Effective: January 8, 2019
These User Terms of Service (the “User Terms”) govern your, the Authorizer User’s (as defined below), access and use of our online (the “Website”) & mobile (the “App”) knowledge cloud platform and our 3rd party content and assessment partners (the “Services”). Please read them carefully. Even though, in some cases you may be are signing onto an existing platform, these User Terms apply to you —the prospective user reading these words.
Please read these User Terms carefully to ensure that you understand each provision. These User Terms contain a Binding and Mandatory Arbitration and Class Action/Jury Trial waiver provision that required the use of arbitration on an individual basis to resolve disputes, rather than jury trial or class actions and limits the remedies available to you in the event of certain disputes.
These User Terms are Legally Binding
These User Terms are a legally binding contract between you and us. As part of these User Terms, you agree to comply with the most recent version of our Acceptable Use Policy, which is incorporated by reference into these User Terms. If you access or use the Services, or continue accessing or using the Services after being notified of a change to the User Terms or the Acceptable Use Policy, you confirm that you have read, understand and agree to be bound by the User Terms and the Acceptable Use Policy. “We”, “our” and “us” currently refers to EdCast Inc (“EdCast”).
Customer’s Choices and Instructions
An organization or other third party, or you through your association, or on your own, (“Customer”) have obtained permission to access our Services for accessing online knowledge and learning tools based on Authorized User’s preferences (the “Instance”) via our Website or App. If you are accessing Instance from one of your employer’s platform or have downloaded the App from your employer’s app marketplace, then the Customer is your employer. If you are joining us through one of your association or on your own, then you are both the Customer and the Authorized User.
Customer’s Contract with us and its effect on you
Customer has separately agreed to our Customer Terms of Service or entered into a written agreement with us (in either case, the “Contract”) that permitted Customer to create and configure a platform or make our App available on their app marketplace, so that you and others could join (each invitee granted access to the Services, including you, is an “Authorized User”). The Contract contains our commitment to deliver the Services to Customer, who may then invite Authorized Users to join its platform(s). When an Authorized User (including, you) submits content or information to the Services, such as messages or files (“Customer Data”), you acknowledge and agree that the Customer Data is owned by Customer and the Contract provides Customer with many choices and control over that Customer Data. For example, Customer may provision or deprovision access to the Services, enable or disable third party integrations manage permissions, retention and export settings, transfer or assign platform instance, share channels, or consolidate your instance or channels with other instance or channels, and these choices and instructions may result in the access, use, disclosure, modification or deletion of certain or all Customer Data.
The Relationship Between You, Customer and Us
AS BETWEEN US AND CUSTOMER, YOU AGREE THAT IT IS SOLELY CUSTOMER’S RESPONSIBILITY TO (A) INFORM YOU AND ANY AUTHORIZED USERS OF ANY RELEVANT CUSTOMER POLICIES AND PRACTICES AND ANY SETTINGS THAT MAY IMPACT THE PROCESSING OF CUSTOMER DATA; (B) OBTAIN ANY RIGHTS, PERMISSIONS OR CONSENTS FROM YOU AND ANY AUTHORIZED USERS THAT ARE NECESSARY FOR THE LAWFUL USE OF CUSTOMER DATA AND THE OPERATION OF THE SERVICES; AND (C) RESPOND TO AND RESOLVE ANY DISPUTE WITH YOU AND ANY AUTHORIZED USER RELATING TO OR BASED ON CUSTOMER DATA, THE SERVICES OR CUSTOMER’S FAILURE TO FULFILL THESE OBLIGATIONS. EDCAST MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, TO YOU RELATING TO THE SERVICES, WHICH ARE PROVIDED TO YOU ON AN “AS IS” AND “ AS AVAILABLE” BASIS.
Access to Services and Instance
Subject to your compliance with these User Terms, we grant you a limited, revocable, non-exclusive, non-transferable access our Service and Instance via our website or through the “App,” which may be downloaded from Customer’s marketplace, in accordance with these User Terms.
If you access the Services and/or Instance via our App, we also grant you a limited, non-exclusive and nontransferable license to: (a) download, install, and use the App from Customer marketplace in accordance with these User Terms and the terms of Customer marketplace on a single mobile device owned or otherwise controlled by you (“Mobile Device”) strictly in accordance with this Agreement, and (b) to access, stream, download and use on such Mobile Device the Services and/or Instance made available in or otherwise accessible through the App, strictly in accordance with this Agreement.
