Revised: September 09, 2020
Edmodo, Inc. (“Edmodo”)
777 Mariners Island Blvd., Suite 510
San Mateo, CA 94404, United States of America,
By using the Service, you:
- agree to be bound by the Terms,
- represent that you are over the age of thirteen (13) and able to form legally binding contracts,
- agree and acknowledge that by using the Service you are accepting a benefit that cannot be disgorged,
- acknowledge that the service is subject to U.S. export controls and agree that you will comply with U.S. export controls,
- represent that you are neither located in a sanctioned country nor a prohibited person.
Dispute Resolution; Waiver of Jury Trial, Class Action
BE ADVISED! THESE TERMS PROVIDE THAT, IF YOU AND EDMODO ARE UNABLE TO RESOLVE DISPUTES INFORMALLY, THEN ANY DISPUTES WILL BE RESOLVED BY BINDING ARBITRATION, USING NEUTRAL ARBITRATOR(S) INSTEAD OF JUDGE OR JURY. YOU AND EDMODO ALSO AGREE THAT ANY CLAIMS OR DISPUTES CANNOT BE BROUGHT AS A CLASS ACTION. IF YOU DO NOT ACCEPT THE ARBITRATION PROVISION BELOW, YOU MAY NOT USE THE SITE.
In these Terms, unless specifically defined otherwise, the following capitalized words and terms shall have the meanings assigned to them in this Section 1:
“Agent” means that as set forth in Section 10.1, 11.3 and 14.1 of this Agreement.
“Breach” means that as set forth in Section 10.1 of this Agreement.
“Confidential Information” means all data and information disclosed by either Party hereto (the “Disclosing Party”) whether in written form, or obtained or received by the other Party (the “Receiving Party”) through observation or examination of such information and material or disclosed orally, that is of value to the Disclosing Party, is not generally known to competitors of the Disclosing Party, and is disclosed in a manner in which the Disclosing Party reasonably communicated, or the Receiving Party should reasonably have understood under the circumstances, that the disclosure should be treated as confidential whether or not the specific designation “confidential” or any similar designation is used. Confidential Information includes, but is not limited to, the terms of this Agreement and all information in connection with this or related subsequent agreement and includes but is not limited to: pricing, designs, software, programs, drawings, specifications, techniques, models, data, source code, object code, documentation, diagrams, flow charts, research, development, processes, procedures, ideas, data, “know-how”; new products or new technology information, marketing techniques and materials; and information, whether or not reduced to writing or other tangible form, and any other trade secrets or non-public business information.
“Product” means the cloud-based Product offered by Edmodo as described on Edmodo’s website (https://go.edmodo.com/schools/) as of the Effective Date.
“Edmodo,” “We,” “Us, and “Our,” refer to Edmodo.
“Edmodo Personal Data Processing Required Terms” means the certain terms described in Exhibit A attached hereto that Customer is required to accept and agree upon in order to purchase a subscription to the Service. The Edmodo Personal Data Processing Required Terms may be amended from time to time by Edmodo as Edmodo determines to be necessary based upon requirements of applicable law.
“Intellectual Property Rights” or “IPRs” means any and all rights protected under the patent, copyright, mask work rights, trade secret, trademark or other intellectual property laws, including without limitation, moral rights laws of any state or national government or under any international treaty.
“Personal Data Used By Edmodo” means, for each User, such user’s personally identifiable information to include but not be limited to first name, last name and email address. Personal Data may also include other information that may be considered as personally identifiable information to include but not be limited to information such as an Edmodo username or other unique identifier(s) maintained by Edmodo.
“Service” means the Product provided and maintained by Edmodo.
“User” means any individual that has a personal or individual account (e.g. as a Teacher or Student) within the Service that is authorized to use the Service.
“Working Day” means any day (other than a Saturday or a Sunday) on which the banks are ordinarily open for business in the United States.
“Account,” “Customer,” “You” and “Your” refer to the organization or entity that pays for authorized use of the Edmodo Service.
“Users” are those user types (i.e. Admins, Teachers, Students, Parents) that have access to the Service via Your Account.
