May 15, 2011
Introduction; Your Agreement to these Terms of Service.
These Terms of Service cover the EdSurge website and information resource, as well as services or software EdSurge, Inc. (“EdSurge”) may provide to users in the future (collectively the "EdSurge Platform").
1. Eligibility. EdSurge operates principally by creating a website and information resource. The EdSurge Platform is available to anybody over the age of 13.
2. Modification Of These Terms. EdSurge reserves the right, at our discretion, to change, modify, add, or remove portions of these Terms at any time by posting the amended Terms to the EdSurge Platform. Please check these Terms and any Policies periodically for changes. Your continued use of the EdSurge Platform after the posting of changes constitutes Your binding acceptance of such changes. Except as stated elsewhere, such amended Terms or fees will automatically be effective thirty (30) days after they are initially posted on the EdSurge Platform. Additionally, EdSurge will notify You through the EdSurge Platform's messaging system.
3. Fees. Certain functions on the EdSurge Platform may have licenses or fees associated with them. When You upload content or use a service that has a fee You have an opportunity to review and accept the fees that You will be charged based on our stated fees, which we may change from time to time. End users will not be subjected to fees if an institution they belong to has licensed the application for the end user. EdSurge may choose to temporarily change the value of the fees or license for EdSurge's services for promotional events or new services, and such changes are immediately effective when EdSurge posts the temporary promotional event or new service on the EdSurge Platform. Any changes to fees for EdSurge's services that are not temporary or promotional will be effective thirty (30) days after we provide You with notice by posting such changes on the EdSurge Platform. Unless otherwise stated, all fees are quoted in U.S. Dollars.
4. Copyright and Digital Millennium Copyright Act.
4.1 EdSurge does not permit copyright infringing activities on the EdSurge Platform. If notified by a third party that content on the EdSurge Platform allegedly does not conform to these Terms, EdSurge may investigate the allegation and determine in its sole discretion whether to remove the content, which it reserves the right to do at any time and without notice.
4.2 It is EdSurge's policy to respond to notices of alleged copyright infringement that comply with the Digital Millennium Copyright Act. EdSurge reserves the right to terminate without notice any User's access to the EdSurge Platform if that User is determined by EdSurge to be a "repeat infringer." In addition, EdSurge accommodates and does not interfere with standard technical measures used by copyright owners to protect their materials.
5. EdSurge Platform License Grant.
5.1 License Grant to Upload. Subject to Your compliance with the terms and conditions set out in these Terms, EdSurge hereby grants to You a personal, limited, non-exclusive, non-transferable, freely revocable license to use the EdSurge Platform for your own personal, noncommercial use.
5.2 Reservation of Rights. EdSurge reserves all rights not expressly granted in these Terms.
5.3 Prevention of Unauthorized Use. EdSurge reserves the right to exercise whatever lawful means it deems necessary to prevent unauthorized use of the EdSurge Platform, including, but not limited to, technological barriers, IP mapping, and directly contacting Your Internet Service Provider (ISP) regarding such unauthorized use.
6. User Content License Grant; Representations and Warranties.
6.1 Limited License Grant to EdSurge. The EdSurge Platform allows users to upload text, pictures and other content (“User Content”). User Content shall also include data that you authorize EdSurge to collect. By distributing or disseminating User Content through the EdSurge Platform, You hereby grant to EdSurge a license to host, transfer, display, perform, reproduce, and distribute Your User Content (and any copyrights, publicity, database and other proprietary rights therein) to relevant parties within the institution that has licensed the application on Your behalf and for anonymous representations of our product in marketing, in any media formats and through any media channels. You acknowledge that the foregoing license shall survive any termination of these Terms or your account with EdSurge.
6.2 Limited License Grant to Users. You hereby grant to each other User that is authorized to access Your User Content a limited, royalty-free, paid-up, non-exclusive, personal license to access and use such User Content in the manner contemplated by these Terms and the EdSurge Platform.
