Pilot and Purchase Agreement

Parties

This Pilot and Purchase Agreement (this “Agreement”) is entered into by and between bMotion Technologies Corp., a Delaware corporation doing business as Poppins Learning, with a principal address at 185 Alewife Brook Parkway, Cambridge, Massachusetts (“Poppins Learning”), and the school district, public school unit, charter school, private school, or other educational organization identified on the Service Order (the “School”). This Agreement is effective as of the date of the last signature on the first Service Order executed by the parties (the “Effective Date”). Poppins Learning and the School are each a “party” and together the “parties.”

1. Structure of this Agreement; Service Orders

1.1 Service Orders

The services Poppins Learning will provide, the number of student seats, the service term, and the fees (if any) are set out in one or more service orders in substantially the form attached as Exhibit A (each a “Service Order”). Each Service Order is governed by and incorporates into this Agreement. If a Service Order conflicts with this Agreement, this Agreement controls unless the Service Order expressly states that a specific provision of this Agreement is being modified for that Service Order.

1.2 Free Pilots and Paid Orders

Each Service Order will be designated as either a “Free Pilot” or a “Paid Order.” A Free Pilot provides the School access to the Services at no charge for the pilot term stated in the Service Order, subject to the participation expectations in Section 5. A Paid Order provides access to the Services for the term and fees stated in the Service Order.

1.3 Conversion of Free Pilots

At or before the end of a Free Pilot term, the School may convert to a Paid Order by executing a new Service Order designated as a Paid Order (a “Conversion Order”). No new master agreement is required, and a Conversion Order is a Service Order under this Agreement. If the School executes a Conversion Order within sixty (60) days after the end of the Free Pilot term, the per-seat pricing will be NINETY-FIVE DOLLARS ($95.00), or such other introductory price as is stated on the original Service Order, held for the first twelve (12) months of the Paid Order term, as further provided in Section 5.5(a).

1.4 Order of Precedence for Privacy Documents

If the parties execute, or the School’s state requires, a separate student data privacy agreement, data confidentiality and security agreement, or similar instrument (including, for North Carolina Public School Units, the NCDPI Data Confidentiality and Security Agreement for Online Service Providers and Public School Units) (each, a “Privacy Agreement”), the Privacy Agreement controls over any conflicting term of this Agreement with respect to the collection, use, protection, and disposition of Student Data.

2. Services; License; Restrictions

2.1 Services

Poppins Learning will provide the School access to the Poppins Learning reading intervention platform and related implementation, training, progress reporting, and support services described in the Service Order (collectively, the “Services”). Poppins Learning will provide the onboarding, teacher training, progress reporting, check-ins, and support included with the applicable Service Order.

2.2 License

Subject to this Agreement and the applicable Service Order, Poppins Learning grants the School a limited, nonexclusive, nontransferable, nonsublicensable right during the applicable service term for the School’s authorized teachers, staff, and enrolled students (“Authorized Users”) to access and use the Services for the School’s internal educational purposes, up to the number of student seats stated on the Service Order.

2.3 Seat Management

Student seats are interchangeable during the service term. The School may reassign a seat when a student exits the program, completes an intervention cycle, or otherwise stops participating, provided the number of students with active access at any one time does not exceed the seats purchased or granted.

2.4 Restrictions

The School will not, and will not permit any Authorized User to: (a) sell, resell, rent, or lease the Services; (b) reverse engineer, decompile, or attempt to derive the source code of the Services except to the extent this restriction is prohibited by law; (c) copy, modify, or create derivative works of the Services; (d) use the Services to build a competing product; (e) remove proprietary notices; or (f) use the Services other than in accordance with this Agreement, the applicable Service Order, and applicable law.

2.5 Accounts

The School is responsible for maintaining the confidentiality of Authorized User credentials issued to its staff and for activity occurring under its accounts, except to the extent caused by Poppins Learning.

3. Term; Termination

3.1 Term

This Agreement begins on the Effective Date and continues for so long as any Service Order is in effect, unless earlier terminated as provided below. Each Service Order runs for the service term stated therein. No Service Order renews automatically, and renewal or conversion occurs only through a new Service Order or a Conversion Order signed by both parties.

3.2 Termination of a Free Pilot

Either party may terminate a Free Pilot for convenience on fourteen (14) days’ written notice. Poppins Learning may also suspend or terminate a Free Pilot as further provided in Section 5.3.

