Please read these Terms and Conditions of Service which, together with the Purchase Order and Privacy Policy (as amended from time to time) (the ‘Terms’), govern Your use of Our Website (www.pendalearning.com) (the ‘Website’) and any purchases of goods or Services. By accessing or using the Website in any form, You accept and agree to the bounds of these Terms. If You do not agree to these Terms then please do not access or use the Website.
These Terms form a legally binding contract between You and Learning 2020, Inc. (DBA Penda Learning), a corporation registered in Florida under FEI/EIN Number 84-2197909 with its registered office at Learning 2020, Inc., 2400 Southeast Federal Highway, Fourth Floor, Stuart, FL. 34994 (‘We’, ‘Us’ and/or ‘Our’).
By using the Website and/or the goods or Services, You affirm that You are fully able and competent to enter into the Terms and abide and comply with these Terms.
The Website, products, applications, and any Content forming part of the Website and the goods and Services are owned by Us or Our suppliers.
Subject to these Terms, We hereby grant You a personal, non-exclusive, non-transferable limited scope license to access the Website, and all Content included within the Website. If You breach any of these Terms You may be denied access to the Website and We may terminate or suspend this license.
Please keep a copy of these Terms for future reference. We may change these Terms for legal, regulatory or security reasons or for any other reason by giving You notice by email, via updates posted on Our Website or by asking You to re-confirm Your acceptance of the Terms. Your continued use of Our Website will be deemed Your acceptance of the amended Terms.
1. Definitions and Interpretation
1.1. The definitions and rules of interpretation in this condition apply in this license, unless the context requires otherwise.| ‘Center’ | refers to the educational institution(s) or establishment(s) listed on the Purchase Order. |
| ‘Conditions’ | refers to the standard Terms and Conditions of supply of the Service, as set out in these Terms. |
| ‘Content’ | refers to materials (including but not limited to software, text, images, sound, videos, documents, spreadsheets, slideshows, presentations and any other multimedia files) on the Site. |
| ‘Contract Period’ | refers to the period for which You have committed to receive Penda Learning Website access, goods and Service, as detailed on the Purchase Order, which period commences on the Start Date or such other date as may be agreed between Us in writing. |
| ‘Fees’ | refers to the Fees payable in respect of the Service, as detailed on the Purchase Order or as agreed between Us in writing. |
| ‘Learner’ | refers to a student or pupil at a Center with access to Penda Learning. |
| ‘Learner Data’ | refers to all information relating to Learners which We hold for the purpose of providing the Service, as more particularly described in the Data Sharing Agreement and Privacy Policy. |
| ‘Privacy Policy’ | refers to Our Website Privacy Policy & FERPA compliance which can be found on the Site. |
| ‘Purchase Order’ | refers to the Purchase Order detailing Your subscription license, goods and Services, and information about You and Your educational institution(s). |
| ‘Registered Users’ and ‘Users’ | refers to Learner accounts, teacher accounts, school admin accounts, and district admin accounts created on Penda Learning. |
| ‘Renewal Period’ | refers to a period of ten to twenty-four months commencing on the expiry of the preceding Contract Period or Renewal Period. |
| ‘Service’ and ‘Services’ | refers to the provision of the Penda Learning Website, goods and Services for use by Learners, teachers and school/district admin that supports curriculum, Response To Intervention (RTI), classroom differentiation and high-stakes assessment preparation, and to enable Centers, teachers, school/district admin and parents to track the usage and progress of Learners. |
| ‘Site’ | refers to the Site operated by Us at HTTPS://WWW.PENDALEARNING.COM via which You (Centers, Learners, teachers and school/district admin) can access the Service. |
| ‘Start Date’ | refers to the date We accept the Purchase Order by issuing to You an invoice in respect of the Fees payable and payment option. |
| ‘Terms’ | refers to the agreement between You and Us that is set out in these Terms and Conditions, Privacy Policy and Purchase Order. |
| ‘We’, ‘Our’ and ‘Us’ | refers to Penda Learning. |
| ‘Website’ | refers to the Penda Learning Website, found at HTTPS://WWW.PENDALEARNING.COM. |
| ‘Welcome/Onboarding Pack’ | refers to the detailed information supplied to You by Us that includes: a unique URL link to access teacher/admin online on-demand professional development; a unique URL link specific to Your Center for teachers and school admin to create a Penda Learning account (not to be shared with Learners); and instructions to get Learners started with access to Penda Learning. |
| ‘You’ and ‘Your’ | refers to the subscriber detailed on the Purchase Order. |
1.2. Words importing one gender shall be treated as importing any gender; words importing individuals shall be treated as importing bodies corporate, corporations, unincorporated associations and partnerships and vice-versa; words importing the singular shall be treated as importing the plural and vice-versa; and words importing whole shall be treated as including a reference to any part thereof.
