Last Updated: July 30, 2022
By accessing or using the Services, checking the box marked “I Agree” (or something similar), or by otherwise affirmatively stating your desire to use the Service, you signify that you have read, understood, and agree to be bound by these Terms; otherwise you may not use the Service. You also understand and acknowledge that your personal information will be collected, used, shared, and otherwise processed in accordance with our Privacy Notice. Because our Services change relatively often, these Terms and our Privacy Notice may change too. If you are a School using the Service, we will notify you via email in advance of any material changes to the terms. Upon making changes, we will update the “Effective Date” found at the top of this page.
Your continued use of the Services after any changes constitutes your acceptance of the new terms.
PLEASE READ THESE TERMS CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. THESE TERMS CONTAIN A MANDATORY INDIVIDUAL ARBITRATION PROVISION IN SECTION 3.H. (THE “ARBITRATION AGREEMENT”) AND CLASS ACTION/JURY TRIAL WAIVER PROVISION IN SECTION 3.I. (THE “CLASS ACTION/JURY TRIAL WAIVER”) THAT REQUIRE, UNLESS YOU OPT OUT PURSUANT TO THE INSTRUCTIONS IN SECTION 3.H., THE EXCLUSIVE USE OF FINAL AND BINDING ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES BETWEEN YOU AND US, INCLUDING ANY CLAIMS THAT AROSE OR WERE ASSERTED BEFORE YOU AGREED TO THESE TERMS. TO THE FULLEST EXTENT PERMITTED BY LAW, YOU EXPRESSLY WAIVE YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS, AS WELL AS YOUR RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS, COLLECTIVE, PRIVATE ATTORNEY GENERAL OR REPRESENTATIVE ACTION OR PROCEEDING.
This is a contract between you and NTC. You must read and agree to these terms before using the Service. If you do not agree, you may not use the Service. You may use the Services only if you can form a binding contract with NTC, and only in compliance with these Terms and all applicable local, state, national, and international laws, rules and regulations. Any use or access to the Services by anyone under 18 is strictly prohibited and in violation of these Terms. The Services are not available to any Users previously removed from the Services by NTC.
SECTION 1. THE SERVICE
The “Services” means any online and/or mobile services, website, software, and documentation provided by or made available by NTC or in connection with NTC’s platforms, including the Kiano and LeadNet platforms (the “NTC Learning Platforms”). The Services provide information, data, resources, and advice, but you assume full risk and responsibility for your use of information obtained through the Services. You acknowledge that all of the information, data, resources, and content on the Services is provided “as is” for informational purposes only. Such information is not intended to be a substitute for your judgment. You assume full risk and responsibility for the use of or reliance on information you obtain from or through the Services or from NTC. The products and services we provide through the Services are not exclusive to you.
A. DETAILS ABOUT THE NTC SERVICES
Your NTC account gives you access to our Services, but don’t sign up on behalf of a School if you do not have the requisite authority to do so. Once you sign up, you are responsible for your account and any data associated with it.
Your NTC account gives you access to the Services and functionality we make available at our discretion. We maintain different types of accounts for different types of Users. If you open a NTC account on behalf of a School, district, or organization (collectively “Organization”), then (i) “you” includes you and that Organization, and (ii) you represent and warrant that you are an authorized representative of the Organization with the authority to bind the entity to these Terms and that you agree to these Terms on the Organization’s behalf. By connecting to NTC with a third-party service, you give us permission to access and use your information from that service as permitted by that service, and to store your log-in credentials for that service.
Remember: you are responsible for any activity that occurs on your account, you may never use someone else’s account without permission, and you must keep your account password secure. We recommend using “strong” passwords (passwords that use a combination of upper and lower case letters, numbers and symbols, and are not reused with any other service) with your account to avoid unauthorized use. Please let us know immediately if you think your account’s security has been compromised so we can help; we are not liable for any losses of any kind caused by any unauthorized use of your account.
B. USE OF THE SERVICES
You may control your profile and how you interact with the Services by changing the settings in your settings page. By providing your email address to us you consent to our using the email address to send you Services-related notices, including any required legal notices and other messages, such as additions or changes to the Services, and/or notices of product offers. You may opt out or change your preferences in your settings page. You can always ask us to stop sending you certain marketing messages. Opting out of marketing communications will not opt you out of receiving important Services-related notices, including in relation to your use of the NTC Learning Platforms.
