General Terms of Use

DATED 2022-06-30 · VERSION 20230701_rev01 · COMPARED WITH 20220820_rev01 · ARCHIVE SNAPSHOT

Full text changes — 20220820_rev01 to 20230701_rev01

COLOUR MARKS THE SEVERITY OF A FLAGGED CLAUSE · + AND − MARK ADDED AND REMOVED

+## Clever General Terms of Use
 Effective Date: June 30, 2022
 Welcome to Clever! We're ("we", "us", or "Clever") delighted to have you on our website and maybe even using our service (the "Services"). Please continue reading to learn about the terms by which you may use our web and/or mobile services (collectively, the "Services").
+These General Terms of Use apply to all: (i) schools, school districts, and related entities and organizations that sign up to use the Services, including but not limited to administrators who access the Services on their behalf (each a "School"); (ii) non-School visitors, users, and others, including students, teachers, and their parents or guardians, who use the Services; and (iii) third-party providers of software, applications or tools (each a "Developer" and collectively with the individuals referenced in (ii) above and Schools, the "Users" or "you"). If you're a School, our [Additional Terms of Use for Schools](https://www.clever.com/trust/terms/schools) apply to you too. If you are a parent or guardian that creates an account on Clever (each a "Parent"), our [Additional Terms of Use for Parents](https://www.clever.com/trust/terms/parents) apply to you, too. If you're a Developer, our [Additional Terms of Use for Developers](https://www.clever.com/trust/terms/developers) apply to you too. These General Terms of Use, the [Additional Terms of Use for Schools](https://www.clever.com/trust/terms/schools) (as applicable to Schools), [Additional Terms of Use for Parents](https://www.clever.com/trust/terms/parents) (applicable to Parents) and the [Additional Terms of Use for Developers](https://www.clever.com/trust/terms/developers) (as applicable to Developers) are collectively referred to herein as the "Agreement".
+These General Terms of Use apply to all: (i) schools, school districts, and related entities and organizations that sign up to use the Services, including but not limited to administrators who access the Services on their behalf (each a "School"); (ii) non-School visitors, users, and others, including students, teachers, and their parents or guardians, who use the Services; and (iii) third-party providers of software, applications or tools (each a "Developer" and collectively with the individuals referenced in (ii) above and Schools, the "Users" or "you"). If you're a School, our [Additional Terms of Use for Schools](https://clever.com/trust/terms/schools) apply to you too. If you are a parent or guardian that creates an account on Clever (each a "Parent"), our [Additional Terms of Use for Parents](https://clever.com/trust/terms/parents) apply to you, too. If you're a Developer, our [Additional Terms of Use for Developers](https://clever.com/trust/terms/developers) apply to you too. These General Terms of Use, the [Additional Terms of Use for Schools](https://clever.com/trust/terms/schools) (as applicable to Schools), [Additional Terms of Use for Parents](https://clever.com/trust/terms/parents) (applicable to Parents) and the [Additional Terms of Use for Developers](https://clever.com/trust/terms/developers) (as applicable to Developers) are collectively referred to herein as the "Agreement".
+By accessing or using the Services, checking the box marked \["I Agree"\], or by otherwise affirmatively stating your desire to use the Services, you signify that you have read, understood, and agree to be bound by this Agreement and to the collection and use of your information as set forth in the Clever [Privacy Policy](https://www.clever.com/trust/privacy/policy), otherwise you may not use the Services. Because our Services change relatively often, the terms in this Agreement and our Privacy Policy may change too. If you are a School or a Developer using the Services, we will notify you via email in advance of any material changes to the terms. Upon making changes, we will update the "Effective Date" found at the top of this page. Your continued use of the Services after any changes constitutes your acceptance of the new terms.
+By accessing or using the Services, checking the box marked \["I Agree"\], or by otherwise affirmatively stating your desire to use the Services, you signify that you have read, understood, and agree to be bound by this Agreement and to the collection and use of your information as set forth in the Clever [Privacy Policy](https://clever.com/trust/privacy/policy), otherwise you may not use the Services. Because our Services change relatively often, the terms in this Agreement and our Privacy Policy may change too. If you are a School or a Developer using the Services, we will notify you via email in advance of any material changes to the terms. Upon making changes, we will update the "Effective Date" found at the top of this page. Your continued use of the Services after any changes constitutes your acceptance of the new terms.
