This Hosted Services Agreement (this “Agreement”) is entered into by and between TeacherCoach, LLC (“Provider”), and the individual or entity (the “Customer”) acquiring these hosted services through this website (the “Site”). If the Customer is an entity, the individual accepting this Agreement by clicking “I ACCEPT” below represents that he/she possesses all rights and authority necessary to enter into this Agreement on behalf of the Customer. This Agreement shall be effective upon the date accepted by Customer by clicking “I ACCEPT” below.
In exchange for good and adequate consideration that the parties hereby acknowledge as having been received, the parties agree as follows:
1. Hosted Services. For the Term (defined below) of this Agreement, Provider will host through its designated hosting provider (the “Hosting Provider”), and make available to Customer via the Internet, Provider’s Teacher/Coach Learning Management System (the “System”). The hosting of the System as set forth in this Agreement, along with the hosting of the following content to be used in connection therewith, shall be referred to herein as the “Hosted Services”: (i) content created in whole or in part by Provider pursuant to this Agreement (“Provider Produced Content”), (ii) content licensed by Provider to Customer pursuant to this Agreement (“Provider Provided Content”), and (iii) content supplied by Customer (“Customer Provided Content”). Customer assumes responsibility for compliance with this Agreement and the then current form of Provider’s Authorized User Agreement (the “AUA”), by Customer’s employees, agents and representatives (“Authorized Users”). Provider may modify its AUA upon notice to Customer and its Authorized Users. Customer agrees not to challenge Provider’s ownership rights in and to the Hosted Services, and to use the Hosted Services only in accordance with the terms of this Agreement and the AUP. Notwithstanding the preceding, Customer grants to Provider a non-exclusive license to use Customer’s approved trademarks (“Customer Trademarks”) to display on the version of the Hosted Services accessible to Customer and its Authorized Users. Customer retains ownership of such Customer Trademarks and the goodwill associated therewith.
2. Hosted Services Availability.
A. Provider shall use commercially reasonable efforts to make the Hosted Services accessible to Customer via the Internet twenty four hours a day, seven days a week, except for: (i) scheduled maintenance; (ii) required repairs; (iii) any loss or interruption of Hosted Services beyond the control of Provider; (iv) interruptions or failures caused by Customer; or (v) the equipment or facilities utilized by Customer.
B. Customer will promptly notify Provider of any unexpected or unscheduled interruption in the ability of authorized users to access the Hosted Services. Provider will use commercially reasonable efforts to promptly remedy any service interruption, provided the interruption is not caused by: (i) any loss or interruption of Hosted Services beyond the control of Provider; (ii) interruptions or failures caused by Customer; or (iii) the equipment or facilities utilized by Customer.
3. Support Services. During the Term, and for the fees set forth in the Site, Provider shall provide to Customer support services for the Hosted Services, as detailed in this Section 3 (the “Support Services”). As part of the Support Services, Provider will provide upgrades, enhancements and error corrections to the System to the extent made available by Provider to its other customers. Provider will also provide a telephone and e-mail help desk to address questions about the use and operation of the Hosted Services and, as part of the telephone help desk services, evaluate and address problems with the System by means of electronic remote access of which Provider approves, in its own discretion. Customer will identify one primary and one backup contacts through the Site (“Hosted Support Contacts”). The Hosted Support Contacts shall have sole responsibility for communicating with Provider concerning service related issues. Customer may change the identity of the Hosted Support Contacts at any time on any reasonable notice to Provider. Provider’s help desk will be available to receive calls related to technology or device service issues five (5) days a week, Monday through Friday 9:00am to 5:00pm EST.
A. During the Term, and for the fees set forth in the Site, Provider shall provide to Customer the development services purchased by Customer through the Site, and shall deliver to Customer any Provider Produced Content resulting from such development services. Upon payment in full therefor, Provider shall assign to Customer all of Provider’s right, title, and interest in and to such Provider Produced Content. Any such Provider Produced Content will be hosted by Provider and made available to Customer and its Authorized Users as part of the Hosted Services for the Term.