C. RESTRICTED USES
Please don’t do anything to harm our product or try to hack our Services. Specifically, by using the Services, you agree not to do any of these things: (i) copy, distribute, or disclose any part of the Services in any medium, including but not limited to by any automated or non-automated “scraping”; (ii) use any automated system, including but not limited to “robots,” “spiders,” “offline readers,” etc., to access the Services in a manner that sends more request messages to the NTC servers than a human can reasonably produce in the same period of time by using a conventional online web browser; (iii) transmit spam, chain letters, or other unsolicited email (including marketing messages and broadcasts); (iv) attempt to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Services; (v) take any action that imposes, or may impose an unreasonable or disproportionately large load on our infrastructure; (vi) transmit any malicious software agents through the Services; (vii) collect or harvest any third-party personally identifiable information, including account names or Student Data (as defined below), from the Services; (viii) use the Services for any commercial solicitation purposes; (ix) impersonate another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity; (x) interfere with the proper working of the Services; (xi) access any content on the Services through any technology or means other than those provided or authorized by the Services; or (xii) bypass the measures we use to prevent or restrict access to the Services, including but not limited to features that prevent or restrict use or copying of any content or enforce limitations on use of the Services or related content. If you believe any of the above restrictions have not been followed, please email us at email@example.com.
We continually update our Services to offer the best possible product. While we plan to continue to offer and improve our Services, we may, without prior notice, change, cancel, create usage limits for, or permanently or temporarily stop offering or allowing you access to the Services generally (“Service Changes”). While we’ll try to give you advance notice of Service Changes that will adversely affect you, this might not be practical or possible and we retain the right to make Service Changes without notice and liability for any reason. If these Terms end you continue to be bound by it in any interactions you may have with the Services.
You are fully responsible for your interactions with other Users, and we have no liability for your interactions with any other Users, or for any User’s actions or inactions with respect to you.
D. USER CONTRIBUTIONS
The Services may contain interactive features like personal messaging that allow Users to post, submit, publish, display, or transmit (collectively, “Share”) messages, content, videos, and other materials (“User Contributions”) to Users or other persons content or materials on or through the Services. All User Contributions must comply with these Terms.
By Sharing User Contributions through our Services, you agree to allow others to view, edit, share, and/or interact with those User Contributions in accordance with your settings and these Terms. We have the right (but not the obligation) in our sole discretion to monitor and remove any User Contributions that are Shared via our Services. You hereby grant each User a non-exclusive license to access your User Contributions through our Services, and to use, reproduce, distribute, display and perform your User Contributions, which you make available to such User through our Services. You further grant, and represent and warrant that you have all rights necessary to grant, to us an irrevocable, perpetual, transferable, sublicensable (through multiple tiers), fully paid, royalty-free, and worldwide right and license to use, copy, store, modify, distribute and display your User Contributions: (i) to maintain and provide our Services; (ii) other User Contributions submitted as personal messaging, to improve our products and services and for our other business purposes, such as data analysis, customer research, developing new products or features, and identifying usage trends; and (iii) to perform such other actions as described in the NTC Privacy Notice or as authorized by you in connection with your use of our Services.
You represent and warrant that you own or control all rights in and to the User Contributions, have the right to grant the licenses granted above, and all of your User Contributions do and will comply with these Terms.
You understand and acknowledge that you are responsible for any User Contributions you Share, and you, and not NTC, have full responsibility for such content, including its legality, reliability, accuracy, and appropriateness. We are not responsible or liable to any third party for the content or accuracy of any User Contributions posted by you or any other User.
We have the right to:
- Remove or refuse to post any User Contributions in our sole discretion.
- Take any action with respect to any User Contribution that we deem necessary or appropriate in our sole discretion, including if we believe that such User Contribution violates these Terms, infringes any intellectual property right or other right of any person or entity, threatens the safety of Users or the public, or could create liability for us.
- Disclose your identity or other information about you to any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy.
- Take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Services.
- Terminate or suspend your access to all or part of the Services for any or no reason, including without limitation, any violation of these Terms.
Without limiting the foregoing, we have the right to cooperate fully with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any materials on or through the Services. YOU WAIVE AND HOLD US AND OUR AFFILIATES, LICENSEES, AND SERVICE PROVIDERS HARMLESS FROM ANY CLAIMS RESULTING FROM ANY ACTION WE OR OUR AFFILIATES, LICENSEES, AND SERVICE PROVIDERS TAKE DURING, OR TAKEN AS A CONSEQUENCE OF, INVESTIGATIONS RELATED TO SUCH COOPERATION.
