Privacy Policy

At Network for Teaching Entrepreneurship (NFTE) we understand that privacy is important to you, and we are committed to respecting your privacy when you visit the NFTE website (the “Site”). The following Privacy Policy is designed to help you better understand what information we gather from you through our Site and our online services, how we use and disclose this information, and who we might share this information with. This Privacy Policy may be changed or updated from time to time.

By visiting this Site, and/or by using any of the online services made available on this Site, you are accepting the practices described in this Privacy Policy.

General Information Collection and Use

The primary reasons for collecting personal information on this Site are to send you information you may request and to thank you for your support.

Personally Identifiable Information

We only collect personal information from you when you are interested in donating time, money, or other resources to NFTE or making purchases from the NFTE Store. If you make an online donation or online purchase, any information you provide is stored on a secure part of the Site. This is solely for the purpose of completing the online transaction.

 If you volunteer to make a donation of time, money or resources, we may request personally identifiable information about you (such as your full name, mailing address, phone number, email address, or credit card number). We seek such information to communicate with you and to facilitate your transaction. If you agree by clicking “yes” when prompted, we may use the information that you provide to contact you and deliver information to you through, for example, email updates.

 For donors, unless you specify that a gift be “anonymous” or otherwise request that your name not be listed, we may include your name in lists of donors that appear in NFTE brochures, on the Site, and in benefit programs to recognize the generosity of those who have given to our cause. We do not sell our donor lists to anyone, nor do we include donor lists in direct mail solicitations.

Third Party Uses

Some of your personally identifiable information may be accessed by NFTE consultants and service providers for the purpose of improving the Site and facilitating the services that it offers to you. In addition, we sometimes employ other companies and individuals to perform promotional, marketing and data analysis functions on our behalf, such as sending postal mail, removing repetitive information from donor lists, analyzing data, processing credit card payments, and providing customer service. These companies and individuals may have temporary access to personal information needed to perform their functions, but they may not use it for any other purpose.

Aggregate Data

NFTE may collect and use aggregate data that is not personally identifying to improve this Site. This type of de-identified aggregate data may be disclosed to third parties such as NFTE consultants and service providers for the purpose of improving the Site. This aggregate information cannot be used to personally identify you or your computer.

Cookies

“Cookies” are small files placed on your computer or mobile device if your web browser preferences allow it. You can configure your browser to accept all cookies, reject all cookies, or notify you when a cookie is set. (Each browser is different, so check the “Help” menu of your browser to learn how to change your cookie preferences.) You are always free to decline our cookies if your browser permits, although in that case you may not be able to use certain features on our Site.

Cookies help us improve this Site and provide better service. We use cookies to determine whether our Site is functioning properly, tell us how and when pages in our Site are visited, and discover what our users’ technology preferences are (such as what type of video player they use).

Additionally, you may encounter cookies on our Site that are placed by third parties (such as social media networks if you utilize social sharing apps, for example). We do not control the use of cookies placed by third parties.

Security

We care about the security of your transactions and employ industry best practices to safeguard data such as credit card information. We use high-grade encryption and the secure https protocol to communicate with your browser software, which guards against interception of the credit card information you give us. We also employ security techniques to protect your personally identifiable information from unauthorized access by users inside and outside the organization. You should be aware, however, that “perfect security” does not exist on the Internet; third parties may unlawfully intercept or access transmissions or private communications. You should not expect that your personally identifiable information will remain private.

Sharing Information

As a matter of policy, we will not sell or rent information about you and we will not disclose information about you in a manner inconsistent with this Privacy Policy except as required by law or government regulation. We cooperate with law enforcement inquiries, as well as other third parties, to enforce laws such as those regarding intellectual property rights, fraud and other personal rights. We can (and you authorize us to) disclose any information about you to law enforcement or other government officials that we, in our sole discretion, believe necessary or appropriate in connection with an investigation of fraud, intellectual property infringement or other activity that is illegal or may expose us, or you, to liability.

Providing Us with Information About You

Although we encourage children to learn more about our organization, we ask that children under 13 do so only with parental supervision. We will never knowingly request personally identifiable information from anyone under the age of 13 without prior verifiable parental consent. If we become aware that a child under 13 has provided us with personally identifiable information without verifiable parental consent, we will use our best efforts to remove such information from our files. If a parent or guardian becomes aware that his or her child has provided us with personally identifiable information without verifiable parental consent, he or she should contact us at [email protected].

Other Information Collectors

Please note that this Privacy Policy applies only to this Site and not to other companies’ or organizations’ websites to which we link or to the websites of our partners. We do not control the privacy policies of others. We encourage you to ask questions before you disclose your personal information to others.

Accessing Your Information

We work to process and maintain accurately the information that you share with us. If you have donated to us, for example, you are invited to access your online giving account and let us know of any errors.

Governing Law

You agree that your use of this Site, this Privacy Policy and any disputes relating thereto, shall be governed in all respects by the laws of the State of New York. Any dispute relating to this Privacy Policy shall be resolved solely in the state or federal courts located in Manhattan, New York.

Thank you for visiting our site. Please contact [email protected] if you have any questions about our website or this Privacy Policy.

Services- Privacy Policy 

Network For Teaching Entrepreneurship (“NFTE,” “we,” or “us”) understands that privacy is tremendously important to school districts and schools  who purchase or subscribe to our Services (defined below) (“Clients”) and to educators and students whose information we may access on behalf of a Client (“Educators” and “Students”). Among other products, NFTE provides instructional courses with respect to various subjects and ancillary training and support services with respect to its Clients’ use of such courses; such courses and content may be provided to Client (i) directly from NFTE in a digital format, for the Client to use on their learning management platform (“Local Courses”); or (ii) to Client via integration of NFTE’s hosted platform with Client’s existing learning management platform (“Hosted Courses”).  

This privacy policy applies to all of our products and services (collectively, the “Services”) and will help you understand how we collect, use and safeguard the personal information provided to us in connection with the Services.  This Privacy Policy (the “Policy”) is incorporated into the services agreement (or related terms of use) between NFTE and its Clients or their users of our Services (the “Services Agreement”).  By using the Services, you acknowledge that you have read and agree to this Policy.  If you do not agree with this Policy, you may not use or access the Services.   

This privacy policy does not apply to our marketing website,  www.nfte.com.  Please visit https://www.nfte.com/privacy-policy/ to view the terms applicable to that website. 

A Special Note for International Users of the Services:  Much of our computer systems are currently based in the United States, so your personally identifiable information will be processed by us in the United States, where data protection and privacy regulations may be different than other parts of the world, such as the European Union.  If you use the Services as a visitor from outside the United States, you are agreeing to the terms of this Policy and, if applicable, the end user terms of use posted in association with the Services, and you will have consented to the transfer and processing of all such information in the United States, which may not offer an equivalent level of protection of that in the European Union or certain other countries.   

This Policy provides the following information: 

1. How We Collect and Use Information 
2. How We Share Information 
3. How We Protect Your Information 
4. Choices About Your Information 
5. Compliance with Student Data Privacy Laws 
6. Student Data Privacy Policies, Practices and Procedures 
7. Children’s Privacy 
8. Links to Other Websites and Services 
9. How to Contact Us 
10. Changes to This Policy 

Transparency. We will always be transparent with the methods we use to collect data and describe exactly how we will use it to the benefit and strict direction of our Clients and their users. 

