Last Updated: November 6, 2018
We may periodically make changes to this Agreement our policies that apply to your use of the Services. You are responsible for regularly reviewing this Agreement and any policies that apply to your use of the Services to stay informed of any changes. If you continue to use the Services after the effective date of any modified terms or policies, you agree to be bound by them as of the date of the modification. IF YOU DO NOT AGREE TO THESE TERMS, YOU MUST CEASE USING THE SERVICES.
- Skooler Services, Eligibility and Authority, Set-up; Service Availability; Support.
(a) Services. Skooler provides a Learning Management System designed for Office 365, and also offers other services and related mobile apps (“Mobile Apps”), as further described at https://skooler.com/ and other websites where this Agreement is posted (collectively, the “Services”).
(a) Eligibility and Authority.
(i) Skooler does not sell the Services to children, but only to adults who can purchase the Services with a credit card or other permitted payment method. If you are under eighteen (18) years of age, you may use the Services only with the involvement and consent of a parent, legal guardian, or at the direction of your School. Your School may impose additional policies regarding the use of the Services, with which you must comply.
(ii) If you open a Skooler Account (defined below) to provide the Services to students in a School, you represent and warrant that you are an authorized representative of the School with the authority to bind the School to this Agreement, and that you agree to this Agreement on the School’s behalf. If you contact Skooler to take any action with respect to a Skooler Account, you represent and warrant that you have all necessary authority to request such action(s) from or on behalf of the account-holder.
(b) Account Setup. When you set up an account or have an account set up for you (“Skooler Account”) to use the Services, you will be required to choose a password and user ID, and will be required to provide other registration information (collectively, “Registration Information”). You agree and represent that all Registration Information provided by you is accurate and up-to-date. If any of your Registration Information changes, you must update it in your Skooler Account. If Skooler believes that the Registration Information you provide is not correct, current, or complete, Skooler reserves the right to refuse you access to the Services, and to terminate or suspend your Skooler Account at any time. However, Skooler has no obligation to verify the accuracy, currency, completeness, or usefulness of any Registration Information that you have provided.
(c) Skooler Account Credentials. You understand that you are responsible for maintaining the confidentiality of the username, password and any other authentication credentials for your Skooler Account and those of any users you authorize under your Skooler Account (“Permitted Users”), and you are fully responsible for all activities that occur under your Skooler Account, including the purchase of any of the Services. You agree (i) to promptly notify Skooler if you suspect any unauthorized use of your Skooler Account (including usernames, passwords or any other authentication credentials) or any other breach of security, (ii) not to share any username, password or any other authentication credentials with any other user or use the username, password or any other authentication credentials of any other user, and (iii) to use particular caution when accessing your Skooler Account from a public or shared computer so that others are not able to view or record your password or other personal information. You acknowledge that Skooler is not responsible for any loss or damage arising from the theft or misappropriation of any username, password or other authentication credentials. Skooler recommends that you use strong passwords for your Skooler Account, never use the same password on multiple sites or services, and change your password frequently. You are directly responsible to Skooler for the conduct, acts and omissions of your Permitted Users and will ensure that your Permitted Users comply with this Agreement.
(d) Service Availability. Skooler will perform and maintain regular database backups according to established Skooler policies. Skooler incorporates database and system maintenance operations and processes designed to address data consistency, indexing, and integrity requirements and help improve system performance. Skooler has implemented and will maintain commercially reasonable business resumption and contingency plans intended to avoid unplanned Services interruptions. Skooler will notify you at least twenty-four (24) hours in advance of planned maintenance services. In the event of an unplanned Services interruption, you may contact Skooler for support. A Service Level Agreement for the Services is available for an additional fee.
(e) Support Services. With respect to Schools, during the term of this Agreement and for so long as you are current with your payment of the applicable Services fees, Skooler will provide you with commercially reasonable Level 2 and 3 technical support services consistent with the support services provided to other subscribers. Support will be provided to designated super users and administrative users who have the necessary technical skills and functional understanding of the Services, and you will be responsible for providing support to your other users. Premium support is available for an additional fee.
(f) Professional Services; Statements of Work for Professional Services; Change Orders. This paragraph applies only to Schools. Subject to the terms and conditions of this Agreement, Skooler may perform implementation, integration, training or other professional services for you, all of which will be considered Services where applicable under this Agreement. The specific details of the professional services to be performed (including scope of work, fees, payment schedule and timeline) will be determined on a per-project basis, and the details for each project will be described in a Statement of Work for professional services. Each Statement of Work for professional services will constitute a separate work engagement. All changes to a Statement of Work for professional services requested by either party will only be effective upon signing of a mutually agreed change order. If work on a Statement of Work for professional services is materially delayed, postponed, or discontinued by you, Skooler may suspend performance of professional services under such Statement of Work.
- Fees and Payment.
This Section 2 applies to a School’s use of the Services.
(i) The fees for the Services are set forth on the Skooler fees page (“Fees Page”) or on an executed Order Form or Statement of Work between you and Skooler, each of which is incorporated into and made a part of this Agreement. Fees for the Services may be payable in advance, in arrears, per teacher, per student or as otherwise described on the Fees Page or on an executed Order Form or Statement of Work between us. You agree to pay Skooler the fees indicated for the Services you purchase and for the indicated term (“Subscription Term”) and for any other fees set forth on an executed Order Form or Statement of Work between us. Stated fees do not include any related taxes (including sales and use taxes, duties or other governmental taxes or fees), all of which are your responsibility and will be invoiced to you or charged to your Payment Method in addition to the fees.