We cannot review all User Contributions before they are Shared, and cannot ensure prompt removal of objectionable material after it has been posted. We assume no liability for any action or inaction regarding transmissions, communications, or content provided by any User or third party. We have no liability or responsibility to anyone for performance or nonperformance of the activities described above.
SECTION 2. RIGHTS IN OUR CONTENT
A. NTC CONTENT
“Student Data” is any information (in any format) that is directly related to any identifiable current or former student that is maintained by a School, and may include “educational records” as defined by the Family Educational Rights and Privacy Act (“FERPA”) that Schools provide to us. While we may need to access Student Data to provide the Services to you, Schools own the Student Data and remain responsible for it.
“Intellectual Property Rights” means all worldwide patent rights, copyright rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all related applications and registrations, renewals and extensions.
Except for Student Data, the Services and all materials made available to you in connection with them, including, but not limited to, software, button icons, computer code, documents, guides, modules, training modules, resource and instructional guides, know-how and other writings, images, designs, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, music, information, and any content belonging to other Users, whether tangible or intangible, or whether existing now or in the future (collectively, the “NTC Content”), and all related Intellectual Property Rights, are the exclusive property of NTC and its licensors. Except as specified in these Terms, nothing may be deemed to create a license in or under any such Intellectual Property Rights, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any NTC Content. To be clear: any use of the NTC Content for a purpose not expressly permitted by these Terms is strictly prohibited. All NTC Content and the compilation (meaning the collection, arrangement, and assembly) of all NTC Content are the property of NTC or its licensors and are protected under copyright, trademark, and other laws.
If you send us ideas or comments about our Services, you agree that we may freely use or reference those ideas and comments and we do not owe you any payment or have any other obligation of any kind for such ideas or comments.
B. LICENSE TO YOU
We authorize you, subject to these Terms, to access and use the Services and the NTC Content solely to use, copy and distribute NTC Content to your Organization’s personnel and only for your Organization’s internal training purposes, as permitted at our discretion. Any other use is expressly prohibited. For clarity, you shall not and shall ensure that your Organization’s personnel shall not (i) independently present the NTC Content in a module, academy, workshop or similar training environment without NTC’s prior written consent; (ii) use the NTC Content for commercial purposes; or (iii) make any derivative works of or otherwise modify the NTC Content. This license is non-transferable and revocable at any time without notice and with or without cause. Unauthorized use of the NTC Content may violate copyright, trademark, and applicable communications regulations and statutes and is strictly prohibited. You must preserve and not obscure all copyright, trademarks, service marks, and other proprietary notices contained in the original NTC Content on any copy you make of the NTC Content. NTC retains all right, title and interest in and to all NTC Content. If at any time you acquire any right, title or interest in the Intellectual Property Rights relating to the NTC Content, you hereby irrevocably transfer, convey, and assign to NTC all of your right, title and interest therein. You shall execute such documents, render such assistance, and take such other action as NTC may reasonably request, at NTC’s expense, to apply for, register, perfect, confirm and protect NTC’s rights to all Intellectual Property Rights relating to the NTC Content.
C. NTC MARKS
“NTC,” the NTC logo, and other NTC logos and product and service names are or may be trademarks of NTC (the “NTC Marks”). NTC hereby grants to you a limited, non-exclusive, non-transferable license, with no right to sublicense, to display the NTC Marks on your Organization’s websites. Any display of the NTC Marks is subject to the NTC’s trademark usage guidelines, as may be provided by NTC in writing to you from time to time. Any goodwill generated through use of the NTC Marks is owned by and will inure to the benefit of NTC. NTC may use your Organization’s name in connection with NTC’s general marketing materials.
SECTION 3. GENERAL LEGAL TERMS
A. NTC DATA
Certain parts of the Services may allow you to obtain or access analytics or other data or information associated with your account (“NTC Data”).
NTC Data is licensed to you for your use on a limited basis, and is governed solely by these Terms and available for distribution only at our sole discretion. NTC owns the account you use to access the Services along with any rights of access or rights to data stored by or on behalf of NTC on NTC servers (except with respect to any Student Data that we may be storing for you), including but not limited to any data representing any or all of your NTC Data. NTC has the right to manage, control and even eliminate NTC Data, except that NTC may only use Student Data as specifically permitted by these Terms.