2. Your Obligations to Us
2.1. You confirm that You will:2.1.1. ensure that You complete the Purchase Order accurately;
2.1.2. ensure that the person signing the Purchase Order is authorized by the Center’s school/district administration or other appropriate body to enter into this
license on Your behalf;
2.1.3. keep an accurate and up-to-date record throughout the term of:
2.1.3.1. the Users that You authorize to use Penda Learning;
2.1.3.2. Registered Users and the access made by them of Penda Learning;
2.1.4. expressly prohibit Registered Users from sharing their login credentials;
2.1.5. require Registered Users to select a secure password which they change when reasonably requested by Us or by You, and which they keep secure and confidential;
2.1.6. keep Your school’s Welcome/Onboarding Pack information secure from unauthorized access;
2.1.7. use all reasonable endeavors to prevent any unauthorized access to or use of Penda Learning and, in the event of any unauthorized access or use, promptly notify Us;
2.1.8. supervise and control the use of Penda Learning to ensure it is used in accordance with the license;
2.1.9. obey all local laws, regulations and rules that apply to Website activities when You use the Website;
2.1.10. comply with Section 3 (Acceptable Use) and Section 4 (User Generated Content), relating to Your use of the Website and comply with any other restrictions set out elsewhere in the Terms;
2.1.11. compensate Us where We pay damages or incur any other loss or expenses (including any legal Fees in relation to such claims or damages) following any claim made by a third party in respect of any manner in relation to or arising from Your use of the Website including any breach of these Terms or Your violation of any law or the rights of a third party;
2.1.12. be responsible for all costs allowable by the courts, if We take legal action against You for non-payment or any other breach of these Terms and a court makes an award in Our favor.
2.2. You shall not:
2.2.1. attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit or distribute all or any portion of Penda Learning in any form or media or by any means, except to the extent expressly permitted by this license or which must be allowed by law;
2.2.2. attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of Penda Learning, except to the extent which must be allowed by law;
2.2.3. access all or any part of Penda Learning in order to build a product or Service which competes with Penda Learning;
2.2.4. use Penda Learning for the benefit of any third party, including any subsidiary or holding company or contractor of Yours, any school district, or any other schools, colleges or other educational establishment, whether federated or otherwise associated with You in any way;
2.2.5. license, sell, rent, lease, transfer, assign, distribute, display, disclose, commercially exploit or otherwise make Penda Learning available to any third party except Your Users;
2.2.6. misuse the Penda Learning Website by uploading any files that contain a virus, Trojan, worm, spyware, time bombs, corrupted data or other computer programs that may damage, interfere with or disrupt the Website;
2.2.7. attempt to gain unauthorized access to Penda Learning, the server on which Penda Learning is stored or any server, computer or database connected to the Penda Learning Website;
2.2.8. attack Penda Learning via a denial-of-service attack or a distributed denial-of-service attack;
2.2.9. promote, encourage or take part in any activity involving hacking, cracking, phishing, taking advantage of exploits or cheats;
2.2.10. improperly use Penda Learning Website customer support or make false or spurious reports to Us;
2.2.11. establish a link to Penda Learning from any Website that is not owned by You;
2.2.12. frame Penda Learning on any site not owned by You, nor publicly available, publicly visible or publicly accessible;
2.2.13. establish a link in such a way as to suggest any form of association, approval or endorsement on Our part where none exists;
2.2.14. partake in any behavior that We deem inappropriate and disruptive, or against the tone and nature of the Website (where User Generated Content or an online community exists).
2.3. By breaching Conditions 2.2.6–2.2.9, You would commit a criminal offense under the Computer Misuse Act 1990. We will report any such breach to the relevant law enforcement authorities and We will cooperate with those authorities by disclosing Your identity to them and the identity of Your Users. In the event of such a breach, Your right to use Penda Learning will cease immediately.
2.4. We reserve the right to access, monitor and/or record any online activity within the Website and Your Account and You give Us Your express consent to access and record Your activities.
