PONDDY EDUCATION, INC TERMS OF SERVICE
Last Updated: August 9th, 2016
Ponddy Education, Inc (“Ponddy,” “us,” “we,” or “our”) created the Ponddy online software platform that enables teachers to create customizable curriculum and simplifies the process of learning the Chinese language for students (the “Ponddy Platform”). These Terms of Service (“Terms”) govern your use of: (i) the Ponddy Platform, (which includes any and all underlying software and technology); (ii) the websites owned or operated by Ponddy, including the website located at www.Ponddy.com (“Ponddy Website”); and (iii) any other Ponddy products or services (clauses (i)-(iii) collectively referred to as, the “Ponddy Service”) offered by Ponddy to you, the user of the Ponddy Service (“you” or “your”). You must accept these terms to create an account for the Ponddy Service and if you do not have an account you accept these terms by using and accessing the Ponddy Website as set forth below in Section 1.1. PLEASE NOTE, THESE TERMS ALSO CONTAIN AN AGREEMENT TO ARBITRATE IN SECTION 13 BELOW WHICH WILL REQUIRE YOU TO SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION.
IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS SET FORTH IN THESE TERMS, OR IF YOU DO NOT HAVE AUTHORITY OR MEET THE ELIGIBILITY REQUIREMENTS AS SET FORTH IN SECTIONS 1.1 AND 1.2 BELOW, DO NOT CLICK “I ACCEPT,” DO NOT CREATE AN ACCOUNT, AND DO NOT USE THE PONDDY SERVICE OR VISIT THE PONDDY WEBSITE. IF YOU ARE A COMPETITOR OF PONDDY YOU MAY NOT ACCESS OR USE THE PONDDY SERVICE WITHOUT PONDDY’S PRIOR WRITTEN CONSENT.
1. Acceptance of Terms and Eligibility
1.2. Eligibility. You may use the Ponddy Service if you are over thirteen (13) years of age and are not barred from receiving services under applicable law. By accessing or using the Ponddy Service you affirm that you are over the age of thirteen (13) and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in the Terms, and to abide by and comply with the Terms. If for any reason, we, in our sole discretion, believe you do not meet the eligibility requirements set forth above, we reserve the right, without provision of any notice to you to terminate your account and these Terms. If you do not meet the eligibility requirements as set forth in this Section, we have no obligations to you under the Terms.
2. Changes to these Terms and the Ponddy Service. Ponddy reserves the right to change the terms and conditions of these Terms in its sole discretion from time to time. All such changes will be effective when posted on the Ponddy Website or emailed to you at the e-mail designated in your user account. You agree to review the Ponddy Website periodically for changes. We reserve the right to change or discontinue the Ponddy Service, in whole or in part, including without limitation, the Internet based services, pricing, technical support options, and other product-related policies. Your continued use of the Ponddy Service after such changes are made to these Terms and are provided on the Ponddy Website or emailed to you will indicate your acceptance to such changes.
3. Your Access and Use of the Ponddy Service
3.1. Creating an Account. In order to access and use the Ponddy Service you must create and register a user account. In registering a user account for the Ponddy Service, you agree to provide and maintain up to date information that is true, accurate, current, up to date, and complete. You agree that you will not (a) create a user account using a false identity or information, (b) create a user account or use the Ponddy Service if you have been previously removed or banned by us from use of the Ponddy Service. You understand and agree that you are solely responsible for maintaining the confidentiality of and protecting your password to your user account. You are solely responsible for any activity originating from your user account, regardless of whether such activity is authorized by you. You agree to notify us immediately of any unauthorized use of your user account.
3.2. Authorized Use of the Ponddy Service. Subject to the terms and conditions of these Terms, including payment of applicable fees, Ponddy grants you a limited, non-exclusive, non-transferable, non-sublicensable license to (i) access and use the Ponddy Website and the underlying software provided by the Ponddy Service; and (ii) view the Ponddy Content (defined below in Section 4.1), in each case solely for your personal, non-commercial use and enjoyment.
3.3. Prohibited Use of the Ponddy Service. Except to the extent permitted by law, you may not perform, attempt to perform, or encourage or assist others in performing any of the following while accessing or using the Ponddy Service: (i) modify, decompile, disassemble, reverse engineer, tamper with or otherwise attempt to derive the source code of any software that Ponddy provides to you or any other part of the Ponddy Service; (ii) gain, or attempt to gain, unauthorized access to any servers, computer systems or databases utilized in connection with the Ponddy Service; (iii) circumvent any technological measure implemented by Ponddy or any of Ponddy’s providers or any other third party to protect the Ponddy Service or Ponddy Content; (iv) disable, overload, or impair the infrastructure or proper functioning of the Ponddy Service; (v) access, or attempt to access, the Ponddy Service using automated means (such as harvesting bots, robots, spiders, or scrapers); or (vi) copy, reproduce, modify, use, display, mirror or frame the Ponddy Service or any individual element within the Ponddy Service, the Ponddy Content, Ponddy’s name, any Ponddy trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Ponddy’s express written consent.
