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CM-2018-1985 - 12/20/2018AGREEMENT THIS AGREEMENT is made and entered into this�"day of� '2018 by and between Brainfuse, Inc., a corporation organized and existing under the laws of the State of New York (hereinafter, "Brainfuse"), and City of Round Rock, Texas, a home -rule municipality (hereinafter, "the City"). Round Rock Public Library is owned and operated by the City (hereinafter, "the Library"). WITNESSETH: WHEREAS, Brainfuse is engaged in the development and provision of educational services and content and job assistance services; and WHEREAS, the parties desire to supply Library patrons with an online tutoring and job assistance services program pursuant to the terms set forth herein. NOW, THEREFORE, in consideration of the mutual promises of each party to the other contained herein, it hereby is mutually agreed as follows: ARTICLE I - PURPOSE Brainfuse shall provide online tutoring and job assistance services to Library patrons pursuant to the terms set forth herein. ARTICLE If - RESPONSIBILITIES OF THE PARTIES Section 2.1 Responsibilities of Brainfuse (a) Brainfuse shall prepare and provide instant access homework help for Library patrons in mathematics, English, social studies, and science). Brainfuse shall also provide a job assistance program, known as JobNow (collectively, the "Brainfuse Program"). (b) Brainfuse shall serve all eligible patrons Monday through Sunday for nine hours per day from 2 PM CDT — 11 PM CDT. The Brainfuse Program shall commence on November 1, 2018. (c) Brainfuse shall make its online tutors and job experts available through any compatible computer to participating students, both within and without the library facility. Section 2.2 Resnonsibilities of Libraa (a) The Library shall provide computers with Internet access, suitable for use by the Brainfuse Application for patrons participating in the Brainfuse Program. (b) Technical support staff from Library shall cooperate in good faith with Brainfuse to ensure that the Brainfuse Program is accessible from Library computers. (c) The Library shall cooperate in good faith with Brainfuse's efforts to encourage participation in the Brainfuse Program. r (d) The Library understands that HelpNow is designed as a student -initiated homework assistance service and may not be used as part of school or class -wide mandated assignments. ARTICLE III - LIABILITY Brainfuse shall not be responsible or liable for any disruption, pause or cessation of the Brainfuse Program caused by actions or events beyond Brainfuse's immediate control, including, but not limited to, Internet disruptions, the Library's computers, hardware malfunctions, firewall restrictions, browser incompatibilities, other systems problems, or the failure of patrons to attend sessions. ARTICLE IV - COMPENSATION AND EXPENSES Section 4.1 Comnensation The Library shall pay to Brainfuse a fee of $12,850 for the first year of the Brainfuse Program The fee shall be due by November 9, 2018 Brainfuse reserves the right to withhold service pending processing and payment of invoices by the Library. Section 4.2 Exaenses Except as provided otherwise herein, the parties to this Agreement shall be responsible for their own expenses, including taxes and general administrative expenses. Brainfuse shall not be responsible for providing the necessary hardware or software (including, but not limited to, computers, speakers, microphones, Internet access, as well as browsers and firewall modifications) for the proper operation of the Brainfuse Program. ARTICLE V - TERM OF THE AGREEMENT This Agreement shall remain valid through October 31, 2019. ARTICLE VI - NOTICES AND LEGAL ADDRESSES OF THE PARTIES Section 6.1 Lep-al Addresses All notices or other communications required or which may be given hereunder shall be addressed and forwarded as set forth herein. Any such notice if sent to Library shall be addressed as follows: City Manager City of Round Rock 221 East Main Street Round Rock, TX 78664 Any such notice if sent to Brainfuse shall be addressed as follows: Brainfuse, Inc. 271 Madison Avenue Third Floor New York, New York 10016 Telephone: (212) 683-5212 2 Section 6.2 Electronic Transmissions Any notice, invoice or other communication hereunder shall be deemed to have been properly transmitted when sent by telegraph, telecopy, cable transmission, or any other form of electronic communication, and shall be deemed to have been given on the date of receipt thereof. ARTICLE VII - GENERAL PROVISIONS Section 7.I Survival The representations, warranties, general covenants, and indemnities contained herein shall survive the termination of this Agreement. Section 7.2 Applicable Law This Agreement shall be construed in accordance with, and governed by the laws of the State of Texas. Section 7.3 Entire Agreement This instrument contains the entire agreement between the parties and supersedes all other prior negotiations, undertakings, notes, memoranda, and agreements, whether written or oral, concerning the specific subject matter hereof, and may only be modified, altered, changed, or amended by agreement between the parties in writing. Section 7.4 Waiver No waiver, alteration, amendment, or modification of this Agreement, or any covenant, condition, or limitation contained in this Agreement is valid unless in writing and duly executed by the party to be charged therewith. Section 7.5 Illegality/Unenforceability In the event that any provision of this Agreement is declared illegal or unenforceable in any respect under applicable law, rule, or court decision, (1) the validity, legality, and enforceability of the remaining provisions hereof shall not in any way be affected or impaired, and (2) this Agreement shall be construed so as to effectuate as nearly as possible the intent of said provision and the intent of the parties hereto. Section 7.6 Successors and Assigns This Agreement, and the rights and benefits under this Agreement, shall not be assignable, without the written consent of each of the parties hereto. IN WITNESS WHEREOF the parties hereto have set their hands as of the date above written. Round Rock Public Library Brainfuse, Inc. a' By: By Name: Laurie Hadley dame: Alex Sztuden Title: City Manager Title: Managing Director 3 City of Round Rock + TEXAS ASAgenda Item Summary Agenda Number: Title: Consider executing an Agreement with Brainfuse, Inc. for the supply of an online tutoring and job assistance services program for the Library. Type: City Manager Item Governing Body: City Manager Approval Agenda Date: 12/21/2018 Dept Director: Michelle Cervantes Cost: $12,850.00 Indexes: General Fund Attachments: LAF - Agreement with Brainfuse Inc. for a program for online tutoring and job assistance services (12.04.18) (00414487xA08F8).pdf, Brainfuse Contract.pdf Department: Library Department Text of Legislative File CM -2018-1965 Cost: $12,850.00 Source of Funds: General Fund City of Round Rock page 1 printed an IV1912018