EDMODO SPOTLIGHT TERMS OF SERVICE

Effective date: April 1, 2015

Edmodo Spotlight (“Spotlight”) is a place where Edmodo’s users can obtain educational resources that will help teachers teach and students learn. It is also a place where you can make your own content and resources available for Edmodo users to access and use. Here are the rules if you want to make your educational resources available through Spotlight (the “Spotlight Content Provider Terms”); there are separate rules for Edmodo users accessing your content (the “Spotlight User Terms”).

  1. Eligibility.

    1. You may be a Spotlight content provider (“Content Provider”) and offer digital downloads (“Teaching Content”) through Spotlight only if you (a) have an Edmodo account and (b) are at least eighteen (18) years old.

    2. Teaching Content is subject to Edmodo’s approval. Your Teaching Content may be rejected or removed from Spotlight at any time, in Edmodo’s sole discretion, including, but not limited to, if it fails to meet Edmodo’s standards of educational quality or if it contains inappropriate material or your conduct is inconsistent with Spotlight or these Terms. Teaching Content must be provided in one of the file formats accepted at the time of upload (which may be subject to change without notice). Each item of Teaching Content made available on Spotlight must be contained completely within the download offered, and no part of such Teaching Content may be delivered separately or require an additional purchase, including without limitation, through sites or services not offered by or via Edmodo.

    3. You acknowledge and agree that you, not Edmodo, are the merchant of record of your Teaching Content, and Edmodo’s activities hereunder are undertaken solely to assist you in facilitating the distribution of such Teaching Content.

  2. Pricing and Payments

    1. You have sole discretion whether to offer your Teaching Content for free, or for a fee. If you decide to charge a fee for accessing your Teaching Content, you must set that fee using your Spotlight provider account. You may change your prices whenever you want through your Edmodo Spotlight Provider account (provided no price changes shall apply retroactively). The price you set must at all times be greater than the minimum amount per item set by Edmodo, which will be determined by Edmodo in its sole discretion. All prices must be set in U.S. Dollars.

    2. You have the option to be part of Edmodo’s dynamic pricing program (the “Dynamic Pricing Program”). You will be given an opportunity to be part of that program when you upload each item of Teaching Content and select the minimum price that you would like to charge for a user to access that item. If you choose to participate in this program, you will still have sole discretion as to the minimum price at which you are willing to sell that item. The only difference is that by participating in this program, you agree to allow Edmodo to decrease or increase the price you have selected whenever and as Edmodo deems it appropriate; Edmodo will thus have sole and final discretion over the price at which the item is ultimately offered to an Edmodo user. Regardless of the price that Edmodo chooses, you will always receive a Revenue Share (as defined below) that is at least as much as the Revenue Share based on the minimum price that you selected. In other words, if you select a fee of $3.00 for an item, and Edmodo decides that the item should be sold to an Edmodo user for $2.50, your Revenue Share will still be based on a price of $3.00; conversely, if Edmodo decides that the price for the item should be $3.50, you will then receive a Revenue Share based on a fee of $3.50 for the item. The purpose of this program is to enable as many of Edmodo’s users as possible to obtain access to your Teaching Content and to maximize the amount of compensation for your work in creating the Teaching Content.

    3. If you offer Teaching Content for a fee, you may not attempt to circumvent the Edmodo payment system by soliciting payment from a user outside Spotlight. You agree to notify Edmodo immediately if you receive any such offer or solicitation.

