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ASPIRE LEARNING TOOLS LLC CONCEPT DISCLOSURE AGREEMENT
BY SUBMITTING A CONCEPT TO ASPIRE LEARNING TOOLS LLC. (REFERRED TO HEREIN AS THE “COMPANY”) THROUGH THIS ONLINE PORTAL, I.E., “ASPIRE LEARNING TOOLS LLC” (REFERRED TO HEREIN AS THE “PORTAL”), THE PARTY MAKING THE SUBMISSION (REFERRED TO HEREIN AS THE “INVENTOR”) AGREES TO THE FOLLOWING TERMS AND CONDITIONS OF DISCLOSURE THROUGH THE PORTAL:

1. Inventor understands and acknowledges that, when submitting any concept, idea, suggestion, invention, or other material (hereinafter, collectively, the “Concept”) to the Company through the Portal:

(A) the Concept will first be subjected to computer analysis designed to determine if the Concept is of a type that the Company may wish to evaluate further, and that in the event it is rejected via such computer analysis, Inventor will be so notified via return letter or email message (hereinafter, “Notification”), and all details of any such rejected Concept (hereinafter, “Rejected Ideas”) shall thereupon be deleted from Aspire Learning Tools LLC records without having been viewed by any Company employee, agent, or representative, although the Company shall be entitled (but not required) to retain a copy of the Notification for its records.

(B) Concepts not constituting Rejected Ideas shall then be evaluated by the Company so as to make a determination whether (a) to accept those Concepts for internal presentation, discussion, and possible development into products or services to be offered for sale pursuant to a license agreement to be negotiated between Inventor and the Company, or (b) to advise Inventor that the Company is no longer considering the Concept and has elected not to pursue a license for its use. Once this determination has been made, Aspire Learning Tools LLC will advise Inventor of the decision via a return letter or email message (hereinafter, the “Decision Notice”).

2. During the period of confidentiality specified in Paragraph 11 hereinbelow, Company agrees to handle, preserve, and protect the information pertaining to the Concept disclosed by Inventor with the same degree of care which the Company normally affords its own confidential information, including taking efforts (equivalent to those efforts which the Company uses to protect its own confidential information) to avoid disclosure to any third party; provided, however, that such obligation shall only apply to information that has been disclosed in writing through the Portal (such identified information being referenced hereinafter as “Information”). The Company reserves the right to require that any Information be supplemented by additional detail or otherwise modified to more accurately describe the unique qualities, if any, of the concept disclosed. The Company assumes no obligation of confidentiality or in any other respect with regard to Information or a submission related to (i) Rejected Ideas or (ii) digital game and content concepts, video games, mobile apps, scripts, storylines, plots, characters, and motion picture, television, and other entertainment programming concepts (collectively, “Entertainment Concept”). Inventor hereby waives any claim or action whatsoever against the Company in the event that it nonetheless chooses to submit any Entertainment Concept, including but not limited to claims of misappropriation and copyright infringement. The Company has no obligation to compensate Inventor for any loss or damage which may occur in shipment of materials related to the Concept.

​​3.​ Without limiting the foregoing, the Company may disclose such Information to its officers, directors, agents, representatives, and employees, as well as representatives of its customers, for the purpose of enabling Company to determine its interest in licensing the Information from the Inventor.

​​4.​ The Company acknowledges that, during the period of confidentiality, as specified by Paragraph 11 hereinbelow, it shall not Use Information for Commercial Purposes without the consent of the Inventor. "Use" shall mean conscious and deliberate consideration and implementation of the Information in connection with development and/or design of a product or service. "Commercial Purposes" shall mean the Use of the Information in products or services that the Company intends to offer for sale or license.

​​5.​Inventor acknowledges that similar concepts may be independently developed by the Company or received from other parties, and that the adoption by the Company of any alternative submission, whether received before or after the Information, may be due to market conditions at the time at which such alternative submission is received by the Company and/or the positioning of the similar concepts suggested by the party making the submission (and the strength of the third party’s presentation thereof), as well as to the relative inherent merit of the Concept and the similar submissions. Selection by the Company of alternative submissions, or use of its own development work, shall be without obligation to Inventor.

