January 2021 | Modern Teacher | Confidential
MODERN TEACHER® TERMS & CONDITIONS
Thank you for choosing Modern Teacher®. In these Terms & Conditions, you’ll find important information about the Modern Teacher® products and implementation support, including the terms and conditions on which Modern Teacher products and implementation support are provided. These Terms & Conditions are incorporated into your agreement with Modern Teacher and are a material part thereof.
- Definitions. As used in these Terms & Conditions:
“Agreement” or “this Agreement” means, collectively, the Order Form and these Terms & Conditions.
“Agreement Term” means the period of time during which Modern Teacher will provide the Service to Client, as specified in an Order Form.
“Client” means the school, school district or other entity subscribing for the Service, as listed on the applicable Order Form.
“Client Data” means any electronic data, information or material provided or submitted by Client to Modern Teacher through the Service or otherwise disclosed to or accessible by Modern Teacher.
“Documentation” means documentation relating to the features and functionality of the Service made available to Client from time to time in written form or online.
“License Administrator” means a User designated by Client to Modern Teacher who is authorized to perform administrative functions on behalf of Client as set forth in these Terms & Conditions or otherwise with respect to the Service, including submitting additional Order Forms.
“Modern Teacher” means Modern Teacher LLC, a Delaware limited liability company.
“Order Form” means collectively the Membership Subscription Agreement and/or order documents representing the initial purchase of the Service (and any subsequent purchases agreed to between the Parties in writing from time to time) and that specify, among other things, the school(s), school district(s) and/or other entity(ies) to which the Service is made available by Modern Teacher, the Agreement Term and the fees and/or other consideration therefor.
“Party” means either Client or Modern Teacher, as applicable, and “Parties” means, collectively, Client and Modern Teacher.
“Service” means the features, functionality and implementation support as made available by Modern Teacher from time to time at http://www.modernteacher.com or other designated web sites or IP addresses, in accordance with the Documentation or which may otherwise be provided by Modern Teacher as set forth in an Order Form.
“Users” means Client’s employees, teachers, students, representatives, consultants, contractors or agents who are authorized by Client to use the Service and have been supplied user identifications and passwords by Client (or by Modern Teacher at Client’s request).
- License to Use the Service.
2.1License Grant. Modern Teacher shall make the Service available to Client on the terms set forth in this Agreement. Modern Teacher hereby grants Client a non-exclusive, non-transferable and non-sublicenseable right to access and use the Service during the Agreement Term for the purpose for which it is made available to Client and otherwise in accordance with the terms of this Agreement. Pursuant to this license, Client may authorized an unlimited number of Users to access and use the Service.
2.2 User Access Methods. Modern Teacher shall provide Client (through its License Administrator) with the ability for each User to login to the Service (such login method to the Service, including passwords, security devices or other access methods is collectively, the “Access Methods”). Client is solely responsible for ensuring that the Users’ Access Methods are kept confidential by Client and its Users, only used by Users and not shared or used by more than one User. Upon License Administrator’s creation of additional User accounts, and registration by such additional Users, Modern Teacher shall make the Service available to the additional Users on the terms and conditions set forth in this Agreement. Client will be solely responsible for all acts or omissions of any person using the Service(s) through the Access Methods, and all transmissions generated by use of Users’ Access Methods shall be deemed to have been authorized by Client and made by a User.
2.3 License Restrictions. Client and its Users shall use the Service solely for Client’s internal educational or business purposes as contemplated by this Agreement and shall not: (i) knowingly submit to the Service or otherwise transmit material containing software viruses or other harmful or deleterious computer code, files, scripts, agents, or programs; (ii) knowingly interfere with or disrupt the integrity or performance of the Service or the data contained therein; (iii) attempt to gain unauthorized access to the Service, computer systems or networks related to the Service; (iv) harass or interfere with another User’s use and enjoyment of the Service; (v) send or upload through the Service infringing, obscene, unlawfully threatening, or otherwise unlawful or tortious material, including material that violates privacy rights; (vi) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, offer in a service bureau, or otherwise make the Service available to any third party; (vii) modify, copy or create any derivative works based on Service; (viii) reverse engineer, de-compile, disassemble or otherwise attempt to discover or replicate the computer source code of the Service; (ix) use any Modern Teacher Confidential Information to copy any features, functions, interfaces or graphics of the Service or to create a product that competes with the Service; or (x) remove, obscure or alter any proprietary notices or labels on or in any portion of the Service; or (xi) create Internet “links” to or from the Service, or “frame” or “mirror” any of Modern Teacher’s content which forms part of the Service.
