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Customer Terms of Service

Effective: May 25, 2018

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Schoolbinder, Inc. ("Schoolbinder," "we," or "us") provides a professional development platform and suite of tools called TeachBoost for K12 schools, districts, and organizations ("TeachBoost" or the "Service"). You access TeachBoost at http://teachboost.com (the "Site") to create and manage classroom observation data, comments and notes, documents, and personal information for you and your colleagues.

These Customer Terms of Service (the "Customer Terms") describe your rights and responsibilities when using TeachBoost so please read them and our other policies carefully. If you are a Customer (defined below), these Customer Terms govern your access and use of the Service. If you are being invited to use TeachBoost by your organization (our Customer), then the User Terms of Service (the "User Terms") govern your access to and use of the Services.

The Customer Terms (or, if applicable, your written agreement with us) and any invoices and Subscriptions together form a binding contract between Customer and Schoolbinder (the "Contract"). Unless your Subscription is otherwise controlled by a written negotiated agreement, if you purchase or renew your TeachBoost Subscription or continue to use TeachBoost after being notified of a change to these Customer Terms, you acknowledge your understanding of the then-current Contract and agree to the Contract on behalf of Customer.

Customer relationship

"Customer" is the organization that you represent in agreeing to the Contract. If your implementation is managed by someone who is not formally affiliated with an organization, Customer is the individual paying for and/or managing that implementation.

Customer controls its accounts and data

Individuals authorized by Customer to access the Service (an "Authorized User") may submit content or information to the Service—like personal information, observation and performance data, and documents and videos ("Customer Data")—and Customer may exclusively provide us with instructions on what to do with it. For example, Customer may create or deactivate user accounts to the Services, change groups and access rights, import and export data, manage permissions, transfer or assign implementations, and do anything related to account configuration and control. Since these choices and instructions may result in the access, use, disclosure, modification, or deletion of certain or all Customer Data, please review our Help Center documentation for more information about these choices and instructions.

Customer will (a) inform Authorized Users of all Customer policies and practices that are relevant to their use of the Service and of any settings that may impact the processing of Customer Data; and (b) ensure the transfer and processing of Customer Data under the Contract is lawful.

Customer's Subscription for Authorized Users

Customers pay for a "Subscription" as part of their Contract that allow its Authorized Users to access TeachBoost. A Subscription contains a specific number of Authorized Users (sometimes called "seat licenses") for a defined period of time, outlined in the invoice used to pay for the Subscription, and may be either original or renewed for subsequent terms.

Each Authorized User must agree to the User Terms to activate their account. Subscriptions commence at either the date defined in the Contract or when we make TeachBoost available to Customer, and they continue for the term specified in the invoice or written agreement, as applicable. Unless a written agreement says otherwise, Customer may purchase more Authorized Users in its Subscription for a prorated term at any time.

Access to and use of the Service

Customer creates user accounts for its Authorized Users so that they may access TeachBoost. Each user account must have a unique email address and no email address may be used for more than one account. Customer is responsible for all activities that occur under its accounts regardless of whether the activities are undertaken by it, its employees, or a third party (including its contractors or agents) and, except to the extent caused by our breach of this Contract, we and our affiliates are not responsible for unauthorized access to any user account.

Customer and its Authorized Users may login to their user accounts via our direct login at https://teachboost.com/login. If applicable, Authorized Users may also use a third party authentication service (e.g., Google Apps for Education); if you do, we extract information you provided to those services (such as your real name, photograph, email address, or other account information) to log you in to TeachBoost.

Customer must comply with the Contract and ensure that its Authorized Users comply with the Contract and the User Terms. We may review conduct for compliance purposes, but we have no obligation to do so. We aren't responsible for the content of any Customer Data or the way Customer or its Authorized Users choose to use the Service to store or process any Customer Data. TeachBoost not intended for and should not be used by anyone under the age of 16 and Customer must ensure that all Authorized Users are over 16 years old. Customer is solely responsible for providing high speed internet service for itself and its Authorized Users to access and use the Service.

