TeacherTube MySite AGREEMENT

This TeacherTube MySite AGREEMENT (the “Agreement”) is entered into by and between TeacherTube, LLC with offices at 1807 CR 362, Melissa, Texas 75454 (“TeacherTube”) and the entity agreeing to these terms (“Customer”). This Agreement is effective as of the date you click the “I Accept” button below (the “Effective Date”). If you are accepting on behalf of your employer or another entity, you represent and warrant that: (i) you have full legal authority to bind your employer, or the applicable entity, to these terms and conditions; (ii) you have read and understand this Agreement; and (iii) you agree, on behalf of the party that you represent, to this Agreement. If you don’t have the legal authority to bind your employer or the applicable entity, please do not click the “I Accept” button below. This Agreement governs Customer’s access to and use of the Service.

1. Services.
   
   
   • 1.1. Generally. TeacherTube will provide the Services to Customer during the Term of this Agreement. TeacherTube will provide Customer with a password and an Admin Account to use for administering the End User Accounts, and other relevant features of the Service, if applicable. Customer may use the Services to: (a) provide End User Accounts to its End Users; and (b) administer End User Accounts through the Admin Console.
   
   
   • 1.2. Facilities. All facilities used to store and process Customer Data will adhere to reasonable security standards no less protective than the security standards at facilities where TeacherTube stores and processes its own information of a similar type. TeacherTube has implemented at least industry standard systems and procedures to ensure the security and confidentiality of Customer Data, protect against anticipated threats or hazards to the security or integrity of Customer Data, and protect against unauthorized access to or use of Customer Data.
   
   
   • 1.3. Modifications.
   
   
   1. a. To the Services. TeacherTube may make commercially reasonable modifications to the Service, or particular components of the Service, from time to time. TeacherTube will use commercially reasonable efforts to notify Customer of any such changes.
   
   
   2. b. To Applicable Terms. If TeacherTube makes a material change to the URL Terms, then TeacherTube will notify Customer by either sending an email to the Notification Email Address or alerting Customer via the Admin Console. If the change has a material adverse impact on Customer and Customer does not agree to the change, Customer must so notify TeacherTube via the Help Center within thirty days after receiving notice of the change. If Customer notifies TeacherTube as required, then Customer will remain governed by the terms in effect immediately prior to the change until the end of the then-current term for the affected Services. If the affected Services are renewed, they will be renewed under TeacherTube's then current URL Terms.
   
   
   • 1.4. Customer Ownership. Prior to providing the Services, TeacherTube may verify that Customer is an educator that is currently employeed by an educational institution. If Customer is not employeed, or is not an educator, then TeacherTube will have no obligation to provide Customer with the Services.
   
   
   • 1.5. Privacy Policies. TeacherTube will comply with the Privacy Policy and the Privacy Notice. Changes to the Privacy Policy and the Privacy Notice will be made as stated in the applicable policy.
2. Customer Obligations.
   
   
   • 2.1 Compliance with the Agreement. Customer will comply with the Acceptable Use Policy and the Agreement, and will use best efforts to ensure its End Users do the same. TeacherTube may make additional applications, features or functionality available from time to time through the Service, the use of which may be contingent upon Customer’s agreement to additional terms. Customer agrees that its use of the APIs or the Domain Service is subject to its compliance with the API Terms of Use, or Domain Service Terms, as applicable.
   
   

   2.2 Aliases. Customer is solely responsible for monitoring, responding to, and otherwise processing emails sent to the “abuse” and “postmaster” aliases for Customer Domain Names. TeacherTube reserves the right to be copied on emails sent to these aliases for Customer Domain Names.

   
   

   2.3 Customer Administration of the Services. Customer may specify one or more Administrators through the Admin Console who will have the rights to access the Admin Account and to administer the End User Accounts. Customer is responsible for: (a) maintaining the confidentiality of the password and Admin Account; (b) designating those of its employees who are authorized to access the Admin Account; and (c) ensuring that all activities that occur in connection with the Admin Account comply with the Agreement. Customer agrees that TeacherTube’s responsibilities do not extend to the internal management or administration of Customer’s electronic messaging system or messages and that TeacherTube is merely a data-processor.

   
   2.4 Privacy. Customer agrees to protect the privacy rights of its End Users under all applicable laws and regulations. Customer’s Administrators may have the ability to access, monitor, use, or disclose data available to End Users within the End User Accounts. Customer will obtain and maintain consent from all End Users to Customer’s access, monitoring, use or disclosure of this data, and to TeacherTube providing Customer with the ability to do so. Customer is responsible for obtaining any necessary authorizations from End Users to enable TeacherTube to provide the Services.