3.3 Termination for Cause

Either party may terminate this Agreement or any Service Order if the other party materially breaches and fails to cure the material breach within thirty (30) days after written notice. The School may terminate a Paid Order immediately on written notice if Poppins Learning materially breaches Section 6 (Student Data Privacy) and the breach is not curable.

3.4 Effect of Termination

On expiration or termination of a Service Order, including termination under Section 4.4: (a) the School’s access to the Services under that Service Order ends; (b) each party will return or destroy the other party’s Confidential Information on request; and (c) Poppins Learning will handle Student Data as provided in Section 6.7. Sections 6 through 12 shall survive termination.

4. Fees and Payment (Paid Orders)

4.1 Fees

Subject to Section 4.4, for Paid Orders, the School will pay the fees stated on the Service Order. Except as stated in the Service Order, fees are fixed for the service term stated in it. No fees are charged for Free Pilots.

4.2 Invoicing; Payment

Poppins Learning will invoice the School as stated on the Service Order or, if not stated, annually in advance. Invoices are due within thirty (30) days of receipt. Poppins Learning will reference the School’s purchase order number on invoices if one is provided, but preprinted terms on a purchase order shall have no effect unless so indicated on the Service Order or otherwise agreed to in writing.

4.3 Taxes

Fees are exclusive of taxes. The School is responsible for applicable taxes, if any, unless it provides a valid exemption certificate. Most School customers are tax-exempt public entities.

4.4 Non-Appropriation; Funds Availability

This Section 4.4 applies only if the School is a public entity whose payment obligations are subject to the appropriation or availability of funds. The School’s obligation to pay fees under a Paid Order is contingent upon the appropriation and availability of funds for that purpose for each fiscal period during the service term. If funds are not appropriated or otherwise made available to the School for a fiscal period, the School may terminate the affected Paid Order effective at the end of the last fiscal period for which funds were appropriated or made available, without further liability and without penalty, early termination charge, or acceleration of unpaid fees. The School will give Poppins Learning written notice of non-appropriation promptly after the School determines that funds will not be available, and if practicable no less than thirty (30) days before the effective date of termination. Termination under this Section 4.4 is not a breach of this Agreement. On termination, the School will pay fees for Services provided through the effective date of termination, Poppins Learning will refund any prepaid fees for the terminated portion of the service term on a pro rata basis, and Poppins Learning will handle Student Data as provided in Section 6.7. The School will not use this Section 4.4 to terminate a Paid Order for the purpose of acquiring functionally similar services from another provider for the same student population during the remainder of the terminated service term.

5. Implementation Expectations

5.1 Program Use

The Services are designed to be used by participating students for approximately twenty (20) minutes per session, three (3) times per week, for a minimum of twelve (12) weeks. The School will use reasonable efforts to implement the program consistent with this model and with the implementation guidance Poppins Learning provides.

5.2 Participation

The School will reasonably: (a) manage its student roster and reassign seats as students move, exit, or change participation; (b) have participating educators complete a brief pre-program and post-program questionnaire; (c) participate in a mid-implementation check-in and an end-of-program check-in; and (d) notify Poppins Learning promptly when implementation challenges arise so support can be provided.

5.3 Continued Access for Free Pilots

Free Pilots are provided at no charge in reliance on the School’s reasonable participation in the expectations in this Section 5, which enable accurate progress monitoring and evaluation of program impact. If the School materially fails to participate, Poppins Learning may, after written notice and a fourteen (14) day opportunity to re-engage, suspend or terminate the Free Pilot. Poppins Learning will not suspend or terminate access mid-cycle for immaterial deviations or deficiencies that occur despite the school’s reasonable efforts. A decision not to convert to a Paid Order, or nonparticipation in conversion discussions, is not a basis for suspension or termination under this Section 5.3.

5.4 Case Studies Voluntary

Poppins Learning may request, and the School may in its sole and absolute discretion grant, permission to describe the School’s implementation as a case study under a separate Case Study and Publicity Release. Participation is voluntary and is not a condition of any Free Pilot, Paid Order, pricing, or level of service.

5.5 Conversion Planning (Free Pilots)

This Section 5.5 applies only to Service Orders designated as Free Pilots. The parties enter into a Free Pilot with the shared expectation that it will produce information sufficient for the School to make an informed decision about continuing the program, and the following provisions are intended to support that decision.

(a) Introductory Price. If the School executes a Conversion Order within sixty (60) days after the end of the Free Pilot term, the per-seat price for the resulting Paid Order will be the introductory price of ninety-five dollars ($95.00) per student seat, and Poppins Learning will hold that price for the first twelve (12) months of the Paid Order term. Poppins Learning will not increase the per-seat price during that period. This subsection states a pricing commitment by Poppins Learning and does not obligate the School to convert or to purchase.