    4. Edmodo will allow for the download of the Teaching Content you make available on Spotlight and does not place any restrictions on use of the Teaching Content except to the limited extent set forth in Edmodo’s Terms of Service and the Spotlight User Terms. If you wish to bind users to any additional license terms, we may provide you with the option explicitly to state such terms in the listing for the applicable Teaching Content, provided such terms must be no less protective of Edmodo than those herein, must afford users at least the rights described below, and must not be inconsistent with these Terms of Service or Edmodo’s general Terms of Service. For sake of clarity, any such license must allow a user who downloads the Teaching Content to use and exploit the Teaching Content in connection with any class, course, or lessons taught by that user. All Teaching Content licenses must also be non-exclusive, perpetual, irrevocable, and royalty-free. You understand that while Edmodo’s Terms of Service and the Spotlight User Terms place certain restrictions on Edmodo users’ use of the Teaching Content—for example, users cannot purchase your Teaching Content and share it with anyone other than their students—neither such users nor Edmodo can control students’ use of the Teaching Content, nor can Edmodo control Edmodo users’ use of the Teaching Content. You are not a third party beneficiary of Edmodo’s Terms of Service or the Spotlight User Terms that are applicable to users of Spotlight, and you have no right to enforce those terms or to require Edmodo to enforce such terms. You acknowledge that you have read the Edmodo Terms of Service and the Spotlight User Terms and understand the rights and obligations such terms place on each Edmodo user in connection with your Teaching Content. You understand that if you do not place any additional license restrictions on your Teaching Content, the only restrictions on the use of your Teaching Content by Edmodo users are those set forth in Edmodo’s Terms of Service and the Spotlight User Terms, which, for clarity, may only be enforced by Edmodo.

    5. Shipping, Handling, and Processing Charges. In the case of physical Teaching Content, you may charge a fee for shipping, handling, and processing of the physical materials that you sell, either by including the shipping, handling, and processing method and charges in the sale price of the item, or by charging a separate flat rate for shipping, handling, and processing of all items sold.

    6. If you charge a fee for your Teaching Content, Edmodo will collect and process payment information from purchasers of your Teaching Content. Edmodo will not charge you for the processing or transaction fee that Edmodo incurs in connection with each purchase of your Teaching Content, but Edmodo reserves the right to change that policy and to pass on those charges to you; Edmodo will provide you with advance notice of any such change were it to be made, and such change would only apply to future transactions. To the extent applicable to you, 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 limited geographic information regarding Edmodo users, 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.

    7. Edmodo will notify you of each purchase of your Teaching Content via email after the payment information has been verified and Edmodo has received payment. In the case of physical Teaching Content, Edmodo will also provide you with the shipping address and any other information required for you to fulfill the order, and you agree that upon notification of a sale, you will promptly ship the physical Teaching Content sold by you, in accordance with any representations you made in connection with such Teaching Content, including the pricing and shipping terms for such Teaching Content and all applicable state and federal laws, rules, regulations, and/or industry standards. You are not authorized to ship to any address other than that which Edmodo provides to you; if a user asks you to ship the Teaching Content to a different address, please notify Edmodo promptly.

    8. 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 or Dynamic Net Revenue (as defined below) for Teaching Content purchased during such calendar month and remit such amounts, less the Revenue Share (as defined below), to you, on a monthly basis. Any payments made to you will be made in U.S. Dollars. “Net Revenue” shall mean amounts actually received by Edmodo from Edmodo users for their download of the Teaching Content through Spotlight, including any shipping or handling charges, 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(c) above (excluding taxes on Edmodo’s net income), and (ii) any disputes and refunds. If you have decided to participate in the Dynamic Pricing Program, “Dynamic Net Revenue” shall mean the greater of either the amounts actually received by Edmodo from Edmodo users for their download of the Teaching Content through Spotlight, including any shipping or handling charges, or the amounts that Edmodo would have received from Edmodo users had Edmodo not decreased the price per item you selected, 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(c) above (excluding taxes on Edmodo’s net income), and (ii) any disputes and refunds. For purposes of this Agreement, “Revenue Share” shall mean a forty percent (40%) share of Net Revenue or Dynamic Net Revenue, respectively.

    9. Purchases of items via Spotlight are non-refundable. Edmodo reserves the right, however, to provide a refund to a user in certain circumstances where Edmodo determines, in its sole discretion, that a refund is appropriate. If Edmodo elects to issue a refund to a buyer, the amount refunded will be deducted from your next monthly payment. If your next payment is less than the refund amount, Edmodo may charge such refund amount to your credit card, PayPal account, or other payment processor account.

