March 2017 | 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 services, including the terms and conditions on which Modern Teacher products and services are provided. These Terms & Conditions are incorporated into your agreement with Modern Teacher and are a material part thereof.
1. Definitions. As used in these Terms & Conditions:
“Agreement” means, collectively, the Order Form and these Terms & Conditions.
“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.
“License Administrator” means a User designated by Client who is authorized to submit additional Order Forms for ordering additional User licenses and perform other license administration functions on behalf of Client.
“Agreement Term” means the term during which Modern Teacher will provide the Service to Client, as specified in an Order Form.
“Order Form” means collectively the 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) and/or school district(s) to which the Services are made available by Modern Teacher, the Agreement Term and the fees and/or other consideration therefor.
“Service” means the services as made available by Modern Teacher from time to time at http://www.modernteacher.com or http://www.modernteacherone.com or other designated web sites or IP addresses, in accordance with the associated documentation made available to Client in written form or online (collectively, the “Documentation”).
“Users” means Client’s employees, teachers, students, representatives, consultants, contractors or agents who are authorized to use the Service and have been supplied user identifications and passwords by Client (or by Modern Teacher at Client’s request).
2.1 Initial Service. Modern Teacher shall make the Service available to Client on the terms set forth in this Agreement.
2.2 Additional Users. User licenses cannot be shared or used by more than one User. If Client wishes to add additional User licenses, the License Administrator shall create an additional User account for each such additional User, and each such additional User shall register to use the Service. 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. Unless otherwise specified in the relevant Order Form (i) additional User licenses must be added in minimum increments of 1 unit (i.e. no shared User accounts); and (ii) the term of the additional User licenses shall be coterminous with expiration of the Agreement Term. For the avoidance of doubt, additional User licenses do not require payment of additional fees.
3. Use of the Service.
3.1 Modern Teacher Responsibilities. Modern Teacher shall: (i) in addition to its confidentiality obligations under Section 6, not use, edit or disclose the Client Data; (ii) use commercially reasonable efforts to maintain the security of the Service; (iii) unless indicated to the contrary on an Order Form, provide support to each of Client’s Users consisting of online support services via the Service during normal business hours; (iv) ensure that the Service is available to Client and performing substantially in accordance with the Modern Teacher Documentation; and (v) 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 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, but only if such unavailability results notwithstanding the exercise of reasonable care and due diligence to avoid or mitigate the same in anticipation of or in response to such causes.
3.2 Client Responsibilities. Client is responsible for all activities that occur under Client’s User accounts. Client shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Client Data; (ii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Service, and notify Modern Teacher promptly of any such unauthorized use; and (iii) comply with all applicable local, state, federal, and foreign laws in using the Service.
3.4 Third-Party Providers. During use of the Service, Client may enter into correspondence with, access or purchase content and/or services 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/services, purchase or engagement between Client and any such third-party.
4. Consideration and Payment.
4.1 Fees and Consideration. Client shall pay the fees and consideration specified in any signed and approved Order Forms. All fees are quoted and payable in United States Dollars. Fees are non-refundable and are based on the number of schools specified in the relevant Order Form, not the extent of actual usage.
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 to Client, without liability to Client, until such amounts 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.
5. Proprietary Rights.
5.1 Reservation of Rights. Client acknowledges that in providing the Service, Modern Teacher utilizes (i) the Modern Teacher name, 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 License Grants. Modern Teacher grants Client and its Users a non-exclusive, non-transferable, non-sublicenseable right to access and use the Service for the purpose for which it is made available to Client and otherwise in accordance with the terms of this Agreement. Client grants to Modern Teacher a non-exclusive, non-sublicenseable license to use, copy, store, modify and display the Client Data solely to the extent necessary to provide the Service.
5.3 Restrictions. Client shall not (i) modify, copy or make derivative works based on the Modern Teacher Technology; (ii) disassemble, reverse engineer, or decompile any of the Modern Teacher Technology; or (iii) create Internet “links” to or from the Service, or “frame” or “mirror” any of Modern Teacher’s content which forms part of the Service (other than on Clients’ own internal intranets).