B. Provider shall host any Provider Provided Content purchased through the Site, and shall make it available to Customer and its Authorized Users as part of the Hosted Services for the Term. Provider retains ownership of all right, title and interest in and to the Provider Provided Content.
C. Customer shall deliver to Provider any Customer Provided Content provided through the Site, which Provider shall host and make available to Customer and its Authorized Users as part of the Hosted Services for the Term. Customer grants to Provider a non-exclusive, worldwide, transferable, royalty-free right and license to copy, modify, distribute, perform and display the Customer Provided Content in connection with its provision of the Hosted Services to Customer. Subject to the foregoing, Customer retains ownership of all right, title and interest in and to the Customer Provided Content.
5. Data; Security. All data supplied by or on behalf of Customer in connection with Customer’s use of the Hosted Services hereunder is “Customer Data” and shall be treated as Confidential Information of Customer as defined below. Customer shall retain ownership of all Customer Data, and shall be solely responsible for backing up such Customer Data. However, Customer hereby grants to Provider a non-exclusive right and license for the Term, with the right to grant sublicenses, to copy, modify, perform, distribute and display the Customer Data for purposes of providing the Hosted Services. Customer shall maintain and control all passwords used to limit Customer’s access to the Hosted Services and Customer Data, and Customer is exclusively responsible for all activities that occur in connection with user names and passwords of Customer and its employees and representatives. Customer agrees to immediately notify Provider of any unauthorized use of the Hosted Services or any other breaches of security. Provider will not be liable for any loss or damage of any kind, under any legal theory, caused by Customer’s failure to comply with the foregoing security obligations or caused by any person to whom Customer grants access to the Hosted Services.
6. Sponsors. Customer acknowledges and agrees that Provider shall permit paid sponsors to advertise in connection with the provision of the Hosted Services. Customer shall not be entitled to any compensation in connection therewith. In the event Customer desires to refer sponsors to advertise in connection with the provision of the Hosted Services to Customer, the parties must negotiate, in their sole discretion, a separate agreement governing same and any sharing of revenue resulting therefrom.
7. Fees; Expenses; Terms of Payment. In consideration of the rights granted and provision of services provided pursuant to this Agreement, including the rights to access and use the Hosted Services, Customer shall pay to Provider the associated fees set forth on the Site. Provider may change the fees for the Hosted Services or other services and deliverables made available through the Site at any time. Provider will invoice Customer on a monthly basis, unless otherwise agreed to by the parties in writing, or different terms on the Site apply to services or deliverables purchased by Customer hereunder. Payment by Customer of any invoices from Provider shall be due and owing within thirty (30) days of the date of the invoice. Customer shall reimburse Provider for all reasonable expenses incurred by Provider in providing services to Customer under this Agreement. Any past due amounts owed by Customer to Provider shall accrue interest at the rate of one percent (1%) per month. Customer shall reimburse Provider for all expenses and fees (including attorneys’ fees) incurred by Provider in collecting any past due amounts.
8. Term and Termination.
A. Unless earlier terminated as permitted by this Section 8, the initial term of this Agreement (the “Initial Term”) shall begin on the Effective Date set forth above, and shall continue for a period of one (1) year. The Agreement shall automatically renew for successive one (1) year renewal terms (each, a “Renewal Term”) unless either party gives the other at least ninety (90) day advance written notice of its intent not to renew, prior to the termination of the then current Initial Term or Renewal Term, as applicable. The Initial Term and any Renewal Terms are collectively referred to herein as the “Term.”
B. This Agreement may be terminated as follows: (1) either party may terminate this Agreement if the other party is in default of any material obligation under this Agreement, which default is incapable of cure or which, being capable of cure, has not been cured within thirty (30) calendar days after receipt of written notice of such default (or such additional cure period as the non-defaulting party may authorize in writing); or (2) this Agreement may be terminated by either party, to the extent permitted under applicable law, if the other ceases to function as a going concern, becomes insolvent, makes an assignment for the benefit of creditors, files a petition in bankruptcy, permits a petition in bankruptcy to be filed against it and such petition is not dismissed within sixty (60) days of filing, or admits in writing its inability to pay its debts as they mature, or if a receiver is appointed over a substantial part of its assets.