(ii) Fees for subscription-based Services will be invoiced to you or charged to your Payment Method on the day your Services plan selection goes into effect and will cover fees for your Services plan selection for the payment period indicated. Fees for other Services will be charged according to the applicable Fees Page, Order Form or Statement of Work. At the end of the indicated Subscription Term for subscription-based Services, and unless otherwise set forth in the applicable Order Form or Statement of Work, your purchased Services will automatically renew for successive renewal Subscription Terms of equal length to the initial Subscription Term and the applicable fees will continue to be invoiced to you or charged to your Payment Method on a recurring basis until you change your Services plan selection or terminate this Agreement. The amount of the charge for each renewal Subscription Term will be the then-current fee applicable to the Services plan and Subscription Term you selected as set forth on the Fees Page or otherwise communicated to you. You acknowledge that the amount of the charge may increase if the applicable fee increases. If applicable, you hereby authorize Skooler to charge your Payment Method for such recurring charges
(iii) You may upgrade, downgrade or terminate your Subscription Services plan selection at any time. Plan downgrades and terminations will take effect only at the end of your current term and must be made at least 60 days prior to the start of your next renewal Subscription Term. Services upgrades will take effect immediately and you will be charged a prorated fee for the remainder of your current Subscription Term based on the difference in price between your current plan and the upgraded plan.
(b) Payment Method. Skooler may, from time to time, offer various expedited payment methods, including payment by credit card, debit card, or direct debit. If you select such a payment method, or provide such a payment method on an Order Form or Statement of Work, when purchasing the Services (the “Payment Method”), you authorize Skooler to charge you for Services through such Payment Method and agree to make payment using such Payment Method. Skooler may, from time to time, receive and use updated payment method information provided by you or that financial institutions or payment processors may provide to us to update information related to your Payment Method(s), such as updated expiration dates or account numbers. Certain Payment Methods, such as credit cards and debit cards, may involve agreements between you and the financial institution, credit card issuer or other provider of your chosen Payment Methods (the “Payment Method Provider”). If Skooler does not receive payment from your Payment Method Provider, you agree to directly pay all amounts due upon demand from Skooler. Your non-termination or continued use of the Services reaffirms that Skooler is authorized to charge your Payment Method.
(c) Current Information Required. You agree to provide current, complete and accurate billing information and agree to promptly update all such information (such as changes in billing address, credit card number or credit card expiration date) with Skooler as necessary for the issuance of invoices by Skooler and processing of all payments that are due to Skooler. You agree to promptly notify us if your Payment Method is canceled (for example, due to loss or theft) or if you become aware of a potential breach of security related to your Payment Method. If you fail to provide any of the foregoing information, you acknowledge that your current Payment Method may continue to be charged for Services and you remain responsible for all such charges.
(d) Payment Matters. Payment of all invoices is due within 30 days of invoice receipt. If your Payment Method fails or your account is past due, Skooler reserves the right to either suspend or terminate your use of the Services. You agree to submit in writing to Skooler any disputes regarding any fees invoiced to you within 30 days of invoice receipt, or charged to your Payment Method within 60 days of such charge, otherwise such dispute will be waived and such invoices and charges will be final and not subject to challenge. Skooler reserves the right to charge you interest at a rate of 1.5% per month on any overdue amounts, or the maximum rate permitted by applicable law, whichever is lower. You will also reimburse any reasonable costs and expenses (including reasonable attorneys’ fees) incurred by Skooler to collect any undisputed amount that is not paid when due. All fees and charges are nonrefundable and there are no refunds or credits for any partially used Services except (i) as expressly set forth in this Agreement, the Fees Page or an executed Order Form or Statement of Work between us; (ii) as otherwise required by applicable law; or (ii) at our sole and absolute discretion. All prices for Services are subject to change without notice; however, Skooler will use reasonable efforts to notify you at least 30 days before any price increase and fee changes will not take effect until your next renewal.
- Certain Customer Responsibilities and Additional Requirements.
(a) Grant of License. As between you and Skooler, and except as otherwise expressly stated in this Agreement, you will own and retain all rights, title, and interest in and to all data, information, text, graphics, images, links, and all other materials submitted by you or on your behalf, or that you allow us to access or upload from your systems, for processing by the Services, as well as any information that Skooler collects directly from your users (collectively, the “User Content”). You hereby grant to Skooler and its suppliers a non-exclusive, worldwide, transferable, sublicensable, and fully paid-up right and license to analyze, process, use, disclose, transfer, publish, display, compile, create derivative works of and otherwise exploit, the User Content for purposes of providing the Services and operating our business, subject to any limitations regarding Student Data (as defined below).
(b) Responsibility and Use of User Content. You are solely responsible (and assume all liability and risk) for determining whether or not User Content is legal, appropriate or acceptable, and whether you have the right to provide, access and use such content and grant to Skooler and its suppliers the right to access and use such content under this Agreement. Skooler will not be responsible for the User Content. Skooler reserves the right at all times, at its discretion and without notice to you, to remove or refuse to store or use any User Content within the Services. Skooler also reserves the right to access, preserve and disclose any information as it reasonably believes is necessary to (i) satisfy any applicable law, regulation, legal process or governmental request; (ii) enforce this Agreement, including investigation of potential violations hereof; (iii) detect, prevent, or otherwise address fraud, security, or technical issues; (iv) respond to user support requests; or (v) protect the rights and property of Skooler, its users and the public. You acknowledge that you are responsible for setting access rights and privileges for any of your Permitted Users.
