Tools of the Mind® Terms and Conditions
Last updated March 1, 2022
These Terms and Conditions (“Terms and Conditions”)
govern the provision by Tools of the Mind® (“Tools”)
of certain programs and services relating to Tools’ proprietary
curriculum (the “Services”) to its clients (each, a “ Client”). Upon (a) signing a services agreement with
Tools for the provision of Services (a “Services Agreement”), (b) returning to Tools a
purchase order for the provision of Services, or (c) otherwise
accepting the provision of Services from Tools, Client agrees to be
bound by these Terms and Conditions, which together with any such
Services Agreement, any such purchase order, and any other applicable
documents referenced in the Services Agreement, such purchase order, or
these Terms and Conditions, form a part of Client’s agreement with
Tools with respect to provision of the Services (collectively, the “Agreement”).
The Agreement is between the Client and Tools. The Agreement applies to
all services and programs provided by Tools to the Client. These Terms
and Conditions can be downloaded, printed, and saved by Client.
1. Tools Obligations. Tools shall provide certain
Services (including certain services relating to Tools’ Professional
Development program and workshops (“Professional Development Services”) in accordance with
each Services Agreement or purchase order accepted by the Client, or as
otherwise agreed by the Client and Tools. Each Services Agreement shall
contain the following: (a) a brief summary of the Services to be
rendered; (b) terms of payment; (c) a period of service for performance
of the Services; (d) and such other terms as may be applicable to the
Services described in such Services Agreement. Subject to the terms of
any Services Agreement and these Terms and Conditions, Tools hereby
grants to Client a non-transferable and non-exclusive license to use
the Services solely within the scope specified in the Services
Agreement (if any) and these Terms and Conditions.
2. Client Obligations. For each Services Agreement,
unless otherwise stipulated in that Services Agreement, Client agrees
to the following obligations:
a. Classroom Equipment: Provide sufficient classroom
equipment to meet basic standards of a good early childhood classroom
as defined by accepted practices (e.g., State DOE guidelines, NAEYC
guidance, ECERS-3).
b. Use by Trained Teachers or Staff: Ensure that no
Tools products or Tools activities, nor any part of the Tools
curriculum, Professional Development program, or other Tools Property
(defined below) being provided to Client under the Agreement are used
in Client classrooms, or in other settings under Client’s control, by
teachers or other staff who have not been trained by Tools pursuant to
any applicable Services Agreement(s) or other Tools-provided training
plan(s).
c. Professional Development: Provide its applicable
staff with release time to attend all applicable Professional
Development workshops (in-person or virtual) that Tools provides
hereunder.
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Note (for Regional Conferences Only)
: Workshops, conferences and other plenary meetings of districts
attending a Tools Professional Development Services event will be
held in a location designated by Tools (e.g., typically a hotel or
conference center in the region). Travel is required for staff to
attend workshops. Client shall ensure district staff attending
workshops understand both their professional responsibility to
arrive on time and that travel will be involved. Tools shall have
no responsibility for arranging or providing travel to or from
workshops or other trainings or meetings.
d. Data Sharing: Unless prohibited by applicable law,
Client agrees to honor all reasonable requests to share available
student achievement data in aggregate, de-identified form and other
data that is relevant to demonstrating the impact of the Tools program.
If applicable to Client’s registered program and if the Client chooses
to partner with Tools for additional data sharing, the Client agrees to
be bound by additional terms regarding data sharing located within the
Supplemental Data Share Agreement Template attached hereto as Schedule 2(d).
e. District Liaison: Client assigns one district staff
person to fill the role of Tools district liaison who shall be required
to: support logistics coordination, work with the Tools Partnership
Development Manager (PDM) or Specialist (PDS) assigned to the
program/school, identify issues in implementation on an ongoing basis,
shadow the Tools PDM or PDS during technical assistance visits, provide
in-classroom Tools support to teachers during teacher planning meetings
and implement feedback from Technical Assistance visits, and address
other questions as they arise.
f. No Substitution:
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The staff member(s) who are registered to attend Professional
Development workshops or who attend workshops specified in the
Services Agreement or otherwise provided by Tools, either virtually
or in-person, must be the same person who attends all subsequent
workshops. Because of the cumulative nature of the Professional
Development Services provided by Tools, different district staff
may not be substituted at subsequent workshops in the series,
except in cases of termination or medical leave of such individual
and subject to the prior written approval from Tools. Additionally,
for all virtual training options, logins may not be shared but only
used by the person to whom the login credentials were issued.
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Only registered staff member(s) may attend Tools’ workshops and
access Tools’ resources. No substitutions are permitted without
prior authorization from Tools. Missed workshops that are not
properly approved for substitution by Tools are nonrefundable.
g. Staff Attendance: The Client shall be responsible
to track the attendance of their staff at Tools trainings and workshops
for their own purposes. While Tools will also track general attendance
at trainings and workshops, it is ultimately the Client’s
responsibility to track attendance of their own staff members
accurately.
h. Coach and Administrator Attendance: The Client will
use their best efforts to cause all staff (including designated
supervisors) who consistently support teachers implementing Tools or
work with students in Tools’ classrooms to register for and attend
every training and workshop.
i. Joint Planning Time: Client shall plan regular
joint planning time for teachers to coordinate regular joint planning
times (at least once per month and preferably every two weeks) for
teachers participating in the Tools Professional Development program.
These planning times are ideally supported by a Client’s designated
internal Coach, who is charged with supporting high fidelity
implementation of the Tools program.
j. Block Scheduling: Cause administrators to ensure
that classroom schedules include an uninterrupted block of time (of at
least 60 minutes in PreK and 90 minutes in kindergarten) at some point
during the day, preferably in the morning. Classroom teachers shall use
this block of time to develop children’s mature play skills in PreK and
dramatization and literacy skills in kindergarten (as taught by Tools
in Tools workshops and Professional Development materials, which are a
critical component of the Tools approach to support the development of
self- regulation as a foundation for learning).
k. Parental Consent: The Client hereby provides
consent on behalf of each child whom the Client will provide access to
any of the Tools’ Digital Products and shall obtain any necessary
parental consent, if the Client uses Tools’ Digital Products in
accordance with the Services Agreement or otherwise in connection with
Tools’ provision of the Services. Tools provides the Client access to
Tools’ Digital Products on the basis of Client’s consent on behalf of
each such child and the Client’s representations that they have
obtained the necessary parental consent for each such child whom the
Client will provide access to any of the Tools’ Digital Products. (See
Tools’ Digital Products Privacy Policy
for more details). Client shall inform Tools of any requests to
withdraw parental consent received from any parent or legal guardian of
a child to whom Client has provided access to any of the Tools’ Digital
Products.
3. Accuracy of Information. Tools will rely on the
accuracy of the information provided by Client. Any changes in the
description of Services will require an adjustment in payment due.
4. Payment Schedule. Client shall pay Tools pursuant
to the applicable Services Agreement, purchase order, or other
agreement of Client and Tools. Additionally, timely payments must be
made to ensure proper delivery of and participation in Professional
Development workshops and technical assistance. Failure to pay timely
may result in Tools failing to deliver training, declining entrance to
teachers not properly registered or failing to deliver Technical
Assistance.
5. Refunds. A full refund in the amount paid by Client
may be granted if Client requests to cancel its registration in writing
no fewer than 45 days prior to the first event in a series of events or
the start of a Professional Development Services event (the “ Event”) for which it is registered. If Client requests
to cancel its registration between 15 and 44 days prior to a registered
Event, then Client may be refunded 50% of the total amount paid. No
refunds will be paid for cancellations made 14 or fewer days before a
registered Event. No refunds will be paid for not attending a
registered Event. No refunds will be paid after the initial workshop in
a series. If specific participants are registered for an Event, Client
may replace a registered participant in the Event with another
participant for no additional fee if and only if Client makes a request
to Tools in writing and Tools approves said request. No refund will be
paid if the Event is cancelled at no fault of Tools and the parties are
unable to timely reschedule the workshop. Except as specifically
provided for in this Section, no other refunds will be provided for any
reason.
6. Ownership of Tools Property. Tools has developed
and may develop program-related plans, products, instructional
materials, kits, manuals, classroom sets, individual sets, procedures,
policies, methods of operation, educational strategies, management
systems, technical data, services, Services, and other materials and
processes relating to the Tools of the Mind® model and its
implementation, including, but not limited to, all information which in
any way relates to the functions, descriptions, or operation of Tools
products or technology, including, without limitation, data, designs,
processes, specifications, drawings, schematics, software in both
source and object code, and trade secrets, together with non-public
information such as that relating to suppliers, manufacturing
techniques, service information, know-how, product program schedules,
project plans, financial projections, business correspondence,
third-party contacts, and other similar non-public information
transmitted by any means, which are proprietary to Tools and which may
be used by Tools in connection with the performance of any services
under the Agreement (collectively “Tools Property”).
In addition, Tools Property shall include any and all improvements,
modifications, materials, and processes derived, in whole or in part,
on, from, or with reference to or use of Tools Property, whether
previously developed or developed under the Agreement, including all
copyrightable materials, trademarks, trade secrets, patentable subject
matter, and know-how. All Tools Property shall be and remain the
property of Tools. To the extent any right, title or interest in or to
such Tools Property, or any part thereof, may not, upon creation or
otherwise, by operation of law vest in Tools, then the Client hereby
irrevocably assigns to Tools all Tools Property and any and all related
patents, copyrights, trademarks, trade names, and other industrial and
intellectual property rights and applications therefor, in the United
States and elsewhere and appoints any officer or director of the Client
as the Client’s duly authorized attorney to execute, file, prosecute
and protect the same before any government agency, court or authority.
7. Use of Tools Property. Client acknowledges that
Tools retains all rights in its proprietary curriculum and training
materials and agrees that no unauthorized use shall be allowed without
prior approval of Tools. Client shall use each subscription for one
teacher and one classroom only. Additional compensation may be required
for any unauthorized use. Use of Tools Property by individuals,
classrooms or locations (and, with respect to classrooms and locations,
their respective personnel) not provided for under the Agreement or a
separate agreement entered into between Tools and Client is prohibited.
Upon successful completion of the Professional Development program,
Client’s personnel who have satisfactorily completed such Professional
Development program shall be permitted to continue to use Tools
Property (including the kits) in classrooms taught by, and only by,
classroom staff having completed the full Core Professional Development
Workshop Series with Tools.
8. Confidentiality/Non-Exclusivity. Tools and Client
will be privy to each other’s confidential and proprietary information.
Neither will, without the prior written consent of the other, use the
other’s confidential and proprietary information for any purpose other
than in carrying out their obligations set forth in the Agreement.
During the course of the business relationship, each party may be given
access to proprietary or confidential information of the other,
including, but not limited to, pricing policies and the identity of
employees, and business policies and systems ("Confidential
Information"). Each party shall hold Confidential Information of the
other party in confidence, treating such Confidential Information with
no less care than it treats its own, and shall not disclose such
Confidential Information to any third party or use such Confidential
Information for any purpose other than as contemplated by this
Agreement. Upon termination of this Agreement, or sooner if requested
by either party, each party shall return all Confidential Information
of the other party in its possession, without retaining copies of such
Confidential Information. This section shall not apply to information
(i) that is in the public domain, or (ii) required to be disclosed by
law or legal process. Each party agrees to immediately return to the
other party or destroy all Confidential Information of the other party
in its possession, custody or control in whatever form held (including
all copies of all written documents relating to that) upon termination
of the Agreement or at any time, or from time to time, upon the request
of the other party. Client acknowledges that Tools performs services
for other clients. Nothing in the Agreement precludes Tools from
performing services for competitors of Client as long as Client’s
confidential information is not disclosed.
9. Term. These Terms and Conditions shall remain in
effect from the effective date of the Services Agreement or purchase
order (if any) or the date Tools commences the provision of Services to
Client (whichever is earlier) and until expiration or termination of
the Services Agreement or purchase order (if any) or the date Tools
ceases the provision of Services to Client in accordance with the terms
of any Services Agreement, purchase order, or other agreement of Tools
and Client (whichever is later) (collectively with any extension of the
term or renewal of the Agreement agreed upon by Tools and Client in
accordance with the terms of the Agreement, the “Term
”). Notwithstanding the conclusion of the period of service set forth
in an applicable Services Agreement or purchase order, upon Client’s
request or on its own initiative, Tools may elect, in its sole
discretion, to extend Client’s access to certain of Tools’ Digital
Products (such as eTools, iScaffold, DWA, Learn@Home) on the Tools
online portal, for an additional three (3) months (or such other period
of time as Tools may otherwise determine in its sole discretion) for
use by Client’s teachers and administrators to support teacher learning
and administrator setup for the next school year, or for any other
purpose as Tools may otherwise determine in its sole discretion. If
Tools so elects to extend Client’s access to certain of Tools’ Digital
Products, then the Term of the Agreement shall be deemed to include
such extension period, and Client shall continue to comply with its
obligations under the Agreement, including these Terms and Conditions,
during such extension period to the extent applicable to Client’s use
of the applicable Digital Products to which access is extended. Client
acknowledges and agrees that any such extended access is provided by
Tools solely on a good faith basis, and Tools may revoke and terminate
any such extended access at any time and without notice.
At any time during the Term, in the event Tools reasonably determines
that Client is failing to implement the Tools approach and curriculum
or attend and participate fully to their best ability in Tools
Professional Development program at an acceptable level of quality, or
otherwise is failing to fulfill Client’s obligations as set forth in
the Agreement, Tools may immediately suspend or terminate the Agreement
and/or the Services being provided to Client thereunder until the
quality or other failure by Client has been addressed to Tools’
satisfaction. In the event Tools suspends its provision of Services,
Client’s sole remedy will be to cure its breach of the Agreement or
increase its compliance with the Tools curriculum such that Tools
determines to recommence the Services. Tools shall have no liability
for suspension or termination of the Agreement.
10. Termination. The Agreement may be terminated at
any time by mutual written agreement of the Parties. In the event of
such mutual termination, Tools shall be entitled to receive just and
equitable compensation for its services performed, and expenses
incurred in performing its obligations under the Agreement up until the
date of termination.
Either party may terminate the Agreement if the non-terminating party
is notified of material breach, and such breach is not corrected within
thirty (30) days of receipt of notice. Should such uncured breach by
Client result in termination of the Agreement, Tools shall retain all
payments made by Client as of the termination date, and be entitled to
receive any additional just and equitable compensation for expenses
incurred or services provided up until the date of termination. In
addition, the breaching party shall not be relieved of liability to the
other party for damages sustained by virtue of any breach of the
Agreement. If termination occurs after receiving materials but prior to
the commencement of Year 1 Core Workshops, Client shall be responsible
to have their refund amount reduced by $175.00 per manual set received
by Client.
For Regional Training Conference (RTC) engagements only, Client
understands and agrees that the obligations of Tools under the
Agreement, and the pricing to engage Tools to provide the Professional
Development Services pursuant to the Agreement, is contingent on
sufficient registrations in the RTC, including those classrooms for
which Client will seek Tools’ services hereunder; should enrollment for
the RTC not reach that number, or the RTC otherwise prove
unsatisfactory to Tools in its sole judgment, Tools reserves the right
to cancel the engagement and shall return any payments made by Client
for amounts above and beyond Tools’ expenses incurred related to the
Agreement as of cancellation date.
11. Independent Contractors. The parties agree that
Tools shall act as an independent contractor during the term of the
Agreement. Under no circumstances shall either party be deemed the
agent, joint venture, partner or employee of the other for any purpose.
In addition, under no circumstances shall any employee of Tools be
deemed the agent, joint venture, partner, or employee of Client for any
purpose. The fee for the Services provided by Tools excludes any and
all present and future Federal, state, county, municipal or other
jurisdiction’s sales, use, excise or other taxes that may apply to
Client’s purchase of the Services. Client shall be responsible for all
such taxes and shall pay to Tools any such taxes that Tools is
obligated by law to collect from Client for the Services accepted and
purchased by Client. Client shall reimburse Tools for any interest or
penalties actually paid by Tools as a result of Client’s exercise of
its right to contest the imposition of any taxes.
12. Indemnification. Tools agrees to defend and
indemnify and hold harmless Client, its affiliates, officers, agents,
independent contractors, and employees from and against any and all
claims and liabilities (including reasonable attorney's fees and
expenses, including expert fees, incurred in the defense thereof)
relating to any claim arising out of the gross negligence or willful
misconduct, of Tools, or of any of its officers, directors, employees,
agents, or independent contractors, under the Service Agreement. To the
extent permissible under applicable law, Client agrees to defend and
indemnify and hold harmless Tools, its officers, directors, agents,
independent contractors, and employees from and against any and all
claims and liabilities (including reasonable attorney's fees and
expenses, including expert fees, incurred in the defense thereof)
relating to any claim arising out of the gross negligence or willful
misconduct, of Client, or of any of its officers, directors, employees,
agents, or independent contractors under the Service Agreement;
provided, however, that nothing in this paragraph 12 shall be deemed a
waiver by Client of any limits on liability or protections provided by
law, including governmental immunity statutes.
13. Insurance. The parties are independent entities
who are separately insured for liability and other claims and each
party will provide a current certificate of insurance, if requested, at
any time during the term of the Agreement.
14. No Warranties. The Professional Development
Services are provided on an “as is” and “as available” basis. Client
obtains the Services at Client’s own risk. To the maximum extent
permitted by applicable law, the Professional Development Services
(including all Tools property furnished hereunder) are provided without
warranties of any kind, whether express or implied, including, but not
limited to, implied warranties of merchantability, fitness for a
particular purpose, or non-infringement. No advice or information,
whether oral or written, obtained by Client from Tools or through the
Professional Development Services (including in Tools’ property) will
create any warranty not expressly stated herein. Without limiting the
foregoing, Tools and Tools’ subsidiaries, affiliates, agents,
directors, and employees, do not warrant that the Professional
Development Services or their content (including any Tools property)
will be accurate, reliable, correct; that the Professional Development
Services (including any Tools property furnished to Client) will meet
Client’s requirements; that the Professional Development Services
(including any Tools property) will be available at any particular time
or location; that the Client’s capabilities will match that which is
required by Tools property (including but not limited to the latest iOS
software and well-functioning Wi-Fi); that any defects or errors in the
Professional Development Services or their content (including any Tools
property) will be corrected; or that the Professional Development
Services and Tools property, to the extent provided as software, are
free of viruses or other harmful components.
15. Limitation of Liability. To the maximum extent
permitted by applicable law, in no event shall Tools, its suppliers, or
its licensors (or their respective affiliates, agents, directors, and
employees) be liable for any direct, indirect, punitive, incidental,
special, consequential, or exemplary damages, including without
limitation damages for loss of profits, goodwill, use, data, or other
intangible losses, that result from the use of, inability to use, or
unavailability of the Professional Development Services.
To the maximum extent permitted by applicable law, Tools, its
suppliers, and its licensors (and their respective affiliates, agents,
directors, and employees) assume no liability or responsibility for any
(i) errors, mistakes, or inaccuracies in the Professional Development
Services or any Tools property; (ii) personal injury or property
damage, of any nature whatsoever, resulting from Client’s access to or
use of the Professional Development Services; (iii) any unauthorized
access to or use of Tools’ servers and/or any and all personal
information stored therein; (iv) any interruption or cessation of the
Professional Development Services; (v) to the extent applicable, any
bugs, viruses, trojan horses, or the like that may be transmitted to or
through the Professional Development Services or Tools property by any
third party; (vi) any errors or omissions in the Professional
Development Services or Tools property; and/or (vii) the defamatory,
offensive, or illegal conduct of any third party. In no event shall
Tools, its agents, suppliers, or licensors (or their respective
affiliates, agents, directors, and employees) be liable to Client for
any claims, proceedings, liabilities, obligations, damages, losses or
costs in an amount exceeding the lesser of (a) the amount of fees
actually paid to Tools by Client within the twelve (12) month period
immediately preceding the event giving rise to the claim for liability,
or (b) $25,000.
The limitation of liability set forth herein applies whether the
alleged liability is based on contract, tort, negligence, strict
liability, or any other basis, even if Tools has been advised of the
possibility of such damage. The foregoing limitation of liability shall
apply to the fullest extent permitted by law in the applicable
jurisdiction.
16. Force Majeure. Neither party shall be liable to
the other for any delay or failure of performance that is caused by
“force majeure,” including acts of God, acts of governmental entities,
epidemics, pandemic, utilities outages, or unusually severe weather. In
the case of a force majeure event, neither party has a right to cancel
this Agreement. Instead, the parties will reschedule the services at a
mutually convenient time. Similarly, if school is cancelled in the
region after a Tools representative has already arrived in the
district, Tools cannot guarantee a future trip at no additional cost to
the school. We reserve the right in our discretion to provide the
services remotely as determined by us based on prevailing
circumstances.
17. Services. Tools will provide the Services
remotely/virtually except for certain specified Services that will be
delivered in person as mutually agreed between the parties.
18. Entire Understanding. These Terms and Conditions
and any related Services Agreement and/or signed purchase order, and
all other applicable documents and attachments referenced in these
Terms and Conditions and the Services Agreement constitute the entire
agreement of the parties, and any modifications must be in writing and
signed by both parties.
19. Conflicts with Other Agreements. These Terms and
Conditions are incorporated by reference into all Agreements between
Tools and Client. To the extent there is a conflict or an ambiguity
between these Terms and Conditions and any such Agreement, the terms of
the Agreement shall apply except as to Sections 6, 7, 12, 14, 15, 19, 27, and 28 which
shall in all cases supersede any conflicting terms in the Agreement.
20. Dispute Resolution. In the event of a dispute, the
parties agree to use mediation to attempt to resolve it.
21. Legal Authority. The person signing the Services
Agreement, causing Client to generate a purchase order, or otherwise
engaging Tools to provide Services hereunder warrants and guarantees
that he/she has been fully authorized by such party to legally bind the
Client to all terms, performances and provisions set forth herein. The
Agreement shall be considered fully executed upon the occurrence of one
or both of the following: 1) Client’s signature on the Services
Agreement, 2) the transmission of a standard purchase order from Client
to Tools for the Services, or 3) Client’s acceptance of the Services
provided by Tools.
22. Advertising. Notwithstanding the Twitter
teacher(s) of the month or any advertisement in place prior to the
execution of the Agreement, neither party shall use the name or logo of
the other party in any advertising, marketing, or promotional materials
regarding the subject of these Terms and Conditions or the Agreement
without the express written consent of the other party.
23. Governing Law. Unless otherwise set forth in the
Agreement, the laws of the State of Massachusetts and rules and
regulations issued pursuant thereto shall be applied in the
interpretation, execution, and enforcement of the Agreement without
regard to principles of conflicts of law.
24. Assignment. The rights and obligations of Client
under the Agreement may not be assigned except with the prior written
consent of Tools.
25. Survival. The obligations which by their terms,
survive termination of this Agreement, shall survive termination of
this Agreement, shall survive any expiration or termination of the
Agreement.
26. Waiver. No waiver of any term or condition of the
Agreement shall be deemed to be a subsequent waiver of any other term
or condition. No delay or failure of a party to exercise a right under
the Agreement shall constitute a waiver or abandonment of that right.
To be effective and binding on a party, a waiver must be in writing and
signed by that party.
27. Privacy Policy. The
Tools Digital Products Privacy Policy
is incorporated in its entirety into the Agreement. By entering into
the Agreement, Client acknowledges that Client has read, understood,
and accepted the
Tools Digital Products Privacy Policy
.
28. Prohibited Uses. Client shall not (i) share
credentials from one subscription across separate classrooms; (ii)
register multiple teachers across separate classrooms under one
classroom subscription;(iii) interfere or attempt to interfere with, or
damage or attempt to damage, the Services or the proper working of the
Services; (iv) misrepresent any identity, provide false information,
impersonate another person or entity, misrepresent any affiliation with
a person or entity, including, without limitation, Tools or another
school district, create or use a false identity, or attempt to use
another user’s account; (v) attempt to reverse engineer, reverse
assemble, reverse compile, decompile, disassemble, translate any of the
Services, or otherwise alter, defraud, or create false results from any
of the Services; (vi) create any product or service that competes
directly or indirectly with any of the Services; or (vii) assist any
third party in engaging in any activity prohibited by these Terms and
Conditions, the Services Agreement (as applicable), the Data Share
Agreement (as applicable), or any other applicable documents or
attachments referenced in these Terms and Conditions or the Services
Agreement (as applicable).