C. In the event of the expiration or termination of this Agreement for any reason: (1) the rights granted to Customer hereunder will immediately terminate, and at either party’s request and option, the other party will either promptly return and provide to the requesting party Confidential Information provided under this Agreement; and (2) all other remaining rights and obligations of the parties (including Customer’s obligation to pay all amounts payable under this Agreement for the then current Initial Term or Renewal Term, as applicable, as well as any monies owed in any prior Initial Term or Renewal Term) which by their nature or express terms are to survive termination or expiration of this Agreement shall so survive, and all remaining rights and obligations shall terminate.
9. Warranties; Representations; Disclaimers; Limitations of Liability.
A. Each party represents and warrants that (a) it has the right to enter into this Agreement, and (b) all necessary actions, corporate or otherwise, have been taken to authorize the execution and delivery of this Agreement, which constitutes a valid and binding obligation of the party.
B. Provider warrants that it will provide the Hosted Services hereunder in a professional and workmanlike manner. SUBJECT TO THE FOREGOING, PROVIDER MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE HOSTED SERVICES. EXCEPT FOR THE EXPRESS WARRANTIES CONTAINED IN THIS AGREEMENT, PROVIDER DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE HOSTED SERVICES, AND ANY OTHER SERVICES OR DELIVERABLES UNDER THIS AGREEMENT INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE (IRRESPECTIVE OF ANY PREVIOUS COURSE OF DEALING BETWEEN THE PARTIES OR CUSTOM OR USAGE OF TRADE), NON-INFRINGEMENT, OR RESULTS TO BE DERIVED FROM THE USE OF SUCH SERVICES OR ITEMS.
C. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PROVIDER WILL NOT BE LIABLE FOR ANY LOSS OF REVENUE, PROFITS OR GOODWILL OR FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES OR LOSSES RESULTING FROM THE HOSTED SERVICES, OR OTHER SERVICES OR DELIVERABLES PROVIDED HEREUNDER (INCLUDING, WITHOUT LIMITATION, LOSS OF DATA AND INTERRUPTION OF BUSINESS), WHETHER RESULTING FROM BREACH OF CONTRACT OR OTHER LEGAL LIABILITY WHATSOEVER, EVEN IF PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE MAXIMUM AGGREGATE LIABILITY OF PROVIDER ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL NOT EXCEED AMOUNTS PAID BY CUSTOMER TO PROVIDER IN THE SIX MONTHS PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY.
A. Provider hereby agrees to defend Customer and its officers, directors, employees, agents, representatives, successors and assigns, from and against all third party claims that the System infringes the United States patent or registered copyright rights of any third party. Provider shall have sole control over the defense and any settlement of any such claims, and shall pay any final, non-appealable judgment or settlement consented to in writing by Provider.
B. Customer hereby agrees to indemnify, defend and hold harmless Provider and its officers, directors, employees, agents, representatives, successors and assigns, from and against all claims, demands, liabilities, losses, damages, costs, expenses and fees (including without limitation attorneys’ fees, fees for appeals and settlement payments), whenever arising or asserted, arising out of or related to: (1) Customer’s use of the Hosted Services, including the System and/or any other services or deliverables under this Agreement; (2) any claim that any Customer Data, Customer Provided Content, or other information or materials provided by Customer infringe or misappropriate the patent, copyright, trademark, trade secret or other intellectual property or proprietary rights of any third party; (3) Customer’s breach of this Agreement including the breach of any warranty or covenant made herein or any misrepresentation made by Customer in this Agreement; or (4) Customer’s failure to maintain security safeguards with respect to the Hosted Services or Customer Data, as required by this Agreement, applicable law, or consistent with industry standards.
A. In connection with the performance of this Agreement, either party may disclose to the other its confidential and/or proprietary Confidential Information. For purposes of this Agreement, the term "Confidential Information" shall mean all information relating to the discloser which is marked confidential or proprietary, if in writing or, if provided by oral communication, confirmed in writing to be confidential or proprietary within ten (10) days of its disclosure. It is understood and agreed by the parties that any personally identifiable information about Customer’s Authorized Users shall be considered Confidential Information of Customer, but that any aggregate (i.e., not personally identifiable) information about Customer’s Authorized Users shall be considered Confidential Information of Provider.
B. All Confidential Information disclosed by a party shall remain the property of that party. The recipient of Confidential Information shall keep the Confidential Information secret and confidential, and shall not provide or otherwise make available or disclose the Information to any third party. The recipient of Confidential Information may use the Confidential Information solely for purposes of fulfilling its obligations under this Agreement. The recipient of Confidential Information shall be liable to the discloser for any breaches or violations of this Agreement by any director, officer, employee, consultant, subcontractor, or agent of the recipient. Upon the written request of a discloser of Confidential Information, and in any case, upon the termination of this Agreement, the recipient of such Confidential Information shall promptly return to the discloser all tangible material (including all copies, models and samples thereof) that discloses or relates to any of the Confidential Information.
C. The obligations of the parties under this Section shall not apply to: (i) Confidential Information which, at the time of disclosure thereof, is generally available to third parties who do not owe an obligation of confidentiality to the discloser; (ii) Confidential Information which, after disclosure, becomes generally available to a third party not owing an obligations of confidentiality to the discloser; (iii) Confidential Information which the recipient receives from a third party who has the right to, and legally does, disclose the same to the recipient; or (iv) Confidential Information which is required to be disclosed by judicial or administrative process or, in the opinion of counsel, by other mandatory requirements of law.
D. Each recipient of Confidential Information hereunder agrees that the provisions of this Section are reasonable and necessary to protect the interests of the discloser of Confidential Information and that the discloser’s remedies of law for a breach of any of the provisions of this Section will be inadequate and that, in connection with any such breach, the discloser will be entitled, in addition to any other available remedies (whether at law or in equity), to seek temporary and permanent injunctive relief without the necessity of proving actual damage or immediate or irreparable harm, or of the posting of a bond. Notwithstanding the foregoing, if a court of competent jurisdiction shall determine any of the provisions of this Section to be unreasonable, the recipient agrees that the court shall amend such provisions found to be unreasonable in such manner to give them a reasonable meaning.
12. Independent Contractor. Each party is an independent contractor and is not an employee of the other party for any purpose whatsoever. Neither party has, or shall it hold itself out as having, any right, power or authority to create any contract or obligation, express or implied, on behalf of, in the name of, or binding upon the other party, or to pledge the other party’s credit, or to extend credit in the other party’s name, unless the other party shall consent thereto, in advance, in writing.
13. Force Majeure. Neither party will be liable for any delay or failure to perform its obligations under this Agreement to the extent that such delay or failure is caused by a force or event beyond the control of such party, including without limitation, acts of terrorism, war, embargoes, strikes, governmental restrictions, riots, fires, floods, or other Acts of God.
14. General Provisions.
A. Notices. Any notices required or permitted to be given under this Agreement shall be sufficient, if in writing and personally delivered or sent by certified mail, return receipt requested, to the addresses listed above, or to such other address as either party may designate to the other party in the manner above provided.
B. Governing Law; Exclusive Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of the State of New Jersey. Any dispute arising out of or related to this Agreement shall be brought exclusively in the federal or state courts located in the State of New Jersey, the jurisdiction and venue of which the parties hereby irrevocably consent to for this purpose.
C. Assignment. This Agreement may not be assigned in whole or in part by either party without the prior, written consent of the other party.
D. Severability. In the event that the provisions of this Agreement shall ever be deemed to exceed the limitations permitted by applicable law, then such provisions shall be reformed to the maximum limitations permitted by applicable law.
E. Entire Agreement; Amendment. This writing, including the AUA agreed to by each of Customer’s Authorized Users, contains the entire agreement of the parties concerning the subject matter hereof. Except as otherwise set forth herein, this Agreement may be amended only by a written instrument signed by all parties hereto.
(Fees and Development Services)