 This next sentences are surrounded by stars because they are important: \*\*\*Please read these terms carefully to ensure that you understand each provision. If you are a Developer or a Parent, these terms contain a mandatory individual arbitration agreement in Section 3(viii) (the "Arbitration Agreement") and class action/jury waiver provision in Section 3(ix) (the "Class Action/Jury Trial Waiver") that apply to you. The Arbitration Agreement and Class Action/Jury Trail Waiver require, with only specified exceptions in Sections 3(viii) and 3(ix) or unless you opt out pursuant to the instructions in Section 3(viii), the exclusive use of final and binding arbitration on an individual basis only to resolve disputes, rather than jury trials or class, collective, private attorney general or representative actions or proceedings. \*\*\*
 ### SECTION 1. WHAT ARE CLEVER'S SERVICES AND WHO CAN USE THEM?
 What do we do? We provide Schools both data integration and single sign-on functionality, making it easier for Schools to choose, deploy, and control software, applications or tools made available by Developers that are used by their teachers and students, as well as to use certain Clever software applications we may make available to access the Services via a website or mobile device (our "App"). We also operate an online application marketplace where Developers can offer to sell subscriptions to their own software applications for direct distribution to Schools (the "Clever App Store").
 You understand and acknowledge that you are responsible for any User Contributions you Share, and you, not we, have full responsibility for such content, including its legality, reliability, accuracy, and appropriateness. We are not responsible or liable to any third party for the content or accuracy of any User Contributions posted by you or any other User.
 We have the right to:
 - Remove or refuse to post any User Contributions in our sole discretion.
 - Take any action with respect to any User Contribution that we deem necessary or appropriate in our sole discretion, including if we believe that such User Contribution violates this Agreement, infringes any intellectual property right or other right of any person or entity, threatens the safety of Users or the public, or could create liability for us.
 - Disclose your identity or other information about you to any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy.
 - Take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Services.
 - Terminate or suspend your access to all or part of the Services for any or no reason, including without limitation, any violation of this Agreement.
 Without limiting the foregoing, we have the right to cooperate fully with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any materials on or through the Services. This next sentence is surrounded by stars because it is important: \*\*\* You waive and hold us and our affiliates, licensees, and service providers harmless from any claims resulting from any action we or our affiliates, licensees, and service providers take during, or taken as a consequence of, investigations related to such cooperation. \*\*\*
 We cannot review all User Contributions before they are Shared, and cannot ensure prompt removal of objectionable material after it has been posted. We assume no liability for any action or inaction regarding transmissions, communications, or content provided by any User or third party. We have no liability or responsibility to anyone for performance or nonperformance of the activities described above.
 To use our App you must have a mobile device that is compatible with the App. Clever does not warrant that our App will be compatible with your mobile device. You may use mobile data in connection with our App and may incur additional charges from your wireless provider for these services. You agree that you are solely responsible for any such charges. Clever hereby grants you a non-exclusive, non-transferable, revocable license to use a compiled code copy of our App for one Clever User account on one mobile device owned or leased solely by you, for your personal use. You may not: (i) modify, disassemble, decompile or reverse engineer our App, except to the extent that such restriction is expressly prohibited by law; (ii) rent, lease, loan, resell, sublicense, distribute or otherwise transfer our App to any third party or use the App to provide time sharing or similar services for any third party; (iii) make any copies of our App; (iv) remove, circumvent, disable, damage or otherwise interfere with security-related features of our App, features that prevent or restrict use or copying of any content accessible through our App, or features that enforce limitations on use of our App; or (v) delete the copyright and other proprietary rights notices on our App. You acknowledge that Clever may from time to time issue upgraded versions of the App, and may automatically electronically upgrade the version of the App that you are using on your mobile device. You consent to such automatic upgrading on your mobile device, and agree that the terms and conditions of this Agreement will apply to all such upgrades. Any third-party code that may be incorporated in our App is covered by the applicable open source or third-party license EULA, if any, authorizing use of such code. The foregoing license grant is not a sale of our App or any copy thereof, and Clever or its third-party partners or suppliers retain all right, title, and interest in the App (and any copy thereof). Any attempt by you to transfer any of the rights, duties or obligations hereunder, except as expressly provided for in this Agreement, is void. Clever reserves all rights not expressly granted under this Agreement. If our App is being acquired on behalf of the United States Government, then the following provision applies. Our App will be deemed to be "commercial computer software" and "commercial computer software documentation", respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any use, reproduction, release, performance, display or disclosure of the Services and any accompanying documentation by the U.S. Government will be governed solely by these Terms of Service and is prohibited except to the extent expressly permitted by these Terms of Service. Our App originates in the United States, and is subject to United States export laws and regulations. Our App may not be exported or re-exported to certain countries or those persons or entities prohibited from receiving exports from the United States. In addition, our App may be subject to the import and export laws of other countries. You agree to comply with all United States and foreign laws related to use of our App and the Services.