   
   

   2.5 Unauthorized Use. Customer will use all commercially reasonable efforts to prevent unauthorized use of the Service, and to terminate any unauthorized use. Customer will promptly notify TeacherTube of any unauthorized use of, or access to, the Services of which it becomes aware.

   
   

3. Requesting End User Accounts; Service Term.
   
   
   • 3.1 Requesting End User Accounts. Customer may request End User Accounts by: (i) requesting them online; or (ii) after the Service Commencement Date, contacting TeacherTube support personnel.
   
   
   • 3.2 Service Term. The initial term for the Service is four years, and will begin on the Service Commencement Date. End User Accounts requested after the Service Commencement Date will have a prorated term ending four years from the Service Commencement Date.
   
   
   • 3.3 Auto Renewal. After the initial term, the Service term will automatically renew for consecutive twelve month renewal terms. If Customer does not want to renew either the initial term or any renewal term, then it must tell TeacherTube sixty days prior to the end of the applicable term.
   
   
   • 3.4 No Fees. TeacherTube may charge a fee for the Services after the initial term, and may charge a fee for new functionality or optional enhancements that may be added by TeacherTube to the Service. TeacherTube may also offer a premium version of the Services for a fee. Prior to TeacherTube charging Customer as stated in this section, TeacherTube and Customer will negotiate either a new agreement or an amendment to this Agreement.
4. Technical Support Services.
   

   
   
   

   4.1 By Customer. Customer will, at its own expense, respond to questions and complaints from End Users or third parties relating to Customer’s or End Users’ use of the Service. Customer will use commercially reasonable efforts to resolve support issues brought to its attention on its own, without escalation to TeacherTube.

   
   

4.2 By TeacherTube. If Customer cannot resolve a support issue, then Customer’s Administrators may escalate the issue to TeacherTube in accordance with applicable Guidelines supplied by TeacherTube. TeacherTube will respond in accordance with the applicable Guidelines supplied.




5. Suspension.
   

   5.1 Of End User Accounts By Customer. If Customer becomes aware of an End User’s violation of the Agreement, unless TeacherTube agrees otherwise in writing (including by email), Customer may Suspend the applicable End User Account. The duration of any Suspension will be until the applicable End User cures the breach giving rise to such Suspension. Customer may Suspend its End Users for its own reasons.

   
   5.2 Of End User Accounts by TeacherTube. If Customer fails to Suspend an End User Account pursuant to Section 5.1 above, then TeacherTube may specifically request that Customer do so. If Customer fails to comply with TeacherTube’s request to Suspend an End User Account, then TeacherTube reserves the right to do so. The duration of any Suspension by TeacherTube will be until TeacherTube is reasonably satisfied that the applicable End User has cured the breach which caused the Suspension.

   
   5.3 Of the Services by TeacherTube. If: (i) Customer materially violates this Agreement; (ii) TeacherTube provides Customer with commercially reasonable notice of this violation (which may be by email to the Notification Email Address); (iii) TeacherTube uses commercially reasonable efforts to discuss and resolve the violation with Customer; and (iv) despite the foregoing, the violation is not resolved to TeacherTube’s reasonable satisfaction, then TeacherTube reserves the right to Suspend administrative access to the Service, or to particular components of the Service. If, after all of the foregoing, Customer still has not cured a violation within thirty days of the commencement of a suspension under this Section, then TeacherTube may immediately terminate the Services for cause.




5.4 Emergency Security Issues. Notwithstanding the foregoing, if there is an Emergency Security Issue, then TeacherTube may automatically Suspend the offending use. Suspension will be to the minimum extent required, and of the minimum duration, to prevent or terminate the Emergency Security Issue. If TeacherTube Suspends an End User Account for any reason without prior notice to Customer, at Customer’s request, TeacherTube will provide Customer the reason for the Suspension as soon as is reasonably possible.

6. Confidential Information.
   
   
   • 6.1 Obligations. Each party will: (a) protect the other party’s Confidential Information with the same standard of care it uses to protect its own Confidential Information; and (b) not disclose the Confidential Information, except to affiliates, employees and agents who need to know it and who have agreed in writing to keep it confidential. Each party (and any affiliates, employees and agents to whom it has disclosed Confidential Information) may use Confidential Information only to exercise rights and fulfill obligations under this Agreement, while using reasonable care to protect it. Each party is responsible for any actions of its affiliates, employees and agents in violation of this Section.
   