(c) Additional School Responsibilities. If you are a School, in order for Skooler to perform its obligations (including warranty), you will:
(i) obtain and maintain all licenses, permits, approvals, authorizations, consents, and enrollment forms necessary for your use of Services (excluding those required for the Services itself, if any), including those required for use, access, disclosure, and transfer of Student Data or as otherwise required by local, state or federal government entities with respect to your use of the Services;
(ii) establish and implement reasonable and customary privacy and security policies within your facilities that comply with applicable law;
(iii) comply, and ensure that each Permitted User complies, with (A) the applicable terms of this Agreement and all policies referenced herein, (B) the privacy and security policies in place within your facilities, and (C) industry practice in connection with the creation, transmission, storage, viewing, access to, or other use of student, educational and other information as contemplated in the use of Services;
(iv) ensure that access rights are terminated for Permitted Users when they should no longer have access to the Services (e.g., the individual leaves your employ);
(v) you will designate in writing, where requested, one individual and one back-up individual to represent you in business dealings with Skooler and to be responsible for all communication with Skooler, and if the primary or back-up contact changes, you will notify Skooler in writing by mail or email, or by making updates to the appropriate online client registration entries; and
(vi) perform other responsibilities assigned to you under any Order Forms or Statements of Work.
- School Accounts and Student Data
This Section 4 applies to a School’s use of the Services.
(a) Student Data. When Skooler is used by a School for an educational purpose, Skooler may collect or have access to Student Data that is provided by the School or by a student or parent. “Student Data” is personal information that is directly related to an identifiable student. In the U.S., Student Data may include “educational records” as defined by FERPA (defined below).
(c) Use of Student Data. By submitting, providing us access to, or causing us to receive Student Data, you agree that Skooler may use the Student Data for the purposes of (i) providing the Services, (ii) improving and developing our Services, (iii) enforcing our rights under this Agreement, and (iv) as otherwise permitted with the School’s or user’s consent.
(d) Use of De-Identified or Anonymized Student Data. You agree that both before and after the term of this Agreement, Skooler may collect, analyze, use, and retain data derived from Student Data as well as data about users’ access and use of the Services, for the purpose of operating, analyzing, improving or marketing the Services, developing new products or services, conducting research or other purposes, provided that Skooler may not share or publicly disclose information that is derived from Student Data unless such data is de-identified and/or anonymized such that it cannot reasonably identify a specific individual.
(f) Student Data Access and Deletion Requests. Schools may request that we delete Student Data in our possession at any time by providing such a request in writing, and we shall comply with such request within thirty (30) days, except that Skooler shall not be required to delete Student Data as prohibited by law. A parent or student over the age of 18 seeking to access, modify, correct, or delete personal information in a student account that is connected to a School account will be instructed to contact the School to discuss data deletion or modification. Skooler is not required to delete data that has been derived from Student Data if such data is de-identified and/or anonymized such that it cannot reasonably identify a specific individual.
(g) Data Security and Breach Notification. We have implemented administrative, physical and technical safeguards designed to secure the personal information in Skooler’s possession and control from unauthorized access, disclosure and use. If an unauthorized party gains access to or has been disclosed Student Data (a “Security Event”) that we have collected or received through the Services under this Agreement, we will promptly notify the School. If, due to a Security Event which is caused by the acts or omissions of Skooler or its agents in breach of this Agreement, a notification to an individual, organization or government agency is required under applicable privacy laws, the School shall be responsible for the timing, content, and method of any such legally-required notice and compliance with such laws and Skooler shall indemnify the School for reasonable out-of-pocket costs related to legally-required notifications. With respect to any Security Event which is not caused by the acts or omissions of Skooler or its agents in breach of this Agreement, Skooler shall reasonably cooperate with School’s investigation of the Security Event, as School requests, at School’s reasonable expense, but Skooler shall not indemnify a School for costs associated with the Security Event. Skooler shall be responsible for the timing, content, cost and method of notice and compliance with such laws as they relate to users that are not associated with a School account.
(h) U.S.-Specific Terms
(i) Compliance with Laws. In the U.S., Skooler may collect and process Student Data as a School Official with a legitimate educational interest pursuant to the Family Educational Rights and Privacy Act (“FERPA”), 20 U.S.C. § 1232(g). Individually and collectively, we and our School users agree to uphold our obligations under FERPA, COPPA, the Protection of Pupil Rights Amendment (“PPRA”), applicable state laws relating to student data privacy, and with all other laws and regulations governing the protection of Student Data.
(ii) Connecticut-Specific Terms. This Section 4(h)(ii) applies to the use of the Services by Schools located in the State of Connecticut. The purpose of this Section 4(h)(ii) is to document compliance with applicable Connecticut state laws that may apply to the use of the Services by Schools in Connecticut, such as Conn. Gen. Stat. Ann. § 10-234aa-dd. This Section 4(h)(ii) incorporates by reference the definitions set forth in Conn. Gen. Stat. Ann. § 10-234aa.
(A) If you open an Skooler Account to provide the Services to students in a School located in the State of Connecticut, you represent and warrant that you are authorized to do so on behalf of the local or regional board of education with authority over the School and that you are authorized to communicate with Skooler on behalf of the local or regional board of education.
(B) Skooler and you shall comply with all applicable sections of Conn. Gen. Stat. Ann. § 10-234aa-dd. The following terms shall apply as required by Conn. Gen. Stat. Ann. § 10-234bb. To the extent that any such required terms conflict with other terms in this Agreement, the terms of this Section 4(h)(ii) shall apply.
