PM 3.20.2014 LICENSING AGREEMENT This Licensing Agreement (“Agreement”) is between The New America Schools Network, a Colorado nonprofit corporation (“The Network”). and <<name of school, a ___________________ nonprofit corporation>> (“School”), dated effective __________________, 20___ (“Effective Date”). RECITALS A. The Network was established to create a network of public charter schools with the mission to empower new immigrants, English Language Learners and academically underserved students with the educational tools and support they need to maximize their potential, succeed and live the American dream (“Mission”). B. The Network has proprietary ownership over a unique and successful model of public charter school educational programs that embody the Mission and which includes the NAS School Design (as defined below) (the NAS School Design and the Mission are collectively referred to herein as the “Model” ). C. In order to accomplish the Mission, The Network desires to replicate the Model by partnering with other public charter schools. D. In connection with the Model, The Network owns certain proprietary information, including Copyrights, Marks, and Processes (as defined below) (collectively, “Intellectual Property” or “IP”) that have been used by the existing NAS network of schools since 2004. E. The parties to this agreement acknowledge the necessity for setting out their legal relationship to ensure that the School has the tools and support systems required to implement its charter, which charter incorporates the Model as the School’s educational model and contemplates the use of The Network’s Intellectual Property which includes the proprietary educational and management practices of The Network as its organizational structure. For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: 1 PM 3.20.2014 AGREEMENT SECTION ONE: Definitions Terms not defined herein shall have the meaning assigned to them in this Agreement. “Copyrights” means all copyrights, including both registered and unregistered copyrights, owned by The Network which were developed for use in connection with the Model, including but not limited to all written, auditory, visual and other materials, including the Materials. “Copyright License” has the meaning set forth in Section 5.1. “FERPA” means the Family Educational Rights and Privacy Act. “IDEA” means the Individuals with Disabilities Education Improvement Act of 2004. “Intellectual Property” or “IP” includes all Copyrights, Marks, Logos, and Processes now or hereafter owned by The Network, including any and all proprietary information developed for use in connection with the Model. The Network may from time to time agree to include additional intellectual property assets within the scope of the rights licensed under this Agreement. “Logos” means The Network’s proprietary logos as set forth on Exhibit A, attached hereto and incorporated herein by reference. “Licenses” means, collectively, the Copyright License and the Mark License set forth in Section Five. “Marks” shall mean the proprietary unregistered trade name “The New America School” and any variations thereof, including all common law rights, and including internet sites, domain names, trade names, trademarks, service marks and Logos with respect to the name “New America School,” including but not limited to that which is set forth on Exhibit A. “Mark License” has the meaning set forth in Section 5.2. “Materials” means those proprietary materials set forth on Exhibit B attached hereto and incorporated herein by reference, and any additional proprietary materials provided by The Network to the School pursuant to the terms of this Agreement. “NAS School Design” means a written document that describes the design elements of schools that are or may become Network Schools that describes the Model and The Network’s educational program and unique Mission, and which when taken together differentiate The Network school design from other school educational programs. The NAS School Design is a fundamental aspect of the School’s charter agreement with its authorizer. A copy of the elements of the NAS School Design is attached as Exhibit C. 2 PM 3.20.2014 “Network School” means a public charter school which has become affiliated with The Network by executing this or a similar Licensing Agreement, which includes the intent to replicate the Model and follow the Mission with fidelity according to the terms of such agreement. “Network Standards” means the stated expectations for meeting the minimum requirements for complying with The Network licensing requirements as described in Section Six. “Processes” means all of The Network’s proprietary know-how, practices, plans, specifications, methodologies, marketing and recruitment strategies, business practices, design elements of each school, trade dress, and all other proprietary information developed for use in connection with the Model. SECTION TWO: Term The initial term of this Agreement shall commence on the Effective Date and shall automatically be renewed each year on the anniversary of the Effective Date unless otherwise terminated pursuant to Section 8 below. [FOR NM ONLY] – The initial term of this Agreement shall be for a period of four years [or balance of charter term] from the Effective Date subject to available funding and unless terminated pursuant to Section 8 below. SECTION THREE: Limitations on Materials Provided The Network shall provide the School with the