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HomeMy WebLinkAboutC17-387 Teaching Strategies LLCTeachingStrategiesm for farcy Chitdhocd 4500 East West Highway • Suite 300 • Bethesda, MD 20814 Phone 301-634-0818 • Fax 301-657-0250 www.TeacJWngSiratep,ies.com TEACHING STRATEGIES, LLC SUBSCRIPTION SERVICES TERMS AND CONDITIONS These Subscription Services Terms and Conditions (the "Agreement") set forth the terms pursuant to which Teaching Strategies, LLC ("TS") will provide Eagle County Government ("Subscriber") access to its subscription services ("Services") pursuant to one or more order forms (each an "Order") signed by Subscriber. The Services include proprietary content, activities, articles, tools, software applications, databases, and other materials. 1. Services. A. License Grunt. Subject to 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 Services as provided herein, and to have Authorized Users, as defined below, use and access the Services in accordance with the foregoing grant. B. Delivery and Access. The Services will be provided through TS's website at www.teachingstrategies.com and such other sites as TS may designate (collectively, "Website"). Use of the Website is subject to additional terms and conditions contained within the Terms of Use and Privacy Policy set forth on the Website. Subscriber agrees that it will use the Services only as permitted herein. For the purpose of this Agreement, "Authorized Users" will include Subscriber's employees, contractors, consultants, and those auditors, governmental authorities and other individuals and entities who may require access to Subscriber Data, as defined below. Subscriber agrees to be responsible for all use of the 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. C. Prohibited Activities. Except as expressly authorized in this Agreement, Subscriber will not: (i) rent, lease, sublicense, distribute, transfer, copy, reproduce, display, modify, or timeshare the Services or any portion thereof; (ii) use the Services as a component of or as a base for products or services prepared for commercial sale, sublicense, lease, access, or distribution; (iii) modify, translate, or prepare any derivative work based on the Services; (iv) decompose, decode, or otherwise reverse engineer any TS technology; (v) allow any third party or unlicensed user or computer system to access or use the Services; or (vi) remove any proprietary notices or labels attached to the Services. Subscriber agrees to take all reasonable steps to protect the Services from unauthorized access, copying, or use. D. Backup and Recovery Policy. TS ensures all critical business data and TS production data is backed up to ensure recoverability. Production data shall be backed up to support a Recovery Time Objective of 72 hours. The Recovery Point Objective shall be 24 hours from loss of service. Disaster Recovery capabilities shall be tested annually. Critical Data includes business development, intellectual property, and financial data. Full Backups shall occur weekly at a minimum Differential or incremental Backups shall occur nightly at a minimum Backups shall be written to hard disks Backup media shall be stored off site Page i of 7 C17-387 4500 East West Highway • Suite 300 • Bethesda, MD 20814 Phone 301-634-0818 • Fax 301-657-0250 www.TeadiingStrategies.com E. Hosting Services. TS shall provide its services to Subscriber solely from data centers in the U.S. Storage of Subscriber Data at rest shall be located solely in data centers in the U.S. TS shall not allow its personnel or contractors to store Subscriber Data on portable devices, including personal computers, except for devices that are used and kept only at its U.S. data centers. TS shall permit its personnel and contractors to access Subscriber Data remotely only as required to fulfill this Agreement. TS contracts with a third party for data -center or server storage. Therefore, TS must promptly provide written notice to Subscriber regarding identity of said third party. TS acknowledges and agrees that it will maintain all responsibilities for Subscriber Data and TS agrees to ensure that all obligations, restrictions and conditions contained in this Agreement with respect to Subscriber Data also apply to said third party. 2. Administration of Services. A. Subscriber Administrator. Subscriber may designate one (1) or more of its employees to serve as the administrator(s) for the Services. The administrator is responsible for (i) assigning and administering passwords and usernames to the Authorized Users; (ii) setting up and maintaining access and permission rights for the Authorized Users; and (iii) where applicable, inputting data regarding the Authorized Users. B. Registration. Subscriber will assign a unique username and password to all Authorized Users that will allow them to access and use the Services. 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 username and password with TS through the Website before the Authorized User can access the Services for the first time. C. 