- Student information, student records and student-generated content are not the property of or under the control of Skooler.
- The local or regional board of education may request the deletion of any student information, student records or student-generated content in the possession of Skooler by sending a request to firstname.lastname@example.org. As permitted by Conn. Gen. Stat. Ann. § 10-234bb(2), Skooler is not required to delete information prohibited from deletion or required to be retained under state or federal law or stored as a copy as part of a disaster recovery storage system and that is (i) inaccessible to the public, and (ii) unable to be used in the normal course of business by the contractor. Skooler will, however, comply with requests for deletion of student information, student, records, or student-generated content that is restored from such disaster recovery storage systems.
- Skooler will not use student information, student records and student-generated content for any purposes other than those authorized pursuant to this Agreement.
- A student, parent or legal guardian of a student may review personally identifiable information contained in student information, student records or student-generated content and correct erroneous information, if any, in such student record by contacting their School. Skooler will respond to such requests in accordance with instructions sent by an authorized School representative to email@example.com.
- Skooler will take actions designed to ensure the security and confidentiality of student information, student records and student-generated content.
- Skooler will promptly notify the local or regional board of education in accordance with the provisions of section 10-234dd when there has been an unauthorized release, disclosure or acquisition of student information, student records or student-generated content.
- Student information, student records or student-generated content shall not be retained or available to the contractor upon expiration of this Agreement. This restriction shall not apply to the extent that a student, parent or legal guardian of a student independently establishes or maintains an electronic account with Skooler for the purpose of storing their student-generated content.
- Skooler and the local or regional board of education shall ensure compliance with the Family Educational Rights and Privacy Act of 1974, 20 USC 1232g, as amended from time to time.
- The laws of the state of Connecticut shall govern the rights and duties hereunder of Skooler and the local or regional board of education.
- If any provision of this Section 4(h)(ii) is held invalid by a court of competent jurisdiction, the invalidity does not affect other provisions or applications of the contract which can be given effect without the invalid provision or application.
- Skooler IP.
(a) Ownership of Skooler IP. Skooler and its licensors will own and retain all rights, title, and interest in and to the Services and all materials therein, including software (including Mobile Apps, as defined below, and any other necessary software used in connection with the Services), Java applets, images, text, graphics, designs, illustrations, patents, trademarks, service marks, copyrights, photographs, audio, videos, music, information, data, other files and the arrangement thereof, content belonging to other users, Documentation and all work product and deliverables under each Order Form and Statement of Work (collectively, “Skooler IP”). “Documentation” means any user documentation, on any media, provided by Skooler for use with the Services.
(b) Limited License. During the term of this Agreement, and as applicable to the Services purchased by the relevant School, you are granted a limited, revocable, non-exclusive, non-transferable, non-sublicensable license to access and use the Services (including Mobile Apps) and Documentation for educational purposes, subject to the terms and conditions of this Agreement.
(c) Restrictions. You agree that you will not (i) copy, modify, publish, adapt, create derivative works of, sublicense, translate, sell, distribute, transmit, perform, display, reverse engineer, decipher, decompile or otherwise disassemble any portion of the Services (including Mobile Apps) or other Skooler IP or cause others to do so; (ii) remove, alter, cover or obfuscate any copyright notice or other proprietary rights notice placed on or displayed by the Services (including Mobile Apps) and Documentation, whether in machine language or human readable form; (iii) “frame” or “mirror” any part of the Services, without Skooler’s prior written authorization; (iv) use meta tags or code or other devices containing any reference to Skooler or the Services in order to direct any person to any other website for any purpose; (v) rent, lease, loan, resell, sublicense, distribute or otherwise transfer the Services (including Mobile Apps) or Documentation to any third party or use the Services (including Mobile Apps) or Documentation to provide time sharing or similar services for any third party or make any commercial use of the Services (including Mobile Apps) or Documentation, other than as intended; (vi) use any data mining, robots, or similar data gathering or extraction methods or otherwise collect any pictures, descriptions, data or other content from the Services or Documentation; (vii) forge headers or otherwise manipulate identifiers in order to disguise the origin of any information transmitted through the Services; (viii) use any automated methods or processes to create user accounts or access the Services, (ix) remove, circumvent, disable, damage or otherwise interfere with any security or other technological features or measures of the Mobile Apps and other Services, or attempt to probe, scan or test the vulnerability of a network and or system or to breach any security measures; or (x) use the Services (including Mobile Apps) or other Skooler IP other than for their intended purpose. Any use of the Services (including Mobile Apps) or other Skooler IP other than as expressly authorized herein, without the prior written consent of Skooler, is strictly prohibited and will violate and terminate the license granted herein. You agree to promptly notify Skooler in writing of any unauthorized use of the Services, Documentation or other Skooler IP that comes to your attention, cooperate and assist with any actions taken by Skooler to prevent or terminate unauthorized use of the Services, Documentation and other Skooler IP, and use reasonable efforts to prevent any such unauthorized use of the Services, Documentation and other Skooler IP.
(d) Reservation of Rights. Unless explicitly stated herein, nothing in this Agreement will be construed as conferring any license to intellectual property rights, whether by estoppel, implication or otherwise. Skooler reserves all rights not expressly granted herein in the Services (including Mobile Apps) and the other Skooler IP. This license is revocable at any time.
- Additional Terms for Mobile Applications.