There is no installation or configuration necessary to use the Service. TeachBoost is a browser-based web application implemented for common systems, including personal computers and tablets, accessible at the Site. It is normally compatible with major operating systems like Microsoft Windows, Apple macOS, and Ubuntu and the following web browsers and versions: Google Chrome 30 and above, Mozilla Firefox 10 and above, Internet Explorer 9 and above, Safari 6 and above, Opera 16 and above, iOS 7 and above, and Android 4 and above.

Customer has no obligation to use the Service and may cease using the Service at any time for any reason (or no reason).

Our responsibilities

Providing the Service

We will make the Service available to Customer and its Authorized Users as described in the Contract. While we will always use our best efforts and industry-standard practices to provide access to the Service on an uninterrupted basis, we cannot make any warranty that the Service will be available on an entirely uninterrupted and error-free basis. In the event of any significant interruption in the Service, we will immediately notify Customer in writing about the interruption and our efforts in restoring the Service, and will route all available resources continuously into restoring the Service as soon as possible. You can also view our system status and notifications at http://status.teachboost.com.

The Services will perform materially in accordance with our then-current Help Center documentation and we will not materially decrease the functionality of the Service during a Subscription term. For any breach of a warranty in this section, Customer's exclusive remedies are those described in the sections titled "Termination for Cause" and "Effect of Termination."

We will not use or process Customer Data for any purpose without Customer's prior written instructions. Such instructions will be deemed to include use of the Service by Authorized Users and any processing related to such use or that is otherwise necessary for the performance of the Contract, including that outlined in our Privacy Policy.

Supporting the Service

We will provide web-based technical support by email during weekdays from 9:00am to 6:00pm Eastern Time. We also provide other forms of customer support within this timeframe, including real-time chat and/or phone support, on an as-needed basis or if otherwise provided for in a written agreement. Our Help Center and Support sections of the Service allow User Accounts to access self-help materials and resources and to submit support tickets at any time. Tickets will be responded to in order of importance and as soon as practically possible, with a target response time of less than 24 hours.

Protecting Customer Data

The protection of Customer Data is a top priority for us. We store and maintain the Service and all Customer Data remotely at an industry-leading third party data center outside of our offices, specializing in data security and management. We reserve the right to select this third party data center and will notify Customer in writing thirty (30) days before any change in vendor.

We will use our best efforts and industry-standard practices to maintain administrative, physical, and technical safeguards of all Customer Data. Those safeguards will include measures for preventing unauthorized access, use, modification, deletion, and disclosure of Customer Data by our personnel. Before sharing Customer Data with any of our third party service providers, we will ensure that the third party maintains, at a minimum, reasonable data practices for maintaining the confidentiality and security of Customer Data and preventing unauthorized access. Customer bears sole responsibility for adequate security, protection, and backup of Customer Data when in Customer's or its representatives' or agents' possession or control or when Customer chooses to use unencrypted methods or technologies to connect to the Service. We are not responsible for what Customer's Authorized Users do with Customer Data.

Ownership and proprietary rights

Customer owns all Customer Data

As between us one the one hand, and Customer and any Authorized Users on the other, Customer or its licensors own all right, title, and interest in and to all Customer Data. By making available any Customer Data on or through the Service, and subject to the terms and conditions of the Contract, Customer grants to Schoolbinder a unlimited, irrevocable, perpetual, sublicensable, transferable, royalty-free license to use, view, copy, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast, and otherwise exploit such Customer Data only as reasonably necessary (a) to provide, maintain, and update the Service; (b) to prevent or address service, security, support, or technical issues; (c) as required by law; and (d) as expressly permitted in writing by Customer.

Customer represents and warrants that it has secured all rights in and to Customer Data, including rights from its Authorized Users or any third party, as may be necessary to grant this license.

Our proprietary rights to the Service

We own and will continue to own our Service, including all related intellectual property rights. We may make software components available, via app stores or other channels, as part of the Service. We grant to Customer a non-sublicensable, non-transferable, non-exclusive, limited license for Customer and its Authorized Users to use the object code version of these components, but solely as necessary to use the Service and in accordance with the Contract and the User Terms. All of our rights not expressly granted by this license are hereby retained.