1. HOW WE COLLECT AND USE INFORMATION

We collect the following types of information: 

Information about Clients and their Users: We ask for certain information when a Client administrator, Educator or other user registers with NFTE, or if the user corresponds with us online, which may include a name, school name, school district name, school email address and/or account name and password, phone number, and/or message content. We may also retain information provided by a Client if the Client sends us a message, posts content to one of our websites or through our Services, or responds to emails or surveys. Once a Client begins using the Services, we will keep records of activities related to the Services. For Clients utilizing Local Courses, we only collect and maintain the data provided to us by the Clients under the Services Agreement. For Clients utilizing Hosted Services, we collect data and information automatically via the Clients’ and their users’ access and use of the Services via the authorized integration. We use this information for the following purposes: 

• To provide and maintain our Services, including to monitor the usage of our Services. 
• To manage registered user accounts for the Services. The personal data you provide can give you access to different functionalities of the Services that are available to you as a registered user. 
• For the performance of the Services Agreement. 
• To contact Clients or their representatives by email, telephone calls, SMS, or other equivalent forms of electronic communication, regarding updates or informative communications related to the functionalities of the Services, including the security updates, when necessary or reasonable for their implementation. 
• To provide Clients or their representatives with news, special offers and general information about other products and services we offer or that we believe may be of interest to you, unless you have opted not to receive such information. You always have the option to opt out of our internal marketing communications by contacting us at [email protected] or by following the opt-out procedure outlined in such communications.  Please note that opting out of receiving these communications will not remove your personal information from our files and we will still contact you as necessary to provide and support products and services you have ordered or purchased from us at your request.  We do not rent or sell Client or employee user contact information to third parties for marketing purposes.  We do not use Student Data for marketing purposes, and we do not send marketing communications to students or parents.  
• To manage our Clients’ requests to us. 
• To evaluate or conduct a business transfer, which may be structured as a merger, divestiture, restructuring, reorganization, dissolution, or other sale or transfer of some or all of our assets, whether as a going concern or as part of bankruptcy, liquidation, or similar proceeding, in which personal data held by us about our Services users is among the assets transferred. 
• For other purposes such as data analysis, identifying usage trends, determining the effectiveness of our promotional campaigns and to evaluate and improve our products, services, marketing and user experience.

Student Data: NFTE may have access to personally identifiable information about Students (“Student Data”) in the course of providing the Services to a Client. We consider Student Data to be confidential and do not use such data for any purpose other than to provide the Services on the Client’s behalf as agreed in the Services Agreement. Depending on the type of Services selected by the Client, such Student Data may come directly from the Client, or the Client may allow Students to access the Services to provide data as authorized and directed by the Client. In that instance, the Client provides each Student with login credentials and confirms that it has obtained appropriate parental consents, as needed, before the Student is permitted to access the Service. NFTE has access to Student Data only as requested by the Client and only for the purposes of performing Services on the Client’s behalf. 

Student privacy is very important to us. Student Data is used only for educational purposes at the discretion of the applicable Client. 

Information Collected through Technology: We automatically collect certain types of usage information when visitors use the Services. We may send one or more cookies — a small text file containing a string of alphanumeric characters — to your computer that uniquely identifies your browser and lets NFTE help you log in faster and enhance your navigation through the Services. A cookie may also convey information to us about how you use the Services (e.g., the pages you view, the links you click and other actions you take on the Services), and allow us to track your usage of the Services over time. We may collect log file information from your browser or mobile device each time you access the Services. Log file information may include anonymous information such as your web request, Internet Protocol (“IP”) address, browser type, information about your mobile device, number of clicks and how you interact with links on the Service, pages viewed, features used, and other such information. We may employ clear gifs (also known as web beacons), which are used to anonymously track the online usage patterns of our Users. The information allows for more accurate reporting and improvement of the Services. We may also collect analytics data, or use third-party analytics tools, to help us measure traffic and usage trends for the Services. We do not allow third party advertising networks to collect information about the users of our Services. 

We use or may use the data collected through cookies, log files, device identifiers, clear gifs information and other similar data (collectively, “Cookies”) to: (a) remember information so that a user will not have to re-enter it during subsequent visits; (b) provide custom, personalized content and information; (c) to provide and monitor the effectiveness of our Services; (d) monitor aggregate metrics such as total number of visitors, traffic, and usage on our website and our Services; (e) diagnose or fix technology problems; and (f) help users efficiently access information after signing in. We may also disclose such data and information to our third party partners whose services or applications interact or interface with our Services, but only as described in this Policy. 

Other non-public information or data received from Clients that constitutes “confidential information” under the terms of the applicable Services Agreement will be subject to the confidentiality terms outlined in that Services Agreement. 

2. HOW WE SHARE INFORMATION

NFTE only shares personal information in a few limited circumstances, described below. We do not rent or sell information for marketing purposes. 

• With third-party providers whose software or services interface with or otherwise may receive information from, or provide information to, the Services, but only as directed or approved by our Clients. We do not release Student Data to any third party without the prior written consent of the Client or the affected Student (if he or she 18 years of age or older) or his or her parent or legal guardian, as applicable. 
• With third-party providers that provide us with technology services (e.g. web hosting and analytics services), but strictly for the purpose of carrying out their work for us. We will use reasonable efforts to identify these providers in this Policy, but reserve the right to change these providers from time to time with or without notice to you. 
• With our affiliates, in which case we will require those affiliates to honor this Policy. Affiliates include any companies that control, are controlled by or are under common control with NFTE.  
• With other users with whom users share information or otherwise interact with via interactive features of our Services; any information shared in such forums may be viewed by all users with appropriate access permissions. 
• With law enforcement or other third parties when compelled to do so by court order or other legal process, to comply with statutes or regulations, to enforce our Terms, or if we believe in good faith that the disclosure is necessary to protect the rights, property or personal safety of our users or our company, or otherwise to protect against a legal liability or to comply with a legal obligation. 
• In the event of a change of control (e.g., if we sell, divest or transfer the business or a portion of our business), we may transfer information to the new owner of the business.  

We may disclose aggregated information about our users, and information that does not identify any individual, without restriction.  

We currently use the following tools to provide services to our users; certain tools may be enabled or used only with Client authorization as set out in the Services Agreement. User data may be shared with these providers and will be governed by the privacy policy of such providers: 

• Canvas, https://www.instructure.com/policies/privacy 
• Alchemer, https://www.alchemer.com/privacy/ 
• Qualtrics, https://www.qualtrics.com/privacy-statement/ 
• Award Force, https://www.awardforce.com/security/

 

3. HOW WE PROTECT YOUR INFORMATION

We store our data in the United States and we take reasonable measures to keep data safe and secure. 

Storage and Processing: Any information collected through the Service is stored and processed in the United States. If you use our Service outside of the United States, you consent to have your data transferred to the United States. 