​6.1​ The obligations of the Company with respect to Information as set forth in this Agreement are not applicable to any Rejected Ideas or to any Information that:

(1)​ was demonstrably known to the Company prior to the date of the disclosure thereof to the Company by the Inventor; or

(2)​ was known to the public or generally available to the public prior to the date of the disclosure to the Company by the Inventor; or

(3)​ becomes known to the public or generally available to the public subsequent to the date of disclosure to the Company through no act of the Company contrary to the obligations imposed by this Agreement; or

(4)​ ​is or was disclosed by the Inventor to any third party without an obligation from the third party to maintain confidentiality; or

(5)​ ​is or was independently developed by the Company or one of its subsidiaries, divisions, or parent or affiliated companies without any breach of this Agreement; or

(6)​ is received in good faith by the Company from a third party and is not subject to an obligation of confidentiality owed by said party to the Inventor.

​6.2​ ​Failure by the Company to disclose the existence of any of the conditions listed in subparagraphs (1) through (6), above, or to identify a submission as an Entertainment Concept, at the time of disclosure or thereafter, shall not be deemed a representation that such conditions do not exist or constitute a waiver by the Company of the exclusion of such Concept from its confidentiality obligations or of its right to assert the existence of such conditions. Inventor understands and acknowledges that although one employee, group, or division of the Company is legally entitled under this Agreement to share the Information with another employee, group, or division, there shall be no presumption of such sharing and, specifically no presumption against independent development solely by virtue of prior disclosure of the Concept and/or Information to one or more employees, groups, or divisions of the Company.

​6.3​ ​A disclosure shall not be deemed to violate this Agreement if it is:

(1)​ ​disclosed by the Company, or by a person(s) for whom the Company is responsible, without the Inventor's informed authorization despite the exercise of the degree of care which the Company affords its own confidential information; or

(2)​ required to be disclosed by judicial or governmental action; or

(3)​ ​disclosed in a judicial or governmental proceeding subject to a protective order.

​7.1​ Inventor represents and warrants:

(1) That Inventor is at least eighteen (18) years of age; and

(2) that (i) Inventor is the sole owner of all Information disclosed to Company and that its disclosure thereof or any grant of rights thereto to Company shall not violate the rights of any third party; or (ii) if a third party has ownership of, or a claim to, all or any part of the Information, then by virtue of an arrangement with any such third party (hereinafter, collectively, “Contributors”), Inventor has the unqualified right to make the disclosure made pursuant to this Agreement and the sole right to grant licenses related to use of the Information, and that the Contributors have been informed of the terms of this Agreement and agree to be bound by them. Inventor promises and represents that, within ten (10) days of the date of any Decision Notice, any and all such each Contributor will execute (and Inventor shall provide the Company with a copy of) a hand-signed confirmation of consent to such terms, stating substantially the following:

“I, [NAME OF CONTRIBUTOR], have collaborated and/or are collaborating with [INVENTOR’S NAME] (“Inventor”) on the project known as “[CONCEPT NAME]” (“Idea”), which was submitted through the Aspire Learning Tools LLC online portal. I have agreed to permit my work to be included in the Idea and submitted to Aspire Learning Tools LLC per the terms and conditions listed on the Aspire Learning Tools LLC website, and I agree that my work may be included as part of the licensed property in any license agreement negotiated for its use. I further agree that Inventor is fully authorized to negotiate and grant a license for use of this property, and I am solely responsible for any agreement with Inventor regarding my share of any royalties or other compensation to be paid by Aspire Learning Tools LLC on use of the Idea.”
7.2​ Notwithstanding anything herein to the contrary, it is hereby agreed that, apart from disclosures made to third parties referenced in Paragraph 7.1 above, Inventor shall not disclose to any third party during or after the confidentiality period any terms of this Agreement or the terms of any proposed or executed agreement with Company, nor any information concerning the Company’s product line, future product plans, or other business plans. If Inventor shall violate the terms of this Paragraph, the Company's obligations of confidentiality hereunder, as well as its promise under Paragraph 4 to refrain from use of the Information, shall cease forthwith and be void and of no effect.

​ 8.​ ​In the event of any breach or violation of Paragraph 7.1 or 7.2 hereof, Inventor shall indemnify and hold completely harmless the Company, its subsidiaries, and its parent or affiliated companies, as well as their respective officers, directors, employees, sublicensees, distributors, customers, and agents, from any claim, loss, costs, or damages (including reasonable attorney fees) against or suffered by any or all of them brought or caused by any party and related to or arising out of any submission made under this Agreement.