3.1 Modern Teacher Support. Modern Teacher shall use commercially reasonable efforts to make the Service generally available 24/7 (24 hours a day, 7 days a week), except for: (a) planned down time, which shall be any period outside of Modern Teacher’s normal business hours for which Modern Teacher gives 24 hours or more notice that the Service will be unavailable; or (b) down time caused by circumstances beyond Modern Teacher’s reasonable control, such as acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, computer or telecommunications failures or delays involving hardware or software not within Modern Teacher’s possession or reasonable control, and network intrusions or denial of service attacks. Modern Teacher shall provide support to Client (through its License Administrator) consisting of online support implementation support via the Service during the hours of 8am to 5pm Mountain Time, Monday through Friday, except for holidays as observed by Modern Teacher. Modern Teacher may access User accounts, including without limitation Client Data, to respond to service or technical problems, subject to the confidentiality obligations of this Agreement.
3.2 Client Responsibilities. Client shall: (i) ensure that it has all necessary permissions, consents, approvals and licenses required of Client from third parties (including Users and other data sources and data subjects) to allow it to upload Client Data to the Service and use (and, as applicable, allow use by others of) the Client Data; (ii) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Client Data; (iii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Service, and notify Modern Teacher promptly of any such unauthorized use; (iv) comply with all applicable local, state, federal, and foreign laws in using the Service and (v) be responsible for installing and maintaining all software, equipment and systems necessary to access the Service, including ensuring that it has available and sufficient internet/web access as is reasonably required.
3.3 Security. Modern Teacher shall implement and maintain a formal security program (“Security Standards”) which is designed to: (i) promote the security and integrity of Client Confidential Information; (ii) protect against threats or hazards to the security or integrity of Client Confidential Information; and (iii) prevent unauthorized access to Client Confidential Information. Modern Teacher may modify the Security Standards from time to time, but such changes will not materially degrade the security efforts with respect to Client ’s Confidential Information.
3.4 Third-Party Providers. During use of the Service, Client may enter into correspondence with, access or purchase content and/or implementation support from, and/or otherwise engage with third parties. Any such activity, agreement, and any terms, conditions, warranties or representations associated with such activity, is solely between Client and the applicable third-party. Modern Teacher and its licensors shall have no liability, obligation or responsibility for any such correspondence, content/implementation support, purchase or engagement between Client and any such third-party.
- Consideration and Payment.
4.1 Fees and Consideration. Client shall pay the fees specified in any signed Order Forms (the “Fees”). Additional Fees may apply to, and be payable by Client for use of, additional features introduced by Modern Teacher. All Fees are quoted and payable in United States Dollars. Fees are non-refundable and are not based on the extent of actual usage. The Fees do not include any direct or indirect local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, excise, use or withholding taxes (collectively, “Taxes”). Client is responsible for paying all Taxes associated with the Agreement and use of the Service, excluding taxes on Modern Teacher’s income, revenue or gross receipts.
4.2 Overdue Payments. Any payment not received from Client by the due date may accrue, at Modern Teacher’s discretion, late charges at the rate of one and a half percent (1.5%) of the outstanding balance per month, or at the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
4.3 Suspension of Service. If Client’s account is thirty (30) days or more overdue, in addition to any of its other rights or remedies, Modern Teacher reserves the right to suspend the Service provided or made available to Client, without liability to Client, until such amounts and any accrued interest are paid in full.
4.4 Billing and Contact Information. Client shall ensure that License Administrator maintains complete, accurate and up-to-date Client billing and contact information.
- Proprietary Rights.
5.1 Reservation of Rights. Client acknowledges that in providing the Service, Modern Teacher utilizes (i) the Modern Teacher® name and trademark, the Modern Teacher logo, the product names associated with the Service and other trademarks; (ii) certain audio and visual information, documents, software and other works of authorship; and (iii) other technology, software, hardware, products, processes, algorithms, user interfaces, know-how and other trade secrets, techniques, designs, inventions and other tangible or intangible technical material or information (collectively “Modern Teacher Technology”) and that the Modern Teacher Technology is covered by intellectual property rights owned or licensed by Modern Teacher (“Modern Teacher IP Rights”). Other than as expressly set forth in this Agreement, no license or other rights in the Modern Teacher IP Rights are granted to the Client, and all such rights are hereby expressly reserved.