3. Acceptable Use Policy
3.1. Use of the Website may require You to create an account. If You don’t already have an account and such an account is required, You will need to set one up before using the Website or any Services. Your access to the Website and any Services will require You to comply with the requirements set out in these Terms together with any Terms You may have signed up to in relation to Your Account.3.2. If any information You provide in connection with Your Account is untrue, inaccurate, out of date or incomplete then We reserve the right to refuse Your current and future use of the Website or Services and in such event the license granted to You under these Terms will be suspended and/or terminated.
3.3. We will not be liable where Your Account is used by someone else. You agree to notify Us immediately if You become aware of any unauthorized use of Your Account.
3.4. You may link to the Penda Learning Website home page, the Penda Learning account sign-in page or a Penda Learning activity URL, provided You do so in a way that is fair and legal and does not damage Our reputation or take advantage of it.
4. User Generated Content (UGC)
4.1. Whenever You make use of a feature that allows the ability to create Content and/or upload Content, including text, audio, images, digital files or commentary, You confirm Your compliance with the standards set out in the Acceptable Use Policy.4.2. You acknowledge that You are responsible for whatever material You submit, and You, not Us, have full responsibility for the UGC, including its legality, reliability, appropriateness, originality and copyright. You agree that We shall not under any circumstances be liable for any UGC.
4.3. You assign Penda Learning absolutely all of Your right, title and interest in any Content created in the course of Your use of Activity Builder including (without limitation) text, images, sound, videos, documents, spreadsheets, slideshows, presentations and any other multimedia files or Content created in the course of Your use of Activity Builder (User Generated Content).
4.4. Penda Learning may remix, tweak and build upon all UGC for any purpose without limitation.
4.5. We, or third parties engaged by Us, may monitor and/or moderate UGC but We do not guarantee the accuracy, quality or integrity of any UGC posted via the Website.
4.6. We reserve the right to remove and permanently delete any UGC from the Website with or without notice.
5. Term Period
5.1. These Terms apply to Your use of the Penda Learning Website, goods and Services at all times and shall also govern Your use of the Website from the Start Date and shall continue until You no longer use or cancel Your subscription or We terminate this license.6. Charges and Payment Terms
6.1. On receipt of the signed Purchase Order We will issue You an invoice for the Fees payable in respect of Your payment terms.6.2. You will pay any charges to Us within 45 (forty-five) days from receipt of a sales invoice from Us with the exception of invoices in respect of Renewal Periods which shall be paid by the start of the Renewal Period to which they relate.
6.3. All charges stated in or in relation to the Terms are stated exclusive of State Sales Tax, unless the context requires otherwise.
6.4. Charges are payable in United States Dollar (USD) and may be paid by bank transfer or check. Credit card payments are acceptable but are subject to a processing charge of 2.9% (balance due x 2.9%).
6.5. If You do not pay any amount properly due to Us under or in connection with these Terms or the License, We may:
6.5.1. charge You interest on the overdue amount at the rate of 4% per year above the base rate of Wells Fargo from time to time (which interest will accrue daily and be compounded quarterly); or
6.5.2. claim interest and statutory compensation from You; or
6.5.3. terminate the license, Your use of the Website and any goods or Services provided by Us.
6.6. If You have chosen a Contract Period or Renewal Period of ten to twenty-four months on an annual payment basis, twenty-eight (28) days prior to the expiry of each year of the Contract Period and of each Renewal Period thereafter, We will invoice You for the Fees in respect of the following year.
7. Early Termination
7.1. Renewal Cancellation7.1.1. If You have chosen a Contract Period or Renewal Period of ten to twenty-four months on an annual payment basis, You may end the Agreement at the end of the Contract Period or Renewal Period by giving notice to Us at any time up to 14 days following the beginning of any further Renewal Period provided that You have not, in respect of such further Renewal Period, paid the Fees and have not received or used the Services.
7.2. Cancellation
7.2.1. If at any time during the Contract Period or Renewal 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.
7.2.2. 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:
7.2.2.1. any Fees which are due or outstanding at the time the Agreement is ended; and
7.2.2.2. a sum equal to the balance of the Fees that would have become due during the remainder of the Contract Period or Renewal Period less a discount of 10 (ten) per cent.