Materials, and grant the School a Copyright License under Section 5 to use the same, and the School agrees to use all Materials solely for the purpose of operating a Network School. SECTION FOUR: Royalties Fees Royalty. For the Licenses set forth in Section Five, including the use of the Materials, the School shall pay The Network a one-time royalty fee of $____________________ (“Royalty”). The Royalty shall be payable in equal annual installments for [__] years. The Network shall invoice the School annually and payment is due by no later than thirty (30) days from the date of the invoice. Notwithstanding the foregoing, if any year the School is unable to pay the Royalty Fee during the term of this Agreement, the School may request a forbearance or reduction in the Royalty Fee after providing sufficient evidence to The Network that the School’s inability to pay is a result of an unanticipated budget short fall beyond the School’s control. SECTION FIVE: Grant of License The Network hereby grants to the School nontransferable, non-exclusive Licenses as set forth in this Section 5 to the Intellectual Property to use in connection with the operation of a Network School until such time this Agreement is terminated pursuant to the provisions of Section 8. 1. License to Use Copyrights and Processes. Subject to the terms and conditions of this Agreement, The Network hereby grants to School a non-exclusive, non-transferable, nonsublicenseable license to the Copyrights and Processes (“Copyright License”) solely for 3 PM 3.20.2014 the School to use in the operation of a Network School in the state of <<state of school>> (“Territory”). As part of the Copyright License, The Networks shall provide School with access to password protected locations on The Network’s website (subject to the respective sites’ website use requirements) so that School may access the Materials. 2. License to Use Marks. a. Subject to the terms and conditions of this Agreement, The Network herby grants to School the non-exclusive, non-transferable, and non-sublicenseable license to use the Marks in the Territory and on the Internet solely in connection with the operation of a Network School in the Territory (“Mark License”). b. As part of the Mark License, School has the right to modify the Mark so that it is called “The New America School <<name of state>> and it may reference itself as a “New America School” and use the Logo on its publications, materials, and website. 3. Additional Terms for Use of Intellectual Property. a. As to the Licenses granted in this Section 5, School shall not use any of the Intellectual Property in any manner not connected to the operation of a Network School, including but not limited to the following: (i) any use in connection with the provision of educational services not contemplated by the School’s charter; (ii) in any manner that is determined in The Network’s sole discretion to disparage or otherwise threaten the goodwill and reputation associated with the Marks and The Network; or (iii) in any manner that may result in liability for the School’s obligations or debts being imposed on The Network. b. From time to time The Network may provide new or different versions of any of the Intellectual Property, including but not limited to the NAS School Design, Marks and Logos, and make them available for the School’s use under the same terms and conditions of this Agreement. These new or different versions may require that the School observe new or different practices with respect to the use of such Intellectual Property. The School will be responsible for all costs and expenses of implementing any new or different version of the Intellectual Property. 4. Linking License. Each party hereto grants to the other a non-exclusive and royalty-free license to provide a hypertext reference link to the initial top level display of its website as identified by the following Uniform Resource Locators: The Network: <<add Network website address>> School: <<add Network website address>> 5. Proprietary Rights. Each party hereto acknowledges and agrees that, except as otherwise set forth herein, the Intellectual Property and the Model is proprietary to The Network, protected under copyright and other intellectual property laws, and may not be reproduced, transmitted, displayed, published or distributed except as set forth on this Agreement or with the express written consent of The Network. 6. Collaboration/Right to Modify Content/License to Network. The Network and the School mutually agree to collaborate to improve the Model and the services and materials 4 PM 3.20.2014 of both The Network and the School and to assist each other and all Network Schools as reasonably necessary to achieve the replication of the Model as contemplated by this Agreement. School, with the prior written permission of The Network, may modify the Copyrights (which include the Materials) and Processes (“Modifications”). However, the Modifications remain the property of The Network and the School hereby transfers all right, title and interest into any such Modifications to The Network as part of this Agreement. The School shall be given appropriate recognition for development of any Modifications developed by the School and used by other Network Schools. 