PLEASE READ THIS PUBLISHER AGREEMENT ("AGREEMENT") CAREFULLY BEFORE USING THE EDMODO STORE OFFERED BY EDMODO, INC. ("EDMODO," "WE," "US"). THIS AGREEMENT FORMS A LEGALLY BINDING CONTRACT BETWEEN YOU AND EDMODO IN RELATION TO YOUR USE OF THE EDMODO STORE AND ANY FEATURES, CONTENT, OR APPLICATIONS OFFERED FROM TIME TO TIME BY EDMODO IN CONNECTION THEREWITH (COLLECTIVELY, THE "STORE"), TO DISTRIBUTE YOUR SOFTWARE APPLICATIONS AND DIGITAL MATERIALS VIA THE STORE ("PRODUCTS") IN ACCORDANCE WITH THE API (DEFINED BELOW). IN ORDER TO USE THE STORE TO DISTRIBUTE PRODUCTS, YOU MUST FIRST AGREE TO THIS AGREEMENT BY CLICKING "ACCEPT" WHERE THIS OPTION IS MADE AVAILABLE TO YOU. YOU MAY NOT DISTRIBUTE PRODUCTS ON THE STORE IF YOU DO NOT ACCEPT THIS AGREEMENT. EDMODO RESERVES THE RIGHT TO CHANGE THE TERMS OF THIS AGREEMENT AT ANY TIME UPON NOTICE TO YOU; YOUR CONTINUED USE OF THE STORE, API, OR RELATED FEATURES, CONTENT, OR APPLICATIONS FOLLOWING SUCH NOTICE CONSTITUTES YOUR ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT AS MODIFIED. IF YOU ARE ACCEPTING THIS AGREEMENT ON BEHALF OF AN ORGANIZATION OR ENTITY, YOU REPRESENT AND WARRANT YOU HAVE POWER AND AUTHORITY TO BIND SUCH ORGANIZATION OR ENTITY TO THIS AGREEMENT.
All Products are subject to Edmodo's approval; your Product may be rejected or removed from the Store at any time in Edmodo's discretion, including if it fails to meet Edmodo's rigorous standards of educational quality.
You acknowledge and agree that you, not Edmodo, are the merchant of record of your Products, and Edmodo's activities hereunder are undertaken to solely assist you in facilitating the sale of such Products.
You are obligated to offer your Products to end users ("End Users") under (i) the standard End User License Agreement, located here (the "Standard EULA"), or (ii) your own license terms that are no less protective of Edmodo and the End User than, and do not conflict with the terms of, the Standard EULA (the "Alternative EULA"). (the applicable EULA as between the Standard EULA and the Alternative EULA will be referred to herein as the "End User Agreement"). You will notify all End Users who have purchased your Product if you modify the terms and conditions of the End User Agreement, and any modified version thereof must also comply with the terms set forth in this Section.
You may offer your Products for free, or for a per-classroom fee, to be determined in your discretion. If you offer a Product for a fee, you may not attempt to circumvent the Edmodo payment system by soliciting payment from a user outside the Store. You agree to notify Edmodo immediately if you receive any such offer or solicitation.
The per-classroom fee shall cover the use of your Product by up to thirty (30) individual students and one (1) classroom administrator, for one (1) calendar year from the purchase date (the "License Term")(such license, a "Basic License"). Notwithstanding the foregoing, you may classify your Product as "unlimited," meaning that the per-classroom fee shall cover the use of your Product for the License Term by one (1) classroom and administrator and an unlimited number of individual students (an "Unlimited License").
If an administrator wishes to add additional students to a Basic License he or she has already purchased, you will allow such administrator to do so (each additional student, an "Add-on Seat"). The price for each Add-on Seat shall be a pro-rated portion of the price such Product was purchased for at the start of the then-current License Term (the "Original Purchase Price"), calculated according to the amount of time remaining in the License Term. For example, if an administrator purchases a Basic License for his or her classroom for three U.S. Dollars ($3) on January 1, and then on July 1 wishes to expand the license for the remainder of the License Term to cover five (5) Add-on Seats (i.e., thirty-five (35) students total), the charge for such addition will be twenty-five cents ($0.25). (Annual Basic License fee of $3 ÷ 30 students = $0.10 per student annually, or $0.05 per student for a 6 month period; 5 additional students x $0.05 = $0.25.)