(b) No Purchase Obligation; Appropriation. Nothing in this Section 5.5 obligates the School to purchase the Services, to renew, or to expend or commit funds. Any Paid Order is subject to Section 4.4 and to any board approval, purchase order, preaudit, or procurement requirement applicable to the School.

6. Student Data Privacy

6.1 Definition

“Student Data” means any information, in any form, that identifies or is linked or reasonably linkable to a current or former student and that Poppins Learning collects, receives, or generates in connection with the Services, including personally identifiable information from education records as defined under the Family Educational Rights and Privacy Act, 20 U.S.C. § 1232g (“FERPA”).

6.2 Ownership; School Official

As between the parties, all Student Data is and remains the property of and under the control of the School (or the student or parent, as applicable). To the extent Poppins Learning receives Student Data from education records, Poppins Learning is acting as a “school official” with a legitimate educational interest under FERPA and 34 C.F.R. § 99.31(a)(1), is under the direct control of the School with respect to the use and maintenance of that data and will use it only for the purposes of this Agreement.

6.3 COPPA

Where Authorized Users include students under thirteen (13), the School represents that it is authorized to provide, and does provide, consent on behalf of parents for Poppins Learning’s collection of student personal information solely for the use and benefit of the School and for no commercial purpose, consistent with the Children’s Online Privacy Protection Act and Federal Trade Commission guidance for school-authorized collection.

6.4 Use Limitations

Poppins Learning will use Student Data solely to provide and support the Services and for no other purpose. Poppins Learning will not: (a) sell or rent Student Data; (b) use Student Data for targeted advertising or to build a profile of a student other than in furtherance of the Services; (c) use Student Data for marketing purposes; or (d) disclose Student Data except to subprocessors bound by obligations at least as protective as this Section 6, as required by law, or as directed by the School. Poppins Learning may use data that has been de-identified consistent with applicable law and industry standards to develop, improve, and demonstrate the effectiveness of its products, provided Poppins Learning will not attempt to re-identify it and will contractually prohibit recipients from doing so.

6.5 Security

Poppins Learning maintains a written information security program with administrative, technical, and physical safeguards designed to protect Student Data against unauthorized access, use, disclosure, or destruction, including encryption of Student Data in transit and at rest, access controls, and personnel training. Student Data is hosted within the continental United States. Poppins Learning maintains cyber liability and technology errors and omissions insurance appropriate to the Services.

6.6 Incident Notice

Poppins Learning will notify the School without unreasonable delay, and in any event within seventy-two (72) hours, after confirming a breach of security resulting in unauthorized acquisition of unencrypted Student Data, will provide information reasonably requested by the School to meet its legal obligations, and will cooperate in remediation. If an executed Privacy Agreement requires a shorter notice period, that period applies.

6.7 Deletion

Following expiration or termination of the applicable Service Order (including a Free Pilot that does not convert), Poppins Learning will, within sixty (60) days after the School’s written request or in any event within ninety (90) days, securely delete or de-identify Student Data in its possession, except as retention is required by law, and will certify deletion on request. During the term, Poppins Learning will delete or correct specific Student Data at the School’s reasonable direction and will support the School in responding to parent requests to inspect and review education records.

6.8 Subprocessors

A current list of subprocessors that process Student Data is available from Poppins Learning on request. Poppins Learning remains responsible for its subprocessors’ compliance in accordance with this Section 6.

7. Intellectual Property

Poppins Learning and its licensors own all right, title, and interest in and to the Services, including all software, content, and de-identified and aggregated usage data, and all related intellectual property rights. No rights are granted to the School except as expressly stated in this Agreement. If the School or its Authorized Users provide feedback or suggestions, Poppins Learning may use them without restriction or obligation, provided no Student Data or School Confidential Information is used or disclosed in doing so.

8. Confidentiality

“Confidential Information” means nonpublic information disclosed by one party to the other that is designated confidential or that reasonably should be understood to be confidential, including Student Data (which is the School’s Confidential Information) and the nonpublic features, pricing, and documentation of the Services (which are Poppins Learning’s Confidential Information). The receiving party will use Confidential Information only to perform the Services or other obligations under this Agreement, will protect it with at least reasonable care, and will not disclose it except to employees, agents, and subprocessors with a need to know who are bound by comparable obligations. These obligations do not apply to information that is or becomes public through no fault of the receiving party, was known without restriction before disclosure, is independently developed, or is rightfully received from a third party. If the School is subject to a public records law, the parties acknowledge the School may be required to disclose records as provided by that law; the School will, to the extent permitted, give Poppins Learning prompt notice of a request implicating Poppins Learning’s Confidential Information so Poppins Learning may seek protective treatment at its own expense.