If you access the Services through a Mobile Device, your wireless service carrier’s standard charges, data rates, and other fees may apply. Some or all of the Services’ or Instances’ functionality may not work with all carriers or mobile devices. By accessing the Services or Instance on a Mobile Device, you agree that we may communicate with you by push notifications, text message, or other electronic means to your Mobile Device and that certain information about your usage of the Services through the mobile device may be communicated to us.
If you access our Services or Instance through our Website, you need to make sure that your Internet connection is adequate for accessing our Services and Instance. You are solely responsible for your Internet connection including and not limited to the applicable charges, rates, tariffs and other fees that might apply.
All content included on the EdCast Website and the EdCast App, such as text, graphics, logos, button icons, images, audio clips, digital downloads, data compilations, and software, is the property of EdCast or its content suppliers and protected by United States and international copyright laws. All software used on the EdCast Website and the EdCast App is the property of EdCast or its software suppliers and protected by United States and international copyright.
Digital Millennium Copyright Act
EdCast takes claims of copyright infringement seriously. If you believe any materials on the Website or App infringe your copyright, please inform EdCast by sending written notice by U.S. Mail to EdCast addressed to Copyright Designated Agent at 1901 Old Middlefield Way #21, Mountain View, CA 94043 or by email to info@EdCast.com. In accordance with the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act (17 U.S.C. § 512) (“DMCA”), your written notice must include substantially the following:
A reasonably detailed description of the copyrighted work(s) or other intellectual property(s) you claim has/have been infringed, or if the claim involves multiple words, a representative list of such works; Identification of the specific material you believe infringes upon our rights and sufficient information to enable EdCast to locate the specific material. Your company name (if any), your legal name (printed), mailing address, and phone number, and, if available, an email address; and a physical or electronic signature of a person authorized to act on behalf of the owner of the right that is allegedly violated or infringed, and the present date. The DMCA only authorizes EdCast to remove or disable access to specific infringing materials.
If you fail to comply with all of the requirements of § 512(c)(3) of the DMCA, your notice may not be effective. Please be aware that if you knowingly materially misrepresent that material or activity on the is infringing your copyright, you may be held liable for damages (including costs and attorneys’ fees) under § 512(f) of the DMCA.
Upon EdCast’s receipt of a valid, complete takedown notice, EdCast shall (i) remove or disable access to the specific allegedly infringing material identified in the notice, and (ii) take reasonable steps to contact the author(s) or other sources of the material.
If EdCast removes or disables access to material as a result of a takedown notice, the person or entity supplying such material may instruct EdCast to restore such material by providing a counter-notification to EdCast. Upon receipt of a counter-notification, EdCast shall send a copy of the counter-notification to the original complaining party and inform such party that EdCast shall replace or restore access to the material within no less than 10 but no more than 14 days unless EdCast receives official notice from the complaining party that it has filed an action seeking a court order.
“ED”, “EDCAST”, “MYGUIDE”, “CONTENT EXCHANGE”, “SALESU” and other EdCast graphics, logos, page headers, button icons, scripts, and service names are trademarks, registered trademarks or trade dress of EdCast in the U.S. and/or other countries. EdCast’s trademarks and trade dress may not be used in connection with any product or service that is not EdCast’s, in any manner that is likely to cause confusion among customers, or in any manner that disparages or discredits EdCast. All other trademarks not owned by EdCast that appear on EdCast are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by EdCast.
Use of Services and Instance
You Must be Over the Age of 18
The Services and Instance are not intended for and should not be used by anyone under the age of sixteen. You represent that you are over the age of 18 and are the intended recipient of Customer’s invitation to the Services. You may not access or use the Services and Instance for any purpose if either of the representations in the preceding sentence is not true. Without limiting the foregoing, you must be of legal working age.
To Use Our Services and Instance, You Must Follow Our Rules
To help ensure a safe and productive work environment, all Authorized Users must comply with our Acceptable Use Policy and remain vigilant in reporting inappropriate behavior or content to Customer and us.
Authorized User Term
These User Terms remain effective until Customer’s subscription for you expires or terminates, or your access to the Services has been terminated by Customer or us. Please contact Customer if you at any time or for any reason wish to terminate your account, including due to a disagreement with any updates to these User Terms or the Acceptable Use Policy.
All Authorized Users participating in any Instance or Service must agree to and strictly follow the following honor code of conduct:
1. You will personally complete all assessments, projects, and assignments, and will be your own work (except for peer or group based work).
2. You will not share my work, solutions, or answers to assessments, projects and assignments with anyone else. This includes both solutions written by you and any course staff solutions provided to you.
3. You will not engage in any activity that will dishonestly improve my results or dishonestly improve or negatively impact another user’s results.