You may set the prices for your Products through the Store, and you may change the prices at your sole discretion through your publisher account (provided no price changes shall apply retroactively). For avoidance of doubt, if an administrator wishes to purchase Add-on Seats pursuant to Section 2(c) above, such incremental cost will be calculated based on the Original Purchase Price, regardless of whether you have changed the price of the same Product for new purchasers. All prices will be set in U.S. Dollars.
Edmodo will collect and process payment information from purchasers of your Product via the Store. You shall bear and be responsible for any and all applicable federal, state, local, and foreign taxes, duties, tariffs, levies, withholdings, and similar assessments (including without limitation, sales, use, and value added taxes) relating to the subject matter hereunder, excluding taxes based on Edmodo's income. Edmodo may provide you with certain geographic information regarding the school an End User purchaser is associated with, in order to assist you in determining your tax liability; however, Edmodo is under no obligation to do so, and makes no representations, warranties, or covenants regarding the accuracy or verifiability of such information.
Subject to the terms and conditions of this Section 2, within thirty (30) days of the end of each calendar month during the term of this Agreement, Edmodo will calculate the Net Revenue (as defined below) for Products purchased during such calendar month and remit such amounts to you, less the Revenue Share (as defined below). Any payments made to you will be made in U.S. Dollars. "Net Revenue" shall mean amounts actually received by Edmodo from purchasers of your Product, less (i) sales taxes, use taxes, withholding taxes, VAT and any other taxes, duties or other government tariffs that a governmental authority requires Edmodo or you to pay with respect to the subject matter hereunder and/or that you have failed to pay in accordance with Section 2(e) above (excluding taxes on Edmodo's net income); and (ii) any transaction fees, disputes and refunds. "Revenue Share" shall mean a percent (%) share of the Net Revenue.
Notwithstanding anything to the contrary, Edmodo reserves the right to withhold any payment to you if the total amount owed to you is less than one hundred USD ($100) (the "Minimum Threshold"). If amounts payable to you hereunder with respect to a given calendar month fail to meet the Minimum Threshold, such amounts will be paid to you in connection with the next calendar month during which the Minimum Threshold is met.
Edmodo shall also have the right to withhold, in its sole discretion, reserves of no more than twenty percent (20%) from all amounts collected for Products for disputes and refunds (collectively, "Disputed Amounts"). All such reserves shall be placed in a non-interest-bearing account and shall be liquidated at the end of the sixth calendar month after they are received by Edmodo. Edmodo, in its sole discretion, will decide whether to refund any Disputed Amounts to End Users. If the amount held in reserve is insufficient to cover Disputed Amounts refunded for your Products, Edmodo shall notify you and may, in its reasonable discretion, increase the amount of the reserves it withholds, and/or set off such additional Disputed Amounts from any amounts owed to you hereunder.
You will host all Products on your servers and equipment.
You shall: (a) use commercially reasonable efforts to provide telephone, web-based and/or email support to purchasers of your Product during normal business hours, and in no event shall such level of support be any worse than the level of support you provide to your other customers; and (b) provide to Edmodo a current email address to which Edmodo may direct inquiries from purchasers regarding your Products. Edmodo retains the right, but does not have the obligation, to immediately halt the provision of Products, prevent or restrict access to the Store, or take any other action in case of technical problems, objectionable material, inaccurate listings, inappropriately categorized services, failure to provide adequate support, or actions otherwise prohibited by the procedures and guidelines contained on the Store, or for any other reason in the sole and absolute discretion of Edmodo, and to correct any inaccurate listing or technical problems on the Store.
Except for the rights expressly granted in this Agreement, Edmodo agrees that it obtains no right, title or interest from you (or your licensors) under this Agreement in or to any of Products, including any intellectual property rights which subsist in those Products.
You agree to use the Store only for purposes that are permitted by (i) this Agreement and (ii) any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions (including any laws regarding intellectual property and the export of data or software to and from the United States or other relevant countries). You will not use the Store or the Edmodo website or services, to market, sell, or promote any products or services that are not Products.
You agree that you shall require users of your Product to agree to an End User Agreement prior to their accessing or using your Product in any manner.
You agree that you will not engage in any activity with the Store, including the development or distribution of any Product, that interferes with, disrupts, damages, or accesses in an unauthorized manner the devices, servers, networks, or other properties or services of Edmodo or any third party. You will not engage in any activity that is harmful, fraudulent, deceptive, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, or otherwise objectionable.