 The following applies if you acquire our App from the Apple App Store ("Apple-Sourced Software"): You acknowledge and agree that this Agreement is solely between you and Clever, not Apple, Inc. ("Apple") and that Apple has no responsibility for the Apple-Sourced Software or content thereof. Your use of the Apple-Sourced Software must comply with the App Store Terms of Service. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Apple-Sourced Software. In the event of any failure of the Apple-Sourced Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Apple-Sourced Software to you; to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple-Sourced Software, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be solely governed by this Agreement and any law applicable to Clever as provider of the software. You acknowledge that Apple is not responsible for addressing any claims of you or any third party relating to the Apple-Sourced Software or your possession and/or use of the Apple-Sourced Software, including, but not limited to: (i) product liability claims; (ii) any claim that the Apple-Sourced Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation; and all such claims are governed solely by this Agreement and any law applicable to Clever as provider of the software. You acknowledge that, in the event of any third-party claim that the Apple-Sourced Software or your possession and use of that Apple-Sourced Software infringes that third party's intellectual property rights, Clever, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by this Agreement. You and Clever acknowledge and agree that Apple, and Apple's subsidiaries, are third-party beneficiaries of this Agreement as relates to your license of the Apple-Sourced Software, and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement as relates to your license of the Apple-Sourced Software against you as a third-party beneficiary thereof.
 ### SECTION 2. RIGHTS IN OUR CONTENT
+"Student Data" is any information (in any format) that is directly related to any identifiable current or former student that is maintained by a School, and may include "educational records" as defined by the Family Educational Rights and Privacy Act ("FERPA") that Schools provide to us. While we may need to access Student Data to provide the Services to you, Schools own the Student Data and remain responsible for it. Our [Additional Terms of Use for Schools](https://www.clever.com/trust/terms/schools), [Additional Terms of Use for Developers](https://www.clever.com/trust/terms/developers), and [Privacy Policy](https://www.clever.com/trust/privacy/policy) provide more detail around how we handle Student Data.
+"Student Data" is any information (in any format) that is directly related to any identifiable current or former student that is maintained by a School, and may include "educational records" as defined by the Family Educational Rights and Privacy Act ("FERPA") that Schools provide to us. While we may need to access Student Data to provide the Services to you, Schools own the Student Data and remain responsible for it. Our [Additional Terms of Use for Schools](https://clever.com/trust/terms/schools), [Additional Terms of Use for Developers](https://clever.com/trust/terms/developers), and [Privacy Policy](https://clever.com/trust/privacy/policy) provide more detail around how we handle Student Data.
 "Intellectual Property Rights" means all worldwide patent rights, copyright rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all related applications and registrations, renewals and extensions.
 Except for Student Data or the applications made available by Developers, the Services and all materials made available to you in connection with them, including, but not limited to, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, music, and any content belonging to other Users (the "Clever Content"), and all related Intellectual Property Rights, are the exclusive property of Clever and its licensors. Except as specified in this Agreement, nothing may be deemed to create a license in or under any such Intellectual Property Rights, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any Clever Content. To be clear: any use of the Clever Content for a purpose not expressly permitted by this Agreement is strictly prohibited.
 If you send us ideas or comments about our Services, you agree that we may freely use or reference those ideas and comments and we do not owe you any payment or have any other obligation of any kind for such ideas or comments.