5.2 Client Data. As between Modern Teacher and Client, all Client Data submitted by Client to the Service, whether posted by Client or its Users, remains the sole property of Client. Client hereby grants to Modern Teacher a non-exclusive, non-sublicensable license to use, copy, store, modify and display the Client Data solely to the extent necessary to provide the Service (including, as to Shared Client Data (defined below), to provide the same to Modern Teacher’s other clients). Client Data shall be considered Confidential Information, subject to the terms of this Agreement; provided, however, that notwithstanding the foregoing, in accordance with Modern Teacher’s standard features and functionality, unless Client opts out through the mechanism provided in the Service, certain Client Data shall be available to Modern Teacher’s other clients for their use both as part of the Service or otherwise (to the extent Client has not opted out, the “Shared Client Data”), and such Shared Client Data shall not be consider as Client Confidential Information. Notwithstanding any other provision in this Agreement, Modern Teacher may collect, use, aggregate and provide or distribute to third parties certain Client and User registration information, statistical data and analytics which are derived from Client’s and Users’ use of the Service; provided, that such information and analytics does not include Client or personally identifying information.
5.5 Suggestions, Ideas and Feedback. Modern Teacher shall have the unrestricted right to use, act upon or exploit or commercialize in any manner it chooses, any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Client or any User relating to the Service, without any requirement to provide any compensation or attribution.
6.1 Definition of Confidential Information. As used herein, “Confidential Information” means all information of a Party (“Disclosing Party”) which the Disclosing Party designates in writing as being confidential when it discloses such information to the other Party (“Receiving Party”); provided, that, without limiting the foregoing, the terms and conditions of this Agreement, Client Data, the Modern Teacher Technology, the Service, business and marketing plans, technology and technical information, product designs, and business processes (whether in tangible or intangible form, in written or in machine readable form, or disclosed orally or visually) shall be deemed Confidential Information regardless of whether any written designation of confidentiality is made. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without the Receiving Party’s breach of this Section 6; (ii) was independently developed by the Receiving Party; or (iii) is received from a third party who obtained such Confidential Information without such third party’s breach of any obligation owed to the Disclosing Party. In addition, and notwithstanding anything to the contrary in this Agreement, any Shared Client Data shall not be considered Confidential Information.
6.2 Confidentiality. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party’s prior written permission.
6.3 Protection. Each Party agrees to protect the confidentiality of the Confidential Information of the other Party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind, but in no event shall either Party exercise less than reasonable care in protecting such Confidential Information.
6.4 Compelled Disclosure. If the Receiving Party is compelled by law or legal process to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior written notice of such compelled disclosure and reasonable assistance (at Disclosing Party’s cost) if the Disclosing Party wishes to contest the disclosure, and shall only make such disclosure (in manner and content) as is so compelled.
6.5 Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of this Section 6, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek all equitable remedies, including immediate injunctive and other equitable relief to enjoin such acts (without bond and without the necessity of showing actual monetary damages), it being specifically acknowledged by the Parties that any other available remedies are inadequate.
- Warranties & Disclaimers.
7.1 Mutual Representations and Warranties. Each Party represents and warrants to the other Party that (i) such Party has the full right, power, and authority under its governing documents to enter into the Agreement, and to perform its respective obligations under the Agreement; (ii) the execution of the Agreement by such Party and the performance of its obligations by such Party in accordance with the Agreement do not and will not violate any agreement to which such Party is a Party or by which it is otherwise bound; and (iii) when executed and delivered by such Party, the Agreement will constitute the legal, valid, and binding obligation of such Party, enforceable against such Party in accordance with its terms.