   
   • 6.2 Exceptions. Confidential Information does not include information that: (a) the recipient of the Confidential Information already knew; (b) becomes public through no fault of the recipient; (c) was independently developed by the recipient; or (d) was rightfully given to the recipient by another party.
   
   
   • 6.3 Required Disclosure. Each party may disclose the other party’s Confidential Information when required by law but only after it, if legally permissible: (a) uses commercially reasonable efforts to notify the other party; and (b) gives the other party the chance to challenge the disclosure.
   
   
   • 6.4 The Admin Tool and Third Party Requests.
     
     
     • a. Admin Tool. TeacherTube will provide the Admin Tool only as a part of providing the Service. Customer misuse of the Admin Tool is considered a material breach of the Agreement.
       
       b. Third Party Requests. Customer is responsible for responding to Third Party Requests. TeacherTube will, unless it is prohibited by law or by the terms of the Third Party Request: (a) promptly notify Customer of its receipt of a Third Party Request in a manner permitted by law; (b) comply with Customer’s reasonable requests regarding its efforts to oppose a Third Party Request; and (c) provide Customer with the information or tools required for Customer to respond to the Third Party Request. Customer will first use the Admin Tool to access the required information, and will contact TeacherTube only if it is insufficient for Customer’s needs.
7. Intellectual Property Rights; Brand Features.
   
   
   • 7.1 Intellectual Property Rights. Except as expressly set forth herein, this Agreement does not grant either party any rights, implied or otherwise, to the other’s content or any of the other’s intellectual property. As between the parties, Customer owns all Intellectual Property Rights in Customer Data, and TeacherTube owns all Intellectual Property Rights in the Services.
   
   
   • 7.2 Display of Brand Features. TeacherTube may display only those Customer Brand Features authorized by Customer, and only within designated areas of the Service Pages. Customer may specify the nature of this use using the Admin Console. TeacherTube may also display TeacherTube Brand Features on the Service Pages to indicate that the Services are provided by TeacherTube. If Customer wants to display TeacherTube Brand Features in connection with the Services, Customer will comply with the Trademark Guidelines.
   
   
   • 7.3 Brand Features Limitation. Each party may use the other party’s Brand Features only as permitted in this Agreement. Any use of a party’s brand features will inure to the benefit of the party holding intellectual property rights to those Brand Features. A party may revoke the other party’s right to use its Brand Features pursuant to this Agreement with written notice to the other and a reasonable period to stop the use.
8. Restrictions on Use. Unless TeacherTube specifically agrees in writing, Customer will not, and will use commercially reasonable efforts to make sure a third party does not: (a) alter the Service Pages; (b) alter information transmitted through the Services to End Users (except as required to comply with the terms of this Agreement or commercially reasonable internal policies of Customer); (c) share content or documentation provided by TeacherTube to Customer as a part of TeacherTube’s provision of the Services with any third party; (d) except as expressly authorized in the Agreement, sell, resell, lease, or the functional equivalent, the Services to a third party; (e) attempt to reverse engineer the Services or any component of the Services; (f) attempt to create a substitute or similar service through use of, or access to, the Services; or (g) use the Services for High Risk Activities.
   
   
9. Publicity. Customer hereby consents to TeacherTube's inclusion of Customer's name in a customer list, but only if Customer is not the only customer appearing on the list. Other than this, neither party may make any public statement regarding the relationship contemplated by this Agreement without the other party's prior written consent.
   
   
10. Representations and Disclaimers.
    
    
    
    
    • 10.1 Representations. Each party represents that: (a) it has full power and authority to enter into the Agreement; and (b) it will comply with all laws and regulations applicable to its provision, or use, of the Services, as applicable. TeacherTube warrants that it will provide the Services in accordance with the applicable SLA. Customer acknowledges and agrees that it is solely responsible for compliance with the Children's Online Privacy Protection Act of 1998, including, but not limited to, obtaining parental consent concerning collection of students' personal information used in connection with the provisioning and use of the Services by the Customer and End Users.
    
    
    • 10.2 Disclaimers. EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN, NEITHER PARTY MAKES ANY OTHER WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE AND NONINFRINGEMENT. TeacherTube MAKES NO REPRESENTATIONS ABOUT ANY CONTENT OR INFORMATION MADE ACCESSIBLE BY OR THROUGH THE SERVICE. THE SERVICE IS NEITHER DESIGNED NOR INTENDED FOR HIGH RISK ACTIVITIES. CUSTOMER ACKNOWLEDGES THAT THE SERVICES ARE NOT A TELEPHONY SERVICE AND THAT THE SERVICES ARE NOT CAPABLE OF PLACING OR RECEIVING ANY CALLS, INCLUDING EMERGENCY SERVICES CALLS, OVER PUBLICLY SWITCHED TELEPHONE NETWORKS.