Keeping Your Information Safe: NFTE maintains industry standard administrative, technical and physical procedures to protect information stored in the servers we utilize, which are located in the United States. While no service provider can guarantee absolute security when communicating over the internet or wireless networks, we are committed to taking steps to help secure any personal information that may be in our possession.  Access to information is limited (through user/password credentials and optional two factor authentication) to those employees and agents who require it to perform their job functions. We use industry-standard Secure Socket Layer (SSL) encryption technology to safeguard the account registration process and sign-up information.   Other security safeguards include, but are not limited to, data encryption, firewalls and restricted access protocols.  

You are solely responsible for maintaining the secrecy of any password used to log in to your account on the Services, if any, and you should always be mindful and responsible whenever disclosing information online that the information is potentially accessible to the public, and consequently, could be collected and used by others without your consent. 

4. CHOICES ABOUT YOUR INFORMATION

Account Information and Settings: Clients may update account information by contacting us at [email protected]. Clients can opt-out of receiving promotional email from us by contacting us at [email protected]or by following the opt-out procedure outlined in such communications. You cannot unsubscribe from Service-related messaging. 

If you have any questions about reviewing or modifying account information, contact us directly at [email protected]. 

Access to Student Data: Student Data is provided and controlled by our Clients or the applicable end user. If you have any questions about reviewing, modifying, or deleting personal information of a Student, please contact your school district directly. 

Deleting or Disabling Cookies: :  Certain parts of our Services require Cookies on your browser to work.  If you disable cookies, such features of the Services may not work properly. You can instruct your browser to refuse all browser Cookies or to indicate when a browser Cookie is being sent. For more information on how you can delete flash Cookies (i.e., local stored objects), please read “Where can I change the settings for disabling, or deleting local shared objects?” available at https://helpx.adobe.com/flash-player/kb/disable-local-shared-objects-flash.html#main_Where_can_I_change_the_settings_for_disabling__or_deleting_local_shared\_objects\_ 

If you have any questions about data retention or deletion, please contact us at [email protected]. 

5. COMPLIANCE WITH STUDENT DATA PRIVACY LAWS

All interactions with Student Data are handled with attention to accuracy and protecting Student privacy.  Once Student Data is provided to us, we treat it as if it were our own children’s information. 

Protecting the confidentiality, integrity, and availability of our Clients’ systems and data is of the utmost importance to us, as is maintaining Client trust and confidence. To that end, we ensure that our staff is trained and systems are in place to provide required security and confidentiality of Student Data. We have implemented training on the federal and state laws, regulations and policies governing confidentiality of Student Data and any PII (defined below) included in such Student Data for any NFTE officers and employees who will have access to Student Data and PII under the Client’s Services Agreement.  We also conduct background checks for our employees and agents. 

NFTE has implemented practices and procedures designed to comply with applicable requirements in federal and state laws and regulations, school district policies, as well as private industry prevailing practices, regarding the proper handling  and security of student information; these practices and procedures are described in further detail below.  Our use and maintenance of PII from Student Data is subject to the direct provision and control of our Clients.  Third parties and contractors that work with NFTE are subject to the same policies, requirements and security protocols as the internal NFTE team. 

Different levels of access to different content available via the Hosted Courses require different permissions, and we look to the Client to designate such permissions. System administrators assigned by the Client will have the ability (independently of NFTE) to enable or disable access by any given Client user to various portions of the Hosted Courses, and if a Client desires to have us disable access by any previously-authorized Client user, an authorized official of the Client must notify us in writing, and we will take reasonably prompt measures to disable access for that user as requested. 

NFTE has a designated Privacy Officer who ensures policies, practices, and procedures are followed with fidelity. Our current Privacy Officer, Ronald Jacobs, can be reached at [email protected]. 

Family Educational Rights and Privacy Act: NFTE understands and is compliant with all applicable aspects of the federal Family Educational Rights and Privacy Act, 20 USC § 1232(g) et seq. (“FERPA”), and associated regulations regarding “personally identifiable information” (“PII”), as such term is defined in FERPA, and NFTE follows federal guidelines in regard to the collection, production, and distribution of PII included in Student Data we receive.  For more information regarding FERPA, see http://www2.ed.gov/policy/gen/guid/fpco/ferpa/index.html .  We agree that we will manage and use such PII in accordance with FERPA and applicable state statutes, regulations, and policies.  We rely on our Clients’ proper compliance with FERPA provisions regarding the release of PII from education records by (a) Clients’ obtaining parental consent to share PII with appropriately approved or contracted third parties such as NFTE, or (b) Clients’ use of the “School Official” exception under FERPA (See http://ptac.ed.gov/sites/default/files/FERPA%20Exceptions_HANDOUT_horizontal_0.pdf and 34 CFR §§ 99.31(a)(1) and 99.7(a)(3)(iii)). 

Compliance with State Student Data Privacy Laws: Our Services comply with specific state statutes, regulations, and policies regarding student data privacy and security.  To the extent a state has requirements not otherwise covered by these policies, please contact our Privacy Officer, Ronald Jacobs, at [email protected]. 

6.  STUDENT DATA PRIVACY POLICIES, PRACTICES AND PROCEDURES.

NFTE has implemented the following specific policies, practices and procedures with respect to Student Data: 

• Prohibition against using Personally Identifiable Information (PII) in student records to engage in targeted advertising. We do not sell, trade, or rent PII in Student Data to anyone outside the organization. We strictly limit internal access to Student Data and PII to those individuals who have a legitimate need for such access in order for us to perform our obligations under the Services Agreement with our Client. We do not use any PII for our own purposes and do not use any PII for the purposes of selling or marketing any product to any person or third party, whether such person or party is the subject of the applicable PII or otherwise.  
• Prohibition against using any PII in the student record for any purpose other than those required or specifically permitted by the contract. NFTE prohibits using any PII in Student Data for any purpose outside those required or permitted by the Services Agreement with the applicable Client.  Any PII in Student Data to which we have possession or access will be used by us solely for the purposes of providing the Services to the Client, and for providing such information through the Services to those persons or parties to whom the Client has provided access to the applicable portion of the Services. We hold Client data in strictest confidence and do not disclose it to any third parties, unless such third parties are required to fulfill the contract, nor make use of such data for our own benefit or for the benefit of another, or for any use other than the purpose(s) agreed upon in the services Agreement. If third parties have access to Student Data as required by the Services Agreement with the Client, such access is only allowed through NFTE systems and process. 
• Collection of data and information from student records.  NFTE does not collect any information separately from that which is provided by or through an educational institution that is within the scope of an approved and legally binding contract. 
• Description of the procedures by which a parent, legal guardian, or eligible student may review personally identifiable information in the student’s records and correct erroneous information. In general, the Client has the capability to provide any such person with access to the applicable data by means of the Services without the involvement of NFTE, and if deemed appropriate, the Client has the capability to revise such Student Data to address any inaccuracy without the involvement of NFTE. However, in the event our participation is necessary or useful to enabling access or addressing any inaccuracy that the Client or an adjudicatory body deems to be required, we will provide cooperation to enable such access or to address such inaccuracy. Importantly, only parents or guardians with FERPA rights may review or correct PII; Client must make such determination and communicate the same to us in the event our cooperation is needed. However, since all Student Data is provided to NFTE by the Client, any parent or Student request to correct data must come directly from the Client through regular Student Data updates or by utilizing specific management tools of the Services. 
• Description of the procedures for notifying the affected parent, legal guardian, or eligible student in the event of an unauthorized disclosure of the student’s records. In the unlikely case of an unauthorized disclosure of Student Data, we will make every effort to assist the Client in notifying the affected parents or legal guardian. We will notify the Client within 24 hours of becoming aware of any breach of our security system that reasonably could compromise any Student Data or PII. 
• Certification that a student’s records shall not be retained upon completion of the terms of the contract and a description of how that certification will be enforced. NFTE certifies that, within a reasonable period of time after termination of the applicable Services Agreement and expiration of any post-termination access period requested by the Client, we will remove all PII from the Hosted Services and deactivate the Hosted Services account associated with Client’s subscription. NFTE may, however, retain copies of any PII in its offline data archives for backup, archive or legal recordkeeping purposes, and may subsequently destroy or erase such retained archive data, all in accordance with its data retention policies; provided that the terms of this Privacy Policy apply for so long as NFTE maintains any Student Data. We may maintain anonymized or aggregated data, including usage data, for analytics purposes. 
• Student records continue to be the property of and under the control of the school district. NFTE ensures that Student Data is the property of and under the control of our Client. The Services only contains Student Data provided to it from the Client either through direct secure data transfer from Client servers or via Client controlled data gathering methods.  We may be required to disclose PII to comply with a court order, law or legal process (including a government or regulatory request).  However, in advance of such agency request, we will provide the Client with notice of the requirement so that the Client may seek a protective order or other remedy if it so chooses. If, after providing such notice, IO must disclose the required PII, IO will only disclose that portion of the PII which, on the advice of our legal counsel, the order, law or process specifically requires us to disclose. 

