Terms of Service



This User Agreement is between you, “Customer,” an educational institution or other authorized entity, and Tegrity, Inc., a wholly-owned subsidiary of The McGraw-Hill Companies, Inc. (“Tegrity”), each a “Party,” and collectively referred to hereinafter as the “Parties.” The terms of this User Agreement shall apply to use of the subscription services identified as the Tegrity Campus™ Service (“Tegrity Campus”) and the McGraw Hill Tegrity Remote Proctor™ Service (“Remote Proctor”), and either of such services are alternatively referred to herein as a “Tegrity Subscription Service,” as provided in the Ordering Document as well as all other services provided by Tegrity that are set forth in such Ordering Document (including any exhibits and/or statements of work thereunder) (“Services”). This User Agreement and the Ordering Document shall collectively be referred to herein as the “Agreement”. The terms of the Agreement shall control over any different or additional terms of any purchase order or other non-Tegrity document, and no terms included in any such purchase order or other non-Tegrity document shall apply to Tegrity Campus, Remote Proctor, Services and/or Tegrity Subscription Service materials. The terms of the Ordering Document between you and Tegrity shall control over any conflicting terms in this User Agreement.

1. Definitions
“Authentication Authorities” means the means by which Customer verifies User identities electronically presented to one or more of its information systems.

“Authorization Authorities” means the means by which Institution grants Users with rights to access and use defined resources.

“Content Creator” means a person authorized by Customer to use a Tegrity Subscription Service to capture User Content.

“Documentation” means manuals that Tegrity provides to Customers generally in either tangible or electronic form, as they may be updated from time to time by Tegrity. Documentation does not include materials provided by Tegrity in connection with any training or certification.

“Faculty” means the academic staff of Customer including teachers, professors, instructors and lecturers.

“Initial Use Period,” means the portion of the first Service Term of Customer’s first Tegrity Subscription Service to which a Tegrity Subscription Fee applies that begins on the Effective Date, and ends on the last day of the first academic semester, calendar quarter or other division of an academic year during which the Effective Date occurs, or the first six months after the Effective Date of the Agreement, whichever period of time is shorter; however, if Customer has used a Tegrity Subscription Service pursuant to a Tegrity subscription, license or other authorizing document under which Tegrity Subscription Fees or other fees to Tegrity applied prior to the Effective Date, the concept of the “Initial Use Period” will not apply to Customer under this Agreement.

“Learning Management System” or “LMS” means a software or web-based application for the administration, provision and tracking data of, and the enabling of access to, educational courses including data on the Faculty and Students in such courses.

“Maximum Recorded Hours Subscription” means a Tegrity Subscription that is limited by the maximum number of recorded hours that may be stored on an institution’s Tegrity Subscription Service instance at any given time.

“Ordering Document” means the fully executed paperwork documenting the acquisition of the Tegrity Subscription Service hereunder, which paperwork shall be a Tegrity Order Form, or, in the case of subsequent and renewal purchases, either a Tegrity Order Form or a fully-executed Customer purchase order that references and is subject to all terms of this Agreement, which may be by way of reference to a Tegrity Quote, and specifies, among other things, the Term of the Agreement, the period of time during which the Tegrity Subscription Service will be authorized, “Service Term,” the type and quantity of authorized Users, a named Tegrity Champion, the products and services ordered, and the applicable Fees. Any subsequent purchase(s) pursuant to this Agreement shall be deemed incorporated by reference into this Agreement.

“Remote Proctor” means the cloud-based remote proctoring service that combines a video-based recording environment with student authentication components to ensure the integrity of exam and test taking for classroom-based, blended, and online courses and programs.

“Service-Generated Content” means the content created by using a Tegrity Subscription Service to capture and assemble User Content.

“Student” means individuals enrolled in one or more courses or classes of Customer.

“Support” means the services described in the Tegrity Support section herein corresponding to the level of support indicated on the Ordering Document.

“Tegrity AAIRS™” means the web-based Tegrity service enabling personalized access to a Tegrity Subscription Service or by Users through Customer’s Authentication Authorities, Authorization Authorities, and Learning Management Systems.

“Tegrity Campus” is a cloud-based lecture capture service that can automatically capture, store, and index every class of an institution for later on-demand review by students on a wide variety of devices and platforms.”