6.3 User Content Representations and Warranties. You are solely responsible for Your User Content and the consequences of posting or publishing them. By uploading and publishing Your User Content, You affirm, represent, and warrant that You are the creator and owner of or have the necessary licenses, rights, consents, and permissions to use and to authorize EdSurge and EdSurge's Users to use and distribute Your User Content as necessary to exercise the licenses granted by You in this Section and in the manner contemplated by EdSurge and these Terms.
6.4 User Content Disclaimer. You understand that when using the EdSurge Platform You will be exposed to User Content or other content from a variety of sources, and that EdSurge is not responsible for the accuracy, usefulness, or intellectual property rights of or relating to such User Content and other content. You further understand and acknowledge that You may be exposed to User Content and other content that is inaccurate, offensive, indecent or objectionable, and You agree to waive, and hereby do waive, any legal or equitable rights or remedies You have or may have against EdSurge with respect thereto. EdSurge does not endorse any User Content and other content or any opinion, recommendation or advice expressed therein, and EdSurge expressly disclaims any and all liability in connection with User Content and other content.
7. Prohibited Conduct. BY USING THE EDSURGE PLATFORM YOU AGREE NOT TO:
7.1 use the EdSurge Platform for any purposes other than (i) to disseminate or receive original or appropriately licensed content, or (ii) to access the EdSurge Platform as such services are offered by EdSurge;
7.2 rent, lease, loan, sell, resell, sublicense, distribute or otherwise transfer the licenses granted herein or any Materials (as defined in Section 12, below);
7.3 post, upload, or distribute any defamatory, libelous, or inaccurate content;
7.4 post, upload, or distribute any User Content or other content that is unlawful or that a reasonable person could deem to be objectionable, offensive, indecent, pornographic, harassing, threatening, embarrassing, distressing, vulgar, hateful, racially or ethnically offensive, or otherwise inappropriate;
7.5 impersonate any person or entity, falsely claim an affiliation with any person or entity, or access the EdSurge Platform accounts of others without permission, forge another persons' digital signature, misrepresent the source, identity, or content of information transmitted via the EdSurge Platform, or perform any other similar fraudulent activity;
7.6 make unsolicited offers, advertisements, proposals, or send junk mail or spam to other Users of the EdSurge Platform. This includes, but is not limited to, unsolicited advertising, promotional materials, or other solicitation material, bulk mailing of commercial advertising, chain mail, informational announcements, charity requests, and petitions for signatures;
7.7 use the EdSurge Platform for any illegal purpose, or in violation of any local, state, national, or international law, including, without limitation, laws governing intellectual property and other proprietary rights, and data protection and privacy;
7.8 remove, circumvent, disable, damage or otherwise interfere with security-related features of the EdSurge Platform or User Content, features that prevent or restrict use or copying of any content accessible through the EdSurge Platform, or features that enforce limitations on the use of the EdSurge Platform or User Content;
7.9 reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the EdSurge Platform or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation;
7.10 modify, adapt, translate or create derivative works based upon the EdSurge Platform or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation;
7.11 intentionally interfere with or damage operation of the EdSurge Platform or any user's enjoyment of them, by any means, including uploading or otherwise disseminating viruses, adware, spyware, worms, or other malicious code;
8. Account Security. When You use the EdSurge Platform to upload and/or download or purchase content or any products, services, or information from EdSurge, You may be asked to provide a password. You are solely responsible for maintaining the confidentiality of Your account and password and for restricting access to Your computer, and You agree to accept responsibility for all activities that occur under Your account or password. You agree that the information You provide to EdSurge on registration and at all other times will be true, accurate, current, and complete. You also agree that You will ensure that this information is kept accurate and up-to-date at all times. If You have reason to believe that Your account is no longer secure (e.g., in the event of a loss, theft or unauthorized disclosure or use of Your account ID, password, or any credit, debit or charge card number, if applicable), then You agree to immediately notify EdSurge. You may be liable for the losses incurred by EdSurge or others due to any unauthorized use of Your EdSurge Platform account.
