar test results, other technology and technical information, security information and business and marketing plans, except that Drizzle Effect may reference and use Client’s name, logos and the nature of the Services provided hereunder in Drizzle Effect’s business development and marketing efforts. 


8.2  Exceptions.  Confidential Information shall not include information that (i) is or becomes publicly available without a breach of any obligation owed to the Disclosing Party, (ii) is already known to the Receiving Party at the time of its disclosure by the Disclosing Party, without a breach of any obligation owed to the Disclosing Party, (iii) following its disclosure to the Receiving Party, is received by the Receiving Party from a third party without breach of any obligation owed to Disclosing Party, or (iv) is independently developed by Receiving Party without reference to or use of the Disclosing Party’s Confidential Information. 


8.3  Protection of Confidential Information.  The Receiving Party shall use the same degree of care used to protect the confidentiality of its own Confidential Information of like kind (but in no event less than reasonable care), and, except with Disclosing Party’s written consent, shall (i) not use any Confidential Information of Disclosing Party for any purpose outside the scope of this Agreement and (ii) limit access to Confidential Information of Disclosing Party to those of its and its Authorized Contractors, Affiliates’ employees, contractors and agents who need such access for purposes consistent with this Agreement and who have a duty or obligation of confidentiality no less stringent than that set forth herein. 

8.4  Compelled Disclosure.  The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent required by applicable law, regulation or legal process, provided that the Receiving Party (i) provides prompt written notice to the extent legally permitted, (ii) provides reasonable assistance, at Disclosing Party's cost, in the event the Disclosing Party wishes to oppose the disclosure, and (iii) limits disclosure to that required by law, regulation or legal process.


9.  Representations, Warranties and Disclaimers


9.1  Drizzle Effect’s Representations and Warranties.  Drizzle Effect represents and warrants that (i) Drizzle Effect has the legal authority to enter into this Agreement, (ii) the Services will materially conform with the relevant Orders, Statements of Work and Agreements between the parties, and (iii) Services will be performed in a competent and workmanlike manner consistent with generally accepted industry standards. 


9.2  Remedies.  For any failure of any Services to conform to their warranties, Drizzle Effect’s liability and Client’s sole and exclusive remedy shall be for Drizzle Effect, in the case of a breach of the warranty set forth in Section 9.1 (ii) to use commercially reasonable efforts to correct such failure; or, in the case of a breach of the warranty set forth in Section 9.1 (iii) to re-perform the affected Services. If the foregoing remedies are not commercially practicable, Drizzle Effect may, in its sole discretion, terminate the applicable Order or SOW upon providing Client with written notice thereof, and, as Client’s sole and exclusive remedy, refund to Client (a) in the case of breach of the warranty set forth in Section 9.1(ii) any Services fees paid by Client with respect to the unexpired portion of the current Service Term for the non-conforming Services; or (b) in the case of breach of the warranty set forth in Section 9.1(iii), any fees paid by Client for the portion of Professional Services giving rise to the breach. 


9.3  Client Representations & Warranties.  Client represents and warrants that (i) it has the legal authority to enter into this Agreement, and (ii) it will use the Services in accordance with the terms and conditions set forth in this Agreement and in compliance with all applicable laws, rules and regulations. 




10.  Indemnification by Client.  Client shall indemnify, defend and hold Drizzle Effect  harmless from and against any judgments, settlements, costs and fees reasonably incurred (including reasonable attorney’s fees) resulting from any claim, demand, suit or proceeding made or brought against Drizzle Effect by a third party alleging that Client Data violates applicable law or a third party’s rights (a "Claim Against Drizzle Effect"); provided that Drizzle Effect (a) promptly gives Client written notice of the Claim Against Drizzle Effect; (b) gives Client sole control of the defense and settlement of the Claim Against Drizzle Effect (provided that Client may not settle any Claim Against Drizzle Effect unless the settlement unconditionally releases Drizzle Effect of all liability); and (c) provides to Client all reasonable assistance, at Client’s expense. 


11.  Limitation of Liability.  





12.  Term and Termination


12.1 Term of Agreement.  This Agreement commences on the Effective Date and continues through the Term indicated in the applicable Order or Scope of Work unless otherwise terminated in accordance with Section 12.2. 


12.2. Termination.  Either party may terminate this Agreement in the event of a material breach by the other party of this Agreement if such breach continues uncured for a period of ten (10) days after the non-breaching party provides written notice. Either party may terminate this Agreement at any time for convenience by providing at least thirty (30) days’ prior written notice to the other party.  If: (A) Company terminates this Agreement for convenience; or (B) Client terminates this Agreement for Company’s uncured material breach; in either case, before all assessments that were paid for by the Client are completed, the Company will refund the Client within thirty (30) days after the effective date of termination for any fees paid by Client for services not provided. If: (1) Client terminates this Agreement for convenience; or (2) Company terminates this Agreement for Client’s uncured material breach; then, in either case, the Client will pay the Company any unpaid portions of the full Program Cost within thirty (30) days after the effective date of termination. Any termination of this Agreement will simultaneously terminate any Non-Disclosure Agreement that may have been executed between the parties, subject to its survival provisions. 