2. AUTHORIZATION OF CUSTOMER
- Authorization. Subject to the terms and conditions of this Agreement, Edmodo authorizes and grants to Customer and Customer’s Users, a non-exclusive, non-transferable license to use Edmodo’s Product for the duration of the Term, at all times limited to the quantity of licenses described fully in the invoice accompanying these Terms, except with express prior written approval by Edmodo.
3. OBLIGATIONS OF CUSTOMER
- Non-disparagement. Customer shall perform its obligations under this Agreement during the Term in a manner that preserves and does no harm to the reputation of Edmodo and the Service.
- Customer Staff Training. Customer shall be responsible for appropriate training to its staff to fulfill all Customer obligations under this Agreement. Customer shall supply sufficient personnel to carry out its obligations under this Agreement.
- Edmodo Personal Data Processing Required Terms. As part of any sale of a subscription to the Service, Customer agrees to and accept, in writing, the Edmodo Personal Data Processing Required Terms as written in Exhibit A.
- Compliance with Edmodo IP Policies. Customer shall, at its own cost and expense comply with all commercially reasonable requests regarding the use or display of any Edmodo trademark.
4. LIMITATIONS OF CUSTOMER USE
Customer further agrees to the limitations in this section. If Customer is unable to comply with these limitations, it should not use the Service.
- Customer has full power and authority to enter into and fully perform its obligations under this Agreement and the person signing this Agreement on behalf of Customer has full capacity and authority to sign this Agreement on behalf of Customer.
- The execution of this Agreement does not violate any contract or obligation existing between the Customer and any third party.
- Customer shall immediately notify Edmodo of any circumstances which may lead to any investigation or claim against Customer or Edmodo arising out of or related to any violation of any applicable law.
- No litigation, arbitration, investigation or other proceeding of or before any court, arbitrator, governmental or regulatory official, body or authority is pending, or to the knowledge of Customer, threatened, against Customer which could materially or adversely affect Customer, its operations, or the transactions contemplated by this Agreement. In addition, Customer is not aware of any basis for any litigation, arbitration, investigation or proceeding that could have a material adverse effect upon Customer or its ability to perform its obligations under this Agreement.
- Customer has no public officials within the Territory as officers, employees, or direct or indirect owners as of and at the Effective Date of this Agreement and Customer shall immediately notify Edmodo, in writing, if any public official within the Territory becomes an officer or employee of Customer or acquires a direct or indirect interest in Customer.
- Edmodo reserves the right to modify the Terms 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 we in our sole discretion deem material will be effective as to You, an existing Account, upon the earlier of: (1) the agreement of the Account admin; 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 us 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 Service, paying any outstanding invoices for, or modifying, any existing license will also serve as your affirmative acceptance of the Terms and any changes. You agree to check your email spam folder to ensure receipt of our communications.
- If you do not accept any changes to the Terms, your sole and exclusive remedy is to cancel your account and discontinue using the Site.
5. Edmodo as Venue; Third-Party Content; No privilege
- The Edmodo Product is a venue for informational and educational purposes, owned and operated by Edmodo, that exists solely to facilitate relationships between Customer’s Users on the platform. Edmodo is not in the business of providing or selling information or education. Users of the Site, not Edmodo, provide the content in posts and or links to third-party content not on the platform. Customer and its Users are not employees or
agents of Edmodo but are Users of the Site.
- You understand and acknowledge that Edmodo cannot and does not edit, modify, filter, screen, monitor, endorse or guarantee the content of posted information or content. Edmodo shall not be liable for any acts or omissions of Customer or its Users, content in posts or the ability of any of Customer’s Users to post or respond. Notwithstanding the foregoing, Edmodo reserves the right, but is not obligated, to refuse to post or to remove any content and/or remove any User’s access to the Site which it deems to violate these Terms.
- EMERGENCY QUESTIONS AND CRISIS SITUATIONS (particularly regarding medical or mental health) should not be posted on Edmodo. Customer shall inform its Users to instead direct any emergency content immediately by telephone or in-person to qualified professionals (e.g. in the U.S., call 911).
6. 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.