3.5. Ponddy Communications. We may need to contact you about your use of the Ponddy Service. You may receive notifications, text messages, alerts, or emails. You agree to the receipt of these communications and you are responsible for any messaging or data fees you may be charged by your wireless carrier. These communications are part of the Ponddy Service and you may not opt-out from receiving them. You can manage and opt-out from receiving other communications from your account settings.
4. Ponddy’s Rights
4.1. Ownership. Ponddy and its suppliers retain all right, title and interest in and to (i) the Ponddy Service, (ii) any and all software made available or a part of the Ponddy Service, including, without limitation, the Ponddy Platform and its underlying technology, and (iii) any text, graphics, images, music, software, audio, video, works of authorship of any kind, and information or other materials that are posted, generated, provided or otherwise made available through the Ponddy Service (“Ponddy Content”). Ponddy reserves all rights and licenses not expressly granted to you in these Terms and no implied license is granted by Ponddy. The Ponddy Content, the Ponddy Service and its underlying technology are protected by copyright, trademark, patent, intellectual property, and other laws of the United States and foreign countries. You agree not to remove, change or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Ponddy Service.
4.2. Trademarks. The Ponddy name, the terms Ponddy Chinese, Word Pond, Character Pond, Radical Pond, Pondlets, the Ponddy logo and all related names, logos, product and service names, designs and slogans are trademarks of Ponddy’s or its affiliates or licensors. You must not use such marks without the prior written permission of Ponddy. All other names, logos, product and service names, designs and slogans on the Ponddy Service are the trademarks of their respective owners.
4.3. Feedback and Submissions. Ponddy shall be entitled to unrestricted use of any and all comments, suggestions, ideas, notes, drawings, concepts, problems or other information with respect to the Ponddy Service or Ponddy Content disclosed or offered by you to us (collectively, “Feedback”). We may use the Feedback for any and all purposes whatsoever, commercial or otherwise, without any payment or other obligation to you or any other person involved with the creation of the Feedback.
5. User Contributions
5.1. User Contributions. The Ponddy Service may contain message boards, chat rooms, personal web pages or profiles, forums, bulletin boards, and other interactive features (collectively, “Interactive Services”) that allow users to post, submit, publish, display or transmit to other users or other persons (hereinafter, “post”) content or materials (collectively, “User Contributions”) on or through the Ponddy Service. All User Contributions must comply with the Content Standards set forth in Section 5.4 below. Any User Contribution you post to the Ponddy Service will be considered non-confidential and non-proprietary. By providing any User Contribution on or through the Ponddy Service, you grant us and our affiliates and service providers, and each of their and our respective licensees, successors and assigns the right to use, reproduce, modify, perform, display, distribute and otherwise disclose to third parties any such material in connection with the Ponddy Service.
5.2. Course Contributions. If you are or are approved by us, in our sole discretion, to be a course contributor (“Course Contributor”), you may offer to contribute new courses or course material to existing Ponddy courses available through the Ponddy Service (“Course Contributions”), as agreed between you and Ponddy on a case-by-case basis. Subject to any guidelines posted on the Ponddy Service, you may create any such courses in accordance with your own schedule and using your own facilities and resources. You are not required to become a Course Contributor and you may cease your activities as a Course Contributor at any time. You acknowledge that you do not desire and will not receive compensation for your activities as a Course Contributor or for our use of any Course Contributions you submit. Any Course Contributions you submit or have submitted as a Course Contributor are owned by you (subject of course to us retaining ownership of the existing Ponddy course, including, without limitations, all Ponddy Content (defined below) therein). By submitting any Course Contributions, you grant us a fully paid up, royalty-free, sublicensable, perpetual, worldwide license to reproduce, display, perform, modify, create derivative works of, distribute and otherwise use such Course Contributions in any manner.
5.3. Representations and Warranties. You represent and warrant that with respect to any User Contributions and/or Course Contributions, as the case may be, submitted or posted by you on or though the Ponddy Service:
(i) you own or control all rights in and to the User Contributions and/or Course Contributions and have the right to grant the license granted above;
(ii) all of your User Contributions and/or Course Contributions do and will comply with these Terms, including without limitation the Content Standards set forth below in Section 5.4; and
(iii) you understand and acknowledge that you are responsible for any User Contributions and/or Course Contributions you submit or contribute, and you, not Ponddy, have fully responsibility for such content, including its legality, reliability, accuracy and appropriateness.