You will not collect or use information obtained from the Store or from End Users' use of your Product to sell or distribute Products outside of the Store. During the term of this Agreement, you will not have a current or proposed program, feature, product, or service, offered via the Store, your personal website or service, or any other distribution channel, that is competitive with an Edmodo program, feature, product or service (a "Competitive Program"). If you aren't sure whether something you intend to offer would be considered a Competitive Program, please contact Edmodo.
You agree that you are solely responsible for (and that Edmodo has no responsibility to you or to any third party for) any Products you distribute through the Store and for the consequences of your actions (including any loss or damage which Edmodo may suffer) by doing so.
You agree that you are solely responsible for (and that Edmodo has no responsibility to you or to any third party for) any breach of your obligations under this Agreement, any applicable third party contract or terms of service, or any applicable law or regulation, and for the consequences (including any loss or damage which Edmodo or any third party may suffer) of any such breach.
You hereby grant Edmodo a worldwide, nonexclusive, sublicensable, perpetual, royalty-free, fully paid-up, transferable right and license: (a) to market your Products and to permit others to use, access, install, and download your Products and any associated documentation through the Store, and (b) to your applicable trademarks and logos in connection with the distribution and marketing of the Products.
Subject to full compliance with the terms of this Agreement and any other Agreement between you and Edmodo, Edmodo hereby grants you a limited, personal, non-sublicensable, non-transferable, royalty-free, nonexclusive license to use its application programming interface and related information and documentation (collectively, the "API") for the purpose of allowing you to build Products to be sold on the Store and used with Edmodo's software and services or for other purposes authorized by Edmodo.
If you institute a Competitive Program at any time after the term of the Agreement, you will not use in that Competitive Program any part of the API or any related intellectual property in connection with that Competitive Program.
You shall not disclose (or allow access to) the API (or any information derived from it) to any third party and will limit access to the API (and any derived information) to your employees who are developing the Product. In support of this obligation, you shall apply at least the same security as you use to protect your own most confidential information. You shall not reverse engineer any aspect of the API or permit anyone else to do so.
You shall not block, disable, hide or limit in any way the ability of any device (whether or not it has the Product installed on it) to access the Edmodo websites, applications, and/or other services (collectively, the "Service") or any portion or functionality of or enabled by the Service. You shall not modify, extend, subset or superset the API to any extent. You understand that Edmodo may cease support of old versions or releases of the API; you will always use and support the latest available version or release of the API.
At your option, subject to Edmodo's consent, Products may be branded with Edmodo specified trademarks in accordance with Edmodo's trademark usage guidelines. Edmodo shall have the right to perform quality assurance inspections of each Product and to withhold rights to use such trademarks if the quality is not satisfactory to Edmodo in its sole discretion.
As a condition to using some aspects of the Store, you may be required to register with Edmodo and select a password and user name ("User ID"). You shall provide Edmodo with accurate, complete, and updated registration information. Failure to do so shall constitute a breach of this Agreement, which may result in immediate termination of your account. You may not (a) select or use as a User ID a name of another person with the intent to impersonate that person; or (b) use as a User ID a name subject to any rights of a person other than you without appropriate authorization. Edmodo reserves the right to refuse registration of or cancel a User ID in its discretion. You shall be responsible for maintaining the confidentiality of your password. You will provide Edmodo with all requested data or information about you and your Product ("Information"), including all payment and tax identification information, and you will ensure Information is accurate and up-to-date. You understand and agree that failure to provide requested Information or failure to keep Information accurate and up-to-date may prevent Edmodo from making any payments due to you hereunder.
By posting, uploading, inputting, providing or submitting your Products to the Store, you represent and warrant that: (a) the Products do not infringe, violate, or misappropriate any law, statute, ordinance or regulation or rights of any third party; and (b) the Product does not contain a virus, trojan horse, worm, time bomb, or other harmful computer code, file, or program.
You will indemnify and hold Edmodo, its parents, subsidiaries, affiliates, officers, and employees harmless (including, without limitation, from all damages, liabilities, settlements, costs and attorneys' fees) from any claim or demand made by any third party due to or arising out of your access to or use of the Store and the API, your violation of this Agreement, or the infringement by you or any third party using your account of any intellectual property or other right of any person or entity. For avoidance of doubt, the foregoing shall include, without limitation, your obligation to indemnify Edmodo for any tax, tariff, duty, levy, assessment or withholding that may be charged to, levied against, or otherwise payable by Edmodo with respect to the subject matter of this Agreement (excluding taxes payable on Edmodo's income).