7. CUSTOMER OWNERSHIP OF DATA
- Subject to Edmodo’s Intellectual Property Rights as described herein, Customer owns and warrants that it has rights to all Personal Data during the Term of this Agreement.
- Permitted Use. Customer grants to Edmodo the right to use the Customer Data to the extent necessary to fulfill its obligations under this Agreement, and where required to by law.
- Reasonable Use for Analytics and Marketing. Customer further grants to Edmodo the same license to use the Customer Data and content for commercially reasonable analytics or marketing purposes, except where prohibited by law, including but not limited to: improving the Product and/or services and use of anonymized, aggregated information to derive insights.
8. PRICING AND PAYMENT
- Pricing and Currency. Customer shall pay Edmodo the per-unit prices and fee terms as quoted in the invoice accompanying these Terms.
- Currency. Unless expressly agreed in writing between the Parties, all fees shall be paid to Edmodo in United States Dollars (“USD$”).
- Payment. Payment is due upon receipt of invoice according to the terms and methods prescribed by the invoice.
9. INTELLECTUAL PROPERTY
- Intellectual Property Rights. Edmodo shall retain exclusive ownership and control of all Edmodo IPRs for Edmodo For Enterprises or any other Edmodo product or service, whether before or after the Effective Date of this Agreement. For the avoidance of doubt, Edmodo owns all right, title and interest in and to the Intellectual Property Rights of the Edmodo service and the Product. Other than the limited license and right granted by Edmodo to the Customer herein, nothing contained herein is intended to grant any rights, either express or implied, to either Party under any patent, copyright, trade secret, or other intellectual property.
- Customer represents and warrants to Edmodo that Customer shall indemnify and hold Edmodo, all Edmodo Affiliated Companies, and their respective Agents harmless from and against any and all claims, liabilities, damages (actual and consequential), losses, and expenses (including attorneys’ fees) arising from or in any way related to any third party claims relating to (a) any transfer of the Personal Data to Edmodo or any Affiliate, (b) Customer’s, and its Agents’, breach of any of the obligations of Customer, or Customer’s warranties and representations contained herein. In the event of such a claim, suit, or action (“Claim”), Edmodo shall provide notice of the Claim to Customer and shall cooperate with the Customer as reasonably requested to resolve the Claim.
11. TERM AND TERMINATION
- Term. Edmodo shall authorize Customer’s use of the Service effective on payment of the invoice accompanying these Terms. Authorization shall last for one (1) year thereafter (the “Term”), unless early terminated as permitted below.
- Termination by Customer. Customers may terminate Service and/or their Account at their sole discretion and at any time by written notice via e-mail to email@example.com. Terminations typically will be effective within seven business days after our receipt of your termination notice, at which time your account will be closed and you will no longer enjoy access to your former account. Any fees accrued as of the effective date of termination will be payable according to the Terms.
- Termination by Edmodo. Notwithstanding the foregoing, and without prejudice to any other rights, in the event Customer or its Agents makes or provides any mis-representation, warranty, or other statement concerning the Service, Edmodo shall be entitled to immediately terminate this Agreement upon written notice to Customer, such termination to be automatic and without the need of any further notification or recourse to court.
12. WARRANTY DISCLAIMER
- Edmodo does not make any representations or warranties concerning any content contained in or accessed through the Service or any Edmodo services. Edmodo shall not be responsible or liable for the accuracy, copyright compliance, legality, or decency of material contained in or accessed through the Service or any Edmodo services. Edmodo makes no representations or warranties regarding suggestions or recommendations of services, content or products that may be offered or purchased through the Service or any other Edmodo services. Content, products and services purchased or offered (whether or not following such recommendations and suggestions) through the Service or any other Edmodo services are provided “AS IS” and without any warranty of any kind from Edmodo. THE EDMODO SERVICE, CONTENT, WEBSITE, AND ANY SOFTWARE ARE PROVIDED ON AN “AS-IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THAT USE OF ANY EDMODO SERVICE SHALL BE UNINTERRUPTED OR ERROR-FREE. Product features may change in the future.