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 the use of a username and password in the event that it is misused by Subscriber or an Authorized User. The reissuance or reactivation of any canceled or suspended usernames or passwords will be at TS' 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 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. D. Instructions. TS will make instructions regarding use of the Services available in electronic form on the Website, including instructions for accessing the Services, procedures for printing or storing data, and user identification and security procedures. E. Retrieval of Data. Upon termination of the 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. The Parties agree that in the event Subscriber transitions to a software solution other than the Services, the Subscriber may release the necessary and detailed information solely for the purpose of facilitating the conversion of Subscriber Data to the new systems and that TS will reasonably cooperate with the Subscriber in said transition. 4500 East West Highway • Suite 300 • Bethesda, MD 20814 Phone 301-634-0818 • Fax 301-657-0250 www.Teadfln-gSirate2ies.com 3. Length of Services. The initial term of the Services will be as set forth in an Order (the "Term"). The Term may be renewed by mutual written agreement of the parties via acceptance and execution of a renewal Order. 4. Subscription Fee. Access to the Services is subject to TS' receipt of the full amount of the subscription fee as set forth in an Order. Payment may be made by credit card or by check. TS may suspend Subscriber's access to and use of the Services if Subscriber fails to pay any amounts due within thirty (30) days of the execution of an Order. Suspension of the Services does not reduce Subscriber's liability to pay for past due fees. Subscriber is responsible for paying all applicable taxes and duties, including, without limitation, sales, use, excise, value-added, and franchise taxes, associated with its use of the Services and any transactions that result there from, except for taxes based on TS income. This clause will not apply if Subscriber is tax exempt and provides TS with a tax exempt certificate. Subscriber is a Colorado governmental entity. Notwithstanding anything to the contrary contained in this Agreement, Subscriber shall have no obligations under this Agreement after, nor shall any payments be made to TS in respect of any period after December 31 of any year, without an appropriation therefor by Subscriber in accordance with a budget adopted by the Board of County Commissioners in compliance with Article 25, title 30 of the Colorado Revised Statutes, the Local Government Budget Law (C.R.S. 29-1-101 et. seq.) and the TABOR Amendment (Colorado Constitution, Article X, Sec. 20). 5. 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 Services or processed, stored, handled, or analyzed by TS as a part of or to enable or facilitate the provision of the Services ("Subscriber Data"). Subscriber hereby grants TS a limited, non-exclusive right and license to use Subscriber Data to facilitate performance of the Services only. Further, Subscriber acknowledges and agrees that during and after the Term, TS may use Subscriber Data in de -identified and aggregated form for purposes of enhancing the 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. G. Termination. A. By TS. TS may terminate this Agreement and Subscriber's access to the Services (i) upon written notice to Subscriber if Subscriber fails to pay or materially breaches a provision of this Agreement and fails to cure such breach within thirty (30) calendar days after receipt of notice; or (ii) immediately if Subscriber files for or has a bankruptcy petition filed against it, ceases to conduct business in the normal course, makes an assignment for the benefit of its creditors, becomes insolvent, or is liquidated or otherwise dissolved. B. By Subscriber. Subscriber may terminate this Agreement (i) if TS materially breaches a provision of this Agreement and fails to cure such breach within thirty (30) calendar days after receipt of such notice; or (ii) immediately if TS files for or has a bankruptcy petition filed against it, ceases to conduct business in the normal course, makes an assignment for the benefit of its creditors, becomes insolvent or is liquidated or otherwise dissolved. C. Effect of Termination. Upon the expiration or earlier termination of this Agreement, Subscriber will promptly discontinue any further use of the Services. Subscriber will not be entitled to any refund of fees paid in the event of termination without cause. This clause does 4500 East West Highway • Suite 300 • Bethesda, MD 20814 Phone 301-634-0818 • Fax 301-657-0250 www.Teadfln-gSirategies.com not impact TS' right to collect any amount due hereunder, nor does it limit Subscriber's rights under termination for breach of Agreement by TS. 7. Intellectual Property Rights. TS will own and retain all right, title, and interest in and to the 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 