(b) Mobile Apps from Apple App Store. The following applies to any Mobile Apps you acquire from the Apple App Store (“Apple-Sourced Software”): You acknowledge and agree that this Agreement is solely between you and Skooler, not Apple, Inc. (“Apple”) and that Apple has no responsibility for the Apple-Sourced Software or content thereof. Your use of the Apple-Sourced Software must comply with the App Store Terms of Service. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Apple-Sourced Software. In the event of any failure of the Apple-Sourced Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Apple-Sourced Software to you; to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple-Sourced Software, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be solely governed by this Agreement and any law applicable to Skooler as provider of the software. You acknowledge that Apple is not responsible for addressing any claims of you or any third party relating to the Apple-Sourced Software or your possession and/or use of the Apple-Sourced Software, including: (i) product liability claims; (ii) any claim that the Apple-Sourced Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation; and all such claims are governed solely by this Agreement and any law applicable to Skooler as provider of the software. You acknowledge that, in the event of any third-party claim that the Apple-Sourced Software or your possession and use of that Apple-Sourced Software infringes that third party’s intellectual property rights, Skooler, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by this Agreement. You and Skooler acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of this Agreement as relates to your license of the Apple-Sourced Software, and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement as relates to your license of the Apple-Sourced Software against you as a third-party beneficiary thereof.
(c) Mobile Apps from Google Play Store. The following applies to any Mobile Apps you acquire from the Google Play Store (“Google-Sourced Software”): (i) you acknowledge that the Agreement is between you and Skooler only, and not with Google, Inc. (“Google”); (ii) your use of Google-Sourced Software must comply with Google’s then-current Google Play Store Terms of Service; (iii) Google is only a provider of the Google Play Store where you obtained the Google-Sourced Software; (iv) Skooler, and not Google, is solely responsible for its Google-Sourced Software; (v) Google has no obligation or liability to you with respect to Google-Sourced Software or the Agreement; and (vi) you acknowledge and agree that Google is a third-party beneficiary to the Agreement as it relates to Skooler’s Google-Sourced Software.
- Third Party Applications. The Services are designed to interoperate with certain third-party applications and services (“Third-Party Applications”), including Microsoft Office 365. Skooler may also resell Third-Party Applications to you from time-to-time. These Third Party Applications may have their own terms and conditions of use and privacy policies and your use of, and any warranties respecting, these Third Party Applications will be governed by and subject to such terms and conditions and privacy policies, and Skooler has no responsibility or liability related to the performance or your use of Third-Party Applications. By installing or enabling a Third-Party Application for use with the Services, you hereby (a) grant Skooler the right to permit the provider of such Third-Party Application to access your User Content and other information and accounts and (b) agree to grant Skooler access to your accounts for such Third-Party Applications, in each case as required for the interoperation of the Third-Party Applications with the Services. Skooler is not responsible for any disclosure, loss, or corruption of your User Content or other information resulting from access by a Third-Party Application.
- Communicating with you Electronically—Permission to Text.
(a) You agree and consent to our communicating information, notices, messages, service alerts, announcements, agreements, privacy notices, disclosures or other communications (“Electronic Communications”) associated with the Services to you and Permitted Users electronically by posting such Electronic Communications in your Skooler Account, e-mailing such Electronic Communications to the e-mail address on file or by sending such Electronic Communications to you and Permitted Users via SMS text message to the mobile number on file in the relevant Skooler Account.
(c) Electronic Communications are deemed to be received – at the latest – when they are sent to you or Permitted Users at the last email address or wireless phone number provided us. You will ensure that your and Permitted Users’ email address and wireless phone number will be kept up to date in order that we may communicate with you and Permitted Users.
- Feedback. Skooler welcomes and encourages feedback, comments, and suggestions for improvements to the Services and Documentation (“Feedback”). By providing Feedback, you grant Skooler a non-exclusive, perpetual, irrevocable, paid-up, royalty-free, worldwide, transferable license, with right to sublicense, to make, have made, sell, offer for sale, use, import, reproduce, distribute, display, perform, and make derivative works of the Feedback.
- Trademarks. “Skooler”, Skooler’s logos and any other trade name or slogan contained in or used in connection with the Services are trademarks or service marks of Skooler, its partners or its licensors and may not be copied, imitated or used, in whole or in part, without the prior written permission of Skooler or the applicable trademark holder. In addition, the look and feel of the Services, including all page headers, custom graphics, button icons and scripts, is the service mark, trademark and/or trade dress of Skooler and may not be copied, imitated or used, in whole or in part, without Skooler’s prior written permission. All other trademarks, registered trademarks, product names and company names or logos mentioned in the Services are the property of their respective owners. Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof by Skooler.
- Compliance with Laws. You agree that you will use the Services and provide, access and use User Content in compliance with all applicable local, state, national and international laws, rules and regulations (including, in the U.S., COPPA and FERPA). You will not, will not agree to, and will not authorize or encourage any third party to: (a) use the Services to transmit or otherwise distribute any content that you do not have the necessary rights in or that is unlawful, defamatory, libelous, harassing, abusive, fraudulent or obscene, that contains viruses, or is otherwise objectionable, as reasonably determined by Skooler; (b) interfere or attempt to interfere with the proper working of the Services or prevent others from using the Services; or (c) use the Services for any fraudulent or unlawful purpose. Violation of any of the foregoing may result in immediate termination of this Agreement, at Skooler’s sole discretion, and may subject you to state and federal penalties and other legal consequences. Skooler reserves the right, but will have no obligation, to review the User Content and use of the Services, including in relation to Skooler user complaints or disputes, in order to determine whether a violation of this Agreement has occurred or to comply with any applicable law, regulation, legal process, or governmental request.
- Confidential Information.