“Tegrity Cloud” means Tegrity’s system for providing Tegrity Subscription Services to authorized Users on demand by means of a network, and it includes the function of storing and streaming Service-Generated Content to Users of institutions that are subscribers of a Tegrity Subscription Service that have subscribed to the full services of the Tegrity Cloud.

“Tegrity Quote” means a written document issued from an authorized Tegrity representative offering Tegrity products and services, which must reference this Agreement as the terms of an order submitted to Tegrity pursuant to the quote.

“Tegrity Subscription Service” means the web-based content capture and delivery service developed by Tegrity and ordered by Customer hereunder, the specific components of which shall be specified on the Ordering Document and may include web services, storage and delivery services, and associated offline components. “Tegrity Subscription Service” as used herein shall be deemed to include any and all components ordered hereunder, including Tegrity AAIRS™, except for Third Party Products as defined below, which may be used with the Tegrity Subscription Service but shall not be deemed a component of the Tegrity Subscription Service.

“Term” means the period of time defined on the Ordering Document during which the provisions of this Agreement are in full force and effect with regard to Customer.

“Third Party Product” means third-party, Tegrity Subscription Service-compatible software, hardware or other functionality that Tegrity may offer to Customer from time to time for an additional fee and on a pass-through or OEM basis.

“User” means a person who is a Faculty member, Student or employee of Customer authorized by Customer to use a Tegrity Subscription Service, and may include instructional designers, teaching assistants, librarians and instructional technology staff.

“User Content” means information used or owned by Users related to Customer’s business purpose.

2. Service
2.1 Authorization & Access. To utilize a Tegrity Subscription Service, or certain portions thereof, Customer and Tegrity must first execute the Ordering Document on behalf of Customer’s Institution. Customer represents and warrants that Customer’s signatory on the Ordering Document is authorized to execute the Agreement on behalf of its Institution and that all information provided by Customer to Tegrity is current, accurate, and complete, and that Customer will notify Tegrity of any changes in this information on a timely basis.

Upon execution of the Ordering Document, Tegrity grants Customer a non-exclusive, non-transferable, non-sublicenseable right to use a Tegrity Subscription Service during either an initial 30-day Trial Term or a Service Term, to be stated on the fully executed Ordering Document, solely for Customer’s internal business purposes in accordance with the terms of this Agreement, including all Ordering Documents executed hereunder from time to time. A Tegrity Subscription Service is “in use” when it is loaded into the temporary memory (i.e., RAM) of a computer, (i.e. when recording), accessed via a browser, (i.e. when viewing), or accessed via a mobile device. Access to a Tegrity Subscription Service is authorized as described in Sections 2.1.1, and 2.2 below, and shall be managed by Customer in accordance with the terms of this Agreement.

Use of and access to a Tegrity Subscription Service by Customer’s Users is limited to educational teaching, administrative, learning and study purposes at Customer’s Institution and for no other use or purpose and at no other institution. Customer may connect to a Tegrity Subscription Service using any Internet browser supported by a Tegrity Subscription Service. Customer is responsible for obtaining access to the Internet and the equipment necessary to use a Tegrity Subscription Service.

Tegrity will provide Customer with access to Tegrity AAIRS to enable personalized access to a Tegrity Subscription Service. Personalized access means that Customer and Customer’s Users will be able to access a Tegrity Subscription Service using the same authentication methods and identifiers that Customer currently uses at Customer’s institution to access Customer’s LMS and other information. Accordingly, Customer hereby grants Tegrity the right to use these identifiers via Tegrity AAIRS for this purpose. Further, in order to have personalized access, Customer’s institution has to have the appropriate infrastructure, and this is Customer’s responsibility to provide and maintain. In addition, it will be Customer’s responsibility to provide adequate staff who are appropriately trained in IT or systems matters to perform the set up of Tegrity AAIRS.

Customer shall use all commercially reasonable efforts to prevent unauthorized access to, or use of, Tegrity Subscription Services, and shall notify Tegrity promptly of any known unauthorized use. Customer will cooperate with Tegrity, including, without limitation, in any legal action, to prevent or stop unauthorized use, reproduction, modification, distribution or sublicensing of Tegrity Subscription Services or any of its components, and/or to enforce the terms of this Agreement. Customer shall have sole responsibility for complying with all applicable local, state, federal, and foreign laws in using Tegrity Subscription Services and, if using Tegrity Subscription Services outside of the United States, for using Tegrity Subscription Services in a manner that would not violate any federal or state laws of the United States if conducted therein. Customer may make and distribute a reasonable number of copies of the Documentation and any training material provided by Tegrity solely as needed to instruct Users’ on use of Tegrity Subscription Services. All rights not expressly set forth herein are reserved by Tegrity. Tegrity reserves the right to modify Tegrity Subscription Services from time to time during the Term, for example and without limitation, to accommodate the deletion or addition of a component of Tegrity Subscription Services.