9. Warranties; Disclaimer

9.1 Mutual

Each party represents that it has the authority to enter into this Agreement and that the person signing on its behalf is authorized to do so.

9.2 Poppins Learning

Poppins Learning warrants that it will provide the Services in a professional manner consistent with generally accepted industry standards and that it will comply with laws applicable to it as a provider of the Services, including the laws identified in Section 6.

9.3 Disclaimer

EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, THE SERVICES ARE PROVIDED “AS IS” AND POPPINS DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. POPPINS DOES NOT WARRANT ANY PARTICULAR EDUCATIONAL OUTCOME OR THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE. FREE PILOTS ARE PROVIDED WITHOUT WARRANTY OF ANY KIND EXCEPT SECTIONS 9.1 AND 9.2.

10. Indemnification

10.1 By Poppins Learning

Poppins Learning will defend the School against any third-party claim alleging that the Services, as provided by Poppins Learning and used as permitted under this Agreement, infringe a United States patent, copyright, or trademark or misappropriate a trade secret, and will indemnify the School for damages, costs, and reasonable attorneys’ fees finally awarded or agreed in settlement. If the Services are enjoined or likely to be, Poppins Learning may procure the right for the School to continue use, modify the Services to be non-infringing, or terminate the affected Service Order and refund prepaid unused fees. Poppins Learning will also indemnify the School for third-party claims to the extent arising from Poppins Learning’s breach of Section 6 or Poppins Learning’s gross negligence or willful misconduct.

10.2 No Waiver of Immunity

Nothing in this Agreement requires the School to provide indemnification or defense to the extent prohibited by applicable law, and nothing in this Agreement waives any sovereign or governmental immunity available to the School.

11. Limitation of Liability

EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS, A BREACH OF SECTION 6, OR A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT: (A) NEITHER PARTY WILL BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, OR FOR LOST PROFITS OR LOST DATA, EVEN IF ADVISED OF THE POSSIBILITY; AND (B) EACH PARTY’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE FEES PAID OR PAYABLE BY THE SCHOOL UNDER THE APPLICABLE SERVICE ORDER IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR, FOR A FREE PILOT, FIVE HUNDRED DOLLARS ($500.00).

12. General

12.1 Governing Law

If the School is a public entity, this Agreement is governed by the laws of the state in which the School is located, without regard to conflicts of law rules, and venue lies in the state or federal courts of that state. Otherwise, this Agreement is governed by the laws of the Commonwealth of Massachusetts and venue lies in the state or federal courts located in Boston, Massachusetts.

12.2 Assignment

Neither party may assign this Agreement without the other party’s prior written consent, except Poppins Learning may assign it in connection with a merger, acquisition, or sale of substantially all of its assets on written notice to the School.

12.3 Notices

Notices must be in writing and delivered to the addresses on the Service Order (email is sufficient if receipt is confirmed or not bounced). Notices of breach, termination, or a security incident must also be sent by a method providing proof of delivery or, in the case of a security incident, by the fastest practical means.

12.4 Force Majeure

Neither party is liable for delay or failure to perform (other than payment obligations) caused by events beyond its reasonable control.

12.5 Independent Contractors; No Third-Party Beneficiaries

The parties are independent contractors. There are no third-party beneficiaries to this Agreement.

12.6 Entire Agreement; Amendment; Counterparts

This Agreement, together with all Service Orders, Conversion Orders, and any executed Privacy Agreement, is the entire agreement of the parties regarding its subject matter and supersedes prior proposals and discussions, including the marketing portions of any proposal to which a Service Order is attached. Amendments must be in a writing signed by both parties. This Agreement may be signed in counterparts, including by electronic signature, each of which is an original. If any provision is unenforceable, the remainder stays in effect. A party’s failure to enforce a provision is not a waiver.

Execution and Exhibits

The parties execute this Agreement by their duly authorized representatives as of the Effective Date, in counterparts and by electronic signature as provided in Section 12.6.

The Service Order referenced throughout this Agreement (Exhibit A) is prepared and provided by Poppins Learning for signature with each order. It records the School’s details, whether the order is a Free Pilot or a Paid Order, the program model, the service term, the number of student seats and any fees, and the minimum purchase for Paid Orders.