7. Rights Expressly Reserved. The Licenses granted herein are not intended to be (and shall not be construed as) an assignment, and nothing herein confers on School any right (other than set forth herein), title or interest in the Intellectual Property or the Model. All rights not expressly granted herein by The Network, including without limitation, copyrights, trademarks, trade secrets, patents, and the right to obtain and to own all worldwide intellectual property rights in and to the subject matter embodied in this Agreement are reserved by The Network. 8. Acknowledgement. School shall acknowledge that it is a Network School on any printed, audio, visual or other materials (including any media, display or, in the case of audio or online works, describe any of the Marks) must include a notice of ownership (“Notice”). For audio, visual, textual or electronic works, the Notice must appear in at least one prominent location within the materials advising that, as to each Mark displayed, that it is a (or they collectively are) “trademark(s) of The New America School Network, used under license.” All copyright materials shall include and retain a statement reading “© {date(s) of first publication and substantive revision}, The New America School Network.” 9. Security Measures. In all events, the School shall use all reasonable security precautions to prevent unauthorized copying, disclosure, or use of the Intellectual Property by its own employees, agents, representatives, affiliates, students, assignees and/or any third party. SECTION SIX: Maintaining Network Standards The parties agree that the following Network Standards shall be adhered to during the term of this Agreement and violation thereof may result in termination of this Agreement by either party: 1. High Ethical Standards. Neither party shall knowingly engage in any activities which damage the reputation of the Network, the School, other Network Schools, or the Model. The Network and the School shall endeavor to observe high ethical standards of operation that are reasonably calculated to maintain the image, quality, public goodwill and reputation of the other party, other Network Schools or the Model, and not knowingly engage in any activity that may harm the reputation or impair the value of the same. 2. Policies and Procedures. The School shall at all times use reasonable efforts to adhere to the policies and procedures that are part of the Model and licensed to the School pursuant to this Agreement, as they are modified from time to time. Notwithstanding the foregoing, the School shall not be required to implement, enforce, or adopt said policies 5 PM 3.20.2014 that may conflict with policies of the Territory with which the School is required by law to comply. 3. Mutual Cooperation. The parties, their employees, staff and agents shall cooperate in order to facilitate the efficient delivery of Materials provided to School by Network under this Agreement. 4. Compliance with Laws. The parties shall comply with all applicable laws, rules and regulations, including those which relate to the receipt of federal, state and local funds. 5. Quality standards. The School shall maintain a high level of quality standards, including but not limited to the following: a. Maintain a healthy and safe environment as governed by federal, state and local laws and rules; b. Disclose to The Network the existence and results of third party claims or lawsuits and any regulatory or governmental agency investigations or disciplinary action initiated against the School; c. Follow to the satisfaction of The Network, the Model, The Network Standards and other program guidelines; d. Participate in The Network-provided professional development; e. Respond in a timely fashion to reasonable requests by The Network for information about the School’s financial, business management and operations; f. Provide student achievement data; g. Follow the School’s charter contract and maintain acceptable levels of compliance with the School’s authorizer’s standards and performance goals; h. Permit The Network to publish information about the School; i. Comply with all other terms of this Agreement; and j. Such other standards as agreed to in writing by the parties. 6. Monitoring/Reasonable Access. The School expressly authorizes The Network, and any of its agents or representatives, upon reasonable advance notice and by appointment, to enter the School’s premises at any time during normal business hours so that The Network may monitor and evaluate the School for adherence to the Network Standards and the terms of this Agreement. The Network agrees to abide by the School’s rules and procedures respecting School’s premises. SECTION SEVEN: Confidentiality 1. General. Neither party shall disclose or make available any information provided by the other party that is identified as confidential by the disclosing party or that from the nature of such information, would reasonably be considered to be confidential (“Confidential Information”) to any person or entity except to those employees or independent contractors of the receiving party for whom access is necessary to perform their jobs in accordance with this Agreement, and who have executed an agreement with the disclosing party not to further disclose such confidential material. The parties agree that disclosure of confidential business information shall be made only to the extent required by law. 6 PM 3.20.2014 2. Student Records. The parties acknowledge and agree that pursuant to FERPA, IDEA or any other federal or state laws or regulations applicable to student confidentiality that both have obligations with