2.1.1 Content Creators. Customer may authorize any User to input User Content into a Tegrity Subscription Service to create and deliver Service-Generated Content. Tegrity Subscription Services may not be used to create, assemble or deliver content other than Service-Generated Content. Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all User Content.

2.1.2 Maximum Recorded Hours Subscriptions. In the event that Customer purchased a Tegrity Subscription Service with a Maximum Recorded Hours subscription, and Customer’s actual recorded hours exceed the maximum recorded hours purchased, Tegrity will notify Customer of such exception and offer a purchase of additional hours. If the maximum recorded hours are exceeded in the Initial Use Period, Tegrity may grant a grace period, “Initial Use Grace Period,” and such Initial Use Grace Period will begin on the date on which the maximum recorded hours were exceeded and expire on the last day of the Initial Use Period, during which Customer’s use of a Tegrity Subscription Service may exceed the maximum recorded hours of Customer’s subscription by no more than 25%. If Customer exceeds the maximum hours, either in the a Tegrity Subscription Service purchased, or the total hours approved by Tegrity where the Initial Use Grace Period applies, and if Customer fails to purchase required additional hours above the applicable maximum recorded hours, Tegrity reserves the right to limit the available recording space to the quantity of hours purchased or, if the Initial Use Grace Period applies, the maximum hours approved pursuant to the terms of the Initial Use Grace Period. No grace periods or additional hours of space will be provided if Customer’s Tegrity Subscription Service instance exceeds the maximum recorded hours after the Initial Use Period.

2.1.3 FTE Student Enrollment-Based Subscriptions. If Customer has purchased a Tegrity Subscription Service that authorizes use of a Tegrity Subscription Service by an entire Customer entity as measured by the FTE student enrollment of such entity, Customer warrants that the FTE student enrollment figure used as the basis for Customer’s FTE-based Tegrity Subscription Fee is a valid figure based upon data no older than that of the last calendar year and calculated using an industry-standard accounting model. If Customer’s actual FTE student enrollment exceeds the FTE-base purchased, Customer shall notify Tegrity of such exception, or Tegrity will notify Customer of such exception if Customer fails to inform Tegrity of such exception, and Tegrity will offer Customer a purchase of an FTE-based subscription that will authorize use of a Tegrity Subscription Service for the FTE of Customer’s subscribed entity. In the event that Customer fails to purchase the subscription required of the subscribed entity based upon its FTE student enrollment, Tegrity reserves the right to limit the available recording space to the space commensurate with the FTE-base purchased, or to offer Customer a grace period until the end of the academic term in which the Purchased FTE-base was initially exceeded.

2.1.4 Password and Security. Access to a Tegrity Subscription Service by Customer’s Faculty, Students and staff may be provided through Customer’s LMS or other secure authorization. Customer agrees to enable connection of a Tegrity Subscription Service to Customer’s Authentication Authorities and basic course and User data by use of Tegrity AAIRS. Users’ institutional passwords are not retained by Tegrity. Customer is solely responsible for maintaining the confidentiality and security of Customer’s methods of, and data used in, authentication and authorization of Customer’s Faculty, Students and staff to a Tegrity Subscription Service and the accuracy of data about courses and Users. Customer agrees to maintain the accuracy of such data, including, without limitation, the designation of Users as Faculty or Students.

2.2 Restrictions. Customer may not license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make Tegrity Subscription Services available to any third party, other than as expressly stated in this Agreement. Customer shall not use, copy, modify, create derivative works based on, sell, transfer or otherwise distribute Tegrity Subscription Services or any component thereof except as expressly permitted by this Agreement. To the fullest extent permissible by applicable law, Customer shall not disassemble, reverse engineer, or decompile Tegrity Subscription Services, and agrees not to develop competing technologies except to the extent that such: (i) is independently developed by Customer without access to or use of any portion of Tegrity Subscription Services or Tegrity’s Confidential Information, and (ii) is not related to, based on or derived from, nor includes, any portion of Tegrity Subscription Services or Tegrity’s Confidential Information. Customer shall not use Tegrity Subscription Services to send or store material known to Customer to be infringing, libelous, or otherwise unlawful or tortious, including, without limitation, material known to Customer to be harmful to children or violative of third party privacy rights, or to contain software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs. Customer shall not intentionally interfere with or disrupt the integrity or performance of Tegrity Subscription Services or the data contained therein, or attempt to gain unauthorized access to Tegrity Subscription Services or its related systems, components, or networks.