    10. 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 ten USD ($10) (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

  3. Communication with Edmodo Users

    You are responsible for handling all inquiries from Edmodo users concerning your Teaching Content, including inquiries regarding the quality or appropriateness of your Teaching Content. To that end, you must: (a) provide Edmodo with a current email address to which Edmodo may direct inquiries from Edmodo users regarding your Teaching Content; and (b) use commercially reasonable efforts to respond to and resolve any such inquiries promptly. Edmodo retains the right, but does not have the obligation, to immediately prevent or restrict your access to Spotlight, or to take any other action (including removal of Teaching Content listings) in case of technical problems, objectionable material, inaccurate listings, inappropriately categorized services, failure to adequately respond to Edmodo users’ inquiries, or actions otherwise prohibited by the procedures and guidelines contained on Spotlight, or for any other reason in the sole and absolute discretion of Edmodo, and to correct any inaccurate listing or technical problems on Spotlight

  4. Use of Spotlight.

    1. Edmodo does not claim ownership rights in your Teaching Content; you own your Teaching Content, and making it available for others to access through Spotlight does not mean that Edmodo is acquiring or obtaining any ownership rights, including any intellectual property rights that subsist in your Teaching Content. Instead, to enable us to operate and run Spotlight and to ensure that Edmodo is not violating any rights you might have in the Teaching Content, you hereby grant Edmodo a worldwide, non-exclusive, sublicensable, perpetual, royalty-free, fully paid-up, transferable right and license to: (a) market your Teaching Content and to permit others to use, access, install, and download your Teaching Content and any associated documentation through Spotlight; (b) use your applicable trademarks and logos in connection with the distribution and marketing of the Teaching Content; and (c) translate or re-format your Teaching Content, or edit the listing description for such Teaching Content, as Edmodo deems it necessary.

    2. You agree to use Spotlight only for purposes that are permitted by (i) this Agreement and by (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 Spotlight or the Edmodo website or services, to market, sell, or promote any products or services that are not Teaching Content and/or that are not offered for sale or for free through Spotlight, and you further acknowledge and agree that you will not engage in any marketing or promoting of your Teaching Content that is prohibited by Edmodo’s Terms of Service.

    3. You agree that you will only submit, post, or upload Teaching Content that you were involved in creating and that you are legally permitted to make available for distribution via Spotlight. Edmodo respects the intellectual property rights of others, including copyrights, and we expect you to do the same. For sake of clarity, in Spotlight, you are not permitted to sell or make available for free any Teaching Content that infringes on the intellectual property rights of any third parties. It is Edmodo’s policy, in appropriate circumstances and in its discretion, to disable and/or terminate the accounts of any Content Provider who repeatedly infringes, or who is repeatedly accused of infringing, the copyrights or other intellectual property rights of others.

    4. You agree that if you obtain any information regarding any individual person or entity in connection with your use of Spotlight or provision of the Teaching Content, you will protect the privacy and legal rights of any such people or entities (including, without limitation, use of any personally identifiable information you receive from Edmodo users pursuant to Section 3 or any information provided to you by Edmodo). For clarity, any communications between you and Edmodo users will be conducted outside of Edmodo and Spotlight, and you will not request or collect through Spotlight service any information from any person or entity. You will not use information obtained in connection with Spotlight, such as order information, for any purposes other than fulfilling the order, including, but not limited to, selling or distributing Teaching Content in any manner (including outside of Spotlight).

    5. You agree that you will not engage in any activity in connection with Spotlight, including the development or distribution of any Teaching Content, 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.

    6. You will not engage in any activity that is harmful, fraudulent, deceptive, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, or otherwise objectionable.

    7. You will not engage in any activity that is designed to increase artificially the reviews or ratings of your Teaching Content, including, but not limited to, submitting reviews for your own Teaching Content, asking users to write favorable reviews, or using automated means to generate reviews and ratings for your Teaching Content.

    8. You agree that you are solely responsible for (and that Edmodo has no responsibility to you or to any third party for) any Teaching Content you distribute through Spotlight and for the consequences of your actions (including any loss or damage which Edmodo may suffer) by doing so.

    9. 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.

  5. Provision of Information to Edmodo.

    You will provide Edmodo with all requested data or information about you and your Teaching Content (“Information”), including all payment and tax identification information, and you will ensure that 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.