YOU UNDERSTAND AND AGREE THAT ANY DATA, ACCOUNT HISTORY AND ACCOUNT CONTENT RESIDING ON NTC’S SERVERS MAY BE DELETED AT ANY TIME FOR ANY REASON IN NTC’S SOLE DISCRETION, WITH OR WITHOUT NOTICE AND WITH NO LIABILITY OF ANY KIND. WE DO NOT PROVIDE OR GUARANTEE, AND EXPRESSLY DISCLAIM, ANY VALUE, CASH OR OTHERWISE, ATTRIBUTED TO ANY DATA RESIDING ON NTC’S SERVERS. IF YOU’RE A SCHOOL, YOU SHOULD BE ABSOLUTELY SURE TO KEEP SECURE COPIES OF STUDENT DATA IN YOUR SIS OR IN OTHER SECURE STORAGE. YOU SHOULD NOT RELY ON NTC TO PROVIDE COPIES OF OR ACCESS TO YOUR STUDENT DATA.
B. PRIVACY AND SECURITY
We take very seriously the privacy of our users, including Schools, Teachers, parents, and students. By using the Services you consent to the collection, use and disclosure of your information (including but not limited to Student Data) as set forth in our Privacy Notice and, if you’re a School, in the Additional Terms for Teachers and Schools in Section 4 below, and to have your information (including but not limited to Student Data) collected, used, transferred to and processed in the United States pursuant to our Privacy Notice.
C. THIRD-PARTY SERVICES
Our Services may incorporate or contain links to websites, products, applications, services, related product and service descriptions, marketing materials and/or other content or information made available by third party providers (collectively, “Third-party Materials”). Keep in mind that we do not endorse or assume any responsibility for any Third-party Materials (including but not limited to User Contributions submitted by other Users). If you access or use any Third-party Materials from or within the Services, you understand that you do so at your own risk, and you understand that these Terms and our Privacy Notice do not apply to your use of those Third-party Materials, which have their own applicable terms and policies. Additionally, your dealings with or participation in promotions of advertisers found on the Service, including payment and delivery of goods, and any other terms (such as warranties) are solely between you and such advertisers. You agree that Company shall not be responsible for any loss or damage of any sort relating to your dealings with such advertisers.
Without limiting the foregoing, with respect to any use of Google Classroom as integrated with the Services, you agree to comply with the Google APIs Terms of Service and such other terms and conditions as Google may provide from time to time.
You agree to defend, indemnify and hold harmless NTC and its subsidiaries, agents, licensors, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (i) your use of and access to the Services, including any data or content transmitted or received by you; (ii) your violation of any term of these Terms, including but not limited to your breach of any of the representations and warranties; (iii) your violation of any third-party right, including but not limited to any right of privacy or Intellectual Property Rights; (iv) your violation of any applicable law, rule or regulation, including but not limited to FERPA, the Protection of Pupil Rights Amendment (“PPRA”), and the Children’s Online Privacy and Protection Act (“COPPA”); (v) any content or information that is submitted via your account; or (vi) any other party’s access and use of the Services with your unique username, password or other appropriate security code.
E. WARRANTY DISCLAIMER
You use the Services at your own risk. We make no warranties or guarantees.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
i. YOUR USE OF THE SERVICES AND ANY PRODUCTS OR OTHER SERVICES MADE AVAILABLE ON OR THROUGH THE SERVICES IS AT YOUR SOLE RISK, AND THE SERVICES AND ANY PRODUCTS OR SERVICES MADE AVAILABLE ON OR THROUGH THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND THE RELEASED PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES AS TO PRODUCTS OR SERVICES OFFERED BY THE RELEASED PARTIES OR OTHER PERSONS ON OR THROUGH THE SERVICES, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT;
ii. THE RELEASED PARTIES MAKE NO WARRANTY THAT (a) THE SERVICES OR ANY PRODUCTS MADE AVAILABLE ON OR THROUGH THE SERVICES WILL MEET YOUR REQUIREMENTS, (b) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (c) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE, (d) THE QUALITY OF ANY PRODUCTS OR SERVICES AVAILABLE ON THE SERVICES WILL MEET YOUR EXPECTATIONS, AND (e) ANY ERRORS IN THE SERVICES WILL BE CORRECTED; AND
iii. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF ANY SUCH MATERIAL.