3. Delivery and Training.
3.1 Delivery. Promptly after the Contract Start Date on the Ordering Document, Tegrity will send Customer a Tegrity Subscription Service link and provide any other products or services ordered as shown on the Ordering Document. All components of Tegrity Subscription Services shall be accessed by Users via a web interface and shall be deemed delivered upon provision of such link. Service-Generated Content may be stored either on the Tegrity Cloud or on a Virtual Appliance hosted by Customer. Customer shall have access to Tegrity Subscription Services for configuration and usage purposes only; other adjustments to Tegrity Subscription Services shall be made only by Tegrity. If Service-Generated Content is stored on the Tegrity Cloud, Tegrity shall use all commercially reasonable efforts to make Tegrity Subscription Services generally available 24 hours a day, 7 days a week, except for scheduled downtime with advance notice to Customer, or an event of force majeure as described in Section 12.6 of this Agreement. If Service-Generated Content is stored on a Virtual Appliance hosted by Customer, an arrangement referred to as a “Tegrity Hybrid Cloud,” while Tegrity will use all commercially reasonable efforts to make Tegrity Subscription Services available to Customer 24 hours a day, 7 days a week, except for scheduled downtime with advance notice to Customer, Customer is responsible to maintain the virtual environment and network necessary to store and distribute Service-Generated Content, and only Customer, and not Tegrity, is responsible for storage and delivery of Service Generated Content, and, provided that Tegrity Subscription Services has been made available to Customer by Tegrity, availability of Tegrity Subscription Services to Customer’s Users.

3.2 Training. If Customer has purchased Tegrity Training, Tegrity shall provide initial training to personnel designated by Customer as having appropriate technical education and experience, who will then train other Customer personnel to become “Qualified Trainers.” Qualified Trainers shall participate in subsequent training as necessary to maintain Customer’s Tegrity Subscription Service knowledge and Qualified Trainers’ ability to communicate about new aspects of applicable Tegrity Subscription Services and relevant internal developments.

4. Fees
4.1 Fees & Payment. Tegrity shall invoice for and Customer shall pay all fees shown on the Ordering Document (all “Fees”) on the “Payment Due Dates.” Except as otherwise provided, Orders are non-cancelable and Fees are non-refundable. Customer shall remit Fees to Tegrity at the payment address shown on the applicable invoice. Except as otherwise stated on the Ordering Document, Fees are quoted in United States dollars and are due and payable on the Payment Due Dates or net thirty (30) days after the date of invoice, whichever is sooner. Late payments are subject to finance charges equal to 1.5% per month or the maximum allowed by law on the overdue amount, less amounts then subject to a reasonable and good faith dispute. If Customer does not pay in full and on time, Tegrity may deny credit to Customer and all amounts on open account become immediately due and payable. If Customer’s account is 45 days or more overdue (except with respect to charges then under reasonable and good faith dispute), in addition to any of its other rights or remedies, Tegrity reserves the right to suspend the Tegrity Subscription Services provided to Customer, without liability to Customer, until such amounts are paid in full. Tegrity does not offer and will not provide any prompt or early-payment discounts.

4.2 Taxes. Unless otherwise stated, Fees are exclusive of all local, state, federal or foreign taxes, levies, assessments, withholdings or duties of any nature (“Taxes”) excluding taxes based upon Tegrity’s net income from the provision of Tegrity Subscription Services to Customer. Applicable sales tax will be calculated and added to the total order when a Reseller Certificate or other proof of tax-exempt status is not on file. Customer shall pay or reimburse Tegrity for any and all Taxes. Customer shall pay any fines, penalties or other costs resulting from a failure to pay any applicable taxes, levies or assessments. All payments under this Agreement shall be made without any deduction or withholding. If international withholding taxes are imposed, Fees will be grossed up to cover them. If Tegrity has the legal obligation to pay or collect Taxes for which Customer is responsible under this Agreement, the appropriate amount shall be invoiced to and paid by Customer unless Customer provides Tegrity with a valid tax exemption certificate authorized by the appropriate taxing authority.

