EDUPHORIA SERVICES LICENSE AGREEMENT
By clicking "I accept" or "I agree" to this EDUPHORIA SERVICES LICENSE AGREEMENT (“Agreement”) or using, accessing, or registering for Eduphoria Incorporated’s (collectively, “we,” “us,” or "Eduphoria") online services and applications, mobile applications, printed materials, online documentation, and supporting software, web portals, Eduphoria website, or any other websites that link to this Agreement (collectively the “Service”), you are agreeing to the terms of this Agreement, which is a binding contract with Eduphoria Incorporated for the benefit of itself and its affiliates.
Please read these terms carefully as they provide that You and Eduphoria will arbitrate certain claims instead of going to court and that you will not bring class action claims against Eduphoria. It is important to us that the Service provides you with a helpful and reliable experience. To protect our rights and yours, this Agreement governs all uses of the Service. If you do not accept the terms of this Agreement, then do not purchase a subscription, create an account, or use the Service.
1. The Service
For purposes of this Agreement:
- “Eduphoria, “we” or “us”” means Eduphoria Incorporated, a Texas corporation, who provides the platform through which the Service is delivered.
- “Service” means the Eduphoria online services and applications, mobile applications, printed materials, online documentation, and supporting software, Eduphoria website, or any other websites that link to this Agreement.
- “Content” means all the text, graphics, user interfaces, visual interfaces, photographs, logos, sounds, music, artwork, activities, lessons, assessments, assessment items, evaluation templates, forms, surveys, printables, pictures, video, animation, characters, audio clips, trademarks, trade names, service marks, computer code displayed on or available through the Service; the design, layout, look, appearance, structure, selection, coordination, expression, arrangement and graphics of such materials, all materials and other items relating to the Service, and any and all other forms of intellectual property.
- “Institution” is defined as: a school, district, college, university or other education institution or education agency, whether public or private, that adopts or uses the Service.
- “You”, or “Your” refers to an Eduphoria User (defined below) of the Service in the event that an individual Eduphoria license is used or the Institution (e.g. School or District), as context may require. In the event that you’re entering into this Agreement as a representative of an Institution, then the Institution agrees that it will take all reasonable steps to ensure that its authorized users adhere to this Agreement.
- “Subscription Term” means the active licensed paid-up term for your use of the Service as identified in an Order. The Subscription Term has an effective start date and end date.
- “Eduphoria User” means a single, named, person of legal age who can enter into a contract in the state or country in which the User resides and in no case, is under the age of 18, and who is an instructor or school administrator who has an end-user account to use the Service and is not a student.
- "Institutional User" is an Eduphoria User whose account is managed by an Institution.
- “Student Users” means those Eduphoria users who participate in the participant portion of the Service by entering a code provided by the Educator User and accessing the lesson or assessment materials or only obtain access to a Student Account (available only to Institutions) if the administrator on that account enables the ability to do so within the Service.
- “Student Data” includes any data, provided by an Institution or its users, students, or students’ parents/guardians, that is descriptive of the student including, but not limited to, information in the student’s educational record or email, first and last name, birthdate, home or other physical address, telephone number, email address, or other information allowing physical or online contact, discipline records, videos, test results, special education data, juvenile dependency records, grades, evaluations, criminal records, medical records, health records, social security numbers, biometric information, disabilities, socioeconomic information, individual purchasing behavior or preferences, food purchases, political affiliations, religious information, text messages, documents, student identifiers, search activity, photos, voice recordings, geolocation information, parents’ names, or any other information or identification number that would provide information about a specific student. Student Data includes Metadata. Student Data further includes “Personally Identifiable Information (PII),” as defined in 34 C.F.R. § 99.3 and as defined under any applicable state law. Student Data shall constitute Education Records for the purposes of this Agreement, and for the purposes of federal, state, and local laws and regulations. Student Data shall not constitute any information that has been anonymized or De-Identified, or anonymous usage data regarding a student’s use of the Service. Student Data includes Confidential Student Educational Records as defined by Family Educational Rights and Privacy Act (“FERPA”), 20 U.S.C.A. 1232g and accompanying regulations.
Access or use of the Service for which you have registered or enrolled constitutes acceptance of these terms as a binding agreement. By using the Service, you represent that you: (a) you are an adult (according to the laws of the country where you are located), (b) have read and understood this Agreement; (c) agree to use the Service in compliance with applicable laws and this Agreement; (d) are an authorized user; and (e) that you will be responsible for ensuring that any user authorized by you to use and access the Service does so in accordance with this Agreement.
Furthermore, if you are an Institutional User, regardless of position at a private or public Institution, you represent and warrant to us that you are (a) authorized to agree to this Agreement on behalf of your Institution and (b) provide consent on behalf of your Student Users to use and access the Service. Additionally, as an educator, you represent and warrant that Eduphoria shall be considered a Service Provider with a legitimate educational interest, and performing services otherwise provided by the educator. You also represent and warrant that you shall implement and operate appropriate controls to ensure that your privacy obligations under FERPA and any other applicable laws are met and maintained. Eduphoria will provide Services under your direction.