Limitation of Liability
If we believe that there is a violation of the Contract, User Terms, the Acceptable Use Policy, or any of our other policies that can simply be remedied by Customer’s removal of certain Customer Data or taking other action, we will, in most cases, ask Customer to take action rather than intervene. We may directly step in and take what we determine to be appropriate action (including disabling your account) if Customer does not take appropriate action or we believe there is a credible risk of harm to us, the Services, Authorized Users, or any third parties. IN NO EVENT WILL YOU OR WE HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNLESS YOU ARE ALSO A CUSTOMER (AND WITHOUT LIMITATION TO OUR RIGHTS AND REMEDIES UNDER THE CONTRACT), YOU WILL HAVE NO FINANCIAL LIABILITY TO US FOR A BREACH OF THESE USER TERMS. OUR MAXIMUM AGGREGATE LIABILITY TO YOU FOR ANY BREACH OF THE USER TERMS IS ONE HUNDRED DOLLARS ($100) IN THE AGGREGATE. THE FOREGOING DISCLAIMERS WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW AND DO NOT LIMIT EITHER PARTY’S RIGHT TO SEEK AND OBTAIN EQUITABLE RELIEF.
The sections titled “The Relationship Between You, Customer, and Us”, “Limitation of Liability”, and “Survival”, and all of the provisions under the general heading “General Provisions” will survive any termination or expiration of the User Terms.
Email and EdCast Messages
Except as otherwise set forth herein, all notices under the User Terms will be by email, although we may instead choose to provide notice to Authorized Users through the Services (e.g., a EdCast bot notification). Notices to EdCast should be sent to info@EdCast.com, except for legal notices, which must be sent to legal@EdCast.com. A notice will be deemed to have been duly given (a) the day after it is sent, in the case of a notice sent through email; and (b) the same day, in the case of a notice sent through the Services. Notices under the Contract will be delivered solely to Customer in accordance with the terms of that agreement.
No failure or delay by either party in exercising any right under the User Terms, including the Acceptable Use Policy, will constitute a waiver of that right. No waiver under the User Terms will be effective unless made in writing and signed by an authorized representative of the party being deemed to have granted the waiver.
The User Terms, including the Acceptable Use Policy, will be enforced to the fullest extent permitted under applicable law. If any provision of the User Terms is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of the User Terms will remain in effect.
You may not assign any of your rights or delegate your obligations under these User Terms, including the Acceptable Use Policy, whether by operation of law or otherwise, without the prior written consent of us (not to be unreasonably withheld). We may assign these User Terms in their entirety (including all terms and conditions incorporated herein by reference), without your consent, to a corporate affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of our assets.
The Contract, and any disputes arising out of or related hereto, will be governed exclusively by the internal laws of the State of California, without regard to its conflicts of laws rules or the United Nations Convention on the International Sale of Goods.
Fees and Payment
Fees. Customers will pay all fees specified in their contract. Except as otherwise specified herein or in a contract, (i) fees are based on the Services and Content subscriptions purchased and not actual usage, (ii) payment obligations are non- cancelable and fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant subscription term.
Invoicing and Payment. Customers will provide EdCast with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to EdCast. If Customer provides credit card information to EdCast, Customer authorizes EdCast to charge such credit card for all Purchased Services listed in the contract for the initial subscription term and any renewal subscription term(s) as set forth in the “Term of Purchased Subscriptions” section below. Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable contract. If the contract specifies that payment will be by a method other than a credit card, EdCast will invoice Customer in advance and otherwise in accordance with the relevant contract. Unless otherwise stated in the contract, invoiced fees are due net 30 days from the invoice date. Customer is responsible for providing complete and accurate billing and contact information to EdCast and notifying EdCast of any changes to such information.
Overdue Charges: If any invoiced amount is not received by EdCast by the due date, then without limiting EdCast’s rights or remedies, (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) EdCast may condition future subscription renewals and contracts on payment terms shorter than those specified in the “Invoicing and Payment” section above.
Suspension of Service and Acceleration: If any charge owing by Customer under this or any other agreement for services is 30 days or more overdue, (or 10 or more days overdue in the case of amounts Customer has authorized EdCast to charge to Customer’s credit card), EdCast may, without limiting its other rights and remedies, accelerate Customer’s unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Services until such amounts are paid in full, provided that, other than for customers paying by credit card or direct debit whose payment has been declined, EdCast will give Customer at least 10 days’ prior notice that its account is overdue, in accordance with the “Manner of Giving Notice” section below for billing notices, before suspending services to Customer.
Payment Disputes. EdCast will not exercise its rights under the “Overdue Charges” or “Suspension of Service and Acceleration” section above if the Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.
