1. Agreement and Parties
The Agreement takes effect from the Start Date and is made between you, the subscriber detailed on the Order Form, and us, Penda Corporation, a company incorporated in Florida, USA, and whose principal office is: 2400 SE Federal Highway, 4th Floor, Stuart, FL. 34994 USA.
By signing and returning to us the Order Form, sending to us any “Student Data” or using the Service you are deemed to have accepted these Terms of Service, the Terms of Site Use and Privacy Policies. Please read each of these before signing the Order Form or using the Service. No variation to these Terms of Service or the Order Form shall be binding unless in writing and signed by us. If there is any conflict between the Terms of Site Use and these Terms of Service, then the latter shall prevail. If you are entering into a Contract for greater than one year on an annual payment basis, you are accepting that you will be paying for each of the years in advance and that in the event that you wish to cancel the agreement you will be liable to pay for all unpaid years less a discount of 10% as set out in clause 14.
You confirm that all the information supplied by you on the Order Form is accurate. We are not obliged to accept any order. If we accept an order, we will do so by issuing to you an invoice for the initial Fees payable with respect to your order.
In these Terms, the following words and expressions have the following meanings:
the agreement between you and us upon the terms set out in these Terms of Service, the Terms of Site Use, Privacy Policies and Copyright Statement;
the standard terms and conditions of supply of the Service, as set out in this document;
materials (including but not limited to text, graphics and software) at the Site;
the period for which you have committed to receive the Service, as detailed in the Order Form, which period commences on the Start Date or such other date as may be agreed between us in writing;
the fees payable in respect of the Service, as detailed in the Order Form;
a student at a participating school who has been given access to the Service;
the order form detailing your Service subscription and information about you;
the provision (via the Site, Content, MIS Compatible Software, User Guide, and any other materials or services we may provide) of on-line learning materials and activities for use by Learners to study and to practice for exams and to enable schools, teachers and parents to track the usage and progress of Learners;
the date we accept the Order Form by issuing to you an invoice for the initial Fees payable with respect to your order;
the date we accept the Order Form by issuing to you an invoice for the initial Fees payable with respect to your order;
all information relating to Learners which we hold for the purpose of providing the Service, including but not limited to personally identifiable information derived from student education records, as more particularly described in the Privacy Policies;
“Terms of Site Use”
the additional terms governing use of the Site by you, schools, and the Learners, which are displayed on the Site at www. pendalearning.com/support/documentation;
“we”, “our” and “us”
refers to Penda;
“you” and “your”
refers to the subscriber detailed on the Order Form;
In these Terms:
clause headings are inserted for ease of reference only and do not affect construction; and
words importing one gender shall be treated as importing any gender; words importing individuals shall be treated as importing unincorporated associations, corporations, limited liability companies, partnerships, and other entities, whether for profit or not for profit and vice-versa; words importing the singular shall be treated as importing the plural and vice-versa; and words importing the whole shall be treated as including a reference to any part thereof.
3. Provision of the Service
The Service is accessible using a standard Internet browser. You would have to be capable of establishing secure web connections over HTTP (80) and HTTPS (443) TCP ports. The IP address is “184.108.40.206”. You must ensure that the Uniform Resource Locator of the Site (http://www.pendalearning.com) is included on any list you may maintain of permitted web sites, and that this URL is not included on your list of banned web sites. Compatible browsers are: Safari, Internet Explorer, Chrome or Firefox (Browser Compatibility) .
You must ensure that a technical check is carried out by a suitably experienced and qualified individual. If you experience difficulty in setting up or accessing the Service, please contact us immediately.
You agree to comply with all procedures and policies which we may issue from time to time in relation to the use or operation of the Service.
You are responsible for compliance by your schools and Students with these Terms, the Terms of Site Use and Privacy Policies.
You and your Learners are entirely responsible for maintaining the confidentiality of passwords and other account credentials and information. Furthermore, you are entirely responsible for any and all activities that occur under your account and those of your Learners. You agree to notify us immediately of any unauthorized use of your account or any other breach of security. We will not be liable for any loss that you may incur as a result of someone else using your passwords or accounts, either with or without your knowledge. However, you could be held liable for losses incurred by us or another party due to someone else using your account or password. You may not use anyone else’s account at any time, without the permission of the account holder.