1.4 International Use
Outside the US, if you are under the age of majority in your country of residence, you must review this Agreement with your parent or guardian to make sure that you and your parent or guardian understand and agree to them.
Upon execution of this Agreement, Eduphoria will deliver the Service to you. Eduphoria guarantees the Service will perform the functions it is advertised to perform, notwithstanding any warranties or limitations of liability to the contrary in this Agreement, provided that you appropriately use the Service as outlined in this Agreement. Eduphoria, in its sole discretion, will repair any Service that is not performing as it is advertised to perform, subject to the Limited Warranty provisions specified in this Agreement.
1.6 Additional Terms
Additional terms and conditions may apply to some services offered on the Service if we post such terms within such services or if we sign a separate agreement with you. Please contact firstname.lastname@example.org if you have questions about this Agreement. Eduphoria is a registered trademark of Eduphoria Incorporated. Eduphoria reserves the right to amend this Agreement at any time in the future.
2.1 Service and Content
The Service (including past, present, and future versions) contains Content that is owned by or licensed to Eduphoria. Reproduction of the Service or Content outside the Service’ functionality is prohibited. Eduphoria owns or licenses all legal rights, title, and interest in and to the Service or Content, or derivative works thereof, including any intellectual property rights, whether those rights are registered or not, and wherever in the world those rights may exist, subject to the rights of third-parties from whom Eduphoria licenses Content.
2.2 Updates and Add Ons
This Agreement applies to updates, supplements, add-on components, or Internet-based services components of the Service that Eduphoria may provide to you or make available to you after the date you obtain access to the Service, unless Eduphoria provides other terms along with the updates, supplements, add-on components, or Internet-based services components. Any and all improvements to the Service shall be owned by Eduphoria.
The Service is protected by copyright and other intellectual property laws and treaties. Eduphoria or its suppliers own the title, copyright, and other intellectual property rights in the Service and/or have the right to use, sublicense or distribute the Service. You agree to implement reasonable security measures to protect such copyrighted material and intellectual property rights. THE SOFTWARE IS LICENSED, NOT SOLD. Upon termination of this Agreement for any reason, you shall destroy and cease to use the Service and any related materials. You agree not to disclose, provide, or otherwise make available any of the copyrighted material or intellectual property in any form to any third party without the prior written consent of Eduphoria.
2.4 Third Party Content
Eduphoria licenses some Content from third parties. Additionally, the Service provides the ability for Eduphoria Users to create their own content that can be shared to third-parties (never directly with students, unless the creator is the students’ educator). YOU ACKNOWLEDGE AND AGREE THAT EDUPHORIA IS NOT RESPONSIBLE AND SHALL HAVE NO LIABILITY FOR THE CONTENT CREATED BY OTHER EDUCATOR USERS. YOU HEREBY ACKNOWLEDGE THAT YOU MAY BE EXPOSED TO CONTENT FROM OTHER USERS THAT IS INACCURATE, OFFENSIVE, OBSCENE, INDECENT, OR OBJECTIONABLE WHEN USING THE SERVICE, AND FURTHER ACKNOWLEDGE THAT EDUPHORIA DOES NOT HAVE ANY OBLIGATION TO MONITOR SUCH CONTENT FOR ANY PURPOSE AND SHALL HAVE NO LIABILITY FOR CLAIMS RELATING TO THE SAME. FURTHERMORE, AS A TEACHER AND/OR EDUCATOR, YOU HEREBY ACKNOWLEDGE THAT YOU WILL REVIEW CONTENT THAT OTHERS MAY PROVIDE OR SHARE WITH YOU, PRIOR TO SHARING OR SHOWING IT TO YOUR STUDENTS. HOWEVER, WE RESERVE THE RIGHT AT ALL TIMES TO DETERMINE WHETHER CONTENT IS APPROPRIATE AND IN COMPLIANCE WITH THIS AGREEMENT, AND MAY PRE-SCREEN AND REMOVE CONTENT AT ANY TIME IF SUCH CONTENT IS FOUND TO BE IN VIOLATION OF THIS AGREEMENT OR IS OTHERWISE OBJECTIONABLE. ANY CLAIMS UNDER THIS AGREEMENT SHALL BE SUBJECT TO THE LIMITATIONS OF LIABILITY FOUND IN SECTION 9.