4.3 Annual Tegrity Subscription Service Renewals. If the Ordering Document shows a multi-year Term, Customer agrees that this Agreement shall constitute the sole purchase order for each year of purchases and Service Term renewals specified in this Agreement during the Term. Unless stated otherwise on the Ordering Document, Tegrity shall invoice Customer for each year of the Term. Customer agrees to accept all invoices as firm, and pay all invoices in accordance with this Section 4. The Payment Due Date for each annual Service Term renewal is sixty (60) days prior to the expiration of the then-current Service Term. Tegrity Subscription Services may be renewed annually, and the Term extended, by mutual written agreement, or by submission and acceptance by Tegrity of a fully-executed Ordering Document, after the initial Term (each annual Service Term renewal a “Renewal Term”), provided that Renewal Term payments must be received no later than sixty (60) days prior to the expiration of the then-current initial Term or Renewal Term in order for Tegrity Subscription Services to continue uninterrupted.

4.4 Additional Purchases. Customer may purchase additional increments of a Tegrity Subscription Service Maximum Hours Recorded or FTE-based Tegrity Subscription Services, Professional Services, and other Tegrity products and services, “Additional Purchases,” subject to the terms of this Agreement by submitting to Tegrity a fully-executed additional Ordering Document.

5. Proprietary Rights
5.1 Ownership. All right, title, and interest in and to Tegrity Subscription Services, Tegrity trademarks and Tegrity Confidential Information, any derivatives or modifications thereto or copies thereof, and all related technical know-how, are owned by and shall remain vested in Tegrity or Tegrity’s suppliers. Customer retains all right, title and interest in User Content and other Customer Confidential Information. Customer feedback on Tegrity Subscription Services shall be owned by Tegrity. Customer shall promptly notify Tegrity of any known actual or threatened misappropriation or infringement of Tegrity’s or Tegrity’s suppliers’ proprietary rights. Trademarks, brand names and copyright notices shall not be removed.

5.2 Trademark License. Customer may use Tegrity’s trademarks and trade names (“Marks”) during the Term for promoting Tegrity Subscription Services, in accordance with Tegrity’s then-current Trademark Usage Guidelines. Customer shall use reasonable efforts to preserve Tegrity’s rights in the Marks, and agrees that its use of the Marks shall be on Tegrity’s behalf and shall inure to Tegrity’s benefit. Customer shall not register or attempt to register any Mark, or do anything else to contest or impair Tegrity’s rights in the Marks. Customer shall promptly revise any use of the Marks or other references to Tegrity Subscription Services in Customer’s promotional materials upon Tegrity’s reasonable request.

6. Confidentiality
6.1 Definition. As used herein, “Confidential Information” means all confidential and proprietary information of a Party (“Disclosing Party”) disclosed to the other Party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the terms and conditions of this Agreement (including, without limitation, pricing and other terms reflected in the Ordering Document), Tegrity Subscription Services, the Tegrity Technology, User information, business and marketing plans, student, faculty, and patient information, technology and technical information, product designs, and business processes, audio and visual information, documents, software and other works of authorship and technology, program source and object code, data and materials, and all related technical know-how and any derivatives or modifications thereto or copies thereof, hardware, products, processes, algorithms, user interfaces, know-how and other trade secrets, techniques, designs, inventions and other tangible or intangible technical material or information of a Party.

6.2 Exceptions. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party as evidenced by the Receiving Party’s books and records; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.

6.3 Obligation. Each Party agrees to protect the confidentiality of the Confidential Information of the other Party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind, but in no event shall either Party exercise less than reasonable care in protecting such Confidential Information. Each Party agrees not to use Confidential Information of the other Party except in performance of this Agreement, and not to disclose such information to third parties except with the Disclosing Party’s prior written permission or unless required by law. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior written notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.

6.4 Injunctive Relief. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of this Section 6, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the Parties that any other available remedies are inadequate.