(a) Definition. “Confidential Information” means non-public business information, know-how, and trade secrets in any form, including information regarding our product plans, security practices and policies, and any other information a reasonable person should understand to be confidential, which is disclosed by or on behalf of either party or its affiliates to the other party or its affiliates, directly or indirectly, in writing, orally, or by inspection of tangible objects, and whether such information is disclosed before or after the effective date of this Agreement. Confidential Information includes any portion of this Agreement and its terms that is not publicly available on our website. With the exception of Student Data, “Confidential Information” excludes information that (i) is publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing party through no action or inaction of the receiving party; (ii) is already in the possession of the receiving party at the time of disclosure by the disclosing party, as shown by the receiving party’s files and records; or (iii) is obtained by the receiving party from a third party without a breach of the third party’s obligations of confidentiality.
(b) Maintenance of Confidentiality. The party receiving Confidential Information hereunder agrees to take reasonable steps, at least substantially equivalent to the steps it takes to protect its own proprietary information, but not less than reasonable care, to prevent the unauthorized duplication or disclosure of the Confidential Information to third parties without the disclosing party’s prior written consent. The receiving party may disclose the disclosing party’s Confidential Information to the receiving party’s employees or agents who reasonably need to have access to such information to perform the receiving party’s obligations under this Agreement, and who will treat such information as Confidential Information under the terms of this Agreement. The receiving party may disclose the disclosing party’s Confidential Information if required by law so long as the receiving party gives the disclosing party written notice of the requirement prior to the disclosure (where permitted) and reasonable assistance, at the disclosing party’s expense, in limiting disclosure or obtaining an order protecting the information from public disclosure.
(c) Return of Materials and Effect of Termination. Upon written request of the disclosing party, or in any event upon any termination or expiration of this Agreement, the receiving party will return to the disclosing party or destroy all materials, in any medium, to the extent containing or reflecting any of the disclosing party’s Confidential Information. With respect to your User Content, we will make your User Content available for download at any time upon your request during the term of this Agreement and for a period of 90 days following expiration or termination of this Agreement. Following such 90-day period, we may purge your User Content from our systems. The obligations in this Section 12 survive for three years following expiration or termination of this Agreement, except that Confidential Information that constitutes a trade secret of the disclosing party will continue to be subject to the terms of this Section 12 for as long as such information remains a trade secret under applicable law.
- Representations and Warranties. Without limiting any other representation, warranty or covenant of either party herein, you hereby represent and warrant to Skooler that: (a) you have the full right, power and authority to enter into this Agreement; (b) this Agreement is a valid and binding obligation of yours; and (c) you have obtained and will maintain throughout the term of this Agreement all necessary licenses, authorizations, approvals and consents to enter into and perform your obligations hereunder in compliance with all applicable laws, rules and regulations. Further, you hereby represent and warrant to Skooler that (i) you will remain fully responsible for all access to and use of the Services through your username, password and any other authentication credentials, including access to any features the use of which results in monetary charges to you, whether or not you have knowledge of or authorize such access and use; (ii) you have the right to grant to Skooler and its suppliers the rights granted herein and that none of the User Content contains any material that infringes upon any third-party right, including rights arising from contracts between you and third parties, copyright, trademark, class action, patent, consumer protection laws, trade secret, moral rights, privacy rights, rights of publicity, or any other intellectual property or proprietary right, or which slanders, defames, libels, or invades the right of privacy, publicity, or other property rights of any person; (iii) none of the User Content provided by you hereunder contains any viruses, Trojan horses, trap doors, back doors, Easter eggs, worms, time bombs, cancelbots, or other computer programming routines that may potentially damage or interfere with the Services, or intercept or expropriate any system data or personal information from the Services; (iv) you have provided and will continue to provide Skooler with accurate and complete Registration Information and other information, and will inform Skooler in writing of any changes or updates to such information during the term of this Agreement; (v) you will review all User Content and ensure that it is true, correct and accurate and not misleading, and that such User Content complies with this Agreement; and (vi) you will immediately notify Skooler in writing if you learn that any of your User Content is not true, correct or accurate and provide the true, correct and accurate information to Skooler.
- Term; Termination.
(a) Term. The term of this Agreement will continue until terminated as described in this Agreement.
(b) Termination for Breach. Without limiting Skooler’s rights to terminate as set forth elsewhere in this Agreement, Skooler may terminate this Agreement immediately upon written notice to you for breach of Section 3, 5, 6, 11, 12 or 13. In the event of a material breach by either party of any other provision of this Agreement or any Order Form or Statement of Work, the non-breaching party may terminate this Agreement upon 30 days’ prior written notice without liability to the other party. Additional Order Form or Statement of Work-specific termination rights may be set forth in an Order Form or Statement of Work. Without limitation, any failure to timely pay to Skooler any undisputed amounts when due will constitute a material breach of this Agreement, and Skooler may, without limitation of any of our other rights and remedies available, suspend performance of any or all Services and Professional Services under any Order Form and Statement of Work then in progress during any time that you fail to pay any amounts owed to Skooler.
(c) Termination by Non-School Users. Non-School users may terminate this Agreement by cancelling their Skooler Account using cancellation functionality provided in the Services.
(d) Termination by Schools. Schools may terminate this Agreement as described in Section 2(a)(iii).
(e) Effects of Termination. Upon termination of this Agreement, you will be responsible for paying (i) fees payable for the remainder of any ongoing Subscription Terms, unless this Agreement was terminated by you for Skooler’s uncured material breach or was terminated by Skooler for convenience, and (ii) any other amount due under this Agreement through the effective date of termination, and you authorize Skooler to charge your Payment Method immediately upon termination for the full amount payable hereunder. No refunds of fees paid under this Agreement will be provided.