 Clever Data is licensed to you for your use on a limited basis, and is governed solely by the terms of this Agreement and available for distribution only at our sole discretion. Clever owns the account you use to access the Services along with any rights of access or rights to data stored by or on behalf of Clever on Clever servers (except with respect to any Student Data that we may be storing for you), including but not limited to any data representing any or all of your Clever Data. Clever has the right to manage, control and even eliminate Clever Data, except that Clever may only use Student Data as specifically permitted by this Agreement.
 These next sentences are surrounded by stars because they are important: \*\*\* You understand and agree that any data, account history and account content residing on Clever's servers may be deleted at any time for any reason in Clever's sole discretion, with or without notice and with no liability of any kind. We do not provide or guarantee, and expressly disclaim, any value, cash or otherwise, attributed to any data residing on Clever's servers. If you're a School, you should be absolutely sure to keep copies of Student Data in your SIS or in other secure storage. You should not rely on us to provide copies of or access to your student data. \*\*\*
 **ii) PRIVACY AND SECURITY**
+We take very seriously the privacy of our users, including schools, teachers, parents, and students. By using the Services you consent to the collection, use and disclosure of your information (including but not limited to Student Data) as set forth in our [Privacy Policy](https://www.clever.com/trust/privacy/policy) and, if you're a School, in the [Additional Terms of Use for Schools](https://www.clever.com/trust/terms/schools), and to have your information (including but not limited to Student Data) collected, used, transferred to and processed in the United States pursuant to our [Privacy Policy](https://www.clever.com/trust/privacy/policy).
+We take very seriously the privacy of our users, including schools, teachers, parents, and students. By using the Services you consent to the collection, use and disclosure of your information (including but not limited to Student Data) as set forth in our [Privacy Policy](https://clever.com/trust/privacy/policy) and, if you're a School, in the [Additional Terms of Use for Schools](https://clever.com/trust/terms/schools), and to have your information (including but not limited to Student Data) collected, used, transferred to and processed in the United States pursuant to our [Privacy Policy](https://clever.com/trust/privacy/policy).
 **iii) THIRD-PARTY SERVICES**
+Our Services may incorporate or contain links to websites, products, applications, services, related product and service descriptions, marketing materials and/or other content or information made available by Developers or other third party providers (collectively, "Third-party Materials"). Keep in mind that we do not endorse or assume any responsibility for any Third-party Materials (including but not limited to software or applications made available by Developers via the Clever App Store or otherwise). If you access or use any Third-party Materials or engage with a third-party Developer from or within the Services, you understand that you do so at your own risk, and you understand that this Agreement, the [Additional Terms of Use for Schools](https://www.clever.com/trust/terms/schools), [Additional Terms of Use for Developers](https://www.clever.com/trust/terms/developers), and our [Privacy Policy](https://www.clever.com/trust/privacy/policy) do not apply to your use of those Third-party Materials, which have their own applicable terms and policies. Additionally, your dealings with Developers found on or through the Services, including for payment, use of your Student Data by the Developers, and your agreement to any terms and conditions of such Developers (such as warranties or privacy policies) are only between you and such Developers. We are not responsible for any loss or damage of any sort relating to your dealings with such Developers or other Third-party Providers.
+Our Services may incorporate or contain links to websites, products, applications, services, related product and service descriptions, marketing materials and/or other content or information made available by Developers or other third party providers (collectively, "Third-party Materials"). Keep in mind that we do not endorse or assume any responsibility for any Third-party Materials (including but not limited to software or applications made available by Developers via the Clever App Store or otherwise). If you access or use any Third-party Materials or engage with a third-party Developer from or within the Services, you understand that you do so at your own risk, and you understand that this Agreement, the [Additional Terms of Use for Schools](https://clever.com/trust/terms/schools), [Additional Terms of Use for Developers](https://clever.com/trust/terms/developers), and our [Privacy Policy](https://clever.com/trust/privacy/policy) do not apply to your use of those Third-party Materials, which have their own applicable terms and policies. Additionally, your dealings with Developers found on or through the Services, including for payment, use of your Student Data by the Developers, and your agreement to any terms and conditions of such Developers (such as warranties or privacy policies) are only between you and such Developers. We are not responsible for any loss or damage of any sort relating to your dealings with such Developers or other Third-party Providers.