If Customer or an Authorized User provides any feedback or suggestions to us, there's a chance we will use it or incorporate it into the Service. Customer therefore grants us (for itself and all of its Authorized Users and other Customer personnel) an unlimited, irrevocable, perpetual, sublicensable, transferable, royalty-free license to use any such feedback or suggestions for any purpose without any obligation or compensation to Customer, any Authorized User, or other Customer personnel.

Term and termination

Contract term

The Contract remains effective until each Subscription (including renewed Subscriptions) ordered under the Contract have expired, have been terminated, or the Contract itself terminates. Termination of the Contract will terminate all Subscriptions. The written agreement and/or invoice(s) between us and Customer, if applicable, contain specific provisions that control the length of the current active Subscription(s) and their term(s).

Renewal is not automatic

While we would love for you to renew your Subscription and Contract with us, we do not assume renewal and do not automatically charge any form of payment. At the end of the active term, Customer may renew its Subscription at the then-current fee for the same or different number of Authorized Users. We will contact Customer at least 30 days prior to the end of the term and Customer must notify us in writing of its intention to renew its Subscription prior to the end of the term to ensure no gap in access to the Service. The current Subscription fee is not guaranteed for any subsequent renewals.

Termination

Termination for cause

We or Customer may terminate the Contract on notice to the other party if the other party materially breaches the Contract and such breach is not cured within thirty (30) days after the non-breaching party provides notice of the breach. Customer is responsible for its Authorized Users, including any breaches of this Contract caused by its Authorized Users. We may terminate the Contract immediately on notice to Customer if we reasonably believe that the Service is being used by Customer or its Authorized Users in violation of applicable law.

Termination without cause

Customer may terminate the Contract for any reason (or no reason) with thirty (30) days prior written notice to us, provided, however, that Customer remains obligated to pay any outstanding fees for Subscriptions that Customer has purchased.

Effect of termination

Upon any termination for cause by Customer, we will refund Customer an amount equal to half the amount of the Subscription fees prorated for the duration of the term at time of termination. A significant amount of our implementation, support, setup, and customization efforts are realized at the beginning of the Subscription and we prorate refunds for this reason. Upon any termination for cause by us, Customer will pay any unpaid fees covering the remainder of the term of those subscriptions after the effective date of termination. In no event will any termination relieve Customer of the obligation to pay any Subscription fees payable to us for the period prior to the effective date of termination.

Regardless of the reason for termination, any termination of the Contract means (a) the rights granted by one party to the other will cease immediately (except as set forth in this section); (b) we will provide Customer access to, and the ability to export, Customer Data for a commercially reasonable period of time; (c) after a commercially reasonable period of time, we will delete Customer Data in accordance with our Data Retention Policy; and (iv) upon request, each party will promptly use commercially reasonable efforts to return or destroy all other Confidential Information of the other party.

Confidentiality

Confidential Information

Each party ("Disclosing Party") may disclose "Confidential Information" to the other party ("Receiving Party") in connection with the Contract, which is anything that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including all invoices or purchase orders, as well as non-public business, product, technology and marketing information. Confidential Information of Customer includes Customer Data. If something is labeled "Confidential," that's a clear indicator to the Receiving Party that the material is confidential. Notwithstanding the above, Confidential Information does not include information that (a) is or becomes generally available to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) is received from a third party without breach of any obligation owed to the Disclosing Party; or (d) was independently developed by the Receiving Party.

Protection and use of Confidential Information

The Receiving Party will (a) take at least reasonable measures to prevent the unauthorized disclosure or use of Confidential Information, and limit access to those employees, affiliates, and contractors who need to know such information in connection with the Contract; and (b) not use or disclose any Confidential Information of the Disclosing Party for any purpose outside the scope of this Contract. Nothing above will prevent either party from sharing Confidential Information with financial and legal advisors, provided, however, that the advisors are bound to confidentiality obligations at least as restrictive as those in the Contract.

Compelled access or disclosure

The Receiving Party may access or disclose Confidential Information of the Disclosing Party if it is required by law, provided, however, that the Receiving Party gives the Disclosing Party prior notice of the compelled access or disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the access or disclosure. Without limiting the foregoing, please review our Privacy Policy and Data Retention Policy for further details on how requests may be made for the disclosure of Customer Data and how we will handle those requests. If the Receiving Party is compelled by law to access or disclose the Disclosing Party's Confidential Information, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing access to such Confidential Information as well as the reasonable cost for any support provided in connection with the Disclosing Party seeking a protective order or confidential treatment for the Confidential Information to be produced.