(f) Survival. Termination of this Agreement will not relieve either party of any obligations or liabilities that have accrued prior to the termination date (including obligations to pay fees, taxes, interest and collection costs) and is without prejudice to any other rights and remedies either party may have. In addition, each party’s obligations as provided in the following sections of this Agreement will survive termination: 2, 3, 4, 5(a), 7, 9-12, 14-19 and 20 (excluding (a)).
- Purchase Through Channel Partners
(a) Applicability. This Section 15 only applies to Schools purchasing Services through an authorized distributor or reseller (a “Channel Partner”). If you are uncertain as to the applicability of this section to your purchase, you should contact Skooler for further information.
(b) Channel Partners. If you ordered your Services from a Channel Partner, then the following terms apply:
(i) This Agreement is not exclusive of any rights you obtain under your agreement with the Channel Partner (the “Channel Partner Sale Agreement”); however, if there is any conflict between the provisions of this Agreement and the Channel Partner Sale Agreement, then the provisions of this Agreement prevail. If a Channel Partner has granted you any rights that Skooler does not also directly grant to you in this Agreement, or that conflict with this Agreement, then your sole recourse with respect to such rights is against the Channel Partner.
(ii) Your Subscription Term will run for the period of time stated in the Channel Partner Sales Agreement and, subject to Section 8, it will expire, renew and terminate in accordance with the terms of the Channel Partner Sale Agreement.
(iii) Section 2 does not apply to you, and your billing and payment rights and obligations are governed by the Channel Partner Sale Agreement. However, if the Channel Partner from whom you purchased the Services fails to pay Skooler any amounts due in connection with your Services, then Skooler may suspend your Services, with or without notice to you. You agree that your remedy in the event of such suspension is solely against the Channel Partner and that Skooler is not liable to you in any manner for such suspension.
(a) Your Indemnity. To the extent permitted by applicable law, you agree to defend, indemnify and hold Skooler and its affiliates and each of their respective directors, officers, employees, agents, contractors, suppliers, licensors and representatives, and affiliates of each of the foregoing, harmless from and against any losses, costs, liabilities, claims, demands, damages and expenses, including reasonable attorneys’ fees, arising out of or related to (a) your violation of any term of this Agreement, (b) your use or misuse of the Services, (c) your violation of any rights of a third party, including any right of privacy or intellectual property rights; (d) any other party’s access and use of the Services with your username, password or any other authentication credentials; (e) your violation of any applicable laws, rules or regulations, (f) User Content, or (h) your negligence or willful misconduct. Skooler agrees to give you prompt written notice of any claim and to reasonably cooperate with your defense of such claim, at your expense.
(b) Skooler Indemnity. Skooler agrees to defend, indemnify and hold you and your affiliated companies harmless from and against any and all third party claims and pay all awarded damages, losses, liabilities, costs and expenses or settlement related thereto arising from allegations that the Services or any portion thereof infringe(s) or otherwise violate(s) such third-party’s U.S. patents, trademarks or copyrights; provided, however, that Skooler will have not responsibility for infringement or violation by User Content. You must give Skooler prompt written notice of any claim and reasonably cooperate with Skooler’s defense of such claim, at Skooler’s expense. If a claim under this paragraph is made or likely to be made, Skooler may in its sole discretion: (i) procure a license to allow you to continue using the allegedly infringing component(s) of the Services, (ii) modify the infringing component(s) to make them non-infringing, or (iii) if (i) and (ii) are not reasonably available, terminate your right to use the infringing component(s) effective immediately without liability.
- Disclaimer of Warranties.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
(A) YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. SKOOLER EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
(B) SKOOLER MAKES NO WARRANTY OR CONDITION THAT (i) THE SERVICES WILL MEET YOUR REQUIREMENTS, (ii) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICES WILL MEET YOUR EXPECTATIONS, AND (V) ANY ERRORS IN THE SERVICES WILL BE CORRECTED.
(C) ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
(D) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM SKOOLER OR THROUGH OR FROM THE SERVICES SHALL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THE AGREEMENT.
- Limitation of Liability and Damages. UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, WILL SKOOLER, ITS AFFILIATES, AND ITS SUBSIDIARIES BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE, OR EXEMPLARY DAMAGES, OR ANY LOSS OF PROFIT OR REVENUE (WHETHER INCURRED DIRECTLY OR INDIRECTLY), ANY LOSS OF GOODWILL OR BUSINESS REPUTATION, ANY LOSS OF DATA SUFFERED, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSS, THAT RESULTS FROM THIS AGREEMENT OR THE USE OR THE INABILITY TO USE THE SERVICES, EVEN IF SKOOLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE FOREGOING, SKOOLER AND ITS AFFILIATES AND SUBSIDIARIES WILL NOT BE LIABLE TO YOU FOR ANY CHANGES WHICH SKOOLER MAY MAKE TO THE SERVICES, OR FOR (A) ANY PERMANENT OR TEMPORARY CESSATION IN THE PROVISION OF THE SERVICES (OR ANY FEATURES WITHIN THE SERVICES); (B) THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE, ANY USER CONTENT OR OTHER DATA MAINTAINED OR TRANSMITTED BY OR THROUGH YOUR USE OF THE SERVICES; (C) YOUR FAILURE TO PROVIDE SKOOLER WITH ACCURATE REGISTRATION INFORMATION OR OTHER INFORMATION; AND (D) ANY LIABILITY RESULTING FROM YOUR FAILURE TO KEEP YOUR username, PASSWORD OR any other authentication credentials or ACCOUNT DETAILS SECURE AND CONFIDENTIAL. EXCEPT FOR AMOUNTS EXPRESSLY DUE AND OWING HEREUNDER, IN NO EVENT WILL SKOOLER AND ITS AFFILIATES AND SUBSIDIARIES’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT, INCLUDING NEGLIGENCE, WARRANTY, INDEMNIFICATION OR OTHERWISE) EXCEED THE AMOUNT PAID BY YOU, IF ANY, DURING THE TWELVE MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE CLAIM OR ONE HUNDRED DOLLARS ($100.00), WHICHEVER IS GREATER.