  6. Representations and Warranties.

    By posting, uploading, inputting, providing or submitting your Teaching Content to Spotlight, you represent and warrant that: (a) you have the legal right and authority to do so; (b) the Teaching Content does not infringe, violate, or misappropriate any law, statute, ordinance or regulation or rights of any third party, including intellectual property rights; (c) the Teaching Content does not contain a virus, trojan horse, worm, time bomb, or other harmful computer code, file, or program; and (d) nothing in the Teaching Content, nor Edmodo’s offering thereof on Edmodo Spotlight, will require payment of any kind to a third party.

  7. Indemnity.

    You will indemnify and hold Edmodo, its parents, subsidiaries, affiliates, officers, employees and agents 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 Spotlight, 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).

  8. De-listing Teaching Content; Termination.

    1. This Agreement shall remain in full force and effect while your resources are available on Spotlight. Subject to the terms of this Section 8, either party may terminate this Agreement at any time, for any reason or for no reason, with notice to the other party. Upon termination of your Edmodo Spotlight Provider account, your right to use Spotlight will immediately cease. Termination of an Edmodo Spotlight Provider account does not necessarily require termination of your Edmodo account, depending on the reason and scope of termination. After termination, Edmodo will provide any money owed to you in connection with any purchases of your Teaching Content within twenty (20) days after your next regularly scheduled monthly payment.

    2. You may “de-list” any item of Teaching Content, or all of your Teaching Content, from Spotlight, at any time, upon notice to Edmodo. However, as long as you have any listing on Edmodo Spotlight, you must continue to fulfill your obligations pursuant to Section 3 for all Teaching Content, including Teaching Content no longer listed on Spotlight, and all provisions of this Agreement survive with respect to Teaching Content still listed on Edmodo. In addition, if a user has already downloaded your Teaching Content, you understand that de-listing that particular Teaching Content from Spotlight will not affect any individual’s ability to continue accessing that item.

    3. Without limiting Section 8(a), Edmodo may terminate this Agreement, and/or terminate or suspend in whole or in part your access to or use of Spotlight with respect to any or all Teaching Content, 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, or if your behavior or any Teaching Content is offensive or unacceptable in any manner (or otherwise fails to meet Edmodo’s rigorous standards of educational quality).

    4. The following provisions shall survive termination of this Agreement (in whole or in part): Sections 2(b) (excluding any obligation of Edmodo to allow for the download of Teaching Content), 2(c) (excluding any obligation of Edmodo to collect or process payments), 4(c), 4(e), 4(f), 6-12 and any payment obligations incurred prior to the effective date of termination.

  9. Disclaimer.

    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.

  10. Limitation of Liability

    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.

  11. Confidentiality

    1. You may receive business, technical, financial, or other information, materials, and/or ideas from Edmodo during the term of this Agreement, including, without limitation, personal information about Edmodo users, and details about the Revenue Share rate and Net Revenue generated by any Teaching Content (all of the foregoing, “Confidential Information” of Edmodo). You agree to hold in confidence and not use or disclose (except as necessary to fulfill your obligations hereunder) the Confidential Information. You understand that, pursuant to Edmodo’s Privacy Policy , Edmodo may collect and use certain data regarding Edmodo users use of the Teaching Content. Edmodo is under no obligation to share this data with you, but if it does, such data shall be considered Edmodo’s Confidential Information.

    2. You understand and agree that Edmodo works with many content providers, and their products may be similar to your Teaching Content (“Similar Offerings”). 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 Teaching Content or this Agreement, and nothing herein shall be construed to limit Edmodo from developing Similar Offerings.

  12. Miscellaneous

    1. This Agreement is not assignable, transferable, or sublicensable by you (by operation of law or otherwise), except with Edmodo’s prior written consent. Edmodo may transfer, assign or delegate this Agreement and its rights and obligations without consent.

    2. 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, email sufficing. 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.

    3. These Spotlight Content Provider 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. Any dispute arising from or relating to the subject matter of these Spotlight Content Provider Terms shall be finally settled in San Francisco County, California, in English, 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 Arbitration Rules and Procedures of JAMS. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction. Notwithstanding the foregoing obligation to arbitrate disputes, each party shall have the right to pursue injunctive or other equitable relief at any time, from any court of competent jurisdiction. For all purposes of this Agreement, the parties consent to exclusive jurisdiction and venue in the United States Federal Courts located in the Northern District of California.