You may not re-sell or offer in any manner to a third party the Service or use of or access to any Content.
4. Changes to the Service
modify the technical specification of the Service, provided that any change to the technical specification does not materially adversely affect the performance of the Service; or
discontinue, temporarily or permanently, any part of the Service after giving not less than seven (7) days notice to you of our intention to do so.
You agree that we shall not be liable to you or any third party for any such modification or discontinuance, except as provided under paragraph 14 below.
5. Setting up Learner Accounts
In order for Learners to be able to access and use the Service, we require the Student Data as set out in the Guideline.
You are responsible for the accuracy of the Student Data and updating Learner accounts. You must ensure that the Student Data is up to date and accurate and are responsible for promptly updating any inaccurate or out of date information.
We will use commercially reasonable efforts to set up Learner accounts by the next working day after Student Data is received.
6. ID, Usernames and Passwords
Each school will be allocated a unique ID number which the school and all Learners will need in order to access the Service. You must ensure that the school’s ID number is well publicized throughout each participating school. We provide stickers and posters (post-login) for publicizing the ID number.
You will be required to set up an administration account and a teacher account. Details of how to set up these account. You will need to allocate a different username and password for each of these accounts. You are responsible for ensuring that any such usernames and passwords remain confidential and secure and are fully responsible for all activities which occur under such usernames and passwords.
Learners will be provided with a unique User ID which will allow them to access their Learner Account. You are responsible for ensuring that all Learners are aware of the school ID and their User ID and know how to use these to access the Site.
You are responsible for training teachers, Learners and parents in the benefits of and how to use the Service and for ensuring that teachers, Learners and parents get the most out of the Service. Materials which you may use in providing this training are available for download from the “Documents” area on the Site. All training you provide to teachers, Learners and parents must be consistent with these materials and any training that we may provide to you.
On receipt of the signed Order Form we will issue to you an invoice for the initial Fees for the Service. Invoices are payable within 21 days of the date thereof.
Fees are exclusive of any applicable taxes, which you must pay at the prevailing rate in addition to, and at the same time as, payment of the Fees.
If you have chosen a Contract Period of more than one year on an annual payment basis, Fees for subsequent years are payable annually in advance. We will invoice you one month prior to the expiry of each year of the Contract Period for the Fees due in respect of the following year.
If you do not pay any invoice by its due date we may terminate access to the Service by you or any Learner and the invoice and any further Fees due under this Agreement that have not been invoiced, less a discount of 10% as set out in clause 14, become immediately payable. If you subsequently wish to reinstate the Service, you will need to enter into a new agreement.
9. Data Protection
Assuming that you receive federal grant funds from the U.S. Department of Education, you are responsible for complying with the Family Educational Rights and Privacy Act (FERPA). That Act permits you to provide student education records to us as your contractor to perform school-related services. In the annual FERPA notice to parents provided by you or your schools, you or your schools need to specify that personally identifiable information from student education records may be provided to us, as a contractor to the school district, without written parental consent for the purpose of serving students, tracking their performance, and evaluating the project. The notice should indicate that personally identifiable information from student education records may be provided to Penda employees and sub-contractors who need to perform these limited functions. Consistent with our Privacy Policies, we will safeguard education records that you share with us, so they are not disclosed to other parties and not used for other purposes.
Our Privacy Policies explain how personally identifiable Student Data and other personal data will be treated. You warrant that you have all necessary authority and consent to provide the Student Data to us for use in connection with the Service.