Taxes. EdCast’s fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder. If EdCast has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, EdCast will invoice Customer and the Customer will pay that amount unless Customer provides EdCast with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, EdCast is solely responsible for taxes assessable against it based on its income, property and employees.
Term and Termination
Term of Agreement. This Agreement commences on the date Customer first accepts it and continues until all subscriptions hereunder have expired or have been terminated.
Term of Purchased Subscriptions. The term of each subscription shall be as specified in the applicable Contract. Except as otherwise specified in a contract, subscriptions will automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other written notice (email acceptable) at least 30 days before the end of the relevant subscription term. Except as expressly provided in the applicable Contract, renewal of promotional or one-time priced subscriptions will be at EdCast’s applicable list price in effect at the time of the applicable renewal. Notwithstanding anything to the contrary, any renewal in which subscription volume or subscription length for any Services has decreased from the prior term will result in re-pricing at renewal without regard to the prior term’s per-unit pricing.
Termination: A party may terminate this Agreement for cause (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
Refund or Payment upon Termination: If this Agreement is terminated by Customer in accordance with the “Termination” section above, EdCast will refund Customer any prepaid fees covering the remainder of the term of all Contract after the effective date of termination. If this Agreement is terminated by EdCast in accordance with the “Termination” section above, Customer will pay any unpaid fees covering the remainder of the term of all contracts to the extent permitted by applicable law. In no event will termination relieve Customer of its obligation to pay any fees payable to EdCast for the period prior to the effective date of termination.
Surviving Provisions:The sections titled “Free Services,” “Fees and Payment,” “Proprietary Rights and Licenses,” “Confidentiality,” “Disclaimers,” “Mutual Indemnification,” “Limitation of Liability,” “Refund or Payment upon Termination,” “Removal of Content and Non-EdCast Applications,” “Surviving Provisions” and “General Provisions” will survive any termination or expiration of this Agreement, and the section titled “Protection of Customer Data” will survive any termination or expiration of this Agreement for so long as EdCast retains possession of Customer Data
Venue; Waiver of Jury Trial; Fees
The state and federal courts located in Santa Clara County, California will have exclusive jurisdiction to adjudicate any dispute arising out of or relating to these User Terms, including the Acceptable Use Policy, or their formation as a contract between us or their enforcement. Each party hereby consents and submits to the exclusive jurisdiction of such courts. Each party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to the User Terms.In any action or proceeding to enforce rights under the User Terms, the prevailing party will be entitled to recover its reasonable costs and attorney’s fees.
Dispute Resolution and Arbitration.
PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH EDCAST AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.
Binding and Mandatory Arbitration
Except for any disputes, claims, suits, actions, causes of action, demands or proceedings (collectively, “Disputes”) in which either party seeks to bring an individual action in small claims court or seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, including, without limitation, copyrights, trademarks, trade names, logos, trade secrets or patents, you and EdCast agree (a) to waive your and EdCast’s respective rights to have any and all Disputes arising from or related to these User Terms of Service, use of our Services and Instance, resolved in a court, and (b) to waive your and EdCast’s respective rights to a jury trial. Instead, you and EdCast agree to arbitrate Disputes through binding arbitration (which is the referral of a Dispute to one or more persons charged with reviewing the Dispute and making a final and binding determination to resolve it instead of having the Dispute decided by a judge or jury in court). You and EdCast agree that (a) any arbitration will occur in the State of California, (b) arbitration will be conducted confidentially by a single arbitrator in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution” section, and (c) that the state or federal courts of the State of California, have exclusive jurisdiction over any appeals and the enforcement of an arbitration award.
YOU HAVE THE RIGHT TO OPT OUT OF BINDING ARBITRATION WITHIN THIRTY (30) DAYS OF THE DATE YOU FIRST ACCEPTED THE USER TERMS BY WRITING TO: EDCAST INC., RE: OPT-OUT, LEGAL@EDCAST.COM IN ORDER TO BE EFFECTIVE, THE OPT OUT NOTICE MUST INCLUDE YOUR FULL NAME AND CLEARLY INDICATE YOUR INTENT TO OPT OUT OF BINDING ARBITRATION. BY OPTING OUT OF BINDING ARBITRATION, YOU ARE AGREEING TO RESOLVE DISPUTES IN ACCORDANCE WITH THESE PROVISIONS.
Please also feel free to contact us if you have any questions about EdCast ’s User Terms of Service. You may contact us at info@EdCast.com or at our mailing address below:
1901 Old Middlefield Way, Suite 21
Mountain View, CA 94043