Services and its components 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 document, web page, or other component of the Services or any related materials or documentation. S. Warranties. TS represents, warrants, and covenants that (i) its use of Subscriber Data during the Term of this Agreement will comply with its posted Privacy Policy; (ii) the Services will operate in substantial accordance with the specifications set forth in the documentation related to the Services; and (iii) it will use reasonable efforts to resolve operational problems related to the Services. TS shall notify the Subscriber within twenty-four (24) hours by telephone and email in accordance with the agreed upon security plan or security procedures if it reasonably believes there has been a security breach. In the case of a Breach originating from the Subscriber, TS will provide assistance to the Subscriber for identification and resolution, but the Subscriber will have sole responsibility for any remediation actions necessary as a result of the Breach. TS shall promptly notify the Subscriber within 24 hours or sooner by telephone and email, unless shorter time is required by applicable law, if it confirms that there is, or reasonably believes that there has been a data breach. TS shall (a) cooperate with the Subscriber as reasonably requested by the Subscriber to investigate and resolve the data breach, (b) promptly implement necessary remedial measures, if necessary, and (c) document responsive actions taken related to the data breach, including any post -incident review of events and actions taken to make changes in business practices in providing the services, if necessary. If a data breach is a direct result of the TS' breach of its contract obligation to encrypt personal data or otherwise prevent its release, TS shall bear the costs associated with (a) the investigation and resolution of the data breach; (b) notifications to individuals, regulators or others required by state law; and (c) complete all corrective actions as reasonably determined by TS based on root cause; all [(a) through (c)] subject to this contract's limitation of liability. Except as set forth herein, TS makes no other warranties and all other warranties, either express or implied, are hereby disclaimed, including but not limited to warranties of 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. Subscriber represents, warrants, and covenants that (i) it has the right and authority to enter into this Agreement and to use and disclose Subscriber Data; (ii) it has all necessary rights and permissions to grant access to the Services to its Authorized Users; (iii) it will obey all applicable laws, rules, and regulations in its use of the Services and Subscriber Data; (iv) Subscriber Data will not infringe upon any copyright, trademark, privacy right, right of publicity, or other proprietary right(s) of any third party; and (v) 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 items) pending resolution. 4500 East West Highway • Suite 300 • Bethesda, MD 20814 Phone 301-634-0818 • Fax 301-657-0250 www.TeadiingStrategies.com 9. Indemnification. TS shall indemnify and hold harmless Subscriber, and any of its officers, agents and employees against any losses, claims, damages or liabilities for which Subscriber may become subject to insofar as any such losses, claims, damages or liabilities arise out of, directly or indirectly, this Agreement, or are based upon any performance or nonperformance by TS or any of its subcontractors hereunder; and TS shall reimburse Subscriber for reasonable attorney fees and costs, legal and other expenses incurred by Subscriber in connection with investigating or defending any such loss, claim, damage, liability or action. This indemnification shall not apply to claims by third parties against the Subscriber to the extent that Subscriber is liable to such third party for such claims without regard to the involvement of TS. This paragraph shall survive expiration or termination hereof. 10. Limitation of Damages. NEITHER PARTY WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED TO THE SERVICES WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, EVEN IF EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SUBSCRIBER ACKNOWLEDGES THAT THE SERVICES ARE PROVIDED "AS IS" AND "AS DELIVERED," AND CANNOT BE CUSTOMIZED OR MODIFIED. WITHOUT LIMITING THE FOREGOING, AND EXCLUDING THE INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 9, THE TOTAL LIABILITY OF TS FOR ANY REASON WHATSOEVER RELATED TO THE SERVICES WILL, IN NO EVENT, EXCEED THE FEES PAYABLE BY SUBSCRIBER TO TS IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEEDING THE EVENT GIVING RISE TO SUCH CLAIM. 11. General Terms. A. 