2.5 Third Party APIs and Links
2.6 User Generated Content
By using the Service, you may provide or create Content and other materials, information, ideas, concepts, and know-how (“User-generated Content”). UNDER NO CIRCUMSTANCES WILL EDUPHORIA BECOME LIABLE FOR ANY PAYMENT TO YOU FOR ANY INFORMATION THAT YOU PROVIDE. YOU, AND NOT EDUPHORIA, ARE SOLELY RESPONSIBLE FOR ANY USER-GENERATED CONTENT YOU MAKE AVAILABLE THROUGH YOUR USE OF THE SERVICE. EDUPHORIA DOES NOT CONTROL THE USER-GENERATED CONTENT HOSTED VIA THE SERVICE, NOR DOES IT GUARANTEE THE ACCURACY, INTEGRITY OR QUALITY OF SUCH USER-GENERATED CONTENT. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, EACH PERSON SHALL RETAIN ALL RIGHTS, INCLUDING INTELLECTUAL PROPERTY RIGHTS, FOR THEIR USER-GENERATED CONTENT THAT THEY CREATE WITH THEIR EDUPHORIA ACCOUNT, UNLESS THEY ENTER A PUBLISHING AGREEMENT WITH EDUPHORIA. You acknowledge that all posted User-Generated Content is stored on and made available through the Service by Eduphoria’s servers and not on your device. You understand that all User-Generated Content is provided to you through the Service only on an “as-available” basis and Eduphoria does not guarantee that the availability of the User-Generated Content will be uninterrupted or error free. ANY CLAIMS UNDER THIS AGREEMENT SHALL BE SUBJECT TO THE LIMITATIONS OF LIABILITY FOUND IN SECTION 9.
2.7 Student Data
All Student Data transmitted, uploaded, or created within the Service is and will continue to be the property of and under the control of the Institution. Eduphoria acknowledges and agrees that all copies of such Student Data, including any modifications or additions or any portion thereof from any source, are subject to the provisions of this Agreement in the same manner as the original Student Data. All parties agree that as between them, all rights, including all intellectual property rights in and to Student Data contemplated per this Agreement, shall remain the exclusive property of the Institution. You will make all efforts necessary to comply with any relevant and applicable data privacy and protection laws and regulations, and shall ensure and be liable for ensuring management of Student Data is compliant with the same.
2.8 Right and License to Eduphoria
You grant Eduphoria a perpetual, irrevocable, worldwide, sublicensable, royalty-free, and transferable right and license to use, reproduce, publish, display, modify, make derivative works of, transmit and copy your anonymized content and to additionally distribute and publicly perform your content in connection with the Service and Eduphoria’s (and its successor’s) business, in any media formats and through any media channels for the purposes of delivering the services to you. Additionally, You grant Eduphoria the irrevocable, perpetual, worldwide, sublicensable, transferrable, right to use your information solely on an aggregated and anonymized basis (“Aggregated Data”). Finally, You also hereby grant to each user of the Service a perpetual, irrevocable, worldwide, sublicensable, royalty-free, and transferable non-exclusive license to access and view your anonymized User-Generated Content as permitted by the functionality of the Service and this Agreement. Notwithstanding the immediately preceding sentence, or anything else to the contrary, the Service only makes your content available to others if you choose to allow it.
2.9 Deletion of Expired Content
To the extent any Content, or User-Generated Content created by You, includes licensed third-party content that was obtained from Eduphoria or the Service, You shall promptly delete any copies of such User-Generated Content after expiration of the Service or cancellation of the applicable third-party license that is related to such User-Generated Content.
2.10 Use of Derivative Works
Eduphoria may provide You with access to derivative works, which rely on, or are entangled with, intellectual property rights belonging to Eduphoria or third parties. To the extent You are provided with access to such derivative works, You will not distribute, market, retain beyond the license term (described in Section 3), or import into any other system, such derivative works. You shall only retain and distribute User-Generated Content created entirely by You or Content that is subject to no intellectual property rights.
3.1 Grant of License
In consideration for the License granted under this Agreement, unless otherwise agreed, you will pay Eduphoria the then-current license fee for the Subscription Term, which will be billed on a per school, per user, or per student (Average Daily Attendance method) quantity and invoiced to you on an annual basis. For some individual Eduphoria Users the Subscription Term may be on a monthly basis. Full payment for invoices issued in any given month must be received by Eduphoria 30 days after invoice date, or the License may be terminated. You agree to provide Eduphoria with accurate and complete billing information, including your name, address, and telephone number and to update this information within 30 days of any change in such information.
4. Your Obligations and Responsibilities
4.2 Acceptable Behavior
You will not and will not attempt to: (a) license, sublicense, copy, duplicate, distribute, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, reproduce, sell, trade, or resell the Service or Content (including, without limitation, the reproduction, sale, trading or resale of Service or Content customized by other Eduphoria users) without our prior written agreement; (b) decompile, disassemble, reverse engineer or otherwise attempt to obtain or perceive the source code from which any software component of the Service are compiled or interpreted, and you acknowledge that nothing in this Agreement will be construed to grant you any right to obtain or use such code; (c) scan our systems without written authorization; (d) create any derivative product from of the foregoing, without our prior consent; (e) assign, sublicense, sell, resell, lease, rent, or otherwise transfer, convey, or pledge as security or otherwise encumber, your rights under this Agreement; (f) remove any title, trademark, copyright, or restricted rights notices or labels from the Service or related documentation; or (h) share accounts. Eduphoria takes privacy seriously. As such, if you (or in the case of a school, district, or multi-seat license account, as administrator) learn that the license users are sharing accounts, you must notify the user that they are not to share accounts or passwords. If the user continues to share their account or password with someone else, you must notify us at email@example.com within twenty-four (24) hours. Notwithstanding anything to the contrary in this Section 4 or otherwise, the Service may include functionality that will allow you to create new content. These activities are permitted to the extent enabled within the Service, provided that such content is used solely for private educational purposes of the user. Eduphoria reserves the right to modify or discontinue the Service or any version(s) thereof at any time in its sole discretion, with or without notice.