NOTWITHSTANDING ANYTHING TO THE CONTRARY, NOTHING IN THIS AGREEMENT WILL EXCLUDE OR LIMIT SKOOLER’S WARRANTY OR LIABILITY FOR LOSSES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY LAW. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE CAUSED BY NEGLIGENCE, BREACH OF CONTRACT OR BREACH OF IMPLIED TERMS, OR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ONLY THE LIMITATIONS WHICH ARE LAWFUL WILL APPLY TO YOU AND SKOOLER’S LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
- Governing Law, Venue, Arbitration, and Class Action/Jury Trial Waiver.
(a) Governing Law. You agree that (i) the Services shall be deemed solely based in the Governing Jurisdiction, and (ii) the Services shall be deemed a passive ones that does not give rise to personal jurisdiction over us, either specific or general, in jurisdictions other than the Governing Jurisdiction . This Agreement shall be governed by the laws of the Governing Jurisdiction , without respect to its conflict of laws principles. If Skooler AS is party to this Agreement, “Governing Jurisdiction” means Norway, and if Skooler, Inc. is party to this Agreement, “Governing Jurisdiction” means the State of Washington, USA.
(b) Venue. You agree to submit to the personal jurisdiction of the state or federal courts in and for the city of Seattle, Washington, USA if the Governing Jurisdiction is the State of Washington, or Oslo, Norway if the Governing Jurisdiction is Norway, for any actions for which we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction, as set forth in the Arbitration provision below. You agree that the courts referenced above are the proper forum for any appeals of an arbitration award or for trial court proceedings in the event that the arbitration provision below is found to be unenforceable.
(d) Class Action/Jury Trial Waiver. ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU AGREE THAT BY ENTERING INTO THIS AGREEMENT, YOU AND SKOOLER ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND.
- Updates to this Agreement; Miscellaneous; Questions.
(a) Updates to this Agreement. From time to time, Skooler may change, modify, add, or remove portions of this Agreement (each an “Update”), and reserves the right to do so in its sole discretion. If Skooler Updates this Agreement, it will make the Updated Agreement available at https://skooler.com/terms-of-use/, and the Updated Agreement will indicate the date of the latest revision. Skooler encourages you to review this Agreement periodically for changes. In the event that Updates to this Agreement materially alter your rights or obligations hereunder, Skooler will make reasonable efforts to notify you of the Updates. For example, Skooler may send a message to your email address that is currently associated with your Skooler Account or generate a pop-up or similar notification when you access your Skooler Account for the first time after such material changes are made. All Updated Agreements automatically take effect 30 days after they are made available through the Services, except that (i) disputes between you and Skooler will be governed by the version of this Agreement that was in effect on the date the dispute arose and (ii) unless specifically agreed otherwise, if you do not agree with any changes to this Agreement, you may terminate this Agreement as set forth above. Your continued access to or use of the Services after an Updated Agreement has become effective indicates that you have read, understood and agreed to the current version of this Agreement.
(d) U.S. Government Use. If you are a U.S. Government end user, the Services (including Mobile Apps) and Documentation are Commercial Items, as that term is defined at 48 C.F.R. §2.101, consisting of Commercial Computer Software and Commercial Computer Software Documentation, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to the U.S. Government end user (a) only as Commercial Items, (b) not as military or defense articles as defined in the International Traffic in Arms Regulations, 22 C.F.R Parts 120-130 or Export Administration Regulations, 15 C.F.R. Parts 700-799), and (c) with only those rights as are granted to all other end users pursuant to this Agreement. Unpublished-rights reserved under the copyright laws of the United States.
(f) Miscellaneous. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you without the prior written consent of Skooler. Skooler may freely assign or transfer this Agreement. Both parties are independent contractors, and neither party is an agent, representative or partner of the other. In this Agreement, “including” means “including without limitation”. Skooler may, in its sole discretion, work with licensors, vendors, contractors and other third parties to fulfill any obligations in this Agreement or to support the Services, and we may change our use of licensors, vendors, contractors and other third parties without notice to you. Any notices under this Agreement will be sent by Skooler to at least one of the addresses provided to Skooler in connection with your registration or updates thereto (or in a separate writing) and will be sent by you to the address for Skooler shown on www.skooler.com. Notices will be sent by nationally recognized express delivery service and will deemed given one business day after deposit with such delivery service. The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving party. If any provision contained in this Agreement is determined to be invalid, illegal, or unenforceable in any respect under any applicable law, then such provision will be severed and replaced with a new provision that most closely reflects the original intention of the parties, and the remaining provisions of this Agreement will remain in full force and effect. Headings are provided for convenience but do not constitute part of this Agreement.
(h) Questions. If you have any questions related to this Agreement, please contact us by email at firstname.lastname@example.org.