regard to maintaining the security, integrity and confidentiality of “education records” and such other confidential information obtained about students. The parties acknowledge that each must perform its obligations under the Agreement in compliance with the above-referenced laws. The School shall designate The Network employees who are providing educational and/or administrative services to the School’s students as agents of the School having a legitimate educational interest and thus are entitled to access to educational records as defined by FERPA or IDEA. Nothing shall prevent either party from disclosure of confidential information in accordance with applicable law. SECTION EIGHT: Termination 1. Termination. This Agreement may be terminated upon the occurrence of any of the following: a. Upon the mutual written consent of both parties. b. Immediately by The Network if the School: (i) dissolves, files for bankruptcy or goes into receivership; (ii) the School’s charter is revoked or not renewed by its authorizer, and such determination is final following all administrative recourse; or (iii) gross mismanagement of the School that poses an immediate threat to The Network’s reputation or exposes The Network to legal liability if the Agreement is not terminated and which cannot be cured as contemplated in Section 8(c) or (d). c. By either party upon a material breach of this Agreement by the other party, provided that the non-defaulting party provides the other party with thirty (30) days written notice to cure the default. Under this Section 8.1(b), if the default is not cured within the time period specified, the Agreement shall immediately terminate. d. By The Network if after written notice (“Notification of Deficiency”) of a pending termination of this Agreement, which shall include a list of specific deficiencies, The Network determines the School no longer complies with the Model or the Network Standards, and after having up to one (1) year from the date of the Notification of Deficiency to cure violations to the sole satisfaction of The Network, the School has not cured deficiencies identified by The Network. Except as provided in Section 1.c. termination of this Agreement shall be effective as of the last day of the school’s fiscal year in which the school failed to cure violations after Notification of Deficiencies. e. If in any year covered by the term of this Agreement, the School has not appropriated amounts sufficient for the performance of this Agreement, then this Agreement may terminate upon written notice of the School, however, currently appropriated expenditures of the School for this Agreement shall be paid from any legally available funds. 2. Effect Upon Termination. Upon termination or expiration of this Agreement for any reason, the Licenses shall immediately terminate. Absent written consent from The Network to the contrary, no later than fifteen (15) days after such termination or expiration of this Agreement, School shall cease to use or access all of the Intellectual 7 PM 3.20.2014 Property, and the same shall be either destroyed or returned to The Network. Additionally, within fifteen (15) days after termination or expiration of this Agreement, each party shall return to the other party any and all (including copies of) Confidential Information of the other party and shall confirm the same in writing. 3. Payments Upon Termination. Upon termination of this Agreement for any reason, the School shall promptly pay The Network for all Services rendered to the School up through the date of termination. Neither party will be liable for damages of any kind as a result of exercising its right to terminate this Agreement nor will termination affect any other right or remedy of either party. 4. Decision to Terminate. The Director of The Network shall make the final determination whether to terminate this Agreement pursuant to the terms of this Section 8. 5. Appeal to The Network’s Board of Directors. Any School aggrieved by a determination of the Director to terminate this Agreement shall have the opportunity to appeal said determination to The Network’s Board of Directors. Within ten (10) business days of the Director’s notice to terminate this Agreement to the School, a copy of which shall be served on the Chair of The Network’s Board of Directors, the School may make a written request for hearing before the Board of Directors (“Notice of Appeal”). Failure to submit a Notice of Appeal within the time provided shall be a waiver of the right to appeal. 6. Delegation of Authority/Hearing. The Board of the Directors shall have the authority to delegate the hearing and decision on the appeal to its Executive Committee or another specially appointed committee of the Board of Directors. The hearing shall be conducted telephonically, or if agreed to by the School and the Board of Directors, in an agreed upon location. 7. Timeline for Appeal. The hearing will be held no later than twenty (20) business days from the date the School submits its Notice of Appeal. 8. Notice of Appeal. The Notice of Appeal shall contain all documentary evidence the School intends to present in support of its position that the Agreement should not be terminated. The Director will have an opportunity to present documentary evidence at the hearing to support his/her decision to terminate. The Director shall provide said documentary evidence to the School by no later than five (5) business days prior to the appeal hearing. 