13. LIMITATION OF LIABILITY
- TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE) SHALL EDMODO BE LIABLE TO CUSTOMER OR ANY OTHER PERSON FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING DAMAGES FOR LOST PROFITS, LOSS OF GOODSHALL, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, OR (B) ANY AMOUNT, IN THE AGGREGATE, IN EXCESS OF $1,000.
14. MISCELLANEOUS PROVISIONS
- Maintenance of Confidentiality. Each party agrees that it shall take reasonable measures to protect the secrecy of the Confidential Information of the other Party. Without limiting the foregoing, each Party, including its Agents, shall take at least those measures that it takes to protect its own most highly Confidential Information.
- Duration of Confidentiality Obligations. The obligations of each Party with respect to Confidential Information under this Agreement shall become effective as of payment of the invoice accompanying these Terms and shall survive termination.
- Compliance with Laws. Customer shall comply fully with all applicable laws concerning the subject matter of these Terms. If and to the extent that any change or modification to these Terms, the Service, or the services to be provided by Edmodo as described herein are necessary to comply with such laws, regulations, and ordinances, Customer agrees in good faith to try to make the changes or modifications required to comply with applicable laws.
- Assignment. Customer may not, without the previous written consent of Edmodo, assign, sub-contract, outsource, license, or in any way dispose of any of its rights or transfer, or purport to transfer, any of its obligations under these Terms. Edmodo may not, without the previous written consent of the Customer, assign, sub-contract, outsource, license, or in any way dispose of any of its rights or transfer, or purport to transfer, any of its obligations under these Terms except that Edmodo shall be entitled, without Customer’s consent, to assign any rights or obligations pursuant to these Terms as part of any transaction that results in a change of control of Edmodo.
- Waiver. The rights and remedies provided in this Agreement are cumulative and are not exclusive of any rights or remedies provided by law or otherwise. No failure or delay in the exercise by either Party of any right or remedy under this Agreement shall operate as a waiver thereof. No single or partial exercise of any right or remedy under this Agreement shall prevent any further or other exercise thereof or the exercise of any other right or remedy.
- Notice. Unless otherwise specified, all notices shall be in writing, in English and delivered to the applicable Party via email. Notice shall be deemed to have been deemed given when dispatched, subject to confirmation, provided that any notice dispatched by email after 18:00 in the time zone of the recipient on any day shall be deemed to have been received at 09:00 on the next Working Day. Customer shall notify Edmodo promptly of any change of invoicing address or contact information via email and delivered to firstname.lastname@example.org.
- Headings. The headings and section captions are inserted in this Agreement for convenience only and shall not affect the construction or interpretation of this Agreement.
- Governing Law. All aspects of this Agreement shall be governed by and construed in accordance with the laws of the State of California, United States, without regard to the conflict of law provisions thereof.
- Survival. All provisions of this Agreement which must survive in order to give effect to their meaning (including, without limitation, the representations, warranties, indemnities, intellectual property, and confidentiality obligations) shall survive any expiration or earlier termination of this Agreement.
- Force Majeure. For the purposes of this Agreement an Event of Force Majeure means any event or circumstance beyond such 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 5 (five) Working Days’ notice of termination in writing.
- Jurisdiction; Venue. Notwithstanding the dispute resolution provisions herein, Edmodo shall have the right to institute an action in a court of proper jurisdiction for injunctive or other equitable relief. For all purposes of this Agreement, Customer consents to jurisdiction and venue in the federal courts located in Santa Clara County, California, United States.
- Informal Resolution. Prior to initiating mediation or arbitration, Customer must:
- Notify Edmodo, in writing, of the facts of the dispute and all damages claimed. Such a writing must be sent to the email@example.com (“Dispute Notification”);
- Edmodo, acknowledging receipt of the Dispute Notification, has thirty (30) days from receipt to respond.
- Customer then has 15 days to reply to the response.
- Mediation. If the dispute is not resolved informally, either party may make a demand for mediation, with the other party’s consent, by filing a Request for AAA Online Mediation for Claims under $10,000 with the American Arbitration Association (“AAA”). If either party requests mediation and both parties consent to mediation, the costs of mediation will be borne equally by the parties.