7. Warranty & Disclaimers. Tegrity warrants that during the Term and any Renewal Term of this Agreement, Tegrity Subscription Services shall perform materially in accordance with the Documentation under normal use and the applicable Tegrity Subscription Services will be provided in a manner consistent with generally accepted industry standards. Customer’s sole remedy for a breach of this limited warranty shall be the repair or replacement of the defective component of the Tegrity Subscription Service, or if such repair or replacement is not possible after all reasonable commercial efforts by Tegrity, a refund of Fees paid by Customer for such defective component, such refund to be pro-rated over a five-year period or the Term of this Agreement, whichever is shorter. The foregoing notwithstanding, any hardware and software components manufactured by companies other than Tegrity are covered only by their respective original manufacturers’ warranties; any such hardware products that are defective must be returned to the manufacturers or their authorized representatives under the terms of the manufacturers’ warranty policies. Tegrity does not warrant any Third-Party Products, whether or not they are designated by Tegrity as “certified,” “validated” or otherwise. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TEGRITY DISCLAIMS ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES, SO THE FOREGOING DISCLAIMER MAY NOT APPLY TO CUSTOMER. Customer agrees that its consent to the terms and conditions of this Agreement is not contingent upon the delivery of any future functionality or features nor is it dependent upon any oral or written public comments made by Tegrity with respect to future functionality or features. Customer assumes the entire cost of any damage resulting from the information contained in the User Content.

8. Limitation of Liability. To the maximum extent permitted by applicable law, in no event shall Tegrity or its suppliers be liable for any damages whatsoever, including, without limitation, any form of indirect, special, incidental or consequential damages, such as, without limitation, damages for loss of business profits, business interruption, and loss of business information, or other pecuniary loss arising out of the use or inability to use a Tegrity Subscription Service, even if Tegrity has been advised of the possibility of such damages. In no event shall Tegrity’s total liability to Customer for all damages in any one or more cause of action, (including, without limitation, an action for indemnification), exceed the amount paid by Customer for a Tegrity Subscription Service in the previous twelve-month period. This limitation shall apply regardless of the failure of essential purpose of any remedy available to Customer. Because some jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, the above limitation may not apply to Customer.

9. Indemnification
9.1 Customer Indemnification. Subject to this Agreement, Customer shall defend, indemnify and hold Tegrity harmless from and against all third-party claims and/or any loss or damage (including reasonable attorneys’ fees and costs), made against or incurred by Tegrity or its suppliers to the extent arising from Customer’s acts, omissions and misrepresentations, including, without limitation, Customer’s distribution of a Tegrity Subscription Service beyond what is expressly authorized by this Agreement and any and all information contained in the User Content.

9.2 Tegrity Indemnification. Subject to this Agreement, Tegrity shall defend, indemnify and hold Customer harmless from and against all third-party claims and/or any loss or damage (including reasonable attorneys’ fees and costs) incurred in connection with claims, demands, suits, or proceedings (“Claims”) made or brought against Customer by a third party alleging that the use of a Tegrity Subscription Service as contemplated hereunder infringes the copyright, trademark, trade secret or United States patent rights of a third party; provided that Customer (a) promptly gives written notice of the Claim to Tegrity (but only to the extent that delay in giving notice materially prejudices Tegrity’s ability to fulfill its obligations under this Section 9); (b) gives Tegrity sole control of the defense and settlement of the Claim; and (c) provides to Tegrity, at Tegrity’s cost, all reasonable assistance. If a Tegrity Subscription Service is held or is likely to be held infringing, Tegrity shall have the option, at its own expense, to modify a Tegrity Subscription Service such that it no longer infringes or misappropriates, to obtain a license for Customer to continue using the Tegrity Subscription Service, to replace the Tegrity Subscription Service with functionally-equivalent components, or, if none of the foregoing options is commercially practicable, to terminate this Agreement or the authorization to use the infringing component and refund Fees paid by Customer for such affected components, pro-rated over a five-year period or the Term of this Agreement, whichever is shorter.

10. Term & Termination
10.1 Term. The Term of this Agreement will be defined on the Ordering Document and shall remain in effect until expiration of the Term, renewal by mutual written agreement of the Parties, or earlier termination in accordance with this Section 10.

10.2 Termination. Either Party may terminate this Agreement by written notice to the other Party of breach of any material term of this Agreement, which breach has not been cured within thirty (30) days after delivery to such other Party of written notice of such breach. Tegrity may terminate this Agreement immediately upon written notice for any of the following causes: (i) repetitive failure to pay invoices within terms, or payment of an invoice more than sixty (60) days beyond terms, (ii) Customer’s insolvency, (iii) Customer’s ceasing to function as a going concern, (iv) any illegal action by Customer that is material to this Agreement, (v) transfer of control or management of Customer, or of any substantial part of its business, to a competitor of Tegrity, or (vi) engaging in any activities, which, in Tegrity’s reasonable judgment, detract from Tegrity’s reputation, compete with Tegrity’s business, or otherwise injure Tegrity’s competitive stature. This Agreement may not be terminated for convenience.