5.4. Content Standards These content standards (“Content Standards”) apply to any and all User Contributions and Course Contributions (collectively, “Contributions”) and use of Interactive Services. Contributions must in their entirety comply with all applicable federal, state, local and international laws and regulations. Without limiting the foregoing, Contributions must not:
(i) Contain any material which is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory or otherwise objectionable;
(ii) Promote sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation or age;
(iii) Infringe any patent, trademark, trade secret, copyright or other intellectual property or other rights of any other person;
(v) Be likely to deceive any person;
(vi) Promote any illegal activity, or advocate, promote or assist any unlawful act.
(vii) Cause annoyance, inconvenience or needless anxiety or be likely to upset, embarrass, alarm or annoy any other person;
(viii) Impersonate any person, or misrepresent your identity or affiliation with any person or organization;
(ix) Involve commercial activities or sales, such as contests, sweepstakes and other sales promotions, barter or advertising; or
(x) Give the impression that they emanate from or are endorsed by us or any other person or entity, if this is not the case.
5.5. Copyright Infringement. If you believe that any Contributions violate your copyright, please see our Copyright Policy located at http://stb.ponddy.com/doc/copyright.html for instructions on sending us a notice of copyright infringement. It is the policy of Ponddy to terminate the user accounts of repeat infringers.
6. Subscriptions; Support; Pricing & Payment Terms
6.1. Subscriptions. Ponddy offers subscriptions to the Ponddy Service (“Subscriptions”) which you may purchase by submitting a written purchase order to Ponddy for the purchase of a Subscription. Subscriptions shall automatically renew following the end of each Subscription term as set forth on the written purchase order, unless you provide Ponddy written notice of non-renewal or termination prior to the expiration of your then-current Subscription. Subscriptions shall renew at Ponddy’s then-current pricing for your then-existing Subscription. For more information regarding Subscriptions, including pricing, please see our Subscriptions page located here http://stb.ponddy.com/subscription.
6.2. Payment Terms. If you have purchased a Subscription or Support for the Ponddy Service, you shall pay to Ponddy the fees specified in the written purchase order submitted by you to Ponddy for the Premium Access Account, in accordance with the payment terms specified therein. All fees are non-refundable and non-returnable. Ponddy may increase the amount of fees and rates payable by you upon written notice to you, provided that any such increase shall not be more than once in any twelve (12) month period. The fees are exclusive of all applicable sales, use, value-added and other taxes, or other similar charges, and you will be responsible for payment of all such taxes (other than taxes based on Ponddy’s income), and any related penalties and interest, arising from the payment of the fees, the delivery of the Ponddy Service, or performance of any services by Ponddy.
7. Indemnity. You will indemnify and hold harmless Ponddy and its officers, directors, employees and agents, from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable attorneys’ fees arising out of or in any way connected with (i) your access to or use of the Ponddy Service, or (ii) your breach of any warranties made by you hereunder or your violation of any other provision of these Terms. We reserve the right to assume control of the defense of any third-party claim that is subject to indemnification by you, in which event you will cooperate with us in asserting any available defenses.
8. Termination. You may cancel your account at any time by submitting your request at http://stb.ponddy.com/cancel. We reserve the right to deactivate your account or terminate these Terms, at our sole discretion, at any time and without notice or liability to you, if you violate these Terms. Upon any such termination, we may delete your data and any other information related to your account. The following Sections shall survive any termination or expiration of these Terms: 1, 2, 3.3, 4, 5, 6.2, and 7-14.
9.1. PONDDY MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER, EITHER EXPRESS, IMPLIED, OR STATUTORY, WITH REGARD TO THESE TERMS OR THE PONDDY SERVICE, PONDDY CONTENT, OR ANY OTHER MATERIALS OR SERVICES PROVIDED BY PONDDY, INCLUDING ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, QUIET ENJOYMENT, SATISFACTORY PURPOSE, OR FITNESS FOR A PARTICULAR PURPOSE.
9.2. PONDDY DOES NOT WARRANT THAT THE PONDDY SERVICE, PONDDY CONTENT, OR ANY OTHER MATERIALS OR SERVICES PROVIDED BY PONDDY WILL BE ERROR-FREE OR UNINTERRUPTED OR THAT ANY RESULTS OR RECOMMENDATIONS RESULTING FROM YOUR USE OF THE PONDDY SERVICE, PONDDY CONTENT OR ANY OTHER MATERIALS OR SERVICES PROVIDED BY PONDDY WILL BE CORRECT, ACCURATE, OR RELIABLE.
9.3. you acknowledge and agree that We are not responsible, or liable to you or any third party, for the content or accuracy of any User Contributions or course contributions posted by you or any other user of the PONddy Service.