12.3 Survival.  Section 7 (Proprietary Rights), 8 (Confidentiality), 9.4 (Disclaimer), 10 (Indemnification), 11 (Limitation of Liability), 13 (Notices, Governing Law and Jurisdiction) and 14 (General Provisions) and any other rights and obligations of the parties hereunder that by their nature are reasonably intended to survive termination or expiration, shall survive any termination or expiration of this Agreement. 


13.  Notices, Governing Law and Jurisdiction


13.1 Manner of Giving Notice.  Except as otherwise specified in this Agreement, all legal notices of default, breach or termination (“Legal Notices”) hereunder shall be in writing and shall be deemed to have been given upon (i) personal delivery, (ii) the fifth business day after being sent by certified mail return receipt requested, or (iii) the first business day after sending by a generally recognized international guaranteed overnight delivery service. Each party shall send all Legal Notices to the other party at the address provided and as such party may update such information from time to time. Billing-related notices to Client will be addressed to the relevant billing contact designated by Client. 


13.2  Governing Law.  This Agreement shall be governed and construed in accordance with the laws of the State of Maryland excluding its conflicts of law rules. Notwithstanding the foregoing, the parties acknowledge that any unauthorized disclosure of Confidential Information or any actual or alleged infringement of such party’s or third party’s intellectual property rights might cause the other party to suffer irreparable harm for which damages would be an inadequate remedy and that, in such event, the aggrieved party may seek, in addition to any other available remedies, injunctive and other equitable relief in any state, federal, or national court of competent jurisdiction, without bond and without the necessity of showing actual monetary damages. 


13.3  Waiver of Jury Trial.  Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement. 


14.  General Provisions 


14.1  Import and Export Compliance.  Each party shall comply with all applicable import, re-import, export and re-export control laws, treaties, agreements, and regulations. Export controls may include, but are not limited to, those of the Export Administration Regulations of the U.S. Department of Commerce (EAR), the Department of State International Traffic in Arms Regulations (ITAR), and country-specific economic sanctions programs implemented by the Office of Foreign Assets Control (OFAC), which may restrict or require licenses for the export of Items from the United States and their re-export from other countries. Each party represents that it is not named on any U.S. government denied-party list. Client shall not permit users to access or use Services in a U.S.-embargoed country or in violation of any U.S. export law or regulation. 

14.2  Anti-Corruption.  Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of the other party’s employees or agents in connection with this Agreement. If a party learns of any violation of the above restriction, such party will use reasonable efforts to promptly notify the other party. 


14.3  Relationship of the Parties.  The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. 


14.4  Non-Solicitation.  Client agrees that during the term of each Order Form and/or SOW and for twelve (12) months thereafter, it will not recruit or otherwise solicit for employment any person employed, retained or contracted by Drizzle Effect who participated in the performance of Services under the applicable Order Form and/or SOW. Nothing in this clause shall be construed to prohibit individual Drizzle Effect employees from responding to public employment advertisements, postings or job fairs of Client, provided such response is not prompted by Client intentionally circumventing the restrictions of this Section. 


14.5  No Third-Party Beneficiaries.  There are no third-party beneficiaries to this Agreement. 


14.6  Public Relations.  Client agrees that Drizzle Effect may identify Client as a Drizzle Effect Client in advertising, media relations, trade shows, the website, and other similar promotional activities, using Client’s name and trademarks in accordance with Client’s trademark guidelines. 


14.7  Waiver.  No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. 


14.8  Force Majeure.  Neither party shall be liable under this Agreement for delays or failures to perform the Services or this Agreement due to causes beyond its reasonable control. Such delays include, but are not limited to, fire, natural catastrophe, pandemic, government legislation, acts, orders, or regulation, strikes or labor difficulties, to the extent not occasioned by the fault or negligence of the delayed party. Any such excuse for delay shall last only as long as the event remains beyond the reasonable control of the delayed party. The delayed party shall use its best efforts to minimize the delays caused by any such event beyond its reasonable control. If the force majeure event continues for more than thirty (30) calendar days, then either party may terminate the Agreement upon written notice to the other party. 


14.9  Severability.  If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect. 


14.10  Assignment.  Neither party may assign its rights and obligations hereunder, either in whole or in part, whether by operation of law or otherwise, without the prior written consent of the other party. Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms and SOWs), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns. 


14.11  Entire Agreement.  This Agreement constitutes the entire agreement between the parties as it relates to the subject matter and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning or relating to the same. Except as otherwise provided herein, no modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by both parties. To the extent of any conflict or inconsistency between the provisions of this Agreement, the Documentation, any Order Form or SOW, the terms of such Order Form or SOW shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in a purchase order, payment system, other order documentation or otherwise (excluding Order Forms and/or SOWs) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.

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