Please read these subscription services terms and conditions carefully before using accessing or consuming the services. By clicking your assent or using, accessing, or consuming services, you signify that the entity you represent has separate written subscription services terms and conditions with Teaching Strategies, LLC, or, if none exists, your assent to and acceptance of these subscription services terms and conditions and acknowledge you have read and understand these terms. An individual acting on behalf of an entity represents that they have the authority to enter into these subscription services terms and conditions on behalf of that entity. If you do not accept these terms, then do not use the services.
Subscription Services Terms And Conditions
1. These Subscription Services Terms and Conditions (the “Agreement“) sets forth the terms pursuant to which Teaching Strategies, LLC (“TS”) will provide Subscription Services to the purchaser that has accepted the Agreement by clicking to assent, signing the Agreement, or using, accessing, or consuming the Subscription Services (“Subscriber”). “Subscription Services” mean subscription services identified in an Order. “Order” means each written order form(s) (including digital or electronic) executed by Subscriber and TS, or Subscriber and a TS authorized business partner, incorporating this Agreement and is subject to the terms and conditions herein.
2. Subscription Services. The Subscription Services are purchased on the unit basis and for the term identified in an Order. The Subscription Services include proprietary content, activities, articles, tools, software applications, databases, and other materials provided through separately downloaded applications to your device, through a web browser as-a-service using Subscriber’s internet service and may be sold separately or bundled together with TS products as identified in an Order.
2.1. License Grant. Subject to the license quantity limits set forth in an Order and Subscriber’s continued compliance with this Agreement, including payment of all fees, TS hereby grants to Subscriber a limited, non-exclusive, non-transferable license to access and use the Subscription Services as provided herein, and to have Authorized Users, as defined below, use, and access the Subscription Services during the Subscription Services term.
2.2. Delivery and Access. The Subscription Services will be provided through www.teachingstrategies.com, https://my.teachingstrategies.com, https://mypd.teachingstrategies.com/, https://app.readyrosie.com, https://www.tadpoles.com/home_or_work and/or other sites as TS may designate (collectively, “Website“). Use of the Website is subject to the Terms of Use and Privacy Policy at https://teachingstrategies.com/agreement-and-policies/ and set forth on the Website. Subscriber agrees that it will use the Subscription Services only as permitted herein. For the purpose of this Agreement, “Authorized Users” will include Subscriber’s employees who require access to Subscriber Data, as defined below. Subscriber agrees to be responsible for all use of the Subscription Services by its Authorized Users. Any breach of the Agreement by an Authorized User will be deemed a breach by Subscriber. TS will in no event be liable for any misuse by an Authorized User of the rights granted hereunder.
2.3. Prohibited Activities. Except as expressly authorized in this Agreement, Subscriber will not: (a) rent, lease, sublicense, distribute, transfer, copy, reproduce, display, modify, or timeshare the Subscription Services or any portion thereof; (b) use the Subscription Services as a component of or as a base for products or services prepared for commercial sale, sublicense, lease, access, or distribution; (c) modify, translate, or prepare any derivative work based on the Subscription Services; (d) decompose, decode, or otherwise reverse engineer any TS technology; (e) allow any third party or unlicensed user or computer system to access or use the Subscription Services; or (f) remove any proprietary notices or labels attached to the Subscription Services. Subscriber agrees to take all reasonable steps to protect the Subscription Services from unauthorized access, copying, or use.
2.4. Administration of Subscription Services
2.4.1. Subscriber Administrator. Subscriber shall designate one (1) or more of its employees to serve as the administrator(s) for the Subscription Services. The administrator is responsible for (a) assigning and administering passwords and usernames for Authorized Users; (b) maintaining up to date access and permission rights for Authorized Users; (c) communicating any changes in Authorized Users to TS; (d) setting up and maintaining access and permission rights for the Authorized Users; and (e) where applicable, inputting informational data regarding the Authorized Users.
2.4.2. Registration. Subscriber will assign a unique username and password to all Authorized Users that will allow them to access and use the Subscription Services or, for educator access, Subscriber will provide TS with name and email information of the Authorized Users for the purpose of creating their accounts. Upon account creation, an automatic email will be sent notifying them that an account has been created and provide instructions regarding logging into their account and the initial creation of a password. Passwords and usernames may not be shared or utilized by anyone other than the Authorized User to whom such identification has been assigned. Each Authorized User will need to register his or her password with TS through the Website before the Authorized User can access the Subscription Services for the first time.