Where, in connection with the Service, we process personal data disclosed to us by you or by a school that you serve or administer, we shall:
unless otherwise agreed in writing, only process the personal data to the extent and in such manner as is necessary for the provision of the Service or as is required by law or any regulatory body;
implement appropriate technical and organizational measures to protect personal data against unauthorized or unlawful processing and against accidental loss, destruction, damage, alteration or disclosure. Such measures shall be appropriate to the harm that might result from unauthorized or unlawful processing or accidental loss, destruction or damage to personal data and to the nature of personal data to be protected; and
promptly notify you if we receive a request from a parent, student, or staff member to have access to personal data or any other complaint or request relating to your obligations under FERPA.
10. Intellectual Property
All intellectual property (including, without limitation, all copyright, database rights, patent and other rights in designs and inventions, trademarks (whether registered or unregistered)) in the Site, the Content, the Service, the MIS Compatible Software, and any other materials provided by us to you in connection with the provision of the Service is owned by or licensed to us.
You, your participating schools, Learners and their parents may only use the Content during the Contract Period as required for the purpose of the proper use of the Service on the following bases:
use of the Intellectual Property, the site and the Service is for teaching and study purposes only;
Content or material from the Site may be downloaded to a local hard disk, printed out or copied for a school’s and its Learners’ teaching and study purposes only;
Content or material from the Site may not be incorporated into any other work or publication, including for the avoidance of doubt any learning platform, virtual learning environment or managed learning environment whether in hard copy or electronic or any other form;
Content or material from the Site may not be distributed or copied for any commercial purpose;
no part of the Site may be reproduced on or transmitted to or stored in any other web site or included in any public or private electronic retrieval system or service without our prior written permission;
you will preserve any copyright notice or other proprietary marking of us or our licencor on any copy of the Content, MIS Compatible Software, or other materials provided by us to you.
Any rights not expressly granted in the Agreement are reserved.
11. Limited Warranty and Warranty Disclaimer
We use commercially reasonable efforts to provide continuing availability of the Service but we shall not, in any event, be liable for interruptions or down time of the Service. In the event of any defect in the Service that is notified to us in writing, our sole responsibility shall be to use commercially reasonable efforts to remedy the defect.
We accept no responsibility for the content of any web site to which there is a hypertext link from the Site. Such links are provided for your convenience with no warranty, express or implied, for the information provided within them
We make no guarantee about the reliability and accuracy of the Service or the results obtained from the Service. You understand and agree that you are responsible for determining that the Service meets your needs.
We provide the Service “as-is,” “with all faults” and “as available.” You bear the risk of using it. To the maximum extent permitted by law, we give no express warranties, guarantees, or conditions. You may have additional rights under your local laws that this contract cannot change. To the extent permitted by law, we exclude any implied warranties or conditions including those of merchantability, fitness for a particular purpose, workmanlike effort, non-infringement, and satisfactory quality.
12. Limitation of Liability
While we endeavor to ensure that the Service is a valuable educational aid bringing real benefits to Learners, we do not accept any liability for any errors, omissions or unsatisfactory examination results.
You agree that our liability to you for any loss or damage arising in relation to the Service or this Agreement shall be limited solely to direct damages equal to the greater of (a) the total Fees paid by you for the period from the Start Date of the current Contract Period to the date on which the alleged circumstance giving rise to your claim occurred or (b) US$50. To the extent permitted by law, you cannot recover any other damages from us, including consequential, lost profits, special, indirect, or incidental damages. Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitations or exclusions may not apply to you.
The Agreement will commence on the Start Date and will continue for the Contract Period, unless ended under clause 14 or 15 below.
14. Early termination
Cancellation: If at any time during the Contract Period, you wish to stop receiving the Service, you may end the Agreement by not less than one month’s notice to us in writing. If you end the Agreement in this way, no refund of Fees which you have paid will be payable by us and you shall pay to us forthwith:
any Fees which are due or in arrears at the time the Agreement is ended, plus
a sum equal to the balance of the Fees that would have become due during the remainder of the Contract Period less a discount of 10 percent (10%).
Bulk Purchase Agreement: If you are a school, and at any time during the Contract Period your local educational agency enters into a separate agreement with us for the provision of the Service to you and other schools, then we will notify you and you may end the original Agreement. If you end the original Agreement in this way, we shall credit you an amount equal to the same proportion of the total Fees which you have paid under the Agreement at the date the Agreement ends as the relevant period (defined below) bears to the Contract Period. If you do not wish to end the original Agreement you should notify us in writing within not less than one calendar month and you should not accept any rebate in respect of the original Agreement.