11. Termination.
    
    
    • 11.1 Termination for Breach. Either party may suspend performance or terminate this Agreement if: (i) the other party is in material breach of the Agreement and fails to cure that breach within thirty days after receipt of written notice; (ii) the other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within ninety days; or (iii) the other party is in material breach of this Agreement more than two times notwithstanding any cure of such breaches.
      
      11.2 Effects of Termination. If this Agreement terminates, then: (i) the rights granted by one party to the other will cease immediately; (ii) TeacherTube will provide Customer access to, and the ability to export, the Customer Data for a commercially reasonable period of time at TeacherTube’s then-current rates for the applicable Service; (iii) after a commercially reasonable period of time, TeacherTube will delete Customer Data pursuant to the TeacherTube MySite Privacy Notice; and (iv) upon request each party will promptly return or destroy all other Confidential Information of the other party.
12. Indemnification.
    
    
    • 12.1 By Customer. Customer will indemnify, defend, and hold harmless TeacherTube from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys’ fees) arising out of a third party claim: (i) regarding Customer Data or Customer Domain Names; (ii) that Customer Brand Features infringe or misappropriate any patent, copyright, trade secret or trademark of a third party; or (iii) regarding Customer’s, or its End Users’, use of the Services in violation of the Agreement. TeacherTube will reasonably assist Customer in presenting click-though terms to its End Users, if Customer would like to pass through certain of its obligations under this section to its End Users.
      
      12.2 By TeacherTube. TeacherTube will indemnify, defend, and hold harmless Customer from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys’ fees) arising out of a third party claim that TeacherTube’s technology used to provide the Services or any TeacherTube Brand Feature infringe or misappropriate any patent, copyright, trade secret or trademark of such third party. Notwithstanding the foregoing, in no event shall TeacherTube have any obligations or liability under this Section arising from: (i) use of any Services or TeacherTube Brand Features in a modified form or in combination with materials not furnished by TeacherTube, and (ii) any content, information or data provided by Customer, End Users or other third parties.
      
      12.3 Possible Infringement.
      
      
      • a. Repair, Replace, or Modify. If TeacherTube reasonably believes the Services infringe a third party’s Intellectual Property Rights, then TeacherTube will: (a) obtain the right for Customer, at TeacherTube’s expense, to continue using the Services; (b) provide a non-infringing functionally equivalent replacement; or (c) modify the Services so that they no longer infringe.
        
        b. Suspension or Termination. If TeacherTube does not believe the foregoing options are commercially reasonable, then TeacherTube may suspend or terminate Customer’s use of the impacted Services. If TeacherTube terminates the impacted Services, then TeacherTube will provide a pro-rata refund of the unearned Fees actually paid by Customer applicable to the period following termination of the Services
        
        
    
    
    • 12.4 General. The party seeking indemnification will promptly notify the other party of the claim and cooperate with the other party in defending the claim. The indemnifying party has full control and authority over the defense, except that: (a) any settlement requiring the party seeking indemnification to admit liability or to pay any money will require that party’s prior written consent, such consent not to be unreasonably withheld or delayed; and (b) the other party may join in the defense with its own counsel at its own expense. THE INDEMNITIES ABOVE ARE THE ONLY REMEDY UNDER THIS AGREEMENT FOR VIOLATION OF A THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS.
    
    
13. Limitation of Liability.
    
    
    
    
    • 13.1 Limitation on Indirect Liability. NEITHER PARTY WILL BE LIABLE UNDER THIS AGREEMENT FOR LOST REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, EVEN IF THE PARTY KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF DIRECT DAMAGES DO NOT SATISFY A REMEDY.
    
    
    • 13.2 Limitation on Amount of Liability. NEITHER PARTY MAY BE HELD LIABLE UNDER THIS AGREEMENT FOR MORE THAN THE AMOUNT PAID BY CUSTOMER TO TeacherTube DURING THE TWELVE MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY.
    
    
    • 13.3 Exceptions to Limitations. These limitations of liability do not apply to breaches of confidentiality obligations, violations of a party’s Intellectual Property Rights by the other party, or indemnification obligations.
14. Miscellaneous.
    