Special considerations for student information

Unless a written agreement says otherwise, TeachBoost does not allow the import and use of student records or student information into the Service. In all cases if Customer or an Authorized User incorporates student records or information into the Service, Customer represents that that parental consent has been obtained for the use of such student data transmitted to and from the Service and any third party service provider or contractor. If such student records or information constitute "education records" subject to the Family Educational Rights and Privacy Act ("FERPA"), Customer further agrees that Schoolbinder will be considered a "school official" (as it is used in FERPA and its implementing regulations) with a legitimate educational interest in the education records as provided in FERPA § 99.33(a).

Indemnification

Our limited indemnification of Customer

We will defend Customer from and against any and all third party claims, actions, suits, proceedings, and demands alleging that the use of the Services as permitted under the Contract infringes or misappropriates a third party's intellectual property rights (a "Claim Against Customer"), and will indemnify Customer for all reasonable attorney's fees incurred and damages and other costs finally awarded against Customer in connection with or as a result of, and for amounts paid by Customer under a settlement we approve of in connection with, a Claim Against Customer; provided, however, that we will have no liability if a Claim Against Customer arises from (a) Customer Data or the combination of Customer Data with other applications, content, or processes, including any claim involving alleged infringement or misappropriation of third-party rights by Customer Data or by the use, development, design, production, advertising, or marketing of Customer Data; (b) any modification, combination or development of the Service that is not performed by us, including in the use of any application programming interface (API); (c) breach of the Contract or violation of applicable law by Customer or any Authorized User; or (d) a dispute between Customer and any Authorized User. This section states our sole liability with respect to, and Customer's exclusive remedy against us for, any Claim Against Customer.

Customer's limited indemnification of Schoolbinder

Customer will defend Schoolbinder from and against any and all third party claims, actions, suits, proceedings, and demands arising from or related to Customer's or any of its Authorized Users' violation of the Contract or the User Terms (a "Claim Against Us"), and will indemnify us for all reasonable attorney's fees incurred and damages and other costs finally awarded against us in connection with or as a result of, and for amounts paid by a us under a settlement Customer approves of in connection with, a Claim Against Us. We must provide Customer with prompt written notice of any Claim Against Us and allow Customer the right to assume the exclusive defense and control, and cooperate with any reasonable requests assisting Customer's defense and settlement of such matter. This section states your sole liability with respect to, and our exclusive remedy against Customer for, any Claim Against Us.

Limitations on indemnifications

Notwithstanding anything contained in the two preceding sections, (a) an indemnified party will always be free to choose its own counsel if it pays for the cost of such counsel; and (b) no settlement may be entered into by an indemnifying party, without the express written consent of the indemnified parties (such consent not to be unreasonably withheld), if (i) the third party asserting the claim is a government agency, (ii) the settlement arguably involves the making of admissions by the indemnified parties, (iii) the settlement does not include a full release of liability for the indemnified parties, or (iv) the settlement includes terms other than a full release of liability for the indemnified parties and the payment of money.

Disclaimer of warranties

Customer represents and warrants that it has validly entered into the Contract and has the legal power to do so. Customer further represents and warrants that it is responsible for the conduct of its Authorized Users and their compliance with the terms of this Contract and the User Terms.

EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN, THE SERVICE AND ALL RELATED COMPONENTS AND INFORMATION ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. CUSTOMER ACKNOWLEDGES THAT WE DO NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE.

Limitation of liability

OTHER THAN IN CONNECTION WITH A PARTY'S INDEMNIFICATION OBLIGATIONS HEREUNDER, IN NO EVENT WILL EITHER CUSTOMER'S OR SCHOOLBINDER'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE CONTRACT OR THE USER TERMS (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE LAST EVENT GIVING RISE TO LIABILITY. THE FOREGOING WILL NOT LIMIT CUSTOMER'S PAYMENT OBLIGATIONS FOR ANY SUBSCRIPTION(S).

IN NO EVENT WILL EITHER CUSTOMER OR SCHOOLBINDER HAVE ANY LIABILITY TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT, OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

The limitations under this section apply with respect to all legal theories, whether in contract, tort, or otherwise, and to the extent permitted by law. The provisions of this section allocate the risks under this Contract between the parties, and the parties have relied on these limitations in determining whether to enter into this Contract and the pricing for the Service.

General provisions

Assignment

Customer will not assign the Contract or delegate or sublicense any of its rights under the Contract without our prior written consent. Any assignment or transfer in violation of this section will be void. Subject to the foregoing, the Contract will be binding upon, and inure to the benefit of the parties and their respective successors and assigns.

Severability

The Contract will be enforced to the fullest extent permitted under applicable law. If any portion of the Contract is held to be invalid or unenforceable, the remaining portions will remain in full force and effect. Any invalid or unenforceable portions will be interpreted to effect and intent of the original portion. If such construction is not possible, the invalid or unenforceable portion will be severed from the Contract but the rest of the Contract will remain in full force and effect.

Relationship of the parties

The parties are independent contractors. The Contract does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. There are no third party beneficiaries to the Contract.

Notices

Any notices or other communications permitted or required hereunder, including those regarding modifications to the Contract and these terms, will be in writing and given (a) by Schoolbinder via email (in each case to the address that you provide) or (b) by posting to the Service via in-app message. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.

Publicity

Customer grants us the right to use Customer's company name and logo as a reference for marketing or promotional purposes on our website and in other public or private communications with our existing or potential customers, subject to Customer's standard trademark usage guidelines as provided to us from time-to-time. Customer may send us an email to legal@teachboost.com at any time stating that it does not wish to be used as a reference.

Customer may display the TeachBoost name and brand on its site and materials in connection with our a href="https://teachboost.com/terms/brand">Brand Usage Guidelines.

Modifications

As our business evolves, we may change these Customer Terms and the other components of the Contract. If we make a material change to the Contract, we will provide Customer with notice prior to the change taking effect, either by emailing the email address associated with Customer's account or by messaging Customer through the Service. Customer can review the most current version of the Customer Terms at any time by visiting this page and by visiting the most current versions of the other pages that are referenced in the Contract. The materially revised Contract will become effective on the date set forth in our notice, and all other changes will become effective upon posting of the change. If Customer (or any Authorized User) accesses or uses the Services after the effective date, that use will constitute Customer's acceptance of any revised terms and conditions.

Waiver

No failure or delay by either party in exercising any right under the Contract will constitute a waiver of that right. No waiver under the Contract will be effective unless made in writing and signed by an authorized representative of the party being deemed to have granted the waiver.

Entire agreement

The Contract, including these Customer Terms and all referenced pages and invoices, if applicable, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals, or representations, written or oral, concerning its subject matter.

Without limiting the foregoing, the Contract supersedes the terms of any online agreement electronically accepted by Customer or any Authorized Users. However, to the extent of any conflict or inconsistency between the provisions in these Customer Terms and any other documents or pages referenced in these Customer Terms, the following order of precedence will apply: (a) the terms of any invoice (if any), (b) the Customer Terms, and (c) any other documents or pages referenced in the Terms. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order, vendor onboarding process or web portal, or any other Customer order documentation (excluding TeachBoost invoices) will be incorporated into or form any part of the Contract, and all such terms or conditions will be null and void.

Governing law, venue, and waiver of jury trial

The Contract, and any disputes arising out of or related hereto, will be governed exclusively by the laws of New York State with venue in Manhattan County, New York, without regard to conflicts of laws rules or the United Nations Convention on the International Sale of Goods. The courts located in Manhattan County, New York venue will have exclusive jurisdiction to adjudicate any dispute arising out of or relating to the Contract or its formation, interpretation, or enforcement. Each party hereby consents and submits to the exclusive jurisdiction of such courts. Each party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to the Contract. In any action or proceeding to enforce rights under the Contract, the prevailing party will be entitled to recover its reasonable costs and attorney's fees.

Questions or concerns

For more on what we do or to contact us with concerns or questions, please head over to the Contact page for an appropriate contact. You may also send us an email at support@teachboost.com or contact us by mail at:

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