F. LIMITATION OF LIABILITY
We are not liable for anything that happens to you involving the Services. If you use the Services in a way that causes us to be included in litigation, you agree to pay all legal fees and costs for Released Parties.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT THE RELEASED PARTIES SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF RELEASED PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM:
i. THE USE OR THE INABILITY TO USE THE SERVICES OR ANY PRODUCTS OR SERVICES MADE AVAILABLE ON OR THROUGH THE SERVICES;
ii. THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH, FROM, OR AS A RESULT OF THE SERVICES;
iii. UNAUTHORIZED ACCESS TO, CORRUPTION OF, interference WITH, OR ALTERATION OF YOUR TRANSMISSIONS OR DATA;
iv. STATEMENTS OR CONDUCT OF ANY USER OR THIRD PARTY ON THE SERVICES;
v. YOUR RELIANCE ON CONTENT MADE AVAILABLE BY US; OR
vi. ANY OTHER MATTER RELATING TO THE services. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS IN THIS PARAGRAPH MAY NOT APPLY TO YOU.
TO THE FULLEST EXTENT POSSIBLE BY LAW, THE RELEASED PARTIES’ COLLECTIVE MAXIMUM LIABILITY ARISING OUT OF OR IN CONNECTION WITH THE SERVICES OR YOUR USE OF NTC CONTENT, REGARDLESS OF THE CAUSE OF ACTION (WHETHER IN CONTRACT, TORT, BREACH OF WARRANTY, OR OTHERWISE), WILL NOT EXCEED $100.
G. GOVERNING LAW
You agree that: (i) the Services will be deemed solely based in California; and (ii) the Services will be deemed passive services that do not give rise to personal jurisdiction over us, either specific or general, in jurisdictions other than California. These Terms will be governed by the internal substantive laws of the State of California, without respect to its conflict of laws principles. You acknowledge that these Terms evidences a transaction involving interstate commerce. Notwithstanding the preceding sentences with respect to the substantive law, the Federal Arbitration Act (9 U.S.C. §§ 1-16) (“FAA”) governs the interpretation and enforcement of the Arbitration Agreement in Section 3(viii) and preempts all state laws to the fullest extent permitted by law. If the FAA is determined to not apply to any issue that arises from or relates to the Arbitration Agreement, then that issue shall be resolved under and governed by the law of your state of residence. The application of the United Nations Convention on Contracts for the International Sale of Goods does not apply. You agree to submit to the exclusive personal jurisdiction of the federal and state courts located in Santa Cruz County, California for any actions related to these Terms. You agree that Santa Cruz County, California is the proper and exclusive forum for any appeals of an arbitration award or for trial court proceedings in the event that the arbitration provision below is found to be unenforceable.
READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM NTC.
This Section (the “Arbitration Agreement”) applies to and governs any dispute, controversy, or claim between you and NTC that arises out of or relates to, directly or indirectly: (i) these Terms, including the formation, existence, breach, termination, enforcement, interpretation, validity, or enforceability thereof; (ii) access to or use of the Services, including receipt of any advertising or marketing communications; (iii) any transactions through, by, or using the Services; or (iv) any other aspect of your relationship or transactions with us, directly or indirectly, as a consumer (“Claim” or collectively, “Claims”). The Arbitration Agreement shall apply, without limitation, to all Claims that arose or were asserted before or after your agreement to these Terms.
If you are a new User, you can reject and opt-out of this Arbitration Agreement within 30 days of accepting these Terms by emailing us at firstname.lastname@example.org with your first and last name and stating your intent to opt-out of the Arbitration Agreement. Note that opting out of this Arbitration Agreement does not affect any other part of these Terms, including the provisions regarding controlling law or in which courts any disputes must be brought.
For any Claim, you agree to first contact us at email@example.com and attempt to resolve the dispute with us informally. In the unlikely event that we have not been able to resolve a Claim after sixty (60) days, we each agree to resolve any Claim exclusively through binding arbitration by AAA before a single arbitrator (the “Arbitrator”), under the Expedited Procedures then in effect for AAA (the “Rules”), except as provided herein. In the event of any conflict between the Rules and this Arbitration Agreement, this Arbitration Agreement shall control. AAA may be contacted at www.adr.org, where the Rules are also available. The arbitration will be conducted in the U.S. county where you live or Delaware, unless we agree otherwise. If you are using the Services for commercial purposes, each party will be responsible for paying any AAA filing, administrative and arbitrator fees in accordance with AAA rules, and the award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses.