4.3 Your Responsibility
4.4 Damaging Behavior
You may not use the Service in any manner that in our sole discretion could damage, disable, overburden, impair or interfere with any other party’s use of them. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available through the Service. You may not use the Service in any manner that could damage or harm the reputation or goodwill of Eduphoria or any of Eduphoria's trademarks or brands. You agree not to scrape or otherwise use automated means to access or gather information from the Service, and agree not to bypass any robot exclusion measures we may put in place. In addition, you agree not to use false or misleading information in connection with your user account, and acknowledge that we reserve the right to disable any user account with a profile which we believe (in our sole discretion) is false or misleading (including a profile that impersonates a third party).
4.5 Illegal Activity
In connection with your User-Generated Content, you further agree that you will not: (a) use material that is subject to third party intellectual property or proprietary rights, including privacy and publicity rights, unless you are the owner of such rights or have permission from their rightful owner to post the material and to grant Eduphoria all of the license rights granted herein; (b) use material that is unlawful, abusive, defamatory, libelous, threatening, pornographic, obscene, harassing, harmful, vulgar, hateful, obscene, racially or ethnically offensive or encourages conduct that would be considered a criminal offense, violate any law or is otherwise inappropriate or objectionable; (c) use the Service for hacking, spying, disseminating or transmitting data to any person who does not have specific permission to access the data; or (d) post advertisements or marketing content or solicitations of business, or any content of a commercial nature. In addition to the above, any use of User-Generated Content shall comply with all applicable laws and regulations, and You shall make eveyr effort to ensure the same. Any illegal activities undertaken in connection with the Service may be referred to the authorities.
4.6 Communication Tools
We may provide various open communication tools on the Service for users, such as blog comments, blog posts, chat forums, message boards, and the like. By posting information or otherwise using any open communication tools as mentioned, you agree that you will not upload, post, share, or otherwise distribute any content that: (i) is illegal, threatening, defamatory, harassing, degrading, intimidating, fraudulent, racist, and pornographic or contains any type of inappropriate or explicit language; (ii) infringes any trademark, copyright, trade secret, or other proprietary right of any party; (iii) attempts any type of unauthorized advertising; or (iv) violates any applicable law or regulation.
4.7 Wireless Features
Use of the Service requires usage of data and messaging services provided by your wireless service carrier or internet service provider. You acknowledge and agree that you are solely responsible for data usage fees, messaging fees and any other fees that your wireless service carrier or internet service provider may charge in connection with your use of the Service.
5. Copyright Claims
Eduphoria respects the intellectual property rights of others and requires that the people who use the Service do the same. It is our policy to respond promptly to claims of intellectual property misuse. Our procedures for responding to alleged copyright infringement are consistent with the form suggested by the United States Digital Millennium Copyright Act, the text of which can be found at the U.S. Copyright Office web site http://www.copyright.gov/legislation/dmca.pdf. Please note that you will be liable for damages (including costs and attorneys’ fees) if you make any material misrepresentations when making or countering a copyright infringement claim.
5.1 Notification of Infringement
If you believe that your work has been copied and is accessible on the Service in a way that constitutes copyright infringement, you may notify us by providing our copyright agent with the following information in writing:
- Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Eduphoria to locate the material (e.g., URL).
- Information reasonably sufficient to permit Eduphoria to contact you, such as name, postal address, telephone number, and, if available, an email address at which you may be contacted.
- Include the following statement: “I have a good faith belief that use of the material described above in the manner complained of is not authorized by the copyright owner, its agent, or the law.”
- Include the following statement: “The information in the notification is accurate, and under penalty of perjury, I am the copyright owner or am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.”
- A physical, electronic or digital signature, in a form reasonably acceptable to Eduphoria, of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
- Send written communication to the following contact: Eduphoria Inc., Attn: Legal Department, 6800 Weiskopf Avenue, Suite 150 McKinney, Texas, 75070.
- Send electronically-signed communication to firstname.lastname@example.org.
After receiving a notification of alleged infringement, Eduphoria will remove or disable access to the material claimed to be infringing or claimed to be the subject of infringing activity. At the same time, Eduphoria will provide the provider of affected material with a copy of the notice. The provider of affected material may make a counter notification pursuant to sections 512(g)(2) and (3) of the Digital Millennium Copyright Act. Please be advised that you may be held liable for damages if you make material misrepresentations pursuant to federal law in the counter notification. When we receive a counter notification, we may reinstate the material in question. To file a counter notification with us, the provider of affected material must provide a written communication (by postal mail, overnight mail, or, when digitally-signed, by email) that sets forth the items specified below. To expedite our ability to process your counter notification, please use the following format (including section numbers):
- Identify the material that Eduphoria has removed or to which Eduphoria has disabled access and the location at which the material appeared before it was removed or access to it was disabled.