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. B. Notice. Any notice required by this Agreement shall be deemed properly delivered when (i) personally delivered, or (ii) when mailed in the United States mail, first class postage prepaid, or (iii) when delivered by FedEx or other comparable courier service, charges prepaid, to the parties at their respective addresses listed below, or (iv) when sent via facsimile so long as the sending party can provide facsimile machine or other confirmation showing the date, time and receiving facsimile number for the transmission, or (v) when transmitted via e-mail with confirmation of receipt. Either party may change its address for purposes of this paragraph by giving five (5) days prior written notice of such change to the other party. Eagle County, Colorado Attention: Joey Peplinski 500 Broadway Post Office Box 850 Eagle, CO 81631 Telephone: 970-328-2609 Facsimile: 970-328-8829 E -Mail: joey.peplinski@eaglecounty.us With a copy to: Eagle County Attorney 500 Broadway 4500 East West Highway • Suite 300 • Bethesda, MD 20814 Phone 301-634-0818 • Fax 301-657-0250 www.TeadiineStrateaies.com Post Office Box 850 Eagle, Co 81631 Telephone: 970-328-8685 Facsimile: 970-328-8699 E -Mail: atty@eaglecounty.us Teaching Strategies, LLC Attn: Chief Financial Officer 4500 East West Highway, Suite 300 Bethesda, MD, 20814, USA Facsimile: 240-363-8444 Email: legal @teachingstrategies.com Any notices provided without compliance with this section will have no legal effect. C. Entire Agreement. This Agreement, the Order, the Terms of Use, and the Privacy Policy effective as of the Order date constitute the entire, complete, and exclusive agreement between TS and Subscriber regarding the Services ("Entire Agreement"). The Entire Agreement supersedes all prior agreements and understandings, whether written or oral, whether established by custom, practice, policy, or precedent, with respect to the subject matter of this Agreement. The terms and conditions of this Agreement will prevail over any conflicting provisions in the Terms of Use. D. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original but all of which together shall be deemed but one and the same instrument. The parties approve the use of electronic signatures for execution of this Agreement. Only the following two forms of electronic signatures shall be permitted to bind the parties to this Agreement: (i) Electronic or facsimile delivery of a fully executed copy of the signature page; (ii) the image of the signature of an authorized signer inserted onto PDF format documents. All documents must be properly notarized, if applicable. All use of electronic signatures shall be governed by the Uniform Electronic Transactions Act, C.R.S. 24- 71.3-101 to 121. E. Venue, Jurisdiction and Applicable Law. Any and all claims, disputes or controversies related to this Agreement, or breach thereof, shall be litigated in the District Court for Eagle County, Colorado, which shall be the sole and exclusive forum for such litigation. This Agreement shall be construed and interpreted under and shall be governed by the laws of the State of Colorado. F. Independent Contractor. This Agreement constitutes an agreement for performance of the Services by TS as an independent contractor and not as an employee of Subscriber. Nothing contained in this Agreement shall be deemed to create a relationship of employer-employee, master -servant, partnership, joint venture or any other relationship between Subscriber and TS except that of independent contractor. TS shall have no authority to bind Subscriber. G. Assignment. TS shall not assign any portion of this Agreement without the prior written consent of the Subscriber. Any attempt to assign this Agreement without such consent shall be void. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective permitted assigns and successors in interest. Enforcement of this Agreement and all rights and obligations hereunder are reserved solely for the parties, and not to any third party. H. No Waiver. No failure or delay by either party in the exercise of any right hereunder shall constitute a waiver thereof. No waiver of any breach shall be deemed a waiver of any preceding or succeeding breach. 4500 East West Highway • Suite 300 • Bethesda, MD 20814 Phone 301-634-0818 • Fax 301-657-0250 www TeachingStrategies.com I. Execution by Counterparts; Electronic Signatures. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument. The parties approve the use of electronic signatures for execution of this Agreement. Only the following two forms of electronic signatures shall be permitted to bind the parties to this Agreement: (i) Electronic or facsimile delivery of a fully executed copy of the signature page; (ii) the image of the signature of an authorized signer inserted onto PDF format documents. All documents must be properly notarized, if applicable. All use of electronic signatures shall be governed by the Uniform Electronic Transactions Act, C.R.S. 24-71.3-101 to 121. Eagle County a By (Signature): ot K.v =,3...=.ad,d�aa,.,�<sae�,.=. By: Name (Print): Bryan Treu Name: Heather O'Shea Title: Interim County Manager Title: Chief Financial Officer Address: POB 850 Address: 4500 East West Highway, Suite 300 City, State, Zip Code Eagle, CO 81631 Bethesda, MD 20814 Date: 11/28/2017 Date: 11/20/2017