2.4.3. ReadyRosie Registration for Parent/Caregiver Access. If applicable, Parents and Caregivers who are directly affiliated with Subscriber will receive caregiver access to the Subscription Services either by electronic invitation by those with Educator Access or through a self-registration process.
2.4.4. Password Protection. Subscriber is solely responsible for the security of all usernames and passwords issued to Authorized Users. Subscriber agrees to comply at all times with the procedures specified by TS regarding password security. TS may cancel or suspend any account credentials in the event that the account is misused or if TS has reason to believe that such account credentials are being used by a person who is not an Authorized User. The reissuance or reactivation of any canceled or suspended usernames or passwords will be at TS’s sole discretion. Subscriber agrees to ensure that each Authorized User treats his or her username and password as confidential and will use his or her best efforts to prevent any third party from obtaining his or her password. Subscriber will immediately notify TS of any actual or potential unauthorized access to a password or to the Subscription Services. TS cannot and will not be liable for any loss or damage arising from Subscriber’s or any Authorized Users’ failure to comply with these obligations.
2.4.5. Retrieval of Data. Upon termination of the Subscription Services, Subscriber will have forty-five (45) days to retrieve all Subscriber Data. TS will not be responsible for any Subscriber Data not retrieved within this period.
2.4.6. Subscriber Data. As between Subscriber and TS, Subscriber will own all right, title, and interest in and to the data submitted or input by Subscriber into the Subscription Services or processed, stored, handled, or analyzed by TS as a part of or to enable or facilitate the provision of the Subscription Services (“Subscriber Data”). Subscriber hereby grants TS a limited, non-exclusive right and license to use Subscriber Data to facilitate performance of the Subscription Services. Further, Subscriber acknowledges and agrees that during and after the Term, TS may use Subscriber Data in anonymized and aggregated form for purposes of enhancing the Subscription Services, analyzing usage trends, aggregated statistical analysis, technical support, and other business purposes. TS will handle all Subscriber Data in accordance with the Privacy Policy set forth on the Website.
3. Fees and Expenses, Payment, & Taxes.
3.1. The fees for Subscription Services are set forth in the applicable Order (“Fees”). Subscriber agrees to pay Fee(s) for Subscription Services as identified in an Order. Except as provided in the Agreement or required by applicable law or regulation, all Fees paid are non-refundable.
3.2. Unless otherwise specified in an Order, Fees (a) are due and payable by Subscriber within thirty (30) days from the date of invoice; (b) are due and payable by Subscriber annually and in advance of the provision of the Subscription Services; and (c) must be made in U.S. dollars, and by credit card, wire transfer, or other prearranged payment method acceptable to TS. TS reserves the right to charge a late payment interest of 1.5% per month against overdue amounts, or the maximum rate permitted by law, whichever is less. In addition, TS may suspend any of the Subscription Services or terminate this Agreement or the applicable Order if (a) Subscriber is delinquent on its payment obligations for thirty (30) days or more or otherwise breaches the Agreement; (b) TS is no longer licensed or permitted to make the Subscription Services available due to a change in law, expiration or revocation of applicable licenses, or otherwise; or (c) Subscriber declares bankruptcy, is adjudicated bankrupt, or a receiver or trustee is appointed for Subscriber or substantially all of its assets. Without limitation of TS’s other remedies, TS may suspend any Subscription Services if Subscriber fails to pay any applicable Fees when due or otherwise breaches this Agreement.
3.3. All Fees under this Agreement are exclusive of any taxes, duties, or similar charges imposed by any government, and Subscriber agrees to pay for any and all federal, state, or local sales, use, excise, privilege, or other taxes, duties or assessments, however designated or levied, relating to this Agreement, exclusive of taxes based on TS’s net income. To the maximum extent permitted by applicable law, Subscriber agrees to gross up payments actually made to TS such that TS receives sums due in full and free of any withholding tax(es) or deductions Subscriber is required to pay.