- Provide your name, postal address, telephone number, email address, and a statement that you consent to the jurisdiction of Federal District Court for the judicial district in Collin County, Texas (if your address is outside of the United States, for any judicial district in which Eduphoria may be found), and that you will accept service of process from the person who provided the initial notification of infringement or an agent of such person.
- Include the following statement: “I swear, under penalty of perjury, that I have a good faith belief that the removed material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled.”
- Sign the paper or affix an electronic or digital signature to the communication in a form reasonably acceptable to Eduphoria.
- Send written communication to the following address: Eduphoria Inc., Attn: Legal Department, 6800 Weiskopf Avenue, Suite 150 McKinney, Texas, 75070.
- Send electronically- or digitally-signed communication to email@example.com. Upon receipt of a counter notification in substantial compliance with the DMCA, Eduphoria will provide the person who provided the initial notification of claimed infringement with a copy of the counter notification promptly. After receipt of the counter notification, Eduphoria will generally replace the removed material and cease disabling access to it, unless Eduphoria’s designated agent first receives notice from the person who submitted the initial notification that such person has filed an action seeking a court order regarding the removed material.
5.3 Trademark Disputes
Eduphoria is generally unable to evaluate the merits of trademark disputes because trademark rights may be based on registration or common law use, exist only for certain categories of goods or services and may differ internationally. Therefore, Eduphoria expects you to resolve trademark disputes directly with the individual rather than utilizing Eduphoria as an intermediary.
6. Collection of Data
6.3 Confidential Data
Eduphoria warrants that it will take all commercially reasonable steps to maintain the confidentiality of student and staff data received from you or your Institution. Eduphoria agrees to maintain such confidential data in accordance with the relevant laws and any local policies that are communicated to Eduphoria. Eduphoria acts as a Service Provider and agent of you in the translation, import, and/or analysis of data, however, such agency is limited solely to the translation, import, and/or analysis of data exchanged through the use of the Service. Access to personally identifiable data will not be allowed for anyone other than the Eduphoria staff directly responsible for the support, translation, import, and/or analysis of the data. Data will be provided by Eduphoria only to persons, entities, or governing agencies authorized by you or your Institution except where otherwise required by law. The terms in this Section 6 may be overridden, extended, or amended by execution of a separate Data Privacy Agreement.
Eduphoria shall not (a) disclose Student Data to any person or entity except: (i) those that need to know the Student Data for the purposes this Agreement and agree to be bound by the provisions of this Section 6; or (ii) in compliance with a lawfully issued subpoena or court order; (b) use the Student Data for any purpose other than the purposes this Agreement contemplates.
6.5 Return of Records
Upon the written request by you, within sixty (60) calendar days, Eduphoria must return to you or destroy all Student Data records and other data. If Eduphoria destroys the Student Data, Eduphoria must certify that it has done so in writing and deliver that certificate to within sixty (60) calendar days of your initial written request for Eduphoria to return or destroy all Student Data.
6.6 Student Use
Eduphoria and the Service comply with (and facilitate compliance with) applicable law, including the Family Educational Rights and Privacy Act (FERPA) and Children's Online Privacy Protection Act (COPPA). We rely on consent by the Institutional User as the basis for collecting this information via the participation portion of the Service or through the activation of any Student User features. If you are a parent, guardian, or teacher and believe that your child or student under the age of 16 has provided Eduphoria with personally identifiable information without your consent and not in connection with legitimate usage with an Institution, please notify firstname.lastname@example.org so that we can promptly delete the information from our servers.
7. Term and Termination
This Agreement and the License granted under this Agreement become effective on the date the Service is activated (“Effective Date”) and continues until ninety (90) days after expiration or termination by either party pursuant to this Section 7.
7.2 Termination for Cause
Either party may terminate this Agreement if the other party (a) fails to cure a material breach of this Agreement (including a failure to pay fees) within thirty (30) days after notice, (b) ceases operation without a successor or (c) seeks protection under a bankruptcy, receivership, trust deed, creditors’ arrangement, composition or comparable proceeding, or if such a proceeding is instituted against that party and not dismissed within sixty (60) days. Eduphoria may also terminate this Agreement immediately, without prior notice or liability, if you breach any of the terms or conditions in Section 4 of this Agreement.
7.3 Termination for Convenience
Either party may terminate this Agreement at any time for any reason upon thirty (30) days notice to the other party, provided (a) you will not be entitled to a refund of any pre-paid fees, third party items, or non-qualifying items, and (b) if you have not already paid all applicable fees for the then-current Subscription Term, any such fees that are outstanding will become immediately due and payable.
7.4 Refundable Items
You agree that some items within your order may not be refundable (“non-qualifying items”). Training, support, custom service or engineering projects, third party Content or services, and item banks are due at the time of billing and considered delivered by Eduphoria on the invoice date. Traditionally, core Eduphoria online applications within the Service may qualify for a partial refund of the unfulfilled Subscription Term provided all other conditions of this Agreement have been satisfied. For additional information regarding qualifying items, contact email@example.com.