Discontinuance: If for any reason we discontinue provision of the Service, we may end the Agreement by not less than one month’s notice to you in writing. If we end the Agreement in this way, we shall credit you with an amount equal to the same proportion of the total Fees which you have paid under the Agreement at the date the Agreement ends as the relevant period (defined below) bears to the Contract Period.
For the purpose of this clause, the relevant period shall be:
in the case of a 1 year contract or a 3 year contract with single payment – the period between the date the Agreement ends and the end of the Contract Period rounded down to the nearest number of full months, or
in the case of a 3 year contract with annual payment – the period between the date the Agreement ends and the end of the current year in respect of which payment has been made rounded down to the nearest number of full months.
Subject to this, we shall have no further liability to you or any Centre or Leaner as a result of such discontinuance.
15. Default termination
We may, by notice to you having immediate effect, terminate the Agreement if you commit a material breach of any of your obligations under the Agreement or fail to pay any Fee when it is due and do not cure your non-payment within 14 days from the due date. If we end the Agreement in this way, you shall (without prejudice to any other remedy which we may have) pay to us forthwith an amount calculated as per paragraph 14 above as if you had given notice that you wish to stop receiving the Service.
On termination of the Agreement for any reason, we will disable your administration account, teacher account and all Learner accounts.
You shall indemnify us and hold us harmless against all claims, damages and other losses (including attorneys’ fees, court costs, and other litigation and dispute processing expenses) suffered by us as a result of any breach by you or any of your participating schools or Learners of these Terms or the Terms of Site Use.
17. Force Majeure
Notwithstanding anything contained in the Agreement we shall not be liable for failure or delay in performing any of our obligations under the Agreement because of any cause beyond our reasonable control (including but not limited to (a) decision of any court or other judicial body of competent jurisdiction, (b) unavailability of equipment, power or other commodity, (c) failure or non-availability of Internet or telecommunications facilities, computer hardware or software, (d) act of God, war, riot, terrorist attack, civil commotion, malicious damage, fires, flood or storm (e) strikes or other industrial disputes (whether involving our workforce or that of any other party) or (f) acts of government or other prevailing authorities or default of suppliers, sub-contractors or other third parties.
You shall not assign any of your rights or obligations under the Agreement without our prior written consent. We may assign any or all of our rights and obligations under the Agreement to a person who acquires the whole or a substantial part of our business, whether by merger or acquisition of assets or securities, in which event it shall be sufficient for us to give notice to you of the assignment.
Any notice under the Agreement shall be made via regular mail or fax or email to the address for the party being given the notice last known to the party giving the notice. Notice served by mail shall be deemed served on the second business day after the date of posting. Notice served by fax or email shall be deemed served on the next business day after the date of transmission and shall be confirmed by regular mail.
Any failure by us to exercise or enforce any right or provision of the Agreement shall not constitute a waiver of such right or provision.
You and we agree that we do not intend any third party (including specifically any Learner or parent) to have any right to enforce any of the provisions of these Terms of Service.
You agree that in entering into the Agreement, you do not do so on the basis of, and do not rely on, any representation, warranty or other provision except as expressly set out in these Terms of Service.
The Agreement operates to the exclusion of any other agreement or understanding of any kind between you and us preceding the date of the Agreement and in any way relating to the subject matter of the Agreement. The Agreement constitutes the whole agreement and understanding between you and us as to the subject matter hereof and there are no provisions, terms, conditions or obligations, whether oral or written, express or implied, other than those contained or referred to herein.
If any provision of the Agreement is found by a court of competent jurisdiction to be unenforceable or invalid in any way such unenforceability or invalidity shall in no way impair or affect any other condition, all of which shall remain in full force and effect.
The Agreement shall be governed by the laws of the State of Florida.
P.O. Box 941310,
Atlanta, GA 31141