Different levels of access to different content available via the Hosted Courses require different permissions, and we look to the Client to designate such permissions. System administrators assigned by the Client will have the ability (independently of NFTE) to enable or disable access by any given Client user to various portions of the Hosted Courses, and if a Client desires to have us disable access by any previously-authorized Client user, an authorized official of the Client must notify us in writing, and we will take reasonably prompt measures to disable access for that user as requested. 

• De-identified personally identifiable information. The above outlines NFTE’s treatment of PII, but it is also very important to be clear what type of information is not PII. Once PII has been de-identified, that information is no longer PII. PII may be de-identified through aggregation or other appropriate means. The U.S. Department of Education has issued guidance on de-identifying PII in education records, available at http://ptac.ed.gov/sites/default/files/data_deidentification_terms.pdf. In order to allow NFTE to proactively address client needs, we anticipate using de-identified information to improve NFTE products and services generally.  This does not mean we will market to you, necessarily, but that we may use de-identified data for general marketing to our Clients and prospective Clients. IO uses reasonable de-identification methods that avoid compromising the privacy or security of the PII provided to us. 

7.  CHILDREN’S PRIVACY

The intent of the Children’s Online Privacy Protection Act (“COPPA”) is to give parents control over commercial websites’ and online services’ collection, use and disclosure of information from children under the age of 13. COPPA does not apply to all internet-based services; when Services are used as intended and as contracted by the Client, such use may involve data from students under 13, but the student is not the end user, and COPPA does not apply.   

8.  LINKS TO OTHER WEB SITES AND SERVICES

Please remember that this Policy applies to the NFTE Services  only, and not other websites or third party applications with which our Services may integrate or that may be linked in our Services, all of which may have their own privacy policies. You should carefully read the privacy practices of each third party application before agreeing to engage with the application through the Services. We assume no responsibility or liability for the privacy practices of any vendor or operator of third party sites or applications. 

9.  HOW TO CONTACT US

If you have any questions about this Policy or the Services, please contact us at [[email protected]].  You may also contact our Privacy Officer, Ronald Jacobs, at [email protected]. 

10. CHANGES TO THIS POLICY

We reserve the right to change this Policy at any time by posting revised Policy on this webpage, and we may also (but are not required to) notify Clients of such posting via the most recent Client email address on file with us.  We encourage you to review this webpage periodically. The changes will be effective immediately upon notice or posting, and we will update the effective date of this Policy upon such posting. Your use or continued use of the Services following the posting or email notification (as applicable) of any changes to the Policy will be deemed to be your acceptance of the changed Policy.   

Services- Terms & Conditions

These Terms and Conditions (the “Terms’) are part of and incorporated into that Master Services Agreement (the “MSA”) executed by and between Network For Teaching Entrepreneurship (“NFTE”) and the client identified in such MSA (the “Client”). Capitalized terms used and not otherwise defined herein shall have the same meanings given for those terms in the MSA execution page.

 

1. Provision of Services.

 

1.1. Orders. Subject to the terms and conditions of this Agreement, NFTE will make the Service(s) identified in Client’s Orders available to Client for the Service Term (described below), solely for use with respect to schools within Client’s district or similar organization (or with respect to Client, if Client is itself a school). In the case of any module of the Service for which the Order indicates that the total price has been determined on per-unit basis (such as per-student, per-teacher or per school), Client’s access to the Service will be limited to the number of units (e.g., students, teachers or schools) indicated on the Order. If Client desires to extend access to the Service during any Service Term to any additional units beyond those provided on the original Order, NFTE will amend the Order to reflect such addition upon Client’s payment of an appropriate incremental fee determined at the same per-unit price. Except as otherwise provided on the Order or this Agreement, each Order is non-cancellable and will be subject to the terms and conditions of this Agreement. If required as part of Client’s internal procedures, an Order may be supplemented by a purchase order issued by Client, but in no event will a Client purchase order modify any of the pricing, deliverables or terms set forth in the Order or this Agreement.

 

1.2. Delivery of Services. The Services may consist of one or more of the following: (a) access to one or more courses of instruction with respect to a specific subject offered by NFTE (each, a “NFTE Course”); (b) instructional curriculum, assessments, video and audio recordings or live webinars and other content made available by NFTE in connection with the NFTE Courses Client has purchased (collectively, the “NFTE Content”); (c) implementation, training and instructional support services for Client’s in-house instructors with respect to one or more of the purchased NFTE Courses; (d) other similar professional or consulting services ancillary to the purchased NFTE Courses (such as organizing and facilitating enrichment events); and (e) technical support with respect to the purchased Hosted Courses (defined below). Services may be provided live/in person or digitally (or some combination of the foregoing), as set forth in the applicable Order. Without limiting the generality of the foregoing, the NFTE Courses and associated NFTE Content may be provided to Client (i) directly from NFTE in a digital format (“Local Courses”); or (ii) to Client via integration of NFTE’s systems with Client’s existing learning management platform (“Hosted Courses”), to the extent such an integration is offered by NFTE, in each case as set forth in the Order.

 

1.3. End Users. Client may permit its faculty and students to access and use one or more modules or features of the Services, in which case those faculty and students are referred to as “End Users”; the number of End Users may be limited as set forth on the Order, and faculty End Users may be required to complete certain training with NFTE before utilizing the Services. Subject to any eligibility guidelines NFTE may issue, Client is solely responsible for designating which of its faculty will be End Users and for all use of the Services by those End Users. NFTE will not have any liability to Client or any third party for any End User’s use or misuse of the Services.