​ 9.​ ​The parties do not intend that any agency, licensing, or partnership relationship be created between them by this Agreement. In the event that the Company agrees to enter into a licensing agreement with Inventor for the use of the Concept and/or Information, such licensing agreement would provide, inter alia, for a royalty to be paid to Inventor of not more than one and one half percent (1.5%) of the Company’s net sales of products or services utilizing the Concept and/or Information, and such obligation to pay royalties would not extend for more than fifteen (15) years after first offering such products or services for sale. The Company will have the right, but not the obligation, to utilize the name of Inventor and any Contributors in connection with the promotion of any products or services utilizing the Concept and/or Information.

​ 10.​ This Agreement contains the entire understanding between the parties relative to the protection of information which may be exchanged or submitted via the Portal, and supersedes any prior or collateral communications and understandings, whether written or oral, between the parties. The terms of this Agreement shall remain in effect notwithstanding any specific legend or statement associated with any particular Information exchanged, and in the event of a conflict between the terms of this Agreement and any such legend or statement, the terms of this Agreement will control. Moreover, no subsequent agreement or modification of this Agreement shall have effect unless put in writing and signed by duly authorized representatives of the parties.

​ 11.​ The obligation of confidentiality imposed by this Agreement shall extend, with respect to any Concept, for one (1) year from the date of the initial disclosure of any portion of such Concept; provided, however, that the foregoing shall not be construed as preventing the Company from disclosing a portion of the Information to the public at any time after entering into a binding license agreement with Inventor for the use of that portion of the Information, and it is recognized that the terms of this Agreement shall not be superseded by the terms and conditions of any such license agreement absent express language to the contrary. Upon the expiration of the stated period the Company shall have no further obligations to Inventor with respect to such Concept or Information.

​ 12.​1 ​This Agreement shall be governed by and construed in accordance with the laws of the State of New York, U.S.A., excluding its choice of law rules. If any provision of this Agreement is found to be illegal, void, or unenforceable in whole or in part, that portion shall be deemed severed from this Agreement, and the remainder shall be deemed valid and enforceable, such that the Agreement remains in full force and effect. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. In no event shall any claim, action or proceeding brought by Inventor related to or arising from this Agreement and/or Inventor’s interactions with the Company be instituted more than one (1) year after the cause of action arose. The parties agree that any dispute, claim, or demand brought by either party will be resolved either through the judicial process (i.e., litigation) or through binding arbitration, such method of dispute resolution to be selected at the option and in the sole discretion of the Company, provided that the Company does not unreasonably withhold or delay its selection of such method of dispute resolution. Inventor agrees to give the Company not less than ten (10) days’ prior written notice of his or her intention to file suit or pursue a claim through arbitration. In the event that the Company elects to have the dispute, claim, or demand resolved through binding arbitration, said matter shall be submitted to Judicial Arbitration and Mediation Services, Inc. ("JAMS") under its rules then in effect in the Providence, Rhode Island area, before a three-person arbitration panel to be chosen through mutual agreement of both parties. To the fullest extent permitted by applicable law: (i) no arbitration will be joined to an arbitration involving any other party that has submitted a concept through the Portal, whether such joinder is effectuated through class arbitration proceedings or otherwise; (ii) no finding or stipulation of fact in any other arbitration, judicial or similar proceeding may be given preclusive or collateral estoppel effect in any arbitration hereunder (unless determined in another proceeding between the parties); (iii) no conclusion of law in any other arbitration may be given any weight in any arbitration hereunder (unless determined in another proceeding between the parties); and (iv) Inventor hereby waives the right to be a plaintiff in any class action, and will not be a party to any class action, against the Company or its affiliates with respect to any dispute arising out of the terms and conditions of this Agreement, the submission of any concept through the Portal, the marketing of any products derived from such submission, and/or any other dispute directly related hereto. In the event that Inventor files a complaint or initiates an arbitration proceeding relating to any such dispute without giving the Company prior written notice of its intent to do so, and the Company elects to have the dispute, claim, or demand resolved through a different method of dispute resolution, Inventor agrees to dismiss its complaint promptly thereafter, bear all costs associated therewith, and pursue the matter through the method of dispute resolution chosen by the Company. The parties agree to share equally in the arbitration costs incurred. In the event any litigation is initiated by either party in connection with this Agreement, the parties hereby consent to the exclusive jurisdiction and venue of the state and federal courts within Providence County, Rhode Island, and the prevailing party in such litigation shall be entitled to recover from the other party all the reasonable costs, attorneys' fees and other expenses incurred by such prevailing party in the litigation.