    
    • 14.1 Notices. All notices must be in writing and addressed to the attention of the other party’s legal department and primary point of contact. Notice will be deemed given: (a) when verified by written receipt if sent by personal courier, overnight courier, or when received if sent by mail without verification of receipt; or (b) when verified by automated receipt or electronic logs if sent by facsimile or email.
      
      
    • 14.2 Assignment. Neither party may assign or transfer any part of this Agreement without the written consent of the other party, except to an affiliate, but only if: (a) the assignee agrees in writing to be bound by the terms of this Agreement; and (b) the assigning party remains liable for obligations incurred under the Agreement prior to the assignment. Any other attempt to transfer or assign is void.
    
    
    • 14.3 Change of Control. Upon a change of control (for example, through a stock purchase or sale, merger, or other form of corporate transaction): (a) the party experiencing the change of control will provide written notice to the other party within thirty days after the change of control; and (b) the other party may immediately terminate this Agreement any time between the change of control and thirty days after it receives the written notice in subsection (a).
    
    
    • 14.4 Force Majeure. Neither party will be liable for inadequate performance to the extent caused by a condition (for example, natural disaster, act of war or terrorism, riot, labor condition, governmental action, and Internet disturbance) that was beyond the party’s reasonable control.
    
    
    • 14.5 No Waiver. Failure to enforce any provision of this Agreement will not constitute a waiver.
    
    
    • 14.6 Severability. If any provision of this Agreement is found unenforceable, it and any related provisions will be interpreted to best accomplish the unenforceable provision’s essential purpose.
    
    
    • 14.7 No Agency. The parties are independent contractors, and this Agreement does not create an agency, partnership or joint venture.
    
    
    • 14.8 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
    
    
    • 14.9 Equitable Relief. Nothing in this Agreement will limit either party’s ability to seek equitable relief.
    
    
    • 14.10 Governing Law. This Agreement is governed by Texas law, excluding that state’s choice of law rules. FOR ANY DISPUTE RELATING TO THIS AGREEMENT, THE PARTIES CONSENT TO PERSONAL JURISDICTION IN, AND THE EXCLUSIVE VENUE OF, THE COURTS IN DALLAS, TEXAS.
    
    
    • 14.11 Amendments. Any amendment must be in writing and expressly state that it is amending this Agreement.
    
    
    • 14.12 Survival. Those provisions that by their nature should survive termination of this Agreement, will survive termination of this Agreement.
    
    
    • 14.13 Entire Agreement. This Agreement, and all documents referenced herein, is the parties’ entire agreement relating to its subject and supersedes any prior or contemporaneous agreements on that subject. The terms located at a URL and referenced in this Agreement are hereby incorporated by this reference.
    
    
    • 14.14 Interpretation of Conflicting Terms. If there is a conflict between the documents that make up this Agreement, the documents will control in the following order: the Agreement, and the terms located at any URL.
    
    
    • 14.15 Counterparts. The parties may enter into this Agreement in counterparts, including facsimile, PDF or other electronic copies, which taken together will constitute one instrument.
    
    
    • 14.16 Refunds. Returns are accepted within 30 days of the date of purchase, subject to 25% cancellation charge up to $100 maximum charge.
      
      To obtain a return or exchange authorization, please contact our customer service department at 214-551-4783, or via email at info@teachertube.com. The return authorization must be accompanied with invoice and invoice number provided at time of purchase. Shipments without a return authorization will not be accepted.

---

TeacherTube MySite Acceptable Use Policy

Use of the Services is subject to this acceptable use policy (“AUP”).

If not defined here, capitalized terms have the meaning stated in the applicable contract (“Agreement”) between customer, reseller or other authorized user (“You”) and TeacherTube, LLC.

You agree not to, and not to allow third parties or Your End Users, to use the Services:

•   a. to generate or facilitate unsolicited bulk commercial email;
•   b. to violate, or encourage the violation of, the legal rights of others;
•   c. for any unlawful, invasive, infringing, defamatory, or fraudulent purpose;
•   d. to intentionally distribute viruses, worms, Trojan horses, corrupted files, hoaxes, or other items of a destructive or deceptive nature;
•   e. to interfere with the use of the Services, or the equipment used to provide the Services, by customers, authorized resellers, or other authorized users;
•   f. to alter, disable, interfere with or circumvent any aspect of the Services;
•   g. to test or reverse-engineer the Services in order to find limitations, vulnerabilities or evade filtering capabilities;
•   h. to use the Services, or a component of the Services, in a manner not authorized by TeacherTube, LLC

Your failure to comply with the AUP may result in suspension or termination, or both, of the Services pursuant to the Agreement.

---

2009 TeacherTube, LLC (c)