7.2 Modern Teacher’s Representations and Warranties. Modern Teacher represents and warrants that it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof and that the Service will perform substantially in accordance with the Modern Teacher Documentation under normal use and circumstances. If Modern Teacher fails to comply with the warranty in this Section 7.2, Client must notify Modern Teacher in writing within fifteen (15) days following the first date the failure is identified by Client. The notice from Client shall specify in reasonable detail the alleged failure. Following such notice, as Client’s exclusive remedy (and Modern Teacher’s sole liability) for breach of such warranty, Modern Teacher shall use its reasonable commercial efforts to correct the non-conforming aspect of the Service. However, in the event Modern Teacher is unable to substantially correct such deficiencies after good faith efforts within thirty (30) days of Client’s notification of such non-conformance, Client, as its exclusive remedy (and Modern Teacher’s sole liability) for the breach of this Section 7.2 and failure of Modern Teacher to correct the same, shall have the right to terminate the Order Form upon written notice to Modern Teacher and receive from Modern Teacher the prepaid but unused portion of the Fee for the Service for the then-current Agreement Term (based on the number of whole months left in the then-current Agreement Term).
7.3 Additional Client Representation and Warranty. Client represents and warrants that it has the right to provide the Client Data to Modern Teacher and to allow use thereof through the Service or otherwise in accordance with this Agreement.
7.4 Disclaimer of Warranties. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. MODERN TEACHER HEREBY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
- Mutual Indemnification.
8.1 Indemnification by Modern Teacher. Modern Teacher shall defend, indemnify and hold Client harmless against any loss or damage (including without limitation reasonable attorneys’ fees) incurred in connection with claims, demands, suits, or proceedings (“Claims”) made or brought against Client by a third party alleging that the Client’s use of the Service infringes the intellectual property rights of a third party. Notwithstanding the foregoing, Modern Teacher shall have no indemnification obligation hereunder to the extent such allegation of infringement is based in whole or in part on (i) modification of the Service or any portion thereof by Client, its representatives or Users; (ii) use of the Service by Client or Users contrary to the provisions of the Agreement; (iii) use of the Service in combination with any other product or service not provided by Modern Teacher (in each case (i)-(iii), solely to the extent the allegation is based on, or would not have been brought but for, such modification, use, or combination, as applicable) or (iv) any matter for which Client is indemnifying Modern Teacher pursuant to Section 8.2. If the Service is, or in Modern Teacher’s reasonable opinion may be, infringing, Modern Teacher may, in addition to providing the indemnification provided for herein, either obtain for Client the right to continue use of the Service or to replace or modify the Service so that it is no longer infringing (without materially diminishing or materially adversely impacting the features or functionality of the Service), or, if neither of the foregoing options is reasonably available to Modern Teacher, elect to terminate the Agreement upon advanced written notice to Client, in which case Modern Teacher’s sole liability (and Client ’s exclusive remedy) for such termination shall be to refund the prepaid but unused portion of the applicable Fee for the then-current Agreement Term (based on the number of whole months left in the then-current Subscription Term).
8.2 Indemnification by Client. Client shall defend, indemnify and hold Modern Teacher harmless against any loss or damage (including without limitation reasonable attorneys’ fees) incurred in connection with Claims made or brought against Modern Teacher by a third party arising from (i) Client’s or any User’s use of the Service in violation of the Agreement or (ii) any allegation that the Client Data, or the provision thereof to Modern Teacher or its use within the Service or otherwise in accordance with this Agreement (including as a result of Client’s failure to opt out of allowing the Client Data to become Shared Client Data), has caused harm to, breached a duty to or right of privacy of, or infringes the intellectual property rights of, a third party (including any User).
8.3 Indemnification Procedure. The indemnification provided for herein shall be subject to the following terms and conditions: (i) the Party claiming indemnification (“Indemnified Party”) must notify the other Party (“Indemnifying Party”) promptly in writing of any notice of the Claim subject to indemnification; (ii) the Indemnifying Party shall have sole control over such defense and all negotiations for the settlement and compromise of such Claim; (iii) for so long as the Indemnifying Party is diligently conducting such defense, it shall not be liable for any attorney’s fees of the Indemnified Party; and (iv) the Indemnified Party shall cooperate with the Indemnifying Party in a defense and settlement of any such Claim provided that, except if the last sentence of this Section is applicable, the Indemnifying Party shall not be liable hereunder for any settlement or compromise negotiated by the Indemnified Party unless the Indemnifying Party agrees in writing to be so bound. If the Indemnified Party provides notice of a Claim in accordance with (i) and is not notified within ten (10) days thereafter that the Indemnifying Party intends to defend the Claim, the Indemnified Party shall be entitled to defend such Claim, and settle or compromise such Claim, subject to the indemnification provided for herein.