 

1.4. Service Suspension. NFTE may suspend the provision of any Hosted Courses in whole or in part and without notice: (i) if NFTE believes Client’s or its End Users’ use of the Hosted Courses represents a direct or indirect threat to the function or integrity of NFTE’s or its service providers’ system or networks, or any third party’s use of the Services; (ii) if reasonably necessary to prevent unauthorized access to client data (including, without limitation, the Client Data); or (iii) to the extent necessary to comply with legal requirements. If NFTE suspends access to the Hosted Courses without notice, NFTE will provide the reason for such suspension, upon Client’s request. Any suspension of services for the foregoing reasons will apply to the minimum necessary portion of the online portion of the Hosted Courses and only be in effect for as long as reasonably necessary to address the issues giving rise to the suspension. NFTE may also, upon such notice as is reasonably practicable under the circumstances, perform scheduled or emergency maintenance (including temporary suspension of the Hosted Services as necessary) to maintain or modify the Hosted Courses or NFTE Technology.

 

1.5. License Grant. Subject to the terms and conditions of this Agreement, NFTE grants to Client, a limited, nontransferable, nonexclusive license for Client and its End Users, during the applicable Service Term: (a) for any Hosted Courses, to access over the Internet, via the learning management platform integration referenced in the Order (the “Authorized LMP”), and use the Hosted Courses (including the NFTE Content set forth therein) solely to support Client’s normal course of business and according to the access authority levels configured or assigned by Client; (b) for any Local Courses, to download, upload, access, display and reproduce such Local Courses and the NFTE Content therein, solely as necessary to distribute such Local Courses via Client’s learning management platform to the End Users authorized under the

Order to support Client’s normal course of business; (c) publish the output generated from Client’s or its End Users’ use of the NFTE Courses and Assessment Tools, as defined below (collectively, “Output”), in research reports or other publications published or issued in Client’s usual and ordinary course of business to Client’s constituents (whether in paper or electronic form) (each, an “Authorized Publication”); (d) disseminate those Authorized Publications, provided that (i) “Network For Teaching Entrepreneurship” is credited as the source of the results published therein, and (ii) those Authorized Publications are not distributed or sold or subscribed to for consideration or compensation.

 

1.6. Restrictions. Client and its End Users may not (a) use, license, sell, redistribute, lease or otherwise transfer or assign the NFTE Courses, NFTE Content or any component thereof, except as expressly permitted herein; (b) alter or permit a third party to alter any part of the NFTE Courses or NFTE Content; (iii) use or permit the use of the NFTE Courses or NFTE Content for any unlawful purpose; or (iv) permit any third party (other than an End User hereunder) to access or use the NFTE Courses or NFTE Content. Client may not permit any End Users other than those authorized pursuant to the Order to access or use the NFTE Courses or the NFTE Content.

 

1.7. Implementation and Training Services. NFTE will use commercially reasonable efforts to complete all implementation and training services ordered by Client consistent with an implementation schedule to be agreed to by Client and NFTE. Client acknowledges that some of the NFTE Courses may not be available for use (in whole or in part) by Client or its End Users until such implementation or training has been completed.

 

1.8. Client Support. NFTE will provide Client and its End Users subscribing to the Hosted Courses with reasonable technical assistance by phone and email or other Internet-based communication with respect to the access and use of the NFTE Courses made available via the Authorized LMP; provided, however, that NFTE shall have no obligation to provide support with respect to errors caused by the Authorized LMP. NFTE’s will respond to Client within a reasonable period of time from a request placed by Client during NFTE’s normal support hours, 9 a.m. to 6 p.m., Eastern Standard/Daylight Time, Monday through Friday, holidays excepted; such hours are subject to change without notice. NFTE may also provide support and technical assistance or reference guides to End Users online via the Hosted Courses or at such other locations as NFTE may elect, in its sole discretion.

 

1.9. Configuration of Services. NFTE may from time to time update the materials included in the Hosted Courses and any other aspects of or relating to the Services in its sole discretion, provided that such changes do not materially adversely affect the functionality of the Services. With respect to any Services or NFTE Courses provided via the Internet (including, without limitation, the Hosted Courses) NFTE does not make any guarantee or warranty as to the quality of transmission of data over telephone, digital subscriber lines or any other method of Internet delivery, including, without limitation, server downtimes or other network related problems, except for the limited warranty set forth in Section 7, below.

 

1.10. Customizations and Enhancements. From time to time, NFTE may (but is not required to) make enhancements or customizations to the NFTE Courses and NFTE Content. Any intellectual property created in the course of performing the Services, whether by NFTE alone or jointly with Client, shall be and remain the exclusive property of NFTE, and Client assigns any of its rights, interest or title in or to the same to NFTE.

 

1.11. Assignment of Personnel. Except to the extent prohibited by applicable law, NFTE will: (a) maintain a policy requiring NFTE personnel (including volunteers) to undergo a criminal background investigation at the time of hire or engagement as a volunteer, as applicable, and periodically thereafter; (b) not allow any NFTE personnel whose background check indicates that such personnel has been convicted of, or plead guilty or nolo contendere to, a felony or a crime involving abuse or mistreatment of children to provide any Services.

 

2. Term.

 

2.1. Initial Service Term. The term of this MSA begins on the Effective Date and will continue until all Orders have expired or have been terminated. The initial term of each Order, and the initial term of the Client’s subscription for the Services described in the Order (the “Initial Service Term”), begins upon the effective date of that Order and will continue for the period set forth in the Order. If no period is specified in the Order, the Initial Service Term will be a period of one (1) year commencing on the effective date of the Order.

 

2.2. Renewal Service Terms. The term of an Order may be renewed by for additional successive periods equal to the term specified in the Order (or, if none is specified, for successive one (1) year periods) (each, a “Renewal Service Term”), as follows: (i) at least thirty (30) days prior to the end of the expiring term, NFTE may provide Client with an invoice setting forth the proposed subsequent Renewal Service Term; and (ii) Client’s payment of such invoice by the specified renewal date or continued material use of the Services (including by any End Users) after such date will constitute Client’s acceptance of the Renewal Service Term. If Client does not pay such invoice by the renewal date, then NFTE may, in addition to any other remedy and in its sole discretion at any time after that renewal date, terminate the applicable Order effective as of the end of the expiring term. The Initial Service Term and all Renewal Service Terms are individually and collective referred to

the “Service Term.”

 

3. Fee, Payment & Taxes,

 

3.1. Fees and Payment. Client agrees to pay all fees due for the Services according to the prices and terms listed in the Order(s). All invoices issued under this Agreement are due within thirty (30) days following the date of invoice, unless a different period is expressly provided on the Order; certain initial fees may be due and payable as a condition to the commencement of Services. In the event any amount due from Client becomes past due, NFTE reserves the right to suspend or terminate the Services (and the applicable Orders) and all licenses granted hereunder on not less than ten (10) days’ notice. Any invoices more than thirty (30) days past due will be subject to a service charge equal to 1.5% of the invoice amount per month, or the maximum amount allowed by law, whichever is less. All fees are non-refundable, except as otherwise explicitly stated in the applicable Order or this Agreement.

 

3.2. Future Price Adjustments. The fees for any Renewal Service Term will be set at then-current NFTE pricing, unless the Order indicates a price commitment for a specified duration, or unless otherwise agreed by the parties at the commencement of the proposed Renewal Service Term through the execution of a new Order.