7.5 Notice of Termination
You must send a written notice to Eduphoria's business office via electronic message, postal mail, or fax. For individual Licenses you may be able to send notice from within the Service. If Eduphoria terminates this Agreement, Eduphoria will send written notice to your primary contact via electronic message, postal mail, or fax. Eduphoria will remove access to the Service on the termination date.
7.6 Effect of Termination
Upon expiration or termination of this Agreement, your access to the Service will cease. You will immediately cease all use of the Service and any documentation and return, remove, or destroy all copies of the Service and any documentation. Eduphoria may, but is not obligated to, delete archived data. User-Generated Content and other confidential information may be retained in Eduphoria standard backups after deletion but will remain subject to this Agreement’s confidentiality restrictions. Except for the License granted herein, and except as otherwise expressly provided herein, all sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, warranty disclaimers, and limitations of liability. Termination is not an exclusive remedy, and all other remedies will be available whether or not the license is terminated.
8. Limited Warranty
8.1 Representations and Warranties by You
You represent and warrant that, in connection with this Agreement or the Service: (a) your use of the Service will be in strict accordance with this Agreement and with all applicable laws and regulations (including, without limitation, any local laws or regulations in your country, state, city, or other governmental area, regarding online conduct and acceptable content); (b) your User-Generated Content and your use of the Service will not infringe or misappropriate the intellectual property rights of any third party; (c) you will not and will not attempt to re-join or attempt to use the Service if Eduphoria has banned or suspended you; (d) you will not and will not attempt to defraud Eduphoria or another user; (e) that you, to the extent applicable, are duly organized, validly existing and in good standing under the laws of the jurisdiction of your incorporation or organization; (f) that the execution or performance of this Agreement will not conflict with or violate any provision of any law applicable to you; (h) that by purchasing a subscription, creating and account, or otherwise using the Service you agree (and in the case of a school, district, or multi-seat license you agree on behalf of your accounts’ users) to be bound by this Agreement, that these terms will constitute a valid and binding obligation on you (and in the case of a school, district, or multi-seat license you agree on behalf of your accounts’ users), and will be enforceable against you in accordance with the terms herein; (i) you will comply with with all applicable laws, statutes, regulations, or rules, without limitation, including but not limited to: any data privacy laws or regulations applicable in Your jurisdiction, the Family Educational Rights and Privacy Act (“FERPA”), Children’s Online Privacy Protection Act (“COPPA”) and the Protection of Pupil Rights Amendment (“PPRA”) (collectively “Laws”); and (j) you will not and will not attempt to use another user’s account or allow another person to use your user account. In addition to the representations and warranties above, Districts and/or Schools further represent and warrant that it and its members, employees, contractors, permitted successors, permitted assigns, permitted administrators, and permitted legal representatives will not share accounts between two or more users. User accounts may be reassigned to accommodate District’s users changes, such as employee turnover.
8.3 Disclaimer of Warranties by Eduphoria
THE SERVICE IS PROVIDED “AS IS.” EDUPHORIA AND ITS LICENSORS, SERVICE PROVIDERS AND PARTNERS HEREBY DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. EDUPHORIA DOES NOT MAKE ANY WARRANTY THAT THE SERVICE WILL BE ERROR-FREE OR THAT ACCESS THERETO WILL BE CONTINUOUS OR UNINTERRUPTED, OR THAT THE SERVICE OR THE SERVERS THAT MAKE AVAILABLE THE FEATURES AND FUNCTIONALITY THEREOF ARE FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS.
YOU UNDERSTAND THAT YOU USE THE SERVICE AT YOUR OWN DISCRETION AND RISK. YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER OR OTHER DEVICES AND FOR ANY LOSS OF DATA THAT MAY RESULT FROM THE DOWNLOAD OF SUCH CONTENT. WE DO NOT PROVIDE ANY WARRANTY OR GUARANTEE AS TO THE ACCURACY, PERFORMANCE, COMPLETENESS, OR SUITABILITY OF THE INFORMATION AND MATERIALS FOUND OR OFFERED ON THE SERVICE. YOU ACKNOWLEDGE THAT SUCH INFORMATION AND MATERIALS MAY CONTAIN INACCURACIES OR ERRORS AND WE EXPRESSLY EXCLUDE LIABILITY FOR ANY SUCH INACCURACIES OR ERRORS TO THE FULLEST EXTENT PERMITTED BY LAW. EDUPHORIA DOES NOT GUARANTEE OR WARRANT THAT ANY CONTENT YOU MAY STORE OR ACCESS THROUGH THE SERVICE WILL NOT BE SUBJECT TO INADVERTENT DAMAGE, LOSS OR REMOVAL. CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE FOREGOING DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
9. Limitation of Liability
EDUPHORIA'S TOTAL LIABILITY, IF ANY, WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT (INCLUDING, BUT NOT LIMITED TO, LIABILITY ARISING OUT OF CONTRACT, TORT, STRICT LIABILITY, BREACH OF WARRANTY OR OTHERWISE), WILL BE LIMITED TO THE LICENSE FEES PAID BY CUSTOMER TO EDUPHORIA FOR THE PRECEDING TWELVE (12) MONTHS FROM THE TIME OF THE EVENT RESULTING IN THE ALLEGED LIABILITY OCCURS. EDUPHORIA, ITS LICENSORS, OFFICERS, DIRECTORS, AGENTS, AND EMPLOYEES WILL NOT BE LIABLE IN ANY EVENT FOR LOSS OF PROFITS OR REVENUE OR INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES INCURRED BY CUSTOMER OR BY ANY THIRD PARTY. NOTWITHSTANDING ANY DISCLAIMERS TO THE CONTRARY IN THIS AGREEMENT, EDUPHORIA WARRANTS THAT IT HAS GOOD TITLE OR LICENSE TO THE SOFTWARE PROVIDED TO CUSTOMER. EDUPHORIA FURTHER WARRANTS THAT IT HAS THE RIGHT TO LICENSE AND DOES HEREBY LICENSE THE USE OF THE SOFTWARE TO CUSTOMER.