9. Third-Party Sites, Products and Services; Links. The EdSurge Platform may include links or references to other web sites or services solely as a convenience to Users ("External Sites"). EdSurge does not endorse any such External Sites or the information, materials, products, or services contained on or accessible through External Sites. In addition, Your correspondence or business dealings with, or participation in promotions of, advertisers found on or through the EdSurge Platform are solely between You and such advertiser. Access and use of External Sites, including the information, materials, products, and services on or available through External Sites is solely at Your own risk.
10. Termination; Terms of Service Violations.
10.1 EdSurge. You agree that EdSurge, in its sole discretion, for any or no reason, and without penalty, may terminate any account (or any part thereof) You may have with EdSurge or Your use of the EdSurge Platform and remove and discard all or any part of Your account, User profile, and any Uploader Submission, at any time. EdSurge may also in its sole discretion and at any time discontinue providing access to the EdSurge Platform, or any part thereof, with or without notice. You agree that any termination of Your access to the EdSurge Platform or any account You may have or portion thereof may be effected without prior notice, and You agree that EdSurge will not be liable to You or any third party for any such termination. Any suspected fraudulent, abusive or illegal activity may be referred to appropriate law enforcement authorities. These remedies are in addition to any other remedies EdSurge may have at law or in equity. As discussed herein, EdSurge does not permit copyright infringing activities on the EdSurge Platform, and shall terminate access to the EdSurge Platform, and remove all User Content or other content submitted by any Users who are found to be repeat infringers.
10.2 You. Your only remedy with respect to any dissatisfaction with (i) the EdSurge Platform, (ii) any term of these Terms, (iii) any policy or practice of EdSurge in operating the EdSurge Platform, or (iv) any content or information transmitted through the EdSurge Platform, is to terminate these Terms and Your account. You may terminate these Terms at any time by discontinuing use of any and all parts of the EdSurge Platform.
11. Ownership; Proprietary Rights. The EdSurge Platform is owned and operated by EdSurge, Inc. The visual interfaces, graphics, design, compilation, information, computer code (including source code or object code), products, software, services, and all other elements of the EdSurge Platform provided by EdSurge (the "Materials") are protected by United States copyright, trade dress, patent, and trademark laws, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. Except for any User Content that are provided and owned by Users, all Materials contained on the EdSurge Platform are the property of EdSurge or its subsidiaries, Schools or affiliated companies and/or third-party licensors. All trademarks, service marks, and trade names are proprietary to EdSurge, the Schools or its affiliates and/or third-party licensors. Except as expressly authorized by EdSurge, You agree not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of the Materials. EdSurge reserves all rights not expressly granted in these Terms.
12. Indemnification. You agree to indemnify, save, and hold EdSurge, its affiliated companies, contractors, employees, agents and its third-party suppliers, licensors, and partners harmless from any claims, losses, damages, liabilities, including legal fees and expenses, arising out of Your use or misuse of the EdSurge Platform, any violation by You of these Terms, or any breach of the representations, warranties, and covenants made by You herein. EdSurge reserves the right, at Your expense, to assume the exclusive defense and control of any matter for which You are required to indemnify EdSurge, and You agree to cooperate with EdSurge's defense of these claims. EdSurge will use reasonable efforts to notify You of any such claim, action, or proceeding upon becoming aware of it.
13. Disclaimers; No Warranties.
13.1 TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, EDSURGE, AND ITS AFFILIATES, SCHOOLS, PARTNERS,LICENSORS AND SUPPLIERS (COLLECTIVELY “AFFILIATES”) DISCLAIM ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM EDSURGE OR THROUGH THE EDSURGE PLATFORM WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. YOU EXPRESSLY ACKNOWLEDGE THAT AS USED IN THIS SECTION 14, THE TERM EDSURGE INCLUDES EDSURGE'S OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS, LICENSORS AND SUBCONTRACTORS.
13.2 YOU EXPRESSLY AGREE THAT THE USE OF THE EDSURGE PLATFORM IS AT YOUR SOLE RISK. THE EDSURGE PLATFORM AND ANY DATA, INFORMATION, THIRD-PARTY SOFTWARE, USER CONTENT, COMMERCIAL CONTENT, EXTERNAL SITES, SERVICES, OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE EDSURGE PLATFORM ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE", "WITH ALL FAULTS" BASIS AND WITHOUT WARRANTIES OR REPRESENTATIONS OF ANY KIND EITHER EXPRESS OR IMPLIED.
13.3 EDSURGE AND ITS AFFILIATES DO NOT WARRANT THAT THE DATA, USER CONTENT, COMMERCIAL CONTENT, FUNCTIONS, OR ANY OTHER INFORMATION OFFERED ON OR THROUGH THE EDSURGE PLATFORM OR ANY EXTERNAL SITES WILL BE UNINTERRUPTED, OR FREE OF ERRORS, VIRUSES OR OTHER HARMFUL COMPONENTS AND DO NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED.
13.4 EDSURGE AND ITS AFFILIATES DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE EDSURGE PLATFORM OR ANY EXTERNAL SITES IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.
14. Limitation of Liability and Damages.
14.1 Limitation of Liability. UNDER NO CIRCUMSTANCES WILL EDSURGE OR ITS SUCCESSORS, AFFILIATES, CONTRACTORS, EMPLOYEES, DIRECTORS, OFFICERS OR AGENTS (SUCH CONTRACTORS, EMPLOYEES, DIRECTORS, OFFICERS AND AGENTS COLLECTIVELY “AGENTS”), BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE, OR EXEMPLARY DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES ARISING FROM ANY UNSUCCESSFUL COURT ACTION OR LEGAL DISPUTE, LOST BUSINESS, LOST REVENUES OR LOSS OF ANTICIPATED PROFITS OR ANY OTHER PECUNIARY OR NON-PECUNIARY LOSS OR DAMAGE OF ANY NATURE WHATSOEVER) ARISING OUT OF OR RELATING TO THESE TERMS OR THAT RESULT FROM YOUR USE OR YOUR INABILITY TO USE THE MATERIALS (INCLUDING USER CONTENT) ON THE EDSURGE PLATFORM OR ANY EXTERNAL SITES, OR ANY OTHER INTERACTIONS WITH EDSURGE, EVEN IF EDSURGE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
14.2 Limitation of Damages. IN NO EVENT WILL EDSURGE OR ITS SUCCESSORS, AFFILIATE OR AGENTS TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THESE TERMS OR YOUR USE OF THE EDSURGE PLATFORM OR YOUR INTERACTION WITH OTHER EDSURGE PLATFORM USERS (WHETHER IN CONTRACT, TORT INCLUDING NEGLIGENCE, WARRANTY, OR OTHERWISE), EXCEED THE AMOUNT PAID BY YOU, IF ANY, TO EDSURGE DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE CLAIM OR ONE HUNDRED DOLLARS, WHICHEVER IS GREATER.
14.3 Release For Disputes Between Users. If you have a dispute with one or more Users, you release EdSurge and EdSurge's successors, Affiliates and Agents) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. If you are a California resident, you waive California Civil Code Section 1542, which says: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor." and, if you are not a California resident, you waive any applicable state statutes of a similar effect.
14.4 External Sites. THESE LIMITATIONS OF LIABILITY ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY YOU BY REASON OF ANY PRODUCTS OR SERVICES SOLD OR PROVIDED ON ANY EXTERNAL SITES OR OTHERWISE BY THIRD PARTIES OTHER THAN EDSURGE AND RECEIVED THROUGH OR ADVERTISED ON THE EDSURGE PLATFORM OR RECEIVED THROUGH ANY EXTERNAL SITES.