- ARBITRATION. ANY DISPUTE NOT RESOLVED INFORMALLY OR THROUGH MEDIATION SHALL BE RESOLVED BY FINAL AND BINDING ARBITRATION SO LONG AS SUCH DISPUTES ARISE IN ANY WAY OUT OF THESE TERMS, ANY TRANSACTION WITH EDMODO, OR CUSTOMER’S OR ITS USERS’ USE OF THE SERVICE.
- YOU ACKNOWLEDGE THAT, BY AGREEING TO THESE TERMS, THAT THIS DISPUTE RESOLUTION AGREEMENT IS MADE IN THE COURSE OF INTERSTATE COMMERCE; AND THAT THE FEDERAL ARBITRATION ACT, 9 U.S.C. §1 ET. SEQ. (THE “FAA”) AND NOT STATE LAW GOVERNS THE INTERPRETATION AND ENFORCMENT OF THIS DISPUTE RESOLUTION AGREEMENT, INCLUDING THE ARBITRABILITY OF DISPUTES, WHICH SHALL BE DECIDED BY THE ARBITRATOR. THIS CHOICE OF LAW PROVISION APPLIES ONLY TO THIS DISPUTE RESOLUTION AGREEMENT, AND NOT TO THE REST OF THIS AGREEMENT OR TERMS.
- YOU FURTHER ACKNOWLEDGE THAT YOU AND EDMODO ARE, SUBJECT TO THE RESTRICTIONS IN THESE TERMS, EACH WAIVING THE RIGHT TO A TRIAL BY JURY REGARDING ANY DISPUTE. IT IS IMPORTANT THAT YOU UNDERSTAND THAT THE ARBITRATOR’S DECISION WILL BE BINDING AND MAY BE ENTERED AS A JUDGMENT IN ANY COURT OF COMPETENT JURISDICTION.
- Arbitration Procedures: Any dispute not settled informally or with Mediation as above, shall then be finally settled by arbitration in San Mateo County, California, United States, using the English language in accordance with the Streamlined Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, Inc. (“JAMS”) then in effect, by one commercial arbitrator of Edmodo’s selection with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with the Streamlined Arbitration Rules and Procedures of JAMS. Judgment upon the award so rendered may be entered in a court having jurisdiction, or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be.
- CLASS ACTION WAIVER. YOU AND EDMODO EXPRESSLY AGREE THAT:
- ANY ARBITRATION PROCEEDING WILL TAKE PLACE ON AN INDIVIDUAL BASIS;
- YOU EXPRESSLY WAIVE YOUR ABILITY TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, MASS, COLLECTIVE, PRIVATE ATTORNEY GENERAL OR OTHER REPRESENTATIVE PROCEEDING;
- THERE SHALL BE NO CLASS CLAIMS, CONSOLIDATION, OR JOINDER ALLOWED IN ANY ARBITRATION BETWEEN THE PARTIES; (iv) IF THIS ARBITRATION AGREEMENT IS FOUND INAPPLICABLE TO YOUR DISPUTE WITH EDMODO, THIS CLASS ACTION WAIVER WILL CONTINUE TO APPLY IN LITIGATION; AND (v) YOU AGREE THAT THIS CLASS ACTION WAIVER IS AN ESSENTIAL ELEMENT OF OUR CONTRACT AND THESE TERMS AND THAT IT MAY NOT BE SEVERED. THE ARBITRATOR SHALL NOT CONSOLIDATE CLAIMS OF DIFFERENT USERS INTO ONE PROCEEDING, NOR SHALL THE ARBITRATOR HAVE THE POWER TO HEAR ARBITRATION AS A CLASS ACTION, COLLECTIVE ACTION, OR REPRESENTATIVE ACTION. SIMILARLY, ANY CLAIMS COVERED BY THIS DISPUTE RESOLUTION AGREEMENT THAT EDMODO MAY HAVE AGAINST USER MAY NOT BE BROUGHT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION OR REPRESENTATIVE ACTION PROCEEDING.
- Governing Language. This Agreement is written in English, and the English language shall prevail for the purposes of any interpretation of this Agreement.