Terms of Service
Effective Date: November 8, 2019
Before we get into the nitty gritty, we need you to understand a few IMPORTANT facts:
- THE SERVICE, LOCATED AT STUDY.EDMODO.COM, IS A NON-SCHOOL BASED SERVICE AND IS NOT PART OF THE EDMODO SCHOOL BASED SERVICE LOCATED AT WWW.EDMODO.COM.
- THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION AND CLASS ACTION WAIVER. IT AFFECTS YOUR LEGAL RIGHTS AS DETAILED IN THE ARBITRATION AND CLASS ACTION WAIVER SECTION BELOW. PLEASE READ CAREFULLY.
- If you are not of legal age to form a binding contract (in many places, this is 18 years old), then you must get your parent or guardian to read these terms and agree to them for you, before you use the Service or provide any information to us. Please review this agreement with your parent or guardian so that you both understand how the Service works and what restrictions apply to your use of our websites and service. Remember, always get an adult’s permission before going online.
Now back to the details! Thanks for using the Edmodo tutoring service! We’re glad you’re here, but there are some rules you need to agree to before you use the tutoring service (the “Service”), which includes various tutoring services made available by third parties and facilitated by Edmodo Inc. on the study.edmodo.com website and in applications made available by Edmodo Inc. through various app stores. If you have any questions, comments, or concerns regarding these Terms of Service or the Service, please contact us at firstname.lastname@example.org or 777 Mariners Island Blvd, Suite 510, San Mateo, CA 94404. The Tutoring Terms of Service include:
- Subscription terms and conditions; and
- Warranties, limited liability, arbitration and miscellaneous terms.
This is a contract, right?
Yep – you’ve done your homework! These Terms of Service (the “Terms”) are a binding contract between you and Edmodo, Inc. (“Edmodo” and sometimes, when we’re feeling especially friendly, “we,” “our,” and “us”). You must agree and accept all of the Terms, or you don’t have the right to use the Service. Using the Service in any way means that you, or, if you are not of legal age to form a binding contract, your parents, agree to all of these Terms, and these Terms will remain in effect while you use the Service.
What are the basics of using the Service?
The Service connects tutors (“Tutors”) with students (“Students”) seeking various tutoring services such as homework help, office hours and other services related thereto, which may be carried out by Student to Tutor chats, via video conferencing, or other means of communications made available through the Service. The Service facilitates this connection, but Edmodo does not provide the tutoring services and is not a contracting agent or representative of any Tutor or Student. Instead, Tutors are independent contractors and are not employees or agents of Edmodo.
Our Service may change, so these Terms might need to change, too. If they do, we will do our best to tell you in advance by placing a notification on here or we might send you an email. In certain situations (for example, where a change to the Terms is necessary to comply with legal requirements), we may not be able to give you advance notice.
If you do not agree to our updated Terms, you are free to reject them – unfortunately, that means you won’t be able to use the Service anymore. Except as explicitly provided in the Arbitration and Class Waiver section below, if you use the Service in any way after a change to the Terms is effective, then please remember that means you agree to all of the Terms.
Except for changes by us as described herein, no other amendment or modification of these Terms will be effective unless the changes are in writing and signed by both you and us.
Do you care about my privacy?
Eligibility to Use the Service
The Service is not intended for users under the age of 13. You are not permitted to use the Service or submit content on the Service if you are under the age of 13. You represent and warrant that you are of legal age to form a binding contract or if not, you’ve received your parent’s or guardian’s permission to use the Service and your parent or guardian has agreed to these Terms on your behalf, as we described earlier.
To participate as a Tutor on the Service and to be eligible to receive payment for providing tutoring through the Service, you must be 18 years of age or older, register as required, and undergo and pass all vetting, application processes, verification and background check protocols conducted by Edmodo or its partners such as Got It, Inc. (“Got It”) or other third party vendors from time to time.
To use the Service, first, you have to sign up for an account, and select a password and username (“Tutoring User ID”). You will need to associate a valid payment card (e.g., credit card, etc.) as described in more detail below with your account to pay for any tutoring services.
You promise to provide us with accurate, complete, and updated registration information about yourself. You can’t select for your Tutoring User ID a name that you don’t have the rights to use or another person’s name with the intent to impersonate that person. You may not transfer your account to anyone else without our prior written permission.
Use of the Service
You promise to only use the Service for your personal, internal, non-commercial (with the exception of Tutors providing tutoring services), educational use, and only in a manner that complies with all laws that apply to you. If your use of the Service is prohibited by applicable laws, then you aren’t authorized to use the Service. We can’t and won’t be responsible for you using the Service in a way that breaks the law.
You shall not use the Service to inquire about, engage in or aid or assist anyone with any form of academic dishonesty for example, completing assignments, writing papers, taking (or help take) examinations on someone’s behalf, or completing work in violation of academic policies or other conduct policies of a school, or workplace.
By registering and/or participating as a Tutor, you represent and warrant that you (i) have requisite knowledge in the subjects in which you choose to provide tutoring; (ii) will utilize tutoring time solely to provide tutoring services; and (iii) will not provide tutoring services to persons younger than 13. You further understand that you have no obligation to provide any tutoring services and you may choose to provide tutoring services in your sole discretion. When you offer to provide tutoring services, you are acting solely for yourself. You agree not to do anything to create a false impression that you are endorsed by, partnering with, or acting on behalf of or for the benefit of Edmodo, including by inappropriately using any Edmodo intellectual property.
As permitted by applicable laws, Edmodo may, but does not have the obligation to, obtain reports regarding Tutors, which may include history of criminal convictions or sex offender registration, and we may limit, block, suspend, deactivate, or cancel a Tutor’s account based on the results of such a check. As a Tutor, you agree and authorize us to use your personal information, such as your full name, date of birth and other necessary personal information to obtain such reports from Edmodo’s vendors.
Students understand that Edmodo’s third-party partners, such as Got It, determine whether certain Tutors (e.g., those providing “homework help”) may use the Service. Any such determinations are solely the responsibility of such third-party partner and not Edmodo.
To request tutoring services, you must have at least one valid payment method stored on file in your account. You shall be charged fees for tutoring services as set forth in the Subscription Terms and Conditions section below.
If a Tutor discloses personal information to you (other than the limited information contained in a Tutor’s profile), asks you for any personal information, or suggests any offline meeting or conversation, you agree to immediately report this to us by phone at (650) 513-2735 and/or in writing at email@example.com.
Interactions Among Users
In addition to the requirements set forth throughout these Terms and in the Acceptable Use Policy, Tutors and Students acknowledge and agree to the following:
- You will not share personal information (e.g., full name, address, telephone number, email address, social security number, password or any other information that could be used to identify or locate you) with your Tutor or with regard to Tutors with Students, as applicable, except to the extent made available within the Service through profile information.
- You may not use the Service to contact a Student or Tutor outside of the Service or to meet in person.
- As a Student, you may not receive tutoring from Tutors outside of the Service. Likewise, as a Tutor, you may not provide tutoring to Students outside of the Service.
To the fullest extent permitted by applicable law, Edmodo has no responsibility for any damage or harm resulting from your interactions, or those of anyone else, with Tutors or Students.
Recording Tutoring Services
Edmodo may record tutoring services. You hereby grant to Edmodo an irrevocable, worldwide, royalty-free, exclusive license to use any such recorded tutoring services for all business purposes, including marketing purposes, and you hereby grant Edmodo permission to use your voice, image, name, and likeness to the extent that the same are encompassed or embodied within such recorded live lessons.
Your use of the Service is subject to our Acceptable Use Policy, which outlines what you can and can’t do with and on the Service. Read the Tutoring Acceptable Use Policy carefully, and please be a good digital citizen at all times – we are all in this together! A violation of the Acceptable Use Policy will be grounds for termination of your right to use or access the Service.
What’s this intellectual property stuff I’ve been hearing about?
Some tutoring services offered may allow the Tutor or the Students to upload content or post a user submission as defined below in obtaining or providing the tutoring services.
The materials displayed or performed on the Service (including, but not limited to, text, graphics, articles, photos, images, illustrations, User Submissions (defined below), and so forth) (the “Content”) are protected by copyright and other intellectual property laws. You promise to abide by all copyright notices, trademark rules, information, and restrictions contained in any Content you access through the Services, and you won’t use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, re-upload, display, license, sell or otherwise exploit for any purpose any Content not owned by you (i) without the prior consent of the owner of that Content or (ii) in a way that violates someone else’s (including Edmodo’s) rights. For example, if someone shares a really helpful worksheet with you on the Service, that doesn’t mean you can print it out and start distributing it to other people – unless the owner specifically told you in writing that you could. The Service may allow you to copy or download certain Content; please remember that just because this functionality exists, doesn’t mean that all the restrictions above don’t apply.
- User Submissions
- For all User Submissions, you hereby grant Edmodo a license to translate, modify (for technical purposes, for example making sure your content is viewable on mobile device as well as your computer) and reproduce such User Submission, in each case to enable us to operate the Service, as described in more detail below. This is a license only – your ownership in User Submissions is not affected.
- If you store a User Submission in your own personal Tutoring account, in a manner that is not viewable by any other user except you (a “Personal User Submission”), you grant Edmodo the license above, as well as a license to display, perform, and distribute your Personal User Submission for the sole purpose of displaying that Personal User Submission to you and providing you the Service necessary to do so.
- If you share a User Submission with another Service user (for example, a tutoring question) , then you grant Edmodo the license above, as well as a license to display, perform, and distribute your User Submission to such user(s) and providing you the Services necessary to do so. You grant such other user a license to access that User Submission, and to use and exercise all rights in it, as permitted by the functionality of the Services.
- You also grant Edmodo the licenses above, as well as the license for Edmodo to use your User Submissions to improve the Service, develop new services, and to use deidentified User Submissions for all legal purposes.
As described further herein, you understand that while Edmodo imposes restrictions on all users, Edmodo cannot control how other users (e.g. Tutors or Students on the Service) with access to your User Submissions use or share your User Submission, and Edmodo disclaims all liability for the conduct of users.
You agree that the licenses you grant are royalty-free, irrevocable, and worldwide, for as long as your User Submissions are stored with us. When you delete your Tutoring account, we will stop displaying your User Submissions to other users (if applicable), but you understand and agree that it may not be possible to completely delete certain content from Edmodo’s records, and that your User Submissions may remain viewable elsewhere to the extent that they were copied or stored by other users.
Finally, you understand and agree that Edmodo, in performing the required technical steps to provide the Service to our users (including you), and may need to make changes to your User Submissions to conform and adapt those User Submissions to the technical requirements of connection networks, devices, services, or media.
Edmodo does not endorse any User Submissions as defined below, or any opinion, recommendation, or advice expressed therein, and Edmodo expressly disclaims any and all liability in connection with User Submissions.
- The Service
You understand that Edmodo owns the Service. You won’t modify, publish, transmit, participate in the transfer or sale of, reproduce (except as expressly provided in this Section), creative derivative works based on, or otherwise exploit any of the Service.
- DMCA Takedown Policy
You may have heard of the Digital Millennium Copyright Act (“DMCA”), as it relates to online service providers like Edmodo removing material that they believe in good faith violates someone’s copyright. Edmodo’s DMCA Takedown Policy is here.
Who is responsible for what I see and do on the Service?
Any information or content publicly posted or privately transmitted through the Service is the sole responsibility of the person from whom such content originated, and you access all such information and content at your own risk, and we aren’t liable for any errors or omissions in that information or content or for any damages or loss you might suffer in connection with it. We cannot control and have no duty to take any action regarding how you may interpret and use the Content or what actions you may take as a result of having been exposed to the Content, and you hereby release us from all liability for you having acquired or not acquired Content through the Service. The Service may contain or direct you to websites containing information you may find offensive or inappropriate; we can’t control that, but please let us know if it happens and we’ll try to remedy the situation. We also can’t guarantee the identity of any users with whom you interact in using the Service and are not responsible for which users gain access to the Service.
You are responsible for all Content you contribute, in any manner, to the Service, and you represent and warrant you have all rights necessary to do so, in the manner in which you contribute it. You will keep all your registration information accurate and current. You are responsible for all your activity in connection with the Service.
Edmodo has no control over and assumes no responsibility for, the content, accuracy, privacy policies, or practices of or opinions expressed in any third-party websites or by any third party that you interact with outside of the Service. In addition, Edmodo will not and cannot monitor, verify, censor or edit the content of any third-party site or service. By using the Service, you release and hold us harmless from any and all liability arising from your use of any third-party website or service that you may engage with outside of the Service.
Your interactions with organizations and/or individuals found on or through the Service, including payment and delivery of goods or services, and any other terms, conditions, warranties, or representations associated with such dealings, are solely between you and such organizations and/or individuals. You should make whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction with any of these third parties. You agree that Edmodo shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings.
If there is a dispute between participants on this Service, or between users and any third party, you agree that Edmodo is under no obligation to become involved. You release Edmodo, its officers, employees, agents, and successors from claims, demands, and damages of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes and/or our Service. If you are a California resident, you shall and hereby do waive California Civil Code Section 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.”
Will Edmodo ever change the Services?
Edmodo offers dynamic learning tools, so the Service will likely change over time. We may change, suspend, or discontinue any part of the Service, or we may introduce new features or impose limits on certain features or restrict access to parts or all of the Service. We’ll try to give you notice when we make a material change to the Service that would adversely affect you, but this isn’t always practical. Similarly, we reserve the right to remove any Content from the Service at any time, for any reason (including, but not limited to, if someone alleges you contributed that Content in violation of these Terms), or without any reason, and without notice.
How will Tutors be Paid?
Tutors who provide tutoring services via Edmodo may be entitled to receive a payment for such services as set forth in the Tutors’ agreement with Got It or the applicable third-party Partner.
Tutors shall be solely responsible for acquiring and maintaining all telecommunications and Internet services and other hardware and software the Tutor may decide to use to provide the tutoring services, including, without limitation, any and all costs, fees, expenses, and taxes of any kind and any damages or loss related to use of any necessary third party service.
What about Taxes?
Under IRS regulations, Edmodo or its partner, Got It, as applicable, must collect an IRS Form W-9 from any Tutors in the United States. Tutors understand and agree that they are solely responsible for determining their own tax reporting requirements. Edmodo does not offer tax advice. Tutors will report to all applicable government agencies as income all compensation (including tutor payments) received by Tutors for services performed in connection with the Service.
What if I want to stop using Edmodo?
Edmodo is also free to terminate (or suspend access to) your use of the Service or your account, for any reason, including your breach of these Terms. Edmodo has the sole right to decide whether you are in violation of any of the restrictions set forth in these Terms.
Account termination may result in destruction of any Content associated with your account, so keep that in mind before you decide to terminate your account. We will try to provide advance notice to you prior to our terminating your account so that you are able to retrieve any important documents you may have stored in your account (to the extent allowed by law and these Terms), but we may not do so if we determine it would be impractical, illegal, or would not be in the interest of someone’s safety or security to do so.
If you have deleted your account by mistake, contact us immediately at firstname.lastname@example.org – we will try to help, but unfortunately, we can’t promise that we can recover or restore anything.
Provisions that, by their nature, should survive termination of these Terms shall survive termination. By way of example, all of the following will survive termination: any obligation you have to pay us or indemnify us, any limitations on our liability, any terms regarding ownership or intellectual property rights, and terms regarding disputes between us.
I use one of the Edmodo apps available via the Apple App Store – should I know anything about that?
These Terms apply to your use of all the Service, including the iPhone and iPad applications available via the Apple, Inc. (“Apple”) App Store (the “Application”), but additional terms also apply to the Application.
II. Subscription Terms and Conditions
Does the Service cost anything?
It does not cost anything to create an account on the Service. However, we offer certain premium products and services for a fee, including tutoring services.
You may order a single tutoring session trial (the “Trial”) or a monthly subscription (a “Subscription”) for the Service. The Trial and the type of Subscriptions available to you are described more fully on the Site. After placing an order, you will receive an e-mail from us acknowledging that we have received your order. Please note that this does not mean that your order has been accepted. All orders are subject to acceptance by us, and we will confirm such acceptance to you by sending you an e-mail that confirms that the Service is available to you per your order (the “Confirmation”). A contract for your order between you and us will only be formed when we send you the Confirmation (any such contract being referred to as a “Confirmed Order” in the rest of these Terms).
The Confirmed Order will relate only to the order of the Service (the Trial or the applicable Subscription) that we have confirmed in the Confirmation. We will not be obliged to supply any of our other products or services to you.
You may upgrade your Subscription upon completed use of your current Subscription sessions. We will charge you the monthly fee for your new Subscription at the time of upgrade to your new Subscription.
RENEWALS AND CANCELLATIONS
The Trial is a one-time purchase and not available for additional purchase. If you order the Trial, you cannot cancel it prior to the end of the Trial. In order to continue using the Service following the expiration of the Trial, you must purchase a Subscription.
You may cancel a Subscription at any time. Upon cancellation of a Subscription, you will have access to any unused tutoring sessions of the then-current monthly period for the Subscription until the end of such then-current monthly period. Following the end of the then-current monthly period of the Subscription, the Subscription will end, and you will not be charged any further Subscription fees. Any cancellation of Subscriptions purchased and sold through our Site shall be governed solely by these Terms. To cancel a Subscription, you must inform us by e-mail at email@example.com with your full name, your login email or phone number, full name of parent (if applicable), and your stated request to cancel your Subscription. This provision does not affect your rights under law.
You are not entitled to any whole or partial refunds for canceling a Subscription. We may issue refunds solely in our discretion. If we issue a refund for any reason, we will issue the refund to you using the same method originally used by you to pay for your purchase of the Subscription.
All Subscriptions will auto-renew for additional monthly periods until canceled by you pursuant to these Terms.
Payment for Services
The price of the Trial and Subscriptions will be quoted on our Site from time to time and are subject to taxes. We reserve the right to change prices at any time. Price changes will not affect then-current monthly periods of a Subscription but will apply to auto-renewals of Subscriptions and to new and upgraded Subscriptions. Acceptable payment methods are set forth on our Site.
If you order the Trial, we will charge you the price of the Trial prior to the beginning of the Trial. If you order a Subscription, we will charge you the monthly price of the Subscription prior to the beginning of your Subscription, and we will charge you the monthly price of the Subscription for each auto-renewal period of the Subscription on the first day of such auto-renewal period. All charges will be through the payment method you select when you order the Service.
Edmodo will first attempt to charge the default payment method set up in your account. In the event that Edmodo is unable to charge that payment method for any reason–including but not limited to exceeding a payment method’s credit limit, payment method cancellation, a payment method being out of date, or payment method details being incorrect—the applicable user agrees that Edmodo may charge any other payment method associated with your account. If account payment details change, the applicable user’s card provider may provide us with updated card details, and you agree we may charge fees to that updated card.
If you do not pay on time or if Edmodo cannot charge a payment method for any reason, we reserve all rights permissible under law to recover payment and all costs and expenses incurred, including reasonable attorneys’ fees, in our pursuit of payment. If any fee is not paid in a timely manner, or we are unable to process your transaction using the payment method provided, we reserve the right to terminate or suspend your account.
You explicitly agree that all communication in relation to delinquent accounts or fees due will be made by electronic mail or by phone. You agree that all notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. You agree that you have the ability to store such electronic communications such that they remain accessible to you in an unchanged form. You agree to keep your contact information, including, but not limited to, email address and phone number current. Such communication may be made by Edmodo or by anyone on its behalf, including but not limited to a third-party collection agent. If you cancel your account at any time, you will not receive any refund. If you have a balance due on any account, you agree that Edmodo may charge such unpaid fees to any payment method or otherwise bill you for such unpaid fees.
III. This contract seems like it needs some more legal-sounding stuff in it.
You’re absolutely right. Don’t space out, this stuff is important:
- Warranty Disclaimer
Edmodo does not make any representations or warranties concerning any content contained in or accessing through the Service, and we will not be responsible or liable for the accuracy, copyright compliance, legality, or decency of material contained in or accessed through the Service. We make no representations or warranties regarding suggestions or recommendations of services or products offered or purchased through the Service. Products and services purchased or offered (whether or not following such recommendations and suggestions) through the Service are provided “AS IS” and without any warranty of any kind from Edmodo or others (unless, with respect to such others only, provided expressly and unambiguously in writing by a designated third party for a specific product). THE 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 THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. (We’re not yelling, we just want to make sure you pay attention!)
- 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 YOU OR TO ANY OTHER PERSON FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, OR (B) ANY AMOUNT, IN THE AGGREGATE, IN EXCESS OF THE GREATER OF (I) $100 OR (II) THE AMOUNTS PAID BY YOU TO EDMODO IN CONNECTION WITH THE SERVICE IN THE TWELVE (12) MONTH PERIOD PRECEDING THIS APPLICABLE CLAIM, OR (III) ANY MATTER BEYOND OUR REASONABLE CONTROL.
SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSIONS MAY NOT APPLY TO YOU. FOR EDMODO TUTORING SERVICES, YOU UNDERSTAND AND AGREE THAT EDMODO IS NOT A PARTY TO ANY AGREEMENTS ENTERED INTO BETWEEN STUDENTS AND TUTORS. TO THE FULLEST EXTENT PERMITTED BY APPLICABE LAW, EDMODO DISCLAIMS ALL LIABILITY RELATED TO TUTORING SERVICES OR THE CONDUCT OF STUDENTS, TUTORS OR OTHER USERS OF EDMODO TUTORING. ANY INTERACTION (VIRTUAL OR OTHERWISE) BETWEEN STUDENTS, TUTORS OR ANY OTHERS AND ANY PURCHASES OF TUTORING SERVICES PROVIDED BY TUTORS ARE DONE AT THE STUDENTS’ AND TUTORS’ SOLE RISK.
THIS LIMITATION OF LIABILITY PROVISION APPLIES FULLY TO RESIDENTS OF NEW JERSEY.
(Again, not yelling!)
You agree to indemnify and hold Edmodo, its affiliates, officers, agents, employees, contractors, and partners harmless for 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 your violation of these Terms. In the event of such a claim, suit, or action (“Claim”), we will provide notice of the Claim to the contact information we have for your account (provided that failure to deliver such notice shall not eliminate or reduce your indemnification obligations hereunder).
- Arbitration and Class Action Waiver
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
You and Edmodo agree that these Terms affect interstate commerce and that the Federal Arbitration Act governs the interpretation and enforcement of these arbitration provisions.
This Section is intended to be interpreted broadly and governs any and all disputes between us, including but not limited to claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory; claims that arose before these Terms or any prior agreement (including, but not limited to, claims related to interactions between users, including Edmodo Tutoring); and claims that may arise after the termination of these Terms. The only disputes excluded from this broad prohibition are the litigation of certain intellectual property and small court claims, as provided below.
By agreeing to these Terms, you agree to resolve any and all disputes with Edmodo as follows:
Initial Dispute Resolution: Except for intellectual property and small claims court claims, the parties agree to use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation with the Edmodo support department, and good faith negotiations shall be a condition to either party initiating a lawsuit or arbitration. You can reach Edmodo’s support department at firstname.lastname@example.org.
Claims shall be resolved before a single arbitrator in accordance with the JAMS Streamlined Arbitration Procedure Rules for claims that do not exceed $250,000 and the JAMS Comprehensive Arbitration Rules and Procedures for claims exceeding $250,000 in effect at the time the arbitration is initiated, excluding any rules or procedures governing or permitting class actions. To start an arbitration with JAMS, you must do the following: (a) write a Demand for Arbitration that includes a description of the claim and the amount of damages you seek to recover (you may find a copy of a Demand for Arbitration at www.jamsadr.com); (b) send three copies of the Demand for Arbitration, plus the appropriate filing fee, to JAMS, 160 W Santa Clara St #1600, San Jose, CA 95113; and (c) send one copy of the Demand for Arbitration to Edmodo at 777 Mariners Island Blvd, Suite 500, San Mateo, CA 94404, ATTN: Legal. You will be required to pay $250 to initiate an arbitration against us. If the arbitrator finds the arbitration to be non-frivolous, Edmodo will pay all other fees invoiced by JAMS, including filing fees and arbitrator and hearing expenses. You are responsible for your own attorneys’ fees unless the arbitration rules and/or applicable law provide otherwise.
The parties understand that, absent this mandatory arbitration provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court.
If you are a resident of the United States, arbitration may take place in the county where you reside at the time of filing. For individuals residing outside the United States, arbitration shall be initiated in the State of California, United States of America. You and Edmodo further agree to submit to the personal jurisdiction of any federal or state court in San Mateo County, California in order to compel arbitration, to stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.
Class Action Waiver: The parties further agree that the arbitration shall be conducted in their individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. YOU AND EDMODO AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provisions set forth above shall be deemed null and void in their entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
Exception: Litigation of Intellectual Property and Small Claims Court Claims: Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may bring enforcement actions, validity determinations or claims arising from or relating to theft, piracy or unauthorized use of intellectual property in state or federal court or in the U.S. Patent and Trademark Office to protect its intellectual property rights (“intellectual property rights” means patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights). Either party may also seek relief in a small claims court for disputes or claims within the scope of that court’s jurisdiction.
30-Day Right to Opt Out: You have the right to opt out and not be bound by the arbitration and class action waiver provisions set forth above by sending (from the email address you use on Edmodo) written notice of your decision to opt out to email@example.com with the subject line, “ARBITRATION AND CLASS ACTION WAIVER OPT-OUT.” The notice must be sent within thirty (30) days of the later of the Effective Date of these Terms or your first use of the Services; otherwise, you shall be bound to arbitrate disputes in accordance with the terms of those paragraphs. If you opt out of these arbitration provisions, Edmodo also will not be bound by them.
Changes to This Section: Edmodo will provide thirty (30) days’ notice of any changes affecting the substance of this Arbitration and Class Action Waiver section by posting on these Terms, or otherwise notifying you. Amendments will become effective thirty (30) days after such notification.
Changes to this section will otherwise apply prospectively only to claims arising after the thirtieth (30th) day. If a court or arbitrator decides that this subsection on “Changes to This Section” is not enforceable or valid, then this subsection shall be severed from the section entitled “Arbitration and Class Action Waiver,” and the court or arbitrator shall apply the first Arbitration and Class Action Waiver section in existence after you began using the Services.
Survival: This Arbitration and Class Action Waiver section shall survive any termination of your account or the Services.
All notices given by you to us must be given to Edmodo, Inc. at 777 Mariners Island Blvd, Suite 510, San Mateo, CA 94404. We may give notice to you at either the e-mail or postal address you provide to us when you placed an order. Notice will be deemed received and properly served immediately when posted on our Site, twenty-four (24) hours after an e-mail is sent, or three (3) days after the date of posting of any letter. In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an e-mail, that such e-mail was sent to the specified e-mail address of the addressee.
The contract between you and us is binding on you and us and on our respective successors and assigns. You may not assign, delegate, or transfer these Terms or your rights or obligations hereunder, or your Services account, in any way (by operation of law or otherwise) without Edmodo’s prior written consent. We may transfer, assign, charge, sub-contract or otherwise dispose of the contract, or any of our rights or obligations arising under it, at any time during the term of the contract.
- Choice of Law; Venue
These Terms are governed by and will be construed under the laws of the State of California, without regard to the conflicts of laws provisions thereof. For all purposes of this Agreement, for disputes not subject to arbitration, the parties consent to exclusive jurisdiction and venue in the United States Federal Courts located in the Northern District of California.
- Events Outside Our Control
We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under a contract between you and us that is caused by events outside our reasonable control (“Force Majeure Event”). A Force Majeure Event includes any act, event, non-happening, omission or accident beyond our reasonable control and includes (without limitation) the acts, decrees, legislation, regulations or restrictions of any government, and failure or interruption of connectivity to the internet.
Our performance under any contract between you and us is deemed to be suspended for the period that the Force Majeure Event continues, and we will have an extension of time for performance for the duration of that period. We will use our reasonable endeavors to bring the Force Majeure Event to a close or to find a solution by which our obligations under the contract may be performed despite the Force Majeure Event. If the Force Majeure Event continues for one (1) month, we may terminate the contract.
You will be responsible for withholding, filing, and reporting all taxes, duties, and other governmental assessments associated with your activity in connection with the Service. The failure of either you or us to exercise, in any way, any right herein shall not be deemed a waiver of any further rights hereunder. Except as explicitly provided in the Arbitration and Class Action Waiver section, if any provision of these Terms is found to be unenforceable or invalid, that provision will be limited or eliminated, to the minimum extent necessary, so that these Terms shall otherwise remain in full force and effect and enforceable. You and Edmodo agree that these Terms are the complete and exclusive statement of the mutual understanding between you and Edmodo, and that it supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of these Terms, and that all modifications to these Terms must be in a writing signed by both parties (except as otherwise provided herein). No agency, partnership, joint venture, or employment is created as a result of these Terms and you do not have any authority of any kind to bind Edmodo in any respect whatsoever. Except as expressly set forth in the Apple Application Terms, you and Edmodo agree there are no third-party beneficiaries intended under these Terms.