- Limitation of Liability.
9.1 Cap on Liability. EXCEPT WITH RESPECT TO PAYMENTS TO THIRD PARTIES PURSUANT TO ITS INDEMNIFICATION OBLIGATIONS UNDER SECTION 8.1 OR SPECIFIED IN AN ORDER FORM, IN NO EVENT SHALL MODERN TEACHER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE LESSER OF $100,000 OR THE AMOUNTS ACTUALLY PAID BY AND DUE FROM CLIENT FOR THE SERVICE DURING THE ONE (1) YEAR PERIOD IMMEDIATELY PRECEDING THE DATE THE CAUSE OF ACTION AROSE.
9.2 Exclusion of Consequential and Related Damages. EXCEPT WITH RESPECT TO PAYMENTS TO THIRD PARTIES PURSUANT TO ITS INDEMNIFICATION OBLIGATIONS UNDER SECTION 8.1 OR SPECIFIED IN AN ORDER FORM, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, LOSS OF DATA, LOSS OF USE, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR IMPLEMENTATION SUPPORT, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
9.3 Limitation of Action. Except for actions for non-payment or breach of either Party’s intellectual property rights, no action (regardless of form) arising out of this Agreement may be commenced by either Party more than two (2) years after the cause of action has accrued.
- Term & Termination.
10.1 Term of Agreement. This Agreement commences on the Effective Date and continues for the Agreement Term specified in the relevant Order Form.
10.2 Renewal. Modern Teacher shall have the right to increase Fees applicable to any Renewal Term both (i) by an amount not to exceed the greater of three percent (3%) or the percentage change in the CPI (hereinafter defined) and (ii) to reflect additional charges for new features or implementation support included in the Service. “CPI” means the percentage increase in the United States City Average Consumer Price Index for All Urban Consumers (CPI-U), published by the Bureau of Labor Statistics, for the preceding twelve (12) month period ending the first calendar quarter of each year.
10.3 Termination for Cause. A Party may terminate this Agreement for cause: (i) upon thirty (30) days written notice of a material breach to the other Party, provided such breach remains uncured at the expiration of the notice period; or (ii) if the other Party becomes the subject of a petition in bankruptcy or any proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
10.4 Outstanding Fees. Termination shall not relieve Client of the obligation to pay any fees accrued or payable to Modern Teacher prior to the effective date of termination.
10.5 Return of Client Data. Client shall have up to thirty (30) days following termination or expiration of this Agreement to download a copy of its Client Data from the Service. After such thirty (30) day period, Modern Teacher shall have no obligation to maintain or provide any Client Data, and may delete or destroy the same. Notwithstanding anything to the contrary herein, Modern Teacher shall not be required to delete or destroy, and may continue to use, pursuant to Section 5.2, Shared Client Data.
10.6 Surviving Provisions. The following provisions shall survive the termination or expiration of this Agreement for any reason and shall remain in effect after any such termination or expiration: Sections 4.1, 4.2, 5, 6, 7.4, 8, 9, 10.5, 10.6 and 11.7, and any indemnification provided for in an Order Form.
- General Provisions.
11.1 Relationship of the Parties. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties.
11.2 No Benefit to Others. The representations, warranties, covenants, and agreements contained in this Agreement are for the sole benefit of the Parties and their respective successors and permitted assigns, and they are not to be construed as conferring any rights on any other persons.
11.3 Notices. All notices under this Agreement shall be in writing and shall be delivered to the addresses notified by the Parties to each other by a means evidenced by a delivery receipt, by facsimile or by email, at the addresses set forth in the Order Form. Notice shall be deemed to have been given upon: (i) personal delivery; or (ii) the three business days after mailing certified mail return receipt requested or (iii) one business day after deposit with an overnight courier service. Notices to Modern Teacher shall be addressed to the attention of its Chief Executive Officer.
11.4 Waiver and Cumulative Remedies. No failure or delay by either Party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a Party at law or in equity.