10.1 Confidential Information
You acknowledge that the Service and documentation, and all information relating to the business and operations of Eduphoria that you learn or have learned during the term of this Agreement is the valuable, confidential, and proprietary information of Eduphoria (collectively, "Confidential Information"). During the term of this Agreement, and at all times afterward, you and your employees, contractors, consultants, and agents will: (a) safeguard the Confidential Information with the same degree of care that it uses to protect its own confidential information; (b) maintain the confidentiality of the Confidential Information; (c) not use the Confidential Information except as permitted under this Agreement; and (d) not disseminate, disclose, sell, publish, or otherwise make available the information to any third party without the prior written consent of Eduphoria.
10.2 Confidentiality Exceptions
The confidential restrictions in this Section 10 do not apply to any information that: (a) is already lawfully in your possession (unless received pursuant to a nondisclosure agreement); (b) is or becomes generally available to the public through no fault of Customer; (c) is disclosed to you by a third party who may transfer or disclose such information without restriction; (d) is required to be disclosed by you as a matter of law (provided you will use all reasonable efforts to provide Eduphoria with prior notice of such disclosure and to obtain a protective order therefore); (e) is disclosed by you with Eduphoria's approval; and (f) is independently developed by you without any use of Confidential Information.
10.3 Irreparable Harm
You acknowledge that any breach of this Section 10 by you will irreparably harm Eduphoria. Accordingly, in the event of a breach, Eduphoria is entitled to promptly seek injunctive relief in addition to any other remedies that Eduphoria may have at law or in equity.
11.1 Indemnification by Eduphoria
Eduphoria will defend you from and against any third-party claim to the extent alleging that the Service, when used by you as authorized in this Agreement, infringes a third party’s patent, copyright, trademark or trade secret, and will indemnify and hold harmless you against any damages or costs awarded against you (including reasonable attorneys’ fees) or agreed in settlement by Eduphoria resulting from the claim.
11.2 Indemnification by Customer
You will defend Eduphoria from and against any third-party claim to the extent resulting from User Generated Data, User Generated Content or your breach or alleged breach of Section 4 (Your Obligations and Responsibilities), and will indemnify and hold harmless Eduphoria against any damages or costs awarded against Eduphoria (including reasonable attorneys’ fees) or agreed in settlement by you resulting from the claim.
The indemnifying party’s obligations in this Section 11 are subject to receiving (a) prompt notice of the claim, (b) the exclusive right to control and direct the investigation, defense and settlement of the claim and (c) all reasonably necessary cooperation of the indemnified party, at the indemnifying party’s expense for reasonable out-of-pocket costs. The indemnifying party may not settle any claim without the indemnified party’s prior consent if settlement would require the indemnified party to admit fault or take or refrain from taking any action (other than relating to use of the Service, when Eduphoria is the indemnifying party). The indemnified party may participate in a claim with its own counsel at its own expense.
12.1 Arbitration Agreement
This Section 12 is referred to herein as the “Arbitration Agreement.” The parties that any and all controversies, claims, or disputes between you and Eduphoria arising out of, relating to, or resulting from these Terms and Conditions, shall be subject to binding arbitration pursuant to the terms and conditions of this Arbitration Agreement, and not any court action (other than a small claims court action to the extent the claim qualifies). The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.
12.2 Class Action Waiver
THIS PARAGRAPH IS REFERRED TO AS THE “CLASS ACTION WAIVER.” THE PARTIES AGREE THAT EACH PARTY MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH PARTIES AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S).
12.3 Neutral Arbitrator
Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association’s (“AAA”) rules and procedures (the “AAA Rules”), as modified by this Arbitration Agreement. If there is any inconsistency between the AAA Rules and this Arbitration Agreement, the terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of these Terms and Conditions as a court would, including without limitation, the limitation of liability provisions above. You may visit http://www.adr.org for information on the AAA and http://www.adr.org/fileacase for information on how to file a claim against Eduphoria.