4. Confidentiality. Each party receiving Confidential Information (“Recipient”) from the party disclosing such information (“Discloser”) shall use Confidential Information solely for the purpose of providing and receiving Subscription Services under this Agreement. “Confidential Information” means information provided by the Discloser that is reasonably marked as “confidential”, identified as confidential at the time of disclosure, or reasonably known by Recipient to be confidential or should reasonably be expected to be known as confidential. Recipient acknowledges and agrees that the disclosure of the Confidential Information does not confer any license, interest, or rights of any kind in or to the Confidential Information except as provided herein. For five (5) years after the termination of this Agreement Recipient shall hold Confidential Information in confidence and not disclose or use the Confidential Information, directly or indirectly, in any form, by any means, or for any purpose. Recipient shall only disclose the Confidential Information to its employees, contractors, and Affiliates to the extent such persons have a need to know such information for the purposes described in this Agreement, and provided such parties shall be obligated in writing to comply with terms and conditions no less protective than those set forth in this Section. Recipient shall protect the Confidential Information using the same degree of care, but no less than a reasonable degree of care, to prevent the unauthorized use or disclosure of the Confidential Information as Recipient uses to protect its own confidential information. Recipient shall notify the Discloser in writing immediately upon discovery of any unauthorized use or disclosure of Confidential Information or any other breach of these confidentiality obligations and shall reasonably cooperate with the Discloser to regain possession of such Confidential Information and prevent further unauthorized use and disclosure. Confidential Information does not include information that: (a) is or becomes generally publicly available through no fault of Recipient, (b) was known to Recipient, free of any confidentiality obligations, before its disclosure, (c) becomes known to Recipient, free of any confidentiality obligations, from a source other than Discloser, (d) is independently developed by Recipient without use of Confidential Information, (e) is licensed under an open source license, or (f) is disclosed by Recipient pursuant to a requirement of a governmental agency or by operation of law, provided that Recipient shall notify Discloser prior to disclosure (if it can do so without violating any law or rule) in order to give Discloser a reasonable opportunity to seek an appropriate protective order or similar protection(s).
5. Termination
5.1. Term. This Agreement commences on the Effective Date and ends when TS is no longer obligated to provide Subscriber with the Subscription Services under this Agreement. Each Order begins on the date in the Order or, if no date is specified, when the Order is executed (“Order Effective Date”) and continues for the term stated in the Order. After the initial term, the term for the Subscription Services may renew upon mutual written agreement between the parties.
5.2. Termination. Either party may terminate this Agreement or an Order immediately upon notice to the other party if the other party materially breaches an obligation hereunder that has not been cured within thirty (30) days after receipt of notice from the non-defaulting party provided that such notice and cure will not be required for a breach of Sections 4 or 10.4. The termination of an individual Order will not terminate any other Order or the Agreement unless otherwise specified in the written notice of termination. Without prejudice to any other right or remedy of TS, in the event either party terminates an Order, Subscriber will pay for all Subscription Services provided up to the effective date of termination.
5.3. Effect of termination. Sections 2.4.5, 2.4.6, 3, 4-6, 7.2, and 8-10 will survive the termination or expiration of this Agreement. Termination of this Agreement by either party will not act as a waiver of any breach of this Agreement and will not act as a release of either party from any liability for breach of such party’s obligations under this Agreement. Neither party will be liable to the other for damages of any kind solely as a result of terminating this Agreement in accordance with its terms, and termination of this Agreement by a party will be without prejudice to any other right or remedy of such party under this Agreement or applicable law.
6. Intellectual Property Rights. TS owns and retains all right, title, and interest in and to the Subscription Services and any and all improvements, enhancements, or modifications thereto and all intellectual property rights related to any of the foregoing. Additionally, Subscriber agrees that the Subscription Services and their components, which includes but is not limited to features, materials, and content made available through such Subscription Services regardless of form, are protected by copyright, patent, trademark, trade secret, and other intellectual property rights and registrations. Subscriber agrees not to remove, obliterate, obscure, or alter any copyright or other proprietary rights notice that appears on any content, document, web page, or other component of the Subscription Services or any related materials or documentation.
7. Representations and Warranties
7.1. TS represents and warrants to Subscriber that (a) TS has the legal power to enter into this Agreement; (b) TS will provide access to the Subscription Services in a workmanship like manner and with diligence and skills consistent with industry standards. To the maximum extent permitted by applicable law and except as explicitly set forth in this Section, all TS products and services are provided “as is” and without any representations or warranties, either express or implied, including but not limited to warranties of non-infringement, merchantability, and fitness for a particular purpose. TS will not be responsible for any damages that may be suffered by Subscriber, including loss of data resulting from delays, non-deliveries, or service interruptions by any cause, or due to errors or omissions of Subscriber. TS expressly limits its liability to Subscriber for any non-accessibility time or other down time to the pro-rata daily charge during the system unavailability.
7.2. Subscriber represents, warrants, and covenants that (a) it has the right and authority to enter into this Agreement and to use and disclose Subscriber Data; (b) it has all necessary rights and permissions to grant access to the Subscription Services to its Authorized Users; (c) it will obey all applicable laws, rules, and regulations in its use of the Subscription Services and Subscriber Data; (d) Subscriber Data will not infringe upon any copyright, trademark, privacy right, right of publicity, or other proprietary right(s) of any third party; and (e) Subscriber Data will not contain any material that is unlawful, hateful, obscene, libelous, threatening, or defamatory. Subscriber acknowledges that TS has no obligation to monitor Subscriber Data. However, in the event that TS becomes aware that any Subscriber Data may or does violate the representations and warranties set forth herein, TS will have the right to remove such item(s) pending resolution.
8. Indemnification. To the maximum extent permitted by applicable law, Subscriber agrees to indemnify, defend, and hold TS harmless from and against any and all liability, damage, loss or expense (including reasonable attorneys’ fees) arising out of any claim, demand, or proceeding based on allegations arising as a result of (a) any inaccuracies or errors within the materials, Subscriber Data, and/or other information provided by Subscriber; (b) breach of this Agreement, including any of the representations or warranties contained herein, by Subscriber or an Authorized User; or (c) Subscriber’s use of the Subscription Services in violation of applicable law.
9. Limitations
9.1. Disclaimer of Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY, NOR ITS AFFILIATES, WILL BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY OR PUNITIVE DAMAGES, OR FOR ANY DAMAGES FOR LOST OR DAMAGED DATA, LOST PROFITS, LOST SAVINGS OR BUSINESS OR SERVICE INTERRUPTION, EVEN IF SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
9.2. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR SUBSCRIBER’S PAYMENT AND INDEMNIFICATION OBLIGATION, IN NO EVENT WILL EITHER PARTY’S CUMULATIVE AND AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNTS PAID BY SUBSCRIBER UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY UNDER THE APPLICABLE ORDER. THE LIMITATIONS HEREIN WILL REMAIN IN FULL FORCE AND EFFECT, REGARDLESS OF WHETHER EITHER PARTY’S REMEDIES HEREUNDER ARE DETERMINED TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE.
10. General Terms
10.1. Severability. If any provision of this Agreement is found to be invalid or unenforceable, such provision will be interpreted as to give maximum effect to its intended purpose without affect to the validity or enforceability of any other provision of this Agreement.
10.2. Choice of Law. To the extent permitted by applicable law, (a) this Agreement will be governed by the laws of the State of Maryland, USA, without reference to its conflict of law provision; and (b) any dispute regarding this Agreement will be subject to the exclusive jurisdiction of the state courts in and for Montgomery County, Maryland, USA (or, if there is federal jurisdiction, the United States District Court therein). This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is hereby expressly excluded. The Uniform Computer Information Transactions Act (UCITA) or similar laws or regulations do not apply to this Agreement.
10.3. Assignment. Neither party may assign any of its rights or obligations under this Agreement, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, TS may assign the entirety of its rights and obligations under this Agreement, without consent of Subscriber, to its affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets.
10.4. Export & Sanctions. Subscriber agrees that it will not export, disclose, re export or transfer the Subscription Services, directly or indirectly, to any U.S. embargoed destination; or anyone on (or controlled by a person or entity on) a U.S. government restricted persons list, including those who have been prohibited from participating in U.S. export transactions by any federal agency of the U.S. government. If Subscriber breaches (or TS believes Subscriber has breached) this section or TS is prohibited by law or otherwise restricted from providing Subscription Services to Subscriber, TS may terminate this Agreement and/or the applicable Order without liability to you.
10.5. Notices. TS will provide notices to Subscriber via mail at the address noted below. Subscriber must provide notices to Teaching Strategies, LLC, Attn: General Counsel, to both 4500 East West Highway, Suite 300, Bethesda, MD, 20814, USA; and email to [email protected]. Any legal notices provided without compliance with this section will have no legal effect.
10.6. Complete Agreement. This Agreement represents the complete agreement between the parties with respect to this subject matter and supersedes all prior and contemporaneous agreements and proposal, whether written or oral, with respect to the subject matter. Except as otherwise agreed in writing by the parties (a) the Agreement represents the complete agreement between the parties with respect to its subject matter and supersedes all prior and contemporaneous agreements and proposals, whether written or oral, with respect to such subject matter; and (b), any terms contained in any other documentation that you deliver to TS, including any purchase order or other order-related document (other than an Order), are void and will not become part of the Agreement or otherwise bind the parties. If there is a conflict between the Agreement and/or an Order, the Agreement will control unless otherwise expressly provided in an Order and/or as expressly agreed in writing signed by authorized representatives of both parties. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the remaining provisions of this Agreement will remain in effect to the greatest extent permitted by law
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