10.3 Effect of Termination. Upon expiration or termination of this Agreement, Customer’s authorization to use Tegrity Subscription Services shall automatically terminate, and Customer’s authorization to use Tegrity AAIRS to access and use Tegrity Subscription Services shall also terminate. Customer shall remove from its systems and destroy any and all non-hardware components of Tegrity Subscription Services in its possession within five (5) days after expiration or termination of this Agreement, and so certify to Tegrity upon request.

10.4 Survival after Termination Sections 1, 2.2, 5, 6, 7, 8, 9, 10 and 12, and any outstanding obligations to pay fees due hereunder, shall survive the expiration or termination of this Agreement.

11. Tegrity Support
11.1 General Terms
of Tegrity Support. Tegrity Subscription Services are maintained by Tegrity, requiring no action by Customer other than maintaining its connection to a Tegrity Subscription Service. Maintaining open access to Tegrity Subscription Services for the constituents of Customer is a prerequisite to delivery of any phone or email Tegrity Support Customer may have purchased from Tegrity. Customer agrees to provide first-line support to its Content-Creators and all other individuals, including without limitation, students, faculty and staff, authorized by Customer and pursuant to this Agreement to use Tegrity Subscription Services. If Customer has purchased Tegrity Support or a solution that includes Tegrity Support, Tegrity agrees to provide technical support by phone, email, and Web connection to guide Customer to begin use of Tegrity Subscription Services and address Errors. Technical Support is available Monday through Friday from 6 a.m. to 6 p.m. Pacific time, excluding Tegrity company holidays. If applicable to Customer, Tegrity Support shall include, at a minimum without limitation: answering and responding to phone calls and emails, logging calls and messages, Error determination, tracking Error resolution efforts, and providing technical bulletins and other information to Customer. Tegrity Support does not include any Customer training, consulting, customization, or strategic planning.

“Error” means a reproducible defect or combination of defects in a Tegrity Subscription Service that result in a failure of a Tegrity Subscription Service, when used in accordance with Tegrity’s instructions, to function substantially in accordance with the technical specifications in the Documentation. Errors shall exclude defects caused by the negligence of Customer or any constituent of Customer, any modification or alteration of a Tegrity Subscription Service or any of its components, data that does not conform to Tegrity’s specified data format, operator error, defects caused by errors in any third-party product, use on any system other than the operating system specified in the Documentation, accident, misuse, or any other cause which, in Tegrity’s reasonable determination, is not inherent in Tegrity Subscription Services.

11.2 Customer Technical Contacts. If Customer has purchased Tegrity Support or a solution that includes Tegrity Support, Customer shall designate up to three (3) Technical Contacts, who shall use best efforts in responding to questions or Error reports from constituents of Customer. Technical Contacts may not be students or faculty. Tegrity shall have no obligation to furnish assistance, information or documentation to any constituent of Customer other than the Technical Contacts; however, Tegrity may elect to do so if Customer is unable to provide timely or adequate responses. Tegrity’s case by case election to provide support directly to a person who is not a designated Technical Contact shall not obligate Tegrity to do so in the future.

12. General
12.1 Independent Contractors. The parties hereto are independent contractors; this Agreement shall not create a partnership or joint venture of any kind.

12.2 Assignment. Tegrity may assign this Agreement in whole or part by operation or law or otherwise. Customer shall not assign this Agreement to any other party and may not delegate its duties hereunder without the prior written consent of Tegrity. Any assignment or transfer in violation of this Section shall be null and void. The provisions of this Section 12.2 shall be binding upon and inure to the benefit of the Parties, their successors and permitted assigns.

12.3 Publicity. A Party to this Agreement may issue press releases relating to this Agreement only with the other Party’s prior written consent. Either Party may include the name and logo of the other Party in lists of customers or vendors in accordance with the other Party’s standard guidelines.