9. Final Decision. The decision of the Board of Directors on the Director’s decision to terminate is final. The decision of the Board of Directors does not foreclose the rights of either party to enforce this Agreement in a court of competent jurisdiction. SECTION NINE: Indemnification 1. Each party (an “Indemnifying Party”) agrees, to the fullest extent permitted by law, to jointly and severally indemnify and hold harmless the other party, its officers, directors, employees and agents (an “Indemnified Party”) from and against any liabilities, damages and costs (including reasonable attorneys’ fees and costs of defense) (collectively, 8 PM 3.20.2014 “Damages”) resulting from any claim or judgment against it arising from a breach of this Agreement by the Indemnifying Party, unless such claims arose by reason of the negligence or malfeasance of the Indemnified Party, or resulting from any act, omission, misrepresentation, or violation of law by the Indemnifying Party or its officers, directors, members, employees or agents in the course of any activity of Indemnifying Party, except to the extent such Damages are caused by any act, omission, misrepresentation, or violation of law by Indemnified Party, or its officers, directors, trustees, shareholders, members, employees or agents The indemnity obligations set forth in this Section 9 shall survive the termination of this Agreement. 2. In the event that a third party claim is made or filed against the Indemnified Party, the Indemnified Party shall promptly (but not later than ten (10) days after its receipt or becoming aware of such claim) provide written notice to the Indemnifying Party of the same in writing. The Indemnifying Party shall not compromise and/or settle any claims from third parties without written approval of the Indemnified Party. The Indemnified Party shall cooperate with the Indemnifying Party in its defense, compromise or settlement of any such claims and may participate therein and retain counsel at its own expense. 3. Any action for indemnification by either party under this Section 9 shall not operate as a waiver or abrogate any of either party’s claims of governmental immunity under applicable law. SECTION TEN: Limitation of Liability In no event shall The Network, under any circumstances, be liable or obligated in any manner for any special, incidental, consequential or exemplary damages arising out of or related to this Agreement, even if The Network is notified in advance of the possibility of such damages occurring. This limitation is separate and independent of any other remedy limitation and shall not fail if such other limitation on remedy fails. Notwithstanding any other provision of this Agreement to the contrary, in no event shall The Network be liable to the School or any other party for any damages in excess of the total fees and royalties paid by the School under this Agreement. SECTION ELEVEN: General 1. Notice. All notices, consents or other instruments or communications provided for under this Agreement shall be in writing, signed by the party giving the same, and shall be deemed properly given and received when actually delivered and received or three (3) business days after mailed, if sent by registered or certified mail, postage prepaid, to the following address, or to such other address as a party may designate by written notice to the other party: If to The Network: Name: Attention: Address: Facsimile: Email: 9 PM 3.20.2014 If to School: Name: Attention: Address: Facsimile: Email: 2. Assignment. The School may not assign any rights under this Agreement without The Network’s prior written consent and any attempt to do so without that consent will be void. The Agreement will bind and inure to the benefit of the parties and their permitted successors and assignees. 3. Mediation. In the event of any dispute between the parties arising out of this Agreement, the parties agree to mediate a dispute between them in accordance with this Section 11.3 prior to resorting to litigation. When any party determines an unresolved dispute exists, such party shall give the other party a written notice to mediate ("Notice to Mediate") such unresolved dispute. The mediation shall be before an independent third party. In the event the Parties cannot agree upon a mediator within ten (10) days after delivery of a Notice to Mediate, then any Party may apply to a judge in and for the District Court of Denver County, Colorado, or a judge in and for the United States District Court for the District of Colorado for the appointment of a mediator. The mediation shall take place in a manner mutually agreed upon by the parties. The parties agree to enter into mediation in good faith in an attempt to resolve the dispute. In the event the parties fail to resolve the dispute by mediation within forty-five (45) days following delivery of a Notice to Mediate, the parties may exercise all rights afforded to them under the law and pursuant to this Agreement. 4. Entire Agreement. This Agreement, including all Exhibits attached hereto, contains all agreements, understandings, and arrangements between the parties. 