 

3.3. Taxes. Where required by law, NFTE will invoice Client for any state or local sales tax, gross receipts tax or similar amounts that NFTE is obligated to collect from Client (“Taxes”). Client is responsible for paying, and agrees to pay, all Taxes, excluding only taxes based on NFTE’s net income. If Client is exempt from any such Tax, Client will provide NFTE with a valid tax exemption certificate authorized by the appropriate taxing authority to the extent such an exemption certificate is required or reasonably requested to establish such exemption.

 

4. Client Data.

 

4.1. License; Rights. The term “Client Data” means information Client creates or otherwise owns, licensed by Client from third parties or otherwise provided to NFTE on Client’s behalf and, in each case, that is uploaded to or processed or accessed by NFTE in connection with the Services, but does not include any de-identified data included in the Output or otherwise derived from the Client Data in accordance with the terms of the Privacy Policy. With respect to any Client Data provided to NFTE, Client: (i) grants NFTE the right to use, copy, modify, manipulate and create derivative works of the Client Data as necessary in order for NFTE to provide and perform the Services; (ii) agrees to secure rights in the Client Data necessary for NFTE to provide the Services without violating the rights of any third party, or otherwise obligating NFTE to Client or any third party (except as otherwise set out in this Agreement). Except as otherwise required by applicable law, NFTE does not and will not accept any obligations in any separate license or other agreement that may apply to the Client Data or use of the Services. NFTE may transmit or disclose Client Data to third parties in accordance with Client’s or its End User’s directions (whether via the Services or otherwise). To the extent the Services include provision of Hosted Courses, then Client acknowledges and agrees that NFTE may transmit and receive Client Data via the Authorized LMP.

 

4.2. Treatment of Client Data upon Termination.

 

a. In the event of expiration or termination of any Order, NFTE: (i) will remove, within a reasonable period of time, all Client Data from its online systems; and (ii) may retain copies of the Client Data in its offline data archives for backup, archive or legal recordkeeping purposes, and may subsequently destroy or erase such retained archive data, all in accordance with its data retention policies (provided, however, that the obligations of Section 4.3 shall survive for so long as NFTE maintains any Client Data). In the event that Client requests that NFTE destroys or securely erases any offline back-up copies of Client Data maintained by NFTE prior to the expiration of the retention period specified by NFTE’s policies, then NFTE shall destroy or securely erase such offline back-up copies within a reasonable period of time of Client’s request therefor, subject to (x) Client’s execution and delivery of a written release of any claim with relating to the accuracy, timeliness or correctness of processing of the Client Data or any other claim with respect to which the Client Data would reasonably be expected to be relevant, in a form reasonably satisfactory to NFTE; and (y) Client’s payment to NFTE of a data destruction fee according to NFTE’s then-current fee schedule.

 

b. Client agrees that, other than as described in this Section 4.2 and notwithstanding any other term in this Agreement, NFTE has no obligation to continue to hold or return any Client Data. Client also agrees that NFTE has no liability for deletion of any Client Data as described herein.

 

4.3. Privacy and Security. NFTE acknowledges that Client Data may include student-related information from Client that contains personally identifiable information about a student, and that such information is protected under the Family Educational Rights and Privacy Act (“FERPA”), and if applicable under corresponding state laws in Client’s state. NFTE’s access to any personally identifiable information in the Client Data is authorized solely in connection with NFTE’s provision of the Services pursuant to this Agreement and is governed by the Privacy Policy.

 

4.4. Certain Reimbursements. In the event (a) NFTE is required to respond to any search warrant, court order, subpoena other valid legal order relating to Client or the Client Data, or (b) Client requests material assistance from NFTE in connection with Client’s efforts to conduct any investigation, to cooperate with or respond to any investigation being conducted by a third party, or to pursue or respond to any matter or respond to any legal or administrative proceeding or similar matter, Client will reimburse NFTE for any cost that it incurs in so responding or assisting. Further, if Client requests that NFTE (i) provide Client with a copy (in a mutually agreeable format) of any Client Data in NFTE’s possession in connection with the hosted data software Services that is not then-available to Client via the Services; or (ii) make any changes to Client Data stored in NFTE’s offline archives, whether during the term of this Agreement or after its termination or expiration, NFTE will comply with such requests, subject to Client’s payment of a data retrieval or change fee (as applicable) determined according to NFTE’s then-current fee schedule.

 

4.5. NFTE Data Collection. To the extent Client uses the Hosted Courses, NFTE may automatically collect usage. statistical and other information regarding Client’s and its End User’s use of the Hosted Courses (collectively, the “System Metrics”). NFTE uses the System Metrics internally to diagnose technical problems, administer the Hosted Courses, and improve its offerings and marketing. The System Metrics do not include any personal information or data related to the user of the Services. NFTE may also de-identify or anonymize the Output generated by the NFTE Courses or other Feedback Tools (defined below) and collected by NFTE hereunder in accordance with the terms of the Privacy Policy (the “Assessment Output”). NFTE uses the Anonymized Output to improve its offerings and marketing and for other research purposes. Notwithstanding any term to the contrary set forth herein, Client agrees and consents to NFTE’s collection and use of the System Metrics and Anonymized Output as set forth herein, and Client further agree that the System Metrics and Anonymized Output do not constitute Client Data and are NFTE’s sole and exclusive property.

 

5. Client Responsibilities.

 

5.1. Client Resources. Client will provide NFTE, in a timely manner, with all data and information reasonably necessary for NFTE to perform the Services (including Client Data). If necessary to enable NFTE to provide or perform the Services under this Agreement, Client will provide and coordinate, in a timely manner, NFTE’s onsite access to any Client facilities or Client network or system (the “Client System”). Client will inform NFTE in writing and in advance of the provision of the Services, of any security and access standards or requirements with respect to the Client System.

 

5.2. Learning Management Platform. To the extent Client purchases access to the Hosted Courses, Client is solely responsible for maintaining its subscription to the Authorized LMP during the Services Term and for its End User’s access and use of the Authorized LMP and the Hosted Courses available via the same. To the extent Client purchases access to the Local Courses, Client is solely responsible for loading the Local Courses on Client’s learning management platform and for its End User’s access and use of the Local Courses via such platform.

 

5.3. Assessment Tools. Client agrees to require faculty End Users to participate in, and use reasonable efforts to obtain participation from student End Users, such assessments, surveys or other tools made available by NFTE at jump.nfte.com or such other tools made available from time to time in connection with the Services (collectively, “Assessment Tools”). For the absence of confusion, the Assessment Tools are considered NFTE Content for purposes of this Agreement, and all Output generated from such Assessment Tools is subject to the terms and conditions hereof.

 

6. Termination.

 

6.1. By NFTE. In addition to any other termination rights described in this Agreement (including any applicable Terms of Service), NFTE may terminate any Order or this Agreement immediately (or, in its sole discretion, suspend the provision of the Services) upon notice to Client if Client (a) breaches this Agreement and fail to cure such breach within thirty (30) days of written notice describing such breach, except in the case of failure to pay fees or other amounts due under this Agreement, which such breach must be cured within ten (10) days after NFTE’s notice of such delinquency; or (b) breaches, or an End User, breaches any license, restriction on use, confidentiality or intellectual property terms of this Agreement.