12.4 Legal Notices. All legal notices to Tegrity shall be sent to: Tegrity, Inc., 2520 Mission College Blvd., Suite 101, Santa Clara, CA 95054, Attention: Legal Department, with a copy to General Counsel, The McGraw-Hill Companies, Inc., 1221 Avenue of the Americas, New York, NY 10021. Legal notices to Customer shall be sent to the address in the signature line below unless otherwise specified in writing herein, receipt confirmed. Notices shall be in writing and may be sent by certified or registered mail, postage prepaid and return receipt requested, nationally recognized overnight delivery service (e.g., Federal Express), express courier, or facsimile, with receipt of successful transmission obtained by the sending Party. Any such notice shall be deemed given upon receipt, refusal of receipt or the date noted as uncollected when sent by certified or registered mail; one business day after deposit with the overnight delivery service, or one business day after receipt of the facsimile transmission.

12.5 Disputes. This Agreement is governed by the laws of the United States and the State of New York, without reference to conflict of laws principles. Any dispute arising out of or relating to this Agreement shall be first escalated to senior management of each company. The Parties prefer that disputes not resolved by such escalation be finally settled by the state courts in the County of New York, New York. Court proceedings and all pleadings and written evidence shall be in the English language. If any legal action is brought to enforce any obligations hereunder, the prevailing Party shall be entitled to receive its attorneys’ fees, court costs and other collection expenses, in addition to any other relief it may receive.

12.6 Force Majeure. The obligations of the Parties are mutually contingent upon acts of nature, such as floods, fires, storms; acts of war, insurrection or terrorism; strikes; riots; and any other acts of force majeure as well as governmental restrictions, prohibitions, and occurrences beyond the reasonable control of the Parties to the extent that the same are the direct cause for rendering the Parties’ performance of this Agreement impossible, illegal, or commercially impracticable, always provided that the Party claiming the benefit of this Section 12.6 shall use diligence to fulfill the obligations under this Agreement with the shortest possible delay.

12.7 Export Restrictions. Each Party shall be responsible for its own compliance with all United States and foreign export control laws or regulations applicable to its performance under this Agreement.

12.8 U.S. Government-Restricted Rights. The Documentation and all software components of Tegrity Subscription Services are deemed to be “commercial computer software documentation” and “commercial computer software,” respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any use, modification, reproduction, release, performance, display or disclosure of such Documentation or software by the U.S. Government shall be governed solely by the terms and conditions of this Agreement and shall be prohibited except to the extent expressly permitted herein.

12.9 Rights and Remedies. A breach of Section 2.1, 5 or 6 may cause irreparable injury for which no adequate remedy at law exists; therefore, the Parties agree that equitable remedies, including without limitation injunctive relief and specific performance, may be appropriate remedies to redress any breach or threatened breach of Sections 2.1, 5 and 6, in addition to all other remedies available to the Parties. All rights and remedies hereunder shall be cumulative, may be exercised singularly or concurrently, and shall not be deemed exclusive, except to the extent expressly set forth herein. No failure or delay by either Party in exercising any right under this Agreement shall constitute a waiver of that right, any waiver of a right hereunder must be in writing, and no waiver or any provision or right shall affect the right of the waiving Party to enforce any other provision or right herein.

12.10 Compliance. During the term of this Agreement and for one year after its termination or expiration, Customer shall maintain and make available to Tegrity accurate records to permit Tegrity or an independent auditor retained by Tegrity to verify, upon ten days’ written notice, Customer’s full compliance with the terms and requirements of this Agreement; provided that such audit shall not occur more than once in any one-year period unless a material underpayment is discovered, and shall be performed during regular business hours. If such verification process reveals any noncompliance by Customer with this Agreement, Customer shall reimburse Tegrity for the reasonable costs and expenses of such verification process (including, but not limited to the fees of an independent auditor) incurred by Tegrity and pay Tegrity for any use of Tegrity Subscription Services beyond the scope authorized herein at Tegrity’s then-current list price, and Customer shall promptly cure any such noncompliance; provided, however, that the obligations under this Section 12.10 shall not constitute a waiver of Tegrity’s termination rights or any other rights hereunder.

12.11 Entire Agreement. This Agreement combined with, where applicable, an Ordering Document, is the entire Agreement between Customer and Tegrity with respect to the subject matter hereof, and supersedes any other communications, advertising or prior agreements. No modifications to this Agreement may be made unless written and signed by both Parties. If any provision of this Agreement is held invalid, the remainder of this Agreement shall continue in full force and effect. No terms or conditions stated in a Customer purchase order or in any other Customer order documentation (excluding the Ordering Document) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.

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