11.5 Severability. If any provision of this Agreement is held by a court or arbitrator of competent jurisdiction to be contrary to law, the provision shall be changed by the court or by the arbitrator 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. In the event a court or arbitrator finds such procedure to be inappropriate, then such invalid term, condition or provision will be severed from the remaining terms, conditions and provisions, which will continue to be valid and enforceable to the fullest extent permitted by law, unless the modification or severance of any provision has a material adverse effect on a Party, in which case such Party may terminate this Agreement by notice to the other Party.
11.6 Assignment. Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior express written consent of the other Party. Notwithstanding the foregoing, Modern Teacher may assign this Agreement without consent of the other Party in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Any attempt by a Party to assign its rights or obligations under this Agreement in breach of this Section 11.6 shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the Parties, their respective successors and permitted assigns.
11.7 Governing Law, Arbitration and Venue. This Agreement shall be governed exclusively by, and construed exclusively in accordance with, the laws of the United States and the State of Delaware, without regard to its conflict of laws provisions. Any dispute related to an interpretation or alleged breach of this Agreement (and not including any claim where the remedy sought is an injunction, which is hereby excluded from this Section), will be submitted to binding arbitration under the auspices of the American Arbitration Association (“AAA”), to be conducted in accordance with the AAA’s Commercial Arbitration Rules using the Expedited Procedures thereunder. The arbitration will be held in Chicago, Illinois. A single arbitrator will be chosen in accordance with the Rules. The Arbitrator shall issue a written decision explaining his/his award. The award or decision rendered by such arbitrator will be final and binding on the Parties and judgment may be entered thereon in any court having jurisdiction. The arbitrator will be compensated for its implementation support at a rate to be determined by the Parties or by the American Arbitration Association if the Parties cannot agree upon the rate of compensation. Each Party will pay one-half of the compensation to be paid to the arbitrator in any such arbitration and one-half of the costs of transcripts and other expenses of the arbitration proceedings; provided, however, that, at the discretion of the arbitrator, the prevailing Party in any arbitration may be entitled to an award of reasonable attorneys’ fees and costs, to be paid by the losing Party. The Parties agree to continue performing their respective obligations under this Agreement while any dispute is being resolved. Subject to the foregoing, to the extent applicable, the federal courts of the United States in the Northern District of Illinois and the state courts of the State of Illinois located in Chicago, Illinois shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. Each Party hereby consents to the jurisdiction of such courts and waives any right it may otherwise have to challenge the appropriateness of such forums, whether on the basis of the doctrine of forum non conveniens or otherwise.
11.8 Export Control Laws. Each Party shall comply with all United States and foreign export control laws or regulations applicable to its performance under this Agreement.
11.9 Entire Agreement and Construction. This Agreement (including the Order Form(s), these Terms and Conditions and any web pages incorporated in any of the foregoing by reference) constitutes the entire agreement between the Parties as to its subject matter, and supersede all previous and contemporaneous agreements, proposals or representations, written or oral, concerning the subject matter of this Agreement. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the Party against whom the modification, amendment, or waiver is to be asserted. In the event of any conflict between the provisions in any Order Form and these Terms and Conditions, the terms of these Terms & Conditions shall prevail and take precedence to the extent of any inconsistency. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Client purchase order or in any other Client order documentation shall be incorporated into or form any part of this Agreement.
11.10 Force Majeure. Neither Party shall be liable for, and both Parties shall be excused from, any failure to deliver or perform or for delay in delivery or performance due to causes beyond a Party’s reasonable control, including, but not limited to, governmental actions, fire, work stoppages or labor problems, shortages, civil disturbances, acts of terror, transportation problems, interruptions of power or communications, internet slowdowns or failures, natural disasters or acts of God (including flood, fire and earthquakes) (“Force Majeure”). Such affected Party shall provide the other Party with prompt written notice of the occurrence of any Force Majeure and shall use reasonable commercial efforts to mitigate the effects on its performance under the Agreement. If an event of Force Majeure materially and adversely affects the applicable Party’s performance under the Agreement for a period of thirty (30) days, the other Party shall be entitled to terminate the Agreement, and Client shall be entitled to receive a refund from Modern Teacher of any prepaid but unused Fees.
11.11 Interpretation. The words “include” and “including,” and variations thereof, shall not be deemed to be terms of limitation, but rather shall be deemed to be followed by the words “without limitation.”