 

6.2. By Client. Client may terminate this Agreement or any Order immediately upon written notice to NFTE if NFTE breaches this Agreement and fails to cure such breach within thirty (30) days of written notice describing such breach.

 

6.3. Termination of Service Agreement. NFTE’s ability to provide the Services may be subject to various licenses or other agreements (each a “Service Agreement”) between NFTE and its third party suppliers. In the event of the expiration or termination of any applicable Service Agreement, NFTE will use commercially reasonable efforts to obtain alternative suppliers in order to avoid suspension or disruption in the Services. If NFTE is unable, for any reason, to obtain such an alternative or replacement Service Agreement, or if NFTE reasonably determines that the provision of any Services would be a violation of any applicable law or regulation or any NFTE license in any jurisdiction or is no longer permitted under any of the same, NFTE may terminate all affected Orders upon written notice to Client without any liability to Client. NFTE will give Client at least sixty (60) days prior written notice to Client (or, if it is not possible to give 60 days notice, as much notice as

possible under the circumstances) of the termination or expiration of a Service Agreement governing NFTE’s ability to deliver the Services, or any other condition arising under such Service Agreement that is likely to adversely affect Client’s use of the Services or NFTE’s ability to provide the Services. If NFTE terminates any Order pursuant to this Section 6.3, and Client has prepaid for any Services under that Order, then NFTE will, after applying such prepayment to all fees and charges due under the Agreement, return the unused portion of such prepayment to Client within forty-five (45) days after the date of termination.

 

6.4. Procedure upon Termination. Upon the effective date of termination of any Order, and in addition to any other post-termination obligations in this Agreement, NFTE will cease providing the terminated Services to Client and its End Users, Client and its End Users will cease using the Services, and all Client’s payment obligations through the effective date of termination will immediately become due; provided, however, that in the event of any termination of the applicable Order for Local Courses pursuant to Section 6.2 or 6.3, then Client’s license under Section 1.5 shall be perpetual, subject to Client’s continued compliance with the terms of this Agreement regarding restrictions on use, confidentiality and intellectual property. In addition to the foregoing, promptly upon termination of this Agreement as a whole, each party will return all Confidential Information of the other party in its possession and will not make or retain any copies of such Confidential Information, except as otherwise expressly set forth in this Agreement or as required (and only to the extent necessary) to comply with any applicable legal, archival or accounting record keeping requirement; provided, however, that all such retained Confidential Information will remain subject to the provisions of Section 9 of this MSA.

 

6.5. Survival. Except as otherwise set forth in a notice of termination, termination of any Order will not serve to terminate any other Order or the parties’ respective obligations under this Agreement with respect to non-terminated Orders or Services. This MSA will terminate automatically upon the termination or expiration of all Orders. The terms and conditions set forth the signature page of this MSA, the definitions in this Agreement and the respective rights and obligations of the parties under Sections 4.2 (Treatment of Client Data upon Termination), 4.5 (NFTE Data Collection), 6.4 (Procedure Upon Termination), 6.5 (Survival), 7 (Warranties; Disclaimer), 8 (Limitations of Liability), 9 (Confidential Information; Proprietary Rights), and 10 (General Provisions) will survive any termination or expiration of this Agreement.

 

7. Warranties; Disclaimer. Subject to Client’s compliance with the terms and conditions of this Agreement, NFTE warrants that it will use commercially reasonable efforts to provide the Services to Client in a professional and workpersonlike manner. CLIENT’S SOLE AND EXCLUSIVE REMEDY FOR BREACH OF THE WARRANTY CONTAINED IN THIS SECTION 7 IS REDELIVERY OR REPERFORMANCE OF THE SERVICES, AS APPLICABLE.

 

EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THE APPLICABLE TERMS OF SERVICE, THE SERVICES ARE PROVIDED EXCLUSIVELY ON AN “AS IS” BASIS, AND NFTE DISCLAIMS ANY AND ALL OTHER EXPRESS, IMPLIED AND STATUTORY WARRANTIES WITH RESPECT TO THE SERVICES, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, PERFORMANCE, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE. NFTE DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. NFTE DOES NOT WARRANT OR GUARANTEE ANY SPECIFIC RESULTS FROM CLIENT’S OR ITS END USERS’ USE OF THE SERVICES. AS BETWEEN THE PARTIES, CLIENT SHALL BE SOLELY RESPONSIBLE FOR ENSURING THE ACCURACY OF ALL CLIENT DATA PROVIDED BY CLIENT IN CONNECTION WITH THE SERVICES.

 

8. Limitations of Liability.

 

8.1. Exclusion of Consequential Damages. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO ANYONE FOR LOST PROFITS OR REVENUE OR FOR INCIDENTAL, CONSEQUENTIAL, PUNITIVE, COVER, SPECIAL, RELIANCE OR EXEMPLARY DAMAGES, OR INDIRECT DAMAGES OF ANY TYPE OR KIND, INCLUDING COST OF REPLACEMENT GOODS, LOSS OF TECHNOLOGY, RIGHTS OR SERVICES, LOSS OF INFORMATION OR DATA, OR INTERRUPTION OR LOSS OF USE OF SERVICE OR EQUIPMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING UNDER ANY THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE.

 

8.2. Limitations on Liability. IN NO EVENT WILL THE MAXIMUM LIABILITY OF EITHER PARTY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY LICENSE, USE OR OTHER EMPLOYMENT OF ANY SERVICE, ARISING UNDER ANY THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EXCEED AN AMOUNT EQUAL TO TWELVE (12) MONTHS OF FEES APPLICABLE TO THE AFFECTED SERVICE(S) AT THE TIME OF THE EVENT. NOTWITHSTANDING THE PREVIOUS SENTENCE, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY TO THE EXTENT SUCH LIABILITY WOULD NOT HAVE OCCURRED BUT FOR THE OTHER PARTY’S OWN FAILURE TO COMPLY WITH THE TERMS OF THIS AGREEMENT. The limitations set forth in this Section 8.2 will not apply to any fees or reimbursable expenses due to NFTE under this Agreement.

 

8.3. Force Majeure. Neither party will be liable for any loss or delay (including failure to maintain any given service level) resulting from any event beyond the affected party’s reasonable control, including, fire, natural disaster, labor stoppage, internet service provider failures or delays, terrorism, civil unrest, war or military hostilities, criminal acts of third

parties, and any payment date or delivery of service date will be extended to the extent of any delay resulting from any force majeure event.

 

8.4. Acknowledgement; Exceptions. Both parties acknowledge that the fees payable under the Order(s) reflect the allocation of risk set forth in this Agreement and that the parties would not enter into this Agreement without the limitations in this Section 8. The limitations in this Section 8 shall not apply to any damages arising from (a) a party’s breach of any license, restrictions on use, confidentiality or intellectual property terms of this Agreement; or (b) a party’s gross negligence or willful misconduct.