9.4. YOU ACKNOWLEDGE THAT YOU HAVE RELIED ON NO WARRANTIES AND THAT NO WARRANTIES ARE MADE BY ANY OF PONDDY’S SUPPLIERS. You acknowledge and agree that if you rely on any Ponddy Content or the Ponddy Service, you do so solely at your own risk.
10. Limitation of Liability
11. Application of Limitations and Disclaimers to Consumers. Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages with respect to consumers (i.e., a person acquiring goods otherwise than in the course of a business), so the exclusions set forth in the Sections 9 and 10 above may not apply to you if you are a consumer. The limitations or exclusions of warranties and liability contained in these Terms do not affect or prejudice the statutory rights of a consumer. The limitations or exclusions of warranties and remedies contained in these Terms shall apply to a consumer only to the extent such limitations or exclusions and remedies are permitted under the laws of the jurisdiction where such consumer is located.
12. Availability of the Ponddy Service. Information describing the Ponddy Service is accessible worldwide but this does not mean the Ponddy Service or certain portions thereof are available in your country. We may restrict access to the Ponddy Service or portions thereof in certain countries. It is your responsibility to make sure that your use of the Ponddy Service is legal in your country of residence. The Ponddy Service may not be available in all languages. If at our reasonable determination, you use the Ponddy Service or any other material or services provided by us to you under these Terms in a manner that violates laws, or creates an excessive burden or potential adverse impact on our systems, in addition to any of its other rights or remedies, we may, without liability to us, immediately suspend or terminate your access to the Ponddy Service.
13. Governing Law and Dispute Resolution.
13.1. Governing Law. These Terms will be governed by the laws of the State of California, United States of America without giving effect to any conflict of laws principles.
13.2. Disputes. Except as otherwise set forth in these Terms, you agree that any dispute between you and Ponddy arising out of or relating to these Terms, the Ponddy Service, or any other Ponddy products or services (collectively, “Disputes”) shall be governed by the provisions set forth in this Section.
13.3. Informal Resolution. Before resorting to formal dispute resolution in accordance with this Section, you agree to first contact us directly at service(at)ponddy-edu(dot)com to seek an informal resolution to any Dispute. In the event a Dispute is not resolved within thirty (30) days after submission, you or Ponddy may institute arbitration in accordance with the procedures set forth in this Section.
13.4. Dispute Resolution. Any and all Disputes that cannot be resolved through informal resolution in accordance with Section 13.3 above shall be resolved exclusively through final, binding and confidential arbitration and shall take place in Santa Clara County, California unless otherwise mutually agreed to by the parties. The arbitration shall be conducted under the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes of the American Arbitration Association (AAA) as such rules are then prevailing, provided that the arbitrator and the parties shall comply with the following: (i) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; (ii) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and (iii) any judgment on the award rendered by the arbitrator shall be binding, final, and confidential, and may be entered in any court of competent jurisdiction.
13.5. Opting-Out of Arbitration. You may opt-out of THE agreement to arbitrate by providing Ponddy written notice within thirty (30) days of first accepting these Terms. Your notice must include: (i) your full name (first and last); (ii) the email address you used to register your account; and (iii) a clear statement that you decline this agreement to arbitrate.
13.6. Exception to Arbitration. Notwithstanding anything in these Terms to the contrary to the extent you have in any manner violated or threatened to violate any of Ponddy’s intellectual property rights, Ponddy may seek injunctive or other appropriate relief in any state or federal court with competent jurisdiction in any country, including in the State of California, United States of America, without first engaging in arbitration or the informal dispute process set forth in this Section, and you hereby consent to the personal jurisdiction and exclusive venue in such courts.
13.7. No Class Actions. You may only resolve Disputes with Ponddy on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations aren't allowed under THESE TERMS.
13.8. Venue and Waiver of Jury Trial. In the event that the agreement to arbitrate is found not to apply to you or your claim, you and Ponddy agree that any judicial proceeding will be brought in the federal or state courts of Santa Clara County, California. Both you and Ponddy consent to venue and personal jurisdiction there. YOU AND PONDDY both agree to waive ANY right EITHER PARTY MAY HAVE TO a jury trial.
13.9. Time Limitation to Bring Claims. Notwithstanding any statute or law to the contrary, any claim or cause of action arising out of or related to your use of the Ponddy products or Ponddy Service must be filed within one (1) year after such claim or cause of action arose, otherwise that claim or cause of action will be barred forever.
15. Question or Additional Information. If you have any questions regarding these Terms, please send an email to service(at)ponddy-edu(dot)com with subject line “Questions & Additional Information”.
Ponddy Education, Inc.