 Without limiting the foregoing, with respect to any use of Google Classroom as integrated with the Services, you agree to comply with the [Google APIs Terms of Service](https://developers.google.com/terms) and such other terms and conditions as Google may provide from time to time.
 **iv) INDEMNITY**
 You agree to defend, indemnify and hold harmless Clever and its subsidiaries, agents, licensors, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney's fees) arising from: (i) your use of and access to the Services, including any data or content transmitted or received by you; (ii) your violation of any term of this Agreement, including but not limited to your breach of any of the representations and warranties; (iii) your violation of any third-party right, including but not limited to any right of privacy or Intellectual Property Rights; (iv) your violation of any applicable law, rule or regulation, including but not limited to FERPA, the Protection of Pupil Rights Amendment ("PPRA"), and the Children's Online Privacy and Protection Act ("COPPA"); (v) any content or information that is submitted via your account; or (vi) any other party's access and use of the Services with your unique username, password or other appropriate security code.
 \*\*\* Under Federal Law, if you knowingly misrepresent that online material is infringing, you may be subject to criminal prosecution for perjury and civil penalties, including monetary damages, court costs, and attorneys' fees. \*\*\*
 This procedure is exclusively for notifying us that your copyrighted material has been infringed. The requirements above are intended to comply with our rights and obligations under the DMCA, but do not constitute legal advice. It may be advisable to contact an attorney regarding rights and obligations under the DMCA and other applicable laws. In accordance with the DMCA and other applicable law, we have a policy of terminating, as appropriate, Users deemed to be repeat infringers. We may also choose to limit access to the Services and terminate the accounts of Users who infringe intellectual property rights of others, whether or not there is any repeat infringement.
 **xi) SEVERABILITY AND WAIVER**
+This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by us in accordance with the terms of our [Privacy Policy](https://www.clever.com/trust/privacy/policy). This Agreement, together with any amendments and any additional agreements you may enter into with Clever in connection with the Services including other agreements referenced herein, constitute the entire agreement between you and Clever concerning the Services. If any provision of this Agreement is deemed invalid by a court of competent jurisdiction, the invalidity of such provision will not affect the validity of the remaining provisions of this Agreement, which will remain in full force and effect. No waiver of any term of this Agreement will be deemed a further or continuing waiver of such term or any other term, and Clever's failure to assert any right or provision under this Agreement will not constitute a waiver of such right or provision. If access to the Services is licensed to the United States government or any agency thereof, then the Services will be deemed to be "commercial computer software" and "commercial computer software documentation," pursuant to DFARS Section 227.7202 and FAR Section 12.212, respectively, as applicable. Any use, reproduction, release, performance, display, or disclosure of the Services and any accompanying documentation by the U.S. Government will be governed solely by this Agreement and is prohibited except to the extent expressly permitted by this Agreement. Neither party will hold themselves out to be joint venturers, and neither party is authorized or empowered to act as the agent of the other.
+This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by us in accordance with the terms of our [Privacy Policy](https://clever.com/trust/privacy/policy). This Agreement, together with any amendments and any additional agreements you may enter into with Clever in connection with the Services including other agreements referenced herein, constitute the entire agreement between you and Clever concerning the Services. If any provision of this Agreement is deemed invalid by a court of competent jurisdiction, the invalidity of such provision will not affect the validity of the remaining provisions of this Agreement, which will remain in full force and effect. No waiver of any term of this Agreement will be deemed a further or continuing waiver of such term or any other term, and Clever's failure to assert any right or provision under this Agreement will not constitute a waiver of such right or provision. If access to the Services is licensed to the United States government or any agency thereof, then the Services will be deemed to be "commercial computer software" and "commercial computer software documentation," pursuant to DFARS Section 227.7202 and FAR Section 12.212, respectively, as applicable. Any use, reproduction, release, performance, display, or disclosure of the Services and any accompanying documentation by the U.S. Government will be governed solely by this Agreement and is prohibited except to the extent expressly permitted by this Agreement. Neither party will hold themselves out to be joint venturers, and neither party is authorized or empowered to act as the agent of the other.
 **xii) HOW TO CONTACT US**
 If you have any questions about this Agreement, please contact us by visiting our [Help Center](https://support.clever.com/).
 Additionally, Clever can be reached: