EDMODO SMB TERMS OF SERVICE
Revised: March 19, 2021
Edmodo, Inc. (“Edmodo”)
400 Concar Drive
San Mateo, CA 94402, United States of America,
- “Affiliate“ means an entity that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, a party (with “control” meaning possession of the power to direct or cause the direction, management or policies of an entity).
- “Agent“ means Customer officers, agents or representatives.
- “Business Day“ means any day (other than a Saturday or a Sunday) on which the banks are ordinarily open for business in the United States.
- “Confidential Information“ means that as defined in Section 11.1 of this Agreement.
- “Fees“ means that as set forth in the Edmodo invoice(s) (all invoices, “Exhibit A”).
- “Product“ means the cloud-based software product offered by Edmodo as described on Edmodo’s website (https://go.edmodo.com/schools/) as of the Effective Date and may include any supporting software product then offered by Edmodo as described more fully herein or in accompanying exhibits.
- “Term“ means the Agreement term as defined in Section 7.1 of this Agreement.
- “User“ means any individual associated with Customer’s enterprise account that has a distinct user login and password to access and use the Product.
- “User Data“ means, for each User, personally identifiable information to include but not be limited to first name, last name, email address, and Edmodo username or other unique identifier(s) maintained by Edmodo if they may be linked to an individual.
- License Scope. Subject to the terms, conditions, and all exhibits of this Agreement, Edmodo grants Customer, during the Term and within the Territory, a non-exclusive, limited and non-sublicenseable license to access and use the Product via SaaS (software-as-a-service) delivery.
3. EDMODO OBLIGATIONS
- Initial Account Creation. Promptly following receipt of the Personal Data from User, Edmodo shall create an individual Edmodo account for each individual User based upon the data provided by Customer. For purposes of privacy and data protection, the Personal Data shall be provided by the Customer or, if applicable, directly to Edmodo. Any Personal Data shall be provided by Customer solely as permissible under applicable laws.
- Administrator Accounts. Where applicable, Edmodo may provide Customer with Edmodo For Enterprises’ Administrator Accounts that Customer can use to access certain features within the Service, review analytics and perform other administrative functions.
- Support To User Administrators. Edmodo shall provide email support in the English language, directly to Customer for whom Customer has provided with Administrator Accounts (“Customer Administrators”). Edmodo shall respond to inquiries initiated by any Customer Administrator within commercial reasonable times, generally about two (2) Working Days, after receiving an inquiry. Edmodo reserves the right to decide whether to enter into arrangement with either an Affiliate or a third party with support capabilities within, or in reasonably close proximity to, the Territory to provide primary or initial-level support services to the Customer.
- Support to Users. Edmodo shall provide support directly to Users that have Edmodo accounts created under this Agreement. Edmodo shall respond to inquiries initiated by Users within two (2) Working Days of receiving an inquiry where commercially reasonable. Edmodo reserves the right to contract with either an Affiliate or a third party with support capabilities within, or in reasonably close proximity to, the Territory to provide primary or initial-level support services to Users.
- Case Study. Edmodo may, at its option, with the reasonable assistance of Customer and Customer’s Users, create and publish a case study on Customer’s deployment of the Product and the benefits of using the Product. The case study may include statements from appropriate Customer Users, to include but not be limited to Users with Administrator Accounts, about how the Service is being used and the benefits the Service is providing. Edmodo shall have final editorial discretion concerning the content and design of the case study. Edmodo shall be responsible for the publication and distribution of the case study as well as any third-party costs or expenses incurred in the publication or distribution of the case study.
- Professional Services. Edmodo may at its option offer to Customer at then prevailing reasonable rates, professional services connected with Customer’s use of the Product and/or Services. Such Professional Services shall be under the auspices of this Agreement, subject to same limitations, carry such same privileges and rights, and others as presented in writing by Edmodo.
4. DISCLOSURES TO CUSTOMER
- Product Content. Customer acknowledges that Edmodo is not be liable for any acts or omissions of Customer or its Users, or content in User posts within the Product. Edmodo reserves the right, but is not obligated, to post or not post, and to remove content and/or an User’s access to the Product where content is of an obscene or pornographic nature that denigrates the Product experience by other Users, or is in violation with the law.
- Updates to Agreement. Edmodo reserves the right to modify the Agreement from time to time, by posting changes at go.edmodo.com/terms-of-service or other such reasonable means. Changes shall be effective as of posting; provided however, that those changes that Edmodo in its sole discretion deem material shall be effective to Customer upon the earlier of: (1) the agreement of the Account administrative staff; or (2) thirty (30) days after notice to the existing User from an @edmodo.com email address to the contact email address on file with Edmodo or via other means including, but not limited to, a pop-up or banner, message, or other conspicuous notice on the Service. Continuous use of the Product, the payment of any outstanding invoices, or modification of the terms of any existing license shall be deemed as affirmative acceptance of the Agreement and any changes. Customer agrees to check its email spam folders to ensure receipt of communications from Edmodo. If Customer does not accept any changes to the Agreement, Customer’s sole and exclusive remedy is to cancel its account and discontinue use of the Product.
- Fees. In consideration for use of the Product during the Term, Customer shall pay Edmodo Fees as set forth according to Edmodo invoices. All fees shall be paid to Edmodo in United States Dollars (“USD$”).
- Net 30. Each invoice shall be due and payable by Customer within thirty (30) days of receipt of such invoice. Dealer shall pay all invoices without setoff, counterclaim or other deduction.
- Taxes and Reporting. All amounts payable by Customer to Edmodo under this Agreement are exclusive of any tax (including, but not limited to, income tax, sales tax and value-added tax), levy, or similar governmental charge that may be assessed. Edmodo shall be solely responsible for all applicable taxes and reporting to relevant governments or tax authorities.
6. DATA PRIVACY
- Permitted Use. Customer grants to Edmodo the right to use the Customer Data to the extent necessary for Edmodo to fulfill its obligations under this Agreement.
- User Data Terms. Edmodo’s terms on User Data are set forth in Exhibit B
- Sub-contractors. Customer shall ensure that its Agents, if applicable in the handling of Customer’s User Data, act in accordance with the Exhibit B terms.
7. TERM AND TERMINATION
- Termination by Customer. Customer may terminate use of the Product at any time by written notice via email to firstname.lastname@example.org. Terminations will be effective within approximately seven (7) business days of receipt of termination notice, at which time all Edmodo accounts associated with Customer shall be closed and no longer accessible. Customer is responsible for paying Edmodo Fees accrued up to and including the date of termination.
- Termination by Edmodo. Edmodo reserves the right to immediately terminate this Agreement upon written notice to Customer, such termination to be automatic and without need for any further notification or recourse to court.
8. EDMODO’S WARRANTIES AND REPRESENTATIONS. Edmodo warrants that:
- Edmodo has all rights, licenses, and authorizations necessary to perform its obligations under
- Edmodo is responsible for obtaining the consent of each User in the Territory as required by
applicable law prior to use of its Product;
- Edmodo’s use of User Data is solely as contemplated by this Agreement and will not violate any law or infringe the rights of any third party, including but not limited to any intellectual property rights or privacy rights;
- The Product is provided “AS IS” and only to the extent that licensing is granted. Edmodo makes no representations or warranties, express or implied, regarding the accuracy of the Product. Edmodo reserves the right to delete or change Product features, versions or content. No warranty is made that the Product is error-free or that its functioning will be uninterrupted
- All other information that Edmodo provides to Customer is truthful, complete and accurate.
9. CUSTOMER’S WARRANTIES AND REPRESENTATIONS. Customer warrants that:
- Customer shall comply with all applicable laws;
- Customer has not entered into and agrees not to enter into, any agreement, either written or oral, that precludes Customer’s ability to fulfill its obligations arising under this Agreement; and
- all other information that Customer provides to Edmodo is truthful, complete and accurate.
- Each party may disclose publicly that it has a business relationship with the other party. Edmodo reserves the right to contact Users for promotions or marketing as long as they are in compliance with applicable privacy and other laws and regulations. Prior written approval from Edmodo is needed before Customer uses Edmodo marks, logos, and website URLs, so that Edmodo may assist and advise on marketing style, presentation, or other aspects. Customer grants Edmodo a royalty-free right and license to use Customer marks, logos, and website URLs but reserves the right to have Edmodo withdraw their use at any time.
11. CONFIDENTIAL INFORMATION AND INTELLECTUAL PROPERTY RIGHTS
- Non-Disclosure of Confidential Information. All information furnished or disclosed by either Edmodo or Customer (“Disclosing Party”) to the other (“Receiving Party”) which is (i) marked with a restrictive notice or otherwise designated in writing as proprietary, (ii) stated to be proprietary at the time of disclosure or (iii) would logically be considered confidential by virtue of its relation to the subject matter of this Agreement (collectively, “Confidential Information”) shall be deemed the property of the Disclosing Party and shall be returned (along with all copies and other reproductions thereof) to the Disclosing Party promptly upon request. All information provided to either party to the other that relates to the Disclosing Party’s products, services, business plans, results, forecasts or strategies shall be considered Confidential Information, whether or not marked as provided above. Unless such Confidential Information: (i) was previously known to the Receiving Party free of any obligation to keep it confidential, (ii) has been or is subsequently made public by the Disclosing Party or a third party under no obligation of confidentiality, (iii) is independently developed by the Receiving Party, or (iv) is required to be disclosed to comply with the requirements of law, legal process (including deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process) or valid order of a court competent jurisdiction or regulatory agency, then the Receiving Party shall use the same degree of care, but no less than a reasonable standard of care, as it uses with regard to its own proprietary information to prevent disclosure, use or publication thereof. Confidential Information may be used by a Receiving Party solely for performance of its obligations under this Agreement and may be used for other purposes only upon such terms and conditions as may be agreed upon by the Disclosing Party in writing.
- Ownership of Intellectual Property. The Product, including derivative works, shall remain the sole and exclusive property of Edmodo. In no way shall any license be deemed a transfer of ownership, or to mean that use or access is allowed for an indefinite term. Edmodoowns and shall continue to own all title, patents, patent rights, copyrights, mask work rights, trade secret rights, and other intellectual property and rights (collectively, “Rights”) in connection with the Product, anywhere in the world.
- Authorized Users. Customer may allow only Users access to and use of the Product. Customer shall not provide access to the Product to anyone beyond the number of seats it has paid for, set forth on the applicable Edmodo invoice (Exhibit A). Customer is liable for any unauthorized sharing or misuse by Users of the licenses granted herein. Customer will promptly notify Edmodo, in writing, if any of its Users’ login information is compromised.
- Registration. Each User must create a username and password for access to and use of the Product under Customer’s account and provide Edmodo with the information required in setup, if applicable.
- Prohibited Uses. Customer shall not copy, infringe intellectual property rights, or create products resembling the Product for re-sale or commercial use. Customer shall not install trojan horses or viruses in the Product, spam or harass via the Product, or use the Product illegally.
- Edmodo shall indemnify and hold harmless Customer and its officers, directors, employees, Affiliates, and Agents (collectively, the “Customer Parties”) any and all losses, suits, claims, actions, judgments, fines, damages, and liabilities (including costs and expenses) (“Claims”) relating to or arising from: (i) Edmodo’s (or its Agents’) breach of any of its obligations under this Agreement; (ii) Edmodo’s negligence or other wrongful conduct; and (iii) Edmodo’s breach of any representation, warranty or obligation herein, or any actual or threatened violation of any law, rule or regulation (including without limitation relating to data privacy).
- Customer shall defend, indemnify and hold harmless Edmodo and its officers, directors, employees, Affiliates, and Agents (collectively, the “Edmodo Parties”) any and all Claims relating to or arising from: (i) Customer’s (or its Agents’) breach of any of its obligations under this Agreement; (ii) Customer’s negligence or other wrongful conduct; and (iii) Customer’s breach of any representation, warranty or obligation herein, or any actual or threatened violation of any law, rule or regulation (including without limitation relating to data privacy).
- If either party (an “Indemnitee”) receives notice of a Claim subject to indemnification by the other party (an “Indemnifying Party”) under this Section, then the Indemnitee shall notify the Indemnifying Party of the same, promptly and in writing, but no later than five (5) business days after receipt of such Claim. If the Indemnifying Party elects to control the defense of any Claim for which the Indemnifying Party has or may have an indemnity obligation, the Indemnifying Party shall have the sole control over the defense and settlement of such Claim, and may retain legal counsel of its choosing. If an Indemnitee elects to retain its own separate legal counsel
in connection with the Indemnifying Party’s defense of such Claim, the Indemnitee may do so on a monitoring, non-controlling basis and solely at its own expense. The Indemnitee will cooperate with and reasonably assist the Indemnifying Party and its legal counsel, at the Indemnifying Party’s reasonable expense if the action taken was at its or its legal counsel’s written request or direction, in the investigation, defense, settlement or other resolution of the Claim; provided that the Indemnifying Party may not settle or compromise such Claim or agree to an entry of judgment without the Indemnitee’s prior written consent. If an Indemnitee is in control of the defense of any Claim, it may not settle or compromise such Claim, or agree to an entry of judgment in respect thereto, without the prior written consent of the Indemnifying Party.
13. LIMITATION OF LIABILITY
- EXCEPT FOR LIABILITIES ARISING OUT OF THIS SECTION, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY PUNITIVE, EXEMPLARY, LOST PROFITS, SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE, WHETHER BASED IN CONTRACT, TORT OR OTHERWISE THAT MAY ARISE IN CONNECTION WITH THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED ON THE POSSIBILITY OF SUCH DAMAGES. EACH PARTY’S MAXIMUM LIABILITY FOR DAMAGES TO THE OTHER AND EACH PARTY’S MAXIMUM REMEDY, SHALL BE: (1) WITH RESPECT TO CLAIMS RELATING TO SECTION 6 OR 11, LIMITED TO DIRECT DAMAGES ACTUALLY PROVEN AND (2) FOR ALL OTHER CLAIMS, LIMITED TO THE AGGREGATE VALUE OF THE FEES CUSTOMER HAS PAID EDMODO DURING THE TERM. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY LOST DATA, LOST REVENUES, OR BUSINESS INTERRUPTION.
14. MISCELLANEOUS PROVISIONS
- Choice of Law; Venue. Any dispute in the meaning, effect, or validity of this Agreement shall be resolved in accordance with the laws of the State of California without regard to the conflict of laws provisions thereof. Any lawsuit concerning the subject matter of this Agreement shall be brought in the state and federal courts located in San Mateo County, California and Santa Clara County, California, respectively.
- Severability. Customer further agrees that if one or more provisions of this Agreement are held to be unenforceable under applicable California law, such provision(s) shall be severed from this Agreement, and the balance of the Agreement shall be interpreted as if such provisions were so excluded, and the Agreement shall remain enforceable in accordance with its terms.
- Non-assignment. Edmodo reserves the right to assign, sub-contract, outsource, license, or transfer its obligations under the Agreement, due to a transaction that results in a change of control of Edmodo, as long as the provision of the Product to the Customer remains the same during the Term.
- Survival. The following Sections will survive termination of this Agreement: 5, 6.4, 7-13, 14.4, as well as any accrued or any ongoing payment obligations and any provision that provides for survival or effectiveness posttermination.
- Force Majeure. An event of Force Majeure means any event or circumstance beyond a party’s reasonable control, including but not limited to acts of God, fire, explosion, terrorist or other criminal acts, or pandemics, where a party is thereby prevented from performing the whole or a substantial part of its obligations under this Agreement, for a period of sixty (60) calendar days or more. In such an instance, either party, acting unilaterally, shall have the right to terminate this Agreement by giving to the other party at least five (5) Business Days’ notice of termination in writing.
- Entire Understanding. This Agreement constitutes the entire agreement of the parties with respect to the subject matter hereof and supersedes all prior agreements and understandings, both oral and written, between Edmodo and Customer with respect to the subject matter hereof. Neither this Agreement nor any of the terms hereof may be amended, supplemented, waived or modified except by an instrument in writing signed by both parties.
- Notices. All notices required or given herewith shall be in writing or via email and sent to Edmodo or Customer at the designated addresses below unless otherwise updated by written notice via registered mail, special delivery, or by email.
- As set forth on Edmodo invoices.
- Execution. This Agreement may be executed in counterparts, all of which shall be considered one and the same agreement, and shall become effective when one or more counterparts have been signed by each party and delivered to the other party. Delivery of a counterpart by facsimile or via email in a .pdf (or similar) format shall be as effective as physical delivery of an original signed counterpart.
Edmodo Terms on User Data
Customer agrees to the following terms:
- Customer shall securely provide, directly to Edmodo, one or more secure CSV files containing the User Data necessary for Edmodo to set up a Product account for each User. Personal Data shall be provided to Edmodo for the limited purpose of enabling Edmodo to create individual User accounts within the Product and to enable use, as quickly as possible, of the service by User within the Territory.
- Customer understands that the User Data provided to Edmodo shall be stored on Edmodo server(s) located within a secure Amazon Web Services data centers. The User Data of Customers located in the U.S. shall be stored on Edmodo server(s) within AWS data center(s) in the U.S.
- Customer acknowledges that its transfer of the User Data to Edmodo solely in furtherance of Users’ access to and use of the Product shall not violate any laws of the Territory, including those that govern the processing, use, data protection, transfer, collection, use, sharing or other processing of such User Data in the Territory.
- Customer represents and warrants that it has the authority to authorize Edmodo, and Edmodo Affiliates if applicable, to receive, process, load, and use the User Data for the limited purposes of creating, supporting and servicing User accounts.
- Customer shall provide reasonable assistance to Edmodo, if required, to ensure that the processing of User Data is in compliance with applicable laws and regulations in the Territory.
- Customer shall publicly designate Edmodo as a Customer-approved education solution for teachers and students.
- Customer agrees to fully cooperate with Edmodo’s efforts to promptly investigate, mitigate, and notify third parties of any actual or suspected breaches or incidents of User Data.