This Agreement shall remain in full force and effect while you use the Store. Subject to the terms of this Section 10, either party may terminate this Agreement at any time, for any reason or for no reason, with fifteen (15) days' notice to the other party.
You may terminate this Agreement with respect to one (1) or more Product(s) offered on the Store (i.e., "de-list" one (1) or all of your Products from the Store), upon fifteen (15) days' notice to Edmodo. However, you must continue to support and host all purchased Products until the end of every License Term that has not terminated as of the de-listing date of the applicable Product.
Notwithstanding anything else, Edmodo may terminate this Agreement, and/or terminate or suspend in whole or in part your access to or use of the Store with respect to any or all Products at any time, without prior notice or liability, for any reason, including without limitation if you breach any of the terms or conditions of this Agreement, if your behavior or any Product is offensive or unacceptable in any manner (or otherwise fails to meet Edmodo's rigorous standards of educational quality), or if you notify Edmodo that you intend to assign this Agreement to an Edmodo competitor pursuant to Section 14(a). Upon termination of your account, your right to use the Store will immediately cease.
With respect to individual Product de-listing, all terms of this Agreement shall survive with respect to such de-listed Product until the expiration of the last License Term for the de-listed Product, except for any terms relating to the new purchase of any such de-listed Product. The following provisions shall survive termination of this Agreement (in whole or in part): the last sentence of Section 1(a), the second-to-last sentence of Section 4(d), Section 4(f)-(h)(inclusive), 6(b) and (c), and 8-14 (inclusive), and any payment obligations incurred prior to the effective date of termination.
EXCEPT AS EXPRESSLY SET FORTH HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OR REPRESENTATIONS WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT, AND EACH PARTY HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT OR OTHERWISE, EDMODO SHALL NOT BE LIABLE OR OBLIGATED WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR (A) ANY SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR (B) ANY AMOUNT, IN THE AGGREGATE, IN EXCESS OF THE AMOUNTS PAID OR PAYABLE BY EDMODO TO YOU HEREUNDER IN THE TWELVE (12) MONTH PERIOD PRECEDING THE APPLICABLE CLAIM.
You understand and agree that Edmodo works with many application and software developers and some of their products or services may be similar to or perform the same or similar functions as your Products ("Similar Offerings"), and Edmodo may also develop its own Similar Offerings. To avoid potential misunderstandings, Edmodo cannot agree to any confidentiality or use restrictions with respect to any information that you may provide in connection with the Products or this Agreement, and nothing herein shall be construed to limit Edmodo from developing Similar Offerings.
This Agreement is not assignable, transferable or sublicensable by you (by operation of law or otherwise) except with Edmodo's prior written consent; provided, however, that you may assign this Agreement to a successor to all or substantially all of your assets or business who agrees in writing to be bound by this Agreement, provided you give Edmodo thirty (30) days prior written notice thereof. Edmodo may transfer, assign or delegate this Agreement and its rights and obligations without consent.
The parties agree that they are each independent contractors and nothing in this Agreement will be deemed to establish a joint venture, partnership, agency or employment relationship between the parties. Neither party has the right or authority to assume or create any obligation or responsibility on behalf of the other. Any notice, report, approval or consent required or permitted hereunder will be in writing. Except as otherwise set forth herein, any waivers or amendments will be effective only if made in writing and executed by both parties. If any provision of this Agreement is unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
This Agreement will be construed under the laws of the State of California, without regard to conflicts of law provisions thereof. Any dispute arising from or relating to the subject matter of this Agreement shall be finally settled by arbitration in Santa Clara County, California, 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 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. Notwithstanding the foregoing, each party shall have the right to institute an action in a court of proper jurisdiction for injunctive or other equitable relief pending a final decision by the arbitrator. For all purposes of this Agreement, the parties consent to exclusive jurisdiction and venue in the state or federal courts located in, respectively, San Francisco County, California, or the Northern District of California. The prevailing party in any action or proceeding arising out of this Agreement will be entitled to an award of costs and attorneys' fees.
This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes all previous written and oral agreements and communications relating to the subject matter of this Agreement.