5.4 Client Data. As between Modern Teacher and Client, all data submitted by Client to the Service, whether posted by Client or by third parties, remains the sole property of Client. Client Data shall be considered Confidential Information, subject to the terms of this Agreement. Notwithstanding any other provision in this Agreement, Modern Teacher may provide certain User registration and statistical information such as usage or User traffic patterns in aggregate form to third parties, provided that such information does not include Client or personally identifying information. Modern Teacher may access Client’s User accounts, including without limitation Client Data, to respond to service or technical problems, subject to the confidentiality obligations of this Agreement.
5.5 Suggestions, Ideas and Feedback. Modern Teacher shall have the unrestricted right to use or act upon any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Client or any other party relating to the Service to the extent it does not constitute Confidential Information of Client.
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”), including without limitation 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). Client Data shall be deemed Confidential Information regardless of its written designation. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without the Receiving Party’s breach of any obligation owed to the Disclosing Party; (ii) was independently developed by the Receiving Party without the Receiving Party’s breach of any obligation owed to the Disclosing Party; or (iii) is received from a third party who obtained such Confidential Information without any third party’s breach of any obligation owed to the Disclosing Party.
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 to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure and reasonable assistance (at Disclosing Party’s cost) if the Disclosing Party wishes to contest the disclosure.
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 injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies are inadequate.
7. Warranties & Disclaimers.
7.1 Warranties. Each party represents and warrants that it has the legal power to enter into this Agreement. 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.
7.2 Disclaimer of Warranties. EXCEPT AS EXPRESSLY PROVIDED HEREIN, COMPANY MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. COMPANY 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.
8. Mutual Indemnification.
8.1 Indemnification by Modern Teacher. Subject to this Agreement, 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 (i) alleging that the Client’s use of the Service infringes the intellectual property rights of a third party, or (ii) arising from material breach of this Agreement by Modern Teacher; provided, that Client (a) promptly gives written notice of the Claim to Modern Teacher; (b) gives Modern Teacher sole control of the defense and settlement of the Claim; and (c) provides to Modern Teacher all reasonable assistance. Modern Teacher shall have no obligations to Client under this Section 8.1 to the extent such Claims arise from Client’s or its User’s breach of this Agreement.
8.2 Indemnification by Client. Subject to this Agreement, 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 (i) alleging that the Client Data, or the use thereof by either party, has caused harm to a third party or infringes the intellectual property rights of a third party or (ii) arising from material breach of this Agreement by Client; provided, that Modern Teacher (a) promptly gives written notice of the Claim to Client; (b) gives Client sole control of the defense
March 2017 | Modern Teacher | Confidential
and settlement of the Claim (provided that Client may not settle or defend any Claim unless it unconditionally releases Modern Teacher of all liability); and (c) provides to Client, at Client’s cost, all reasonable assistance. Client shall have no obligations to Modern Teacher under this Section 8.2 to the extent such Claims arise from Modern Teacher’s breach of this Agreement or Client’s use of Client Data as authorized and contemplated by this Agreement.
9. Limitation of Liability.
9.1 Limitation of Liability. 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. 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 SERVICES, 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.
10. 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 Term of User Licenses. User licenses commence on the start date specified in the relevant Order Form and continue for the Agreement Term specified therein. User licenses shall automatically renew for additional periods of one (1) year (each, a “Renewal Term”) unless either party gives the other party notice of termination at least 30 days prior to the end of the Agreement Term or relevant renewal term (as the case may be). Modern Teacher shall have the right to increase fees applicable to any Renewal Term by an amount not to exceed the greater of five percent (5%) or the percentage change in the CPI (hereinafter defined). “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. Additional fees may apply to additional features introduced by Modern Teacher.
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. Upon written request by Client within thirty (30) days of the effective date of termination, Modern Teacher shall make available to Client a file of Client Data. After such thirty (30) day period, Modern Teacher shall have no obligation to maintain or provide any 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, 5 (excluding Section 5.2) 6, 7.2, 8, 9, 10 and 11.
11. 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 second business day after mailing certified mail return receipt requested. Notices to Modern Teacher shall be addressed to the attention of its Chief Operating 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, 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 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 Illinois, without regard to its conflict of laws provisions. 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, referenced Schedules and Exhibits, 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. Except as contemplated to the contrary herein with respect to Order Forms, 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 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.