If you are an individual using the Services for non-commercial purposes: (a) AAA may require you to pay a fee for the initiation of your case, unless you apply for and successfully obtain a fee waiver from AAA; (b) the award rendered by the arbitrator may include your costs of arbitration, your reasonable attorney’s fees, and your reasonable costs for expert and other witnesses; and (c) you may sue in a small claims court of competent jurisdiction without first engaging in arbitration, but this does not absolve you of your commitment to engage in the informal dispute resolution process. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. You and NTC agree that the Arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any disputes relating to the interpretation, applicability, enforceability or formation of this Arbitration Agreement, including any claim that all or any part of this Arbitration Agreement is void or voidable. The Arbitrator shall also be responsible for determining all threshold arbitrability issues, including issues relating to whether the Agreement, any provision of the Agreement, is unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, unconscionability, or estoppel.
Nothing in this Section shall be deemed as: preventing us from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of our data security, Intellectual Property Rights or other proprietary rights; or preventing you from asserting claims in small claims court, if your claims qualify and so long as the matter remains in such court and advances on only an individual (non class, non-representative) basis.
If this Arbitration Agreement is found to be void, unenforceable, or unlawful, in whole or in part, the void, unenforceable, or unlawful provision, in whole or in part, shall be severed. Severance of the void, unenforceable, or unlawful provision, in whole or in part, shall have no impact on the remaining provisions of the Arbitration Agreement, which shall remain in force, or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to the Arbitration Agreement. Notwithstanding the foregoing, if the Class Action/Jury Trial Waiver below is found to be void, unenforceable, or unlawful, in whole or in part, because it would prevent you from seeking public injunctive relief, then any dispute regarding the entitlement to such relief (and only that relief) must be severed from arbitration and may be litigated in a civil court of competent jurisdiction. All other claims for relief subject to arbitration under this Arbitration Agreement shall be arbitrated under its terms, and the parties agree that litigation of any dispute regarding the entitlement to public injunctive relief shall be stayed pending the outcome of any individual claims in arbitration.
I. CLASS ACTION / JURY TRIAL WAIVER
WITH RESPECT TO ALL PERSONS AND ENTITIES, REGARDLESS OF WHETHER THEY HAVE OBTAINED OR USED THE SERVICES FOR PERSONAL, COMMERCIAL OR OTHER PURPOSES, ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU AND NTC AGREE THAT THE ARBITRATOR MAY AWARD RELIEF ONLY TO AN INDIVIDUAL CLAIMANT AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF ON YOUR INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED MAY NOT AFFECT OTHER USERS. YOU AND NTC FURTHER AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND NTC ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO BRING, JOIN, OR PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND AS A PLAINTIFF OR CLASS MEMBER.
J. DMCA NOTICE
Since we respect artist and content owner rights, it is NTC’s policy to respond to alleged infringement notices that comply with the Digital Millennium Copyright Act of 1998 (“DMCA”).
If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible via the Service, please notify NTC’s copyright agent as set forth in the DMCA. For your complaint to be valid under the DMCA, you must provide the following information in writing:
- An electronic or physical signature of a person authorized to act on behalf of the copyright owner;
- Identification of the copyrighted work that you claim has been infringed;
- Identification of the material that is claimed to be infringing and where it is located on the Service;
- Information reasonably sufficient to permit NTC to contact you, such as your address, telephone number, and e-mail address;
- A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or law; and
- A statement, made under penalty of perjury, that the above information is accurate, and that you are the copyright owner or are authorized to act on behalf of the owner.
The above information must be submitted to the following DMCA Agent:
Attn: DMCA Notice
New Teacher Center
Address: 1205 Pacific Avenue, Suite 301
Santa Cruz, CA 95060
UNDER FEDERAL LAW, IF YOU KNOWINGLY MISREPRESENT THAT ONLINE MATERIAL IS INFRINGING, YOU MAY BE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY AND CIVIL PENALTIES, INCLUDING MONETARY DAMAGES, COURT COSTS, AND ATTORNEYS’ FEES.
Please note that this procedure is exclusively for notifying NTC and its affiliates that your copyrighted material has been infringed. The preceding requirements are intended to comply with NTC’s rights and obligations under the DMCA, including 17 U.S.C. §512(c), but do not constitute legal advice. It may be advisable to contact an attorney regarding your rights and obligations under the DMCA and other applicable laws.
In accordance with the DMCA and other applicable law, NTC has adopted a policy of terminating, in appropriate circumstances, Users who are deemed to be repeat infringers. NTC may also at its sole discretion limit access to the Service and/or terminate the User Accounts of any Users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
K. AMERICANS WITH DISABILITIES ACT
NTC is committed to making its digital content accessible for all users. In accordance with this commitment, and with the knowledge that accessible digital content generally enhances usability for everyone, this Policy is established to ensure accessibility for those with disabilities. If you have a disability that may cause any difficulty in accessing any part of this digital content, please feel free to email us at firstname.lastname@example.org. We will work with you to provide the necessary accommodation(s) you seek to ensure our digital content is accessible for you consistent with applicable law.
L. SEVERABILITY AND WAIVER
These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by us in accordance with the terms of our Privacy Notice. These Terms, together with any amendments and any additional agreements you may enter into with NTC in connection with the Services including other agreements referenced herein, constitute the entire agreement between you and NTC concerning the Services. If any provision of these Terms is deemed invalid by a court of competent jurisdiction, the invalidity of such provision will not affect the validity of the remaining provisions of these Terms, which will remain in full force and effect. No waiver of any term of these Terms will be deemed a further or continuing waiver of such term or any other term, and NTC’s failure to assert any right or provision under these Terms will not constitute a waiver of such right or provision. If access to the Services is licensed to the United States government or any agency thereof, then the Services will be deemed to be “commercial computer software” and “commercial computer software documentation,” pursuant to DFARS Section 227.7202 and FAR Section 12.212, respectively, as applicable. Any use, reproduction, release, performance, display, or disclosure of the Services and any accompanying documentation by the U.S. Government will be governed solely by these Terms and is prohibited except to the extent expressly permitted by these Terms. Neither party will hold themselves out to be joint venturers, and neither party is authorized or empowered to act as the agent of the other.
SECTION 4. ADDITIONAL TERMS FOR TEACHERS AND SCHOOLS
NTC provides the NTC Learning Platforms, which includes online platforms allowing Teachers to access individuals and other resources to help Teachers and Schools improve their teaching effectiveness. The terms and conditions of this Section are in addition to, and not a limitation of, the terms and conditions provided elsewhere in these Terms.
A. STUDENT DATA CONFIDENTIALITY AND APPLICABLE LAW
We treat your Student Data as confidential and do not knowingly share it with third parties other than as described in Section 4(B)(ii), these Terms, and our Privacy Notice.
Both parties agree to uphold their responsibilities under FERPA, PPRA, AND COPPA. We provide the Services under the school official exception of FERPA 34 CFR Part 99.31(a)(1). COPPA requires that online service providers obtain clear and verifiable parental consent before collecting personal information from children under 13. You represent and warrant that you have the authority to provide consent on behalf of parents, for us to collect information from students for the purpose of providing the Services to you as described in these Terms before allowing children under 13 to access our Services. We recommend that all Schools provide appropriate disclosures to students and parents regarding their use of service providers such as NTC and that they provide a copy of our Privacy Notice to parents and guardians.
B. AUTHORIZATION TO ACCESS DATA
i. DISTRICT AND PROGRAM LEADER ACCESS TO TEACHER INFORMATION.
The Service provides functionality for programs to control what Teacher-related information received by the Service, including mentoring/coaching analysis and results, is shared with program leaders. If you or your Organization chooses to permit program leaders to see Teacher-related information, including tool content generated through mentoring/coaching relationships, for the program, (1) you agree to the disclosure by NTC of such information about you, and (2) you and your Organization represent and warrant that affected Teachers are notified and provide any consent regarding the information disclosure as required under applicable laws or contracts. We reserve the right to withhold access to such information until we have received satisfactory assurances that such notice and consent was made.
iv. THIRD PARTY ACCESS
We provide access to Student Data only to those employees and certain trusted service providers who have a legitimate need to access such information in connection with providing the Services to you. Of course, anyone involved in the handling of Student Data will treat such data as strictly confidential and shall not redisclose such data except as necessary in order to provide the Services.
Access to Student Data is controlled by Schools. Parents, legal guardians, and students can ask for their Student Data via their Schools. If there are any changes that need to be made in the Services, the School will be responsible for making such changes.
C. USE OF DATA
i. IN GENERAL
By submitting Student Data or other information to us, whether via the Services or otherwise, you expressly grant, and you represent and warrant that you have all rights necessary to grant, to us a non-exclusive, royalty-free, worldwide license to use, transmit, distribute, modify, reproduce, display, and store the Student Data only for the purposes of: (a) providing the Services as contemplated in these Terms, (b) maintaining, supporting, evaluating, diagnosing and developing our Services, and (c) enforcing our rights under these Terms. We will not use the Student Data for any purpose except as explicitly authorized by these Terms or our agreement(s) with your Organization.
ii. DE-IDENTIFIED DATA
You agree that we may collect and use De-Identified Data to operate, analyze, improve, market or develop educational sites, services or applications and to demonstrate the effectiveness of our products or services. De-Identified Data means data from which all personally identifiable information, including direct and indirect identifiers, has been permanently removed or obscured so that the remaining information does not reasonably identify an individual and there is no reasonable basis to believe that the information can be used to identify an individual. If we share or publicly disclose De-Identified Data, that data will be aggregated or anonymized to reasonably avoid identification of a specific School or individual student. For example, we may (a) track the number of School Users or administrators on an aggregate basis as part of our marketing efforts to publicize the total number of Users of the Services, and (b) analyze aggregated usage patterns for product development efforts. You further agree that we may use, store, transmit, distribute, modify, copy, display, sublicense, and create derivative works of De-Identified Data even after these Terms have expired or been terminated.
iii. RESTRICTIONS ON USE OF STUDENT DATA FOR ADVERTISING
For clarity and without limitation, we will not use Student Data to: (a) advertise or market to students or to direct targeted online advertising to students, (b) advertise or market educational products and services to Parents, unless with consent of the Parent and/or School, (c) develop a profile of a student, Parent or group, other than for the purpose of providing educational services or as authorized by School or by a Parent, or (d) for any other commercial purpose unless authorized by School or permitted by applicable law. Notwithstanding the foregoing, nothing in this Section shall be read to prohibit NTC from: (1) marketing educational products and services directly to Parents or School employees so long as the marketing does not result from the use of Student Data obtained by NTC from providing the Services, (2) using Student Data to recommend educational products or services to Parents or School employees so long as the recommendations are not based in whole or in part by payment or other consideration from a third party, or (3) using aggregate information to inform, influence or enable marketing, advertising, or other commercial efforts, generally.
D. DELETING STUDENT DATA AND TERMINATING YOUR ACCESS TO THE SERVICES
i. DELETING STUDENT DATA
By law, a Student or Parent may have the right to request modification or deletion of Student Data. All such requests should be submitted to the Student’s School and not to NTC. Upon written request received from a School, we will delete a student’s Student Data (other than De-Identified Data) in our possession at any time. We will comply with the request in a commercially reasonable time not to exceed ten (10) business days (other than data residing on backups or internal logs which will be removed within sixty (60) days). We may not be able to delete information that was previously shared with others through the Services, such as the content of messages.
ii. TERMINATING YOUR ACCESS TO THE SERVICES
Schools may, at any time and for any or no reason, terminate these Terms by providing written notice to us at email@example.com, except that provisions that by their nature should survive termination will survive termination, such as provisions relating to warranty disclaimers, limitations of liability, indemnities, and governing law.
Within seventy-two (72) hours of our receipt of such notice of termination or earlier if commercially reasonable to do so, we will terminate access to our Services. You may request NTC return your Student Data within ten (10) days from receipt of your termination notice. We will automatically delete or de-identify all Student Data within fifteen (15) days of our receipt of the termination notice, except for Student Data residing on backups or internal logs which will be removed within sixty (60) days.
E. PRIVACY AND SECURITY
We care deeply about the privacy and security of Student Data. We maintain strict administrative, technical, and physical safeguards to protect Student Data stored in our servers, which are located in the United States. We limit access to Student Data only to those employees or service providers who have a legitimate need to access such data in the performance of their duties. All of our employees with access to Student Data are required to have passed a background check and receive annual training on how to maintain the security and confidentiality of student records.
In the event of an unauthorized release, disclosure or acquisition of Student Data that compromises the security, confidentiality or integrity of the Student Data maintained by NTC (a “Security Incident”), we will promptly notify the affected Schools via email and will use reasonable efforts to cooperate with their investigations of the incident. To the extent known, this notice will identify (i) the nature of the Security Incident, (ii) the steps we have executed to investigate the Security Incident, (iii) the type of Student Data affected, (iv) the cause of the Security Incident, if known, (v) the actions we have taken or will take to remediate any deleterious effects of the Security Incident, and (vi) any corrective actions we have taken or will take to prevent a future Security Incident. If, due to a Security Incident caused by the acts or omissions of NTC or its agents, a notification to an individual, organization or government entity is required under applicable privacy laws, you agree that, as the owner of the Student Data, you are responsible for the timing, content, cost, and method of any required notice and compliance with those laws and NTC will indemnify Schools for all reasonable costs related to legally-required notifications. NTC shall be responsible for the timing, content, cost and method of notice and compliance with such laws as they relate to users that are not associated with a School account.