12.2 (A) In the event that the Company has chosen arbitration for the resolution of any dispute, the following sets forth the process for any appeal of a decision of the arbitration panel (“Appeal”). The panel for the Appeal (“Appeal Panel”) will consist of three neutral members, unless the parties hereto agree that there will be one neutral member. Upon the filing of an Appeal in accordance with (B)(i) below, the Case Manager will recommend to the parties hereto an Appeal Panel and will make any disclosures that are mandated by applicable law regarding the candidates for the Panel. The Case Manager will seek the agreement of the parties hereto as to the selection of the Appeal Panel members. If the parties hereto do not agree on the composition of the Appeal Panel within seven (7) calendar days of having received the Case Manager recommendation for the Appeal Panel, the Case Manager will appoint an Appeal Panel.

(B) The procedure for filing and arguing an Appeal is as follows:
(i) Any party may appeal an arbitration award that has been rendered pursuant to the applicable JAMS Arbitration Rules and has become final. The Appeal must be served, in writing, to the Case Manager and on the opposing party within fourteen (14) calendar days after the award has become final. The letter or other writing evidencing the Appeal must specify those elements of the award that are being appealed and must contain a brief statement of the basis for the Appeal.

(ii) Within seven (7) calendar days of the service of the Appeal, the opposing party may serve on the Case Manager and on any other parties a Cross-Appeal with respect to any element of the Award. The letter or other writing evidencing the Cross-Appeal must specify those elements of the Award that are being appealed and must contain a brief statement of the basis for the Cross-Appeal.

(iii) The record on Appeal will consist of the stenographic or other record of the original arbitration hearing and all exhibits, deposition transcripts and affidavits that had been accepted into the record of the hearing by the arbitration panel. The parties hereto will cooperate with the Case Manager in compiling the record on Appeal, and the Case Manager will provide the record to the Appeal Panel. No evidence not previously accepted by the arbitration panel will be considered by the Appeal Panel, unless the basis of the Appeal is non-acceptance by the arbitration panel of certain evidence or unless the Appeal Panel determines that there is good cause to re-open the record pursuant to the applicable JAMS Arbitration Rules.

(iv) The parties hereto may elect to rely on the memoranda or briefs previously submitted to the arbitration panel. In the absence of such election, the Case Manager will obtain the agreement of the parties hereto on a briefing schedule. If no agreement is reached, the Case Manager will set the briefing schedule. Ordinarily, only opening briefs (of no more than 25 double-spaced pages) will be allowed. The briefs may be in the form of a letter.

(v) The Appeal Panel will conduct an oral argument if all parties hereto request such argument or may conduct oral argument, in complex cases or unusual circumstances, on its own initiative. If there is to be oral arguments, the Case Manager will obtain the agreement of the parties hereto on both the date of such argument and the duration, including the allocation of time. In the absence of agreement, the Appeal Panel will set the date and duration of the oral argument, including the allocation of time.
(vi) All fees for the original arbitration must be paid in full before an appeal will be scheduled.

(C) Once an Appeal has been timely filed, the award by the original Arbitration Panel is no longer considered final for purposes of seeking judicial enforcement, modification or vacating pursuant to the applicable JAMS Arbitration Rules.

(D) The Appeal Panel will apply the same standard of review that the first-level appellate court in the jurisdiction would apply to an appeal from the trial court decision. The Appeal Panel will respect the evidentiary standard set forth in Rule 22(d) of the JAMS Comprehensive Arbitration Rules. The Appeal Panel may affirm, reverse, or modify an award by the original arbitration panel. The Appeal Panel may not remand to the original arbitration panel, but may re-open the record in order to review evidence that had been improperly excluded by the arbitration panel or evidence that is now necessary in light of the Appeal Panel's interpretation of the relevant substantive law. The Appeal Panel will make its decision by majority vote and, absent good cause for an extension, will issue the decision within twenty-one (21) calendar days of the date of either oral argument, the receipt of the new evidence or receipt of the record and of all briefs, whichever is applicable or later. The Appeal Panel's decision will consist of a concise written explanation, unless all parties hereto agree otherwise.

(E) If one party refuses to participate in the Appeal, the Appeal Panel will maintain jurisdiction over the Appeal and will consider the Appeal as if all parties hereto were participating, including retaining the authority to modify any Award or element of an Award that had previously been entered in favor of the non-participating party, assuming it believes that the record, after application of the appropriate standard of Appeal, justifies such action.

(F) After the Appeal Panel has rendered a decision, and provided the parties hereto have paid all JAMS fees in full, JAMS will issue the decision by serving copies on the parties hereto. Service will be deemed effective five (5) calendar days after deposit in the United States Mail. Upon service of the Appeal Panel decision, the Award will be final for purposes of judicial review.