12.4 Arbitration Location
The arbitration shall be held in Collin County, Texas. If the value of the relief sought is $50,000 or less, you or Eduphoria may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on each party, but subject to the arbitrator’s discretion to require an in-person hearing if the circumstances warrant. Attendance at any in-person hearing may be made by telephone by either or both parties unless the arbitrator requires otherwise.
12.5 Applicable Law and Precedent
The arbitrator will decide the substance of all claims in accordance with the laws of the State of Texas, without regard to its conflicts of laws rules, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different Service users, but is bound by rulings in prior arbitrations involving you to the extent required by applicable law.
Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees“) will be governed by the AAA’s Rules. Each party will be responsible for all other fees it incurs in connection with the arbitration, including without limitation, all attorney fees.
All aspects of the arbitration proceeding, and any ruling, decision or award by the arbitrator, will be strictly confidential for the benefit of all parties.
If a court decides that any term or provision of this Arbitration Agreement other than the Class Action Waiver is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified. If a court decides that any of the provisions of the Class Action Waiver is invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void. The remainder of these Terms and Conditions will continue to apply.
13. General Terms
Eduphoria may make modifications, deletions and/or additions to this EDUPHORIA SERVICES LICENSE AGREEMENT (“Changes”) at any time. Changes will be effective: (a) thirty (30) days after Eduphoria provides notice of the Changes, whether such notice is posted to Eduphoria, is sent to the email address associated with your account, or otherwise; or (b) when you opt in or otherwise expressly agree to the Changes or a version of this EDUPHORIA SERVICES LICENSE AGREEMENT incorporating the Changes, whichever comes first.
13.2 Communications and Notices
Under this Agreement, you consent to receive communications from Eduphoria electronically. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
13.3 Not a Joint Venture
No agency, partnership, joint venture, or employment is created as a result of this Agreement and you do not have any authority of any kind to bind Eduphoria in any respect whatsoever.
You may, under certain circumstances, share feedback or ideas with us regarding the Service or Content. If you choose to share your feedback with us, you understand that (a) we are not required to take any action based on your feedback, or (b) if we do take action based on your feedback, (i) you will have no expectation of review, approval, payment, or consideration of any type for any such feedback or ideas and (ii) Eduphoria will be free to use and exploit the feedback or ideas in our sole and absolute discretion.
Eduphoria may advertise, publicly announce, or provide to any other person, information relating to the existence of this agreement or use your (and in the case of your school or district its) name or logo, in any format for any promotion, publicity, or marketing of the Service.
13.6 Governing Law and Jurisdiction
Except to the extent that applicable law, if any, provides otherwise, this Agreement and any access to or use of the Service will be governed by the laws of the State of Texas, U.S.A. You agree that any action at law or in equity arising out of or relating to this Agreement that is not subject to arbitration under the Arbitration Section shall be filed only in the state or federal courts in Collin County, Texas (or a small claims court of the above-referenced jurisdiction) and you hereby consent and submit to the personal jurisdiction of such courts for the purpose of litigating any such action.
The failure of any party at any time to require performance of any provision of this Agreement shall in no manner affect such party’s right at a later time to enforce the same. A waiver of any breach of any provision of this Agreement shall not be construed as a continuing waiver of other breaches of the same or other provisions of this Agreement.
If any provision of this Agreement is invalid or unenforceable for any reason in any jurisdiction, such provision will be construed to have been adjusted to the minimum extent necessary to cure such invalidity or unenforceability. The invalidity or unenforceability of one or more of the provisions contained in this Agreement will not have the effect of rendering any such provision invalid or unenforceable in any other case, circumstance or jurisdiction, or of rendering any other provisions of this Agreement invalid or unenforceable whatsoever.
Eduphoria may assign, transfer or sublicense this Agreement without Customer's consent. This Agreement may not be assigned, transferred or licensed by Customer except with Eduphoria's prior written consent.
13.10 Entire Understanding & Amendments
Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, signed by both parties, or by a change to this Agreement made by Eduphoria as set forth above.
13.11 Force Majeure
Neither party is liable for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) due to events beyond its reasonable control, such as a strike, blockade, war, act of terrorism, riot, Internet or utility failures, refusal of government license or natural disaster.
13.12 Benefiting Parties
Neither this Agreement, nor any term or provision hereof, nor any inclusion by reference shall be construed as being for the benefit of any party not a signatory hereto.
The section headings contained in this agreement are for reference purposes only and shall not affect the meaning or interpretation of this agreement.
You agree that this Agreement will not be construed against Eduphoria because we drafted them.
13.15 Original Instrument
This Agreement may be executed in any number of counterparts, each of which shall be deemed an original and constitute one and the same instrument.
13.16 Contact Information
Eduphoria Inc., 6800 Weiskopf Avenue, Suite 150 McKinney, Texas, 75070
Training is not included in this Agreement and is not considered part of the Service, however, training may be purchased as part of a separate agreement, pursuant to the terms of such separate agreement. Access to free online documentation is included as part of this Service.
Support is not included in this Agreement and is not considered part of the Service, however, support may be purchased as part of a separate agreement, pursuant to the terms of such separate agreement. Access to free online documentation is included as part of this Service.