5. Conflict of Interest. A conflict of interest may arise when an employee, officer or director of either party has the opportunity to influence business, administrative, academic, or other decisions in ways that could lead to personal gain or other advantage of any kind. The parties agree that full disclosure of the circumstances surrounding a real or potential conflict should be made prior to making the commitment of initiating the activity which poses the possible conduct and that all laws, policies and procedures for addressing conflicts of interest shall be complied with and documented in the records of the School and The Network, where applicable. 6. Governing Law, Venue, Construction and Severability. This Agreement will be construed and enforced according to Colorado law, regardless of any applicable conflict of law rules adopted in any jurisdiction. As a material condition of this Agreement, in the event of any action or suit arising out of this Agreement, or the breach thereof, and regardless of the Parties principal place of business, each of the Parties irrevocably consent exclusively to the venue in the state or federal courts located in Denver County in the State of Colorado and waive any objection based upon improper venue or forum non conveniens. 10 PM 3.20.2014 7. Amendment. This Agreement, including all Exhibits, may be amended or supplemented only by a writing signed on behalf of both parties. No purchase order, invoice, or similar form will amend the Agreement even if accepted by the receiving party in writing. 8. Waiver. No waiver will be implied from conduct or failure to enforce rights. No waiver will be effective unless a written document is signed by the party claimed to have waived. 9. Severability. If any part of this Agreement is found invalid or unenforceable, it will be enforced to the maximum extent permitted by law, and other parts of this Agreement will remain in force. 10. Equitable Relief. Either party may have injunctive, preliminary or other equitable relief to remedy any actual or threatened unauthorized action, disclosure of confidential information or unauthorized use, copying, marketing, distribution, or sublicensing of the Intellectual Property or derivatives. 11. Relationship of Parties. The parties to this Agreement are independent contractors. There is no relationship of partnership, agency, employment, franchise or joint venture between the parties. Neither party has the authority to bind the other or incur any obligation on its behalf. 12. Survival of Provisions. The respective warranties, representations, agreements, rights, and obligations of the parties hereto which, by their terms, survive the termination of this Agreement shall survive the termination of this Agreement. 13. Attorneys' Fees. In the event of any suits or actions with respect to this Agreement, the prevailing party shall be entitled to recover reasonable attorneys' fees and other costs and expenses incurred in resolving such dispute. 14. Counterpart Signatures. This Agreement may be executed in several counterparts, each of which shall be deemed an original but all of which shall constitute one and the same instrument. All signatures appearing by facsimile or PDF shall be binding as originals. [signature page to follow] 11 PM 3.20.2014 This Services and License Agreement has been executed on dates set forth below to be effective as of the Effective Date. THE NEW AMERICA SCHOOL NETWORK, a Colorado nonprofit corporation Name (printed): Title: Signature: Date: _______________________, a <<state>> nonprofit corporation: Name (printed): Title: Signature: Date: 12 PM 3.20.2014 EXHIBIT A (Logos and Marks) Trade name: New America School (unregistered) Logos: 13 PM 3.20.2014 EXHIBIT B (List of Materials) • Curriculum • Assessment instruments • Staff and administrator evaluations • Templates • ESL delivery models • Business and educational policies, procedures and handbooks • Student and school academic performance metrics • NAS mission statement • Website design and content • School and student performance metric • [ADD ADDITIONAL MATERIALS AS NEEDED] 14 PM 3.20.2014 EXHIBIT C (NAS Academic Model) Unique mission and belief statements Schedule- 8:00 AM - 10:00 PM, 4 days per week, 4 quarters Reentry/re-engagement 4 times per year Quarter credits Actively re-engage overage, under credit high school youth Supportive program offerings for young parents, including childcare stipends Credit recovery- E2020, Odyssey Ware, Accelerated math Newcomer program- 4 hrs. per day, transitioning to less support and integration in core subject areas SIOP instructional methodology, scaffolded learning, active learning, cross curricular Curriculum aligned with core standards but customized for our target population Character education programming: Discovery, Restorative Justice, (others from Lakewood/Denver) NAS Community Learning Center after school programming, supporting students’ academic success Content and language objectives in all classes, every day Exit tickets to ensure objectives met Common assessments- vetted by program specialist Assessment framework Teacher evaluation framework including walk-throughs School and student performance matrix of measures/indicators/metrics/targets Teacher qualifications- license-subject area endorsement plus LDE endorsement 10-12 professional development days per year structured to support and train teachers on the model Mandated PLC time and structure Virtual Comparison Group(VCG) for MAP through NWEA 360° Principal evaluation model Attendance Policy to support performance metric Ongoing support and counseling of Principal Provide necessary policies and procedures to support the NAS model Wrap around services provided to students through competitive grants when secured 15