14.5 Basis of the Bargain. YOU ACKNOWLEDGE AND AGREE THAT EDSURGE HAS OFFERED ITS PRODUCTS AND SERVICES, SET ITS PRICES, AND ENTERED INTO THESE TERMS IN RELIANCE UPON THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN, THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND EDSURGE, AND THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND EDSURGE. EDSURGE WOULD NOT BE ABLE TO PROVIDE THE EDSURGE PLATFORM TO YOU ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE LIMITATIONS.
14.6 Limitations by Applicable Law. CERTAIN JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF YOU RESIDE IS SUCH A JURISDICTION, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS. THE LIMITATIONS OR EXCLUSIONS OF WARRANTIES, REMEDIES OR LIABILITY CONTAINED IN THESE TERMS APPLY TO YOU TO THE FULLEST EXTENT SUCH LIMITATIONS OR EXCLUSIONS ARE PERMITTED UNDER THE LAWS OF THE JURISDICTION WHERE YOU ARE LOCATED.
15.1 Notice. EdSurge may provide You with notices, including those regarding changes to EdSurge's terms and conditions, by email, regular mail or postings on the EdSurge Platform. Notice will be deemed given twenty-four hours after email is sent, unless EdSurge is notified that the email address is invalid. Alternatively, EdSurge may give You legal notice by mail to a postal address, if provided by You through the EdSurge Platform. In such case, notice will be deemed given three days after the date of mailing. Notice posted on the EdSurge Platform is deemed given 30 days following the initial posting.
15.2 Waiver. The failure of EdSurge to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision. Any waiver of any provision of these Terms will be effective only if in writing and signed by EdSurge.
15.3 Governing Law; Jurisdiction. These Terms will be governed by and construed in accordance with the laws of the State of California, without giving effect to any principles of conflicts of law. The parties agree that the federal and state courts residing in San Francisco County, California will have exclusive jurisdiction over these Terms.
15.4 Authority. If you are using or opening an account with EdSurge on behalf of a School, Organization, Government, or Corporation then you represent and warrant that you: (i) are an authorized representative of that School, Organization, Government, or Corporation with the authority to bind such organization to these terms; (ii) have read the foregoing terms; (iii) understand these terms, and (iv) agree to these terms on behalf of such School.
15.5 Severability. If any provision of these Terms or any Policies is held to be unlawful, void, or for any reason unenforceable, then that provision will be limited or eliminated from these Terms to the minimum extent necessary and will not affect the validity and enforceability of any remaining provisions.
15.6 Assignment. These Terms and related Policies, and any rights and licenses granted hereunder, may not be transferred or assigned by You, but may be assigned by EdSurge without restriction. Any assignment attempted to be made in violation of these Terms shall be void.
15.7 Survival. Upon termination of these Terms, any provision which, by its nature or express terms should survive, will survive such termination or expiration, including, but not limited to, Sections 4, 6 and 10-15.
15.8 Headings. The heading references herein are for convenience purposes only, do not constitute a part of these Terms, and will not be deemed to limit or affect any of the provisions hereof.
15.9 Entire Agreement. This is the entire agreement between You and EdSurge relating to the subject matter herein and will not be modified except in writing, signed by both parties, or by a change to these Terms or Policies made by EdSurge as set forth in Section2 above.
15.10 No Third Party Beneficiary. The parties specifically disavow any desire or intention to create a “third party” beneficiary contract, and specifically declare that no person, except for the parties and their permitted assigns, shall have any rights hereunder nor any right of enforcement hereof.
15.11 No Agency. No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement.
15.12 California Required Disclosures. The services are offered by EdSurge, Inc., located at: 1801 Murchison Dr Ste 220, Burlingame, CA 94010 and email: firstname.lastname@example.org. If You are a California resident, You may have this same information emailed to You by sending a letter to the foregoing address with Your email address and a request for this information.
Effective Date: May 15, 2011