 

9. Confidential Information; Intellectual Property Rights.

 

9.1. Nondisclosure. Each party acknowledges that it will have access to certain non-public and confidential information (collectively, “Confidential Information”). NFTE’s Confidential Information expressly includes information NFTE creates or otherwise owns or licenses from third party and related to the Services, including, without limitation, all of NFTE’s proprietary software and other technology with respect to the Services, all documentation relating to the Services (both printed and electronic), all NFTE Courses and NFTE Content, and any derivatives, improvements, enhancements, upgrades and updates of the foregoing conceived, reduced to practice or otherwise developed during the term of this Agreement by either party (collectively, the “NFTE Technology”), together with any processing, storage and transmission information that may be necessary for NFTE to perform its obligations under this Agreement, but excluding Client Data. Each party agrees that it will not use in any way, for its own account or the account of any third party, except as expressly permitted by, or to the limited extent required to achieve the purposes of, this Agreement, nor disclose to any third party (except as required by law or to such party’s employees, attorneys, accountants and other advisors as reasonably necessary), any Confidential Information of the other party. Each party will protect the confidentiality of the Confidential Information of the other party by employing the same measures (but in no event less than reasonable measures) as it takes to protect its own Confidential Information. The obligations of this Section 9 will last during and after the term of this Agreement.

 

9.2. Legal Disclosure. The receiving party may disclose Confidential Information pursuant to the requirements of a validly issued subpoena, governmental agency or by operation of law, provided that it gives the disclosing party, when practical and permitted, reasonable prior written notice sufficient to permit the disclosing party to contest such disclosure. If Client is a governmental entity, the terms of this Section 9 are subject to the requirements of applicable trade secret, public records and similar laws. NFTE regards the NFTE Technology as its trade secret and requires that Client treat it such with respect to any public records requests with respect to the NFTE Technology, in accordance with applicable law.

 

9.3. Agreement. The parties expressly agree that the terms of this Agreement will be maintained in confidence and that neither party will disclose the terms of this Agreement to any Third Party without the prior written approval of the other party. Notwithstanding anything to the contrary contained in this Agreement, each party will have the right to disclose that Client is NFTE’s customer.

 

9.4. Proprietary Rights. Exclusive of Client Data, NFTE and its licensors will retain all right, title, and interest (including copyright and other intellectual property rights or informational rights) in and to the Services and all legally protectable elements or derivative works of the foregoing, including, without limitation, the NFTE Technology. NFTE may place copyright and/or other proprietary notices, including hypertext links, within the Services, and neither Client nor any of its End Users will remove such notices without NFTE’s written permission. Notwithstanding anything to the contrary in this Agreement, NFTE will not be prohibited or enjoined at any time by Client from utilizing any skills, knowledge or information of a general nature acquired during the course of providing the Services, including, without limitation, knowledge or information publicly known or available or that could reasonably be acquired in similar work performed for another customer of NFTE.

9.5. Remedies. In the event of a violation or threat of violation by a party, directly or indirectly, of the terms of this Section 9 the party who would be harmed by such violation, will have the right, and in addition to all other remedies available to it at law, in equity or under this Agreement, to affirmative or negative injunctive relief from a court of competent jurisdiction. Each party acknowledges that a violation of this section would cause irreparable harm and that all other remedies are inadequate.

10. General Provisions.

 

10.1. Independent Contractors. The parties and their respective employees are and will be independent contractors and neither party by virtue of this Agreement will have any right, power or authority to act or create any obligation, express or implied, on behalf of the other party.

 

10.2. Notices. Client’s address for communication and notice purposes relating to this Agreement is set forth on the signature page of this MSA (or such replacement address as Client may designate in accordance with this section from time to time). Client agrees to accept emails from NFTE at the e-mail address specified under this Section. NFTE may provide any

and all notices, statements and other communications to Client through either e-mail or by mail or express delivery service, and all notices directed to Client as described in this section will be deemed upon transmission or within one (1) business day after deposit with the U.S. Postal Service or express delivery service, as applicable. In addition, NFTE may rely and act on all information, authorizations and instructions provided to NFTE from all Client administrators specified on the MSA execution page or otherwise by Client in writing to NFTE. Any notices to NFTE must be in writing and addressed to NFTE at the address set forth on the signature page (or such replacement address as NFTE may designate in accordance with this section from time to time) and must be delivered by e-mail (with such transmission confirmed either by non-automated reply or by the prompt deposit of a copy of such transmission with the U.S. mail, postage prepaid) or express delivery service.

 

10.3. Governing Law. This Agreement will be interpreted in accordance with the laws of the State of New York and any controlling U.S. federal law (but excluding the Uniform Computer Information Transactions Act (UCITA), whether or not adopted in a given state). Any action or proceeding arising from or relating to this Agreement must be brought in a state or federal court having jurisdiction over New York County, Georgia, and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding and agrees to waive any defenses to venue and jurisdiction including forum non conveniens. Each party will bear its own costs in connection with any legal proceeding arising under this Agreement, except that NFTE will be entitled to recover its reasonable attorneys’ fees in the event of any action brought to collect any fees due under this Agreement.

 

10.4. Waiver; Amendment. No waiver of any provision of this Agreement or of any right or remedy under this Agreement will be effective unless in writing and signed by the party against whom such waiver is sought to be enforced. Neither any delay in exercising, nor any course of dealing with respect to, nor any partial exercise of any right or remedy under this Agreement will constitute a waiver of any other right or remedy, or of any future exercise of that right or remedy. This Agreement may not be modified, altered or amended except by a written instrument duly executed by both parties. The Agreement may not be modified or amended, except as expressly set forth in this Agreement, or in writing and signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted, or by a properly executed Order.

 

10.5. Severability; Interpretation. If any provision is held by a court to be contrary to law, such provision will be eliminated or modified to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect. The headings in this Agreement are provided for convenience only and will not affect its construction or interpretation. As used in this Agreement, the term “Including” means “including, without limitation.”

 

10.6. Beneficiaries; Successors and Assigns. There are no third party beneficiaries to this Agreement. This Agreement will inure to benefit and bind the parties listed on the signature page of this MSA and their successors and assigns. Client may not assign this Agreement without prior written consent of NFTE. NFTE reserves the right to name Client as a user of the Service.

 

10.7. Limitation on Actions. No action arising out of this Agreement, regardless of the form, may be brought by either party more than two (2) years after the cause of action has arisen, or the date of last payment made by Client, whichever is later.

 

10.8. Governmental Users. This Section 10.8 applies to all use of the NFTE Technology by or for the U.S. government or by any prime contractor or subcontractor under any contract, grant or other activity with the U.S. government. The NFTE Technology provided to Client under this Agreement are “commercial items” as that term is defined at 48 CFR 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 CFR 12.212 and other applicable acquisition regulations and are provided to Client only as a commercial item. Consistent with 48 CFR 12.212, 48 CFR 227.7102, and 48 CFR 227.7202, all U.S. Government End Users, if any, acquire the NFTE Technology with only those rights and subject to the restrictions set forth in this Agreement. Notwithstanding the foregoing, the NFTE Technology may not be acquired by the U.S. Government pursuant to a contract incorporating clauses prescribed by 48 CFR 27.4, 48 CFR 227.71 or 48 CFR 227.72. Contractor/manufacturer is NFTE Education, LLC, 1380 Peachtree Industrial Blvd., Suite 200, Suwanee, GA 30024.