7.3. Bulk Purchase Agreement
7.3.1. Where You are a Center, if at any time during the Contract Period or Renewal Period Your school district, school, or other educational body enters into a separate agreement with Us for the provision of the Service to You and perhaps a number of other Centers, then We will notify You and You may end the original Agreement.
7.3.2. 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 or Renewal Period.
7.3.3. 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.
7.4. Discontinuance
7.4.1. 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.
7.4.2. 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 or Renewal Period.
7.4.3. For the purpose of Discontinuance, the relevant period shall be:
7.4.3.1. in the case of a ten month to a twenty-four month 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
7.4.3.2. in the case of a ten month to a twenty-four month contract with annual payment and/or any Renewal Period in respect of the same – 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.
7.4.4. Subject to this, We shall have no further liability to You or any Center or Leaner as a result of such discontinuance.
8. Standard Subscription Contract Terms
8.1. Terms8.1.1. Following Our acceptance of the Purchase Order and agreement with You of any special Terms, We will supply Our products and Services to You under a license to use them (the ‘License’) in accordance with these Terms.
8.1.2. The License provided to You allows the assigned Learners, teachers and school/district administrators selected by You the right to use Penda Learning in any place and on any device where internet connectivity is available.
8.1.3. We shall set up and make Penda Learning available to You on and subject to the Terms of the license during the academic year.
8.1.2. We shall use commercially reasonable endeavors to make Penda Learning available 24 (twenty-four) hours a day, 7 (seven) days a week, except for:
8.1.3. planned maintenance carried out during the maintenance window of 22:00pm Saturday to 4:00 Sunday ET time during the academic year;
8.1.4. unscheduled maintenance performed outside normal business hours, provided that We use reasonable endeavors to give You at least 8 (eight) normal business hours’ notice in advance.
8.1.5. From time to time Penda Learning may apply enhancements, upgrades and hot fixes at no additional cost to You unless otherwise agreed which may result in changes to the appearance and/or functionality of Penda Learning.
8.4. Services
8.4.1. Provisions of The Service
8.4.1.1. The Service is accessible using a standard Internet browser, however We recommend using the latest version of Google Chrome. Latest versions of Microsoft Internet Explorer, Microsoft Edge, Mozilla Firefox and Safari may also be used. We do not recommend using any version of a browser that is described as a Beta version - this means it has not been fully tested and will almost certainly include software errors. To make full use of the reporting features on the Website, You will need to allow Adobe Flash within browser settings. Details of how to set up the Service are contained in the Welcome/Onboarding Pack. You shall ensure that HTTPS://WWW.PENDALEARNING.COM and HTTPS://PLATFORM.PENDALEARNING.COM / are white-listed and that these web addresses are not included on Your list of banned/blocked Websites.8.4.1.2. You shall ensure that the technical check as detailed in the Welcome/Onboarding Pack is carried out by a suitably experienced and qualified individual. If You experience difficulty in setting up or accessing the Service, please contact Penda Learning Customer Support immediately.
8.4.1.3. You must comply with all procedures and policies which We may issue from time to time in relation to the use or operation of the Service, including those
set out in the Welcome/Onboarding Pack.
8.4.2. Setting Up Learner Accounts
8.4.2.1. In order for Learners to be able to access and use the Service, We require Learner Data as set out in the Welcome/Onboarding Pack. We provide 3 options for Learner Data to be transmitted to Penda Learning, as described in full detail in Penda Learning’s Data Sharing Agreement.
8.4.2.2. You are responsible for the accuracy of Learner Data and updating Learner accounts. You shall ensure that the Learner Data is up to date and accurate and are responsible for promptly updating any inaccurate or out of date information.
8.4.2.3. We will use reasonable endeavors to set up Learner accounts within 2 business days after Learner Data is received.
8.4.3. Center IDs, Username and Passwords
8.4.3.1. Each school/Center will be assigned a unique ID number (‘Center ID’) that all Learners, teachers and school/district admin will need in order to access the Service. You will procure that the Center ID is well publicized throughout the Center(s).
8.4.3.2. You will be required to set up teacher account(s). Details of how to set up these accounts are contained in the Welcome/Onboarding Pack. You will need to allocate a different username and password for each and every account. 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.
8.4.3.3. 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 Center ID and their User ID and know how to use these to access the Site.
8.5. Support
8.5.1. We will provide You with standard support at no additional cost to You. Our support staff will endeavor to answer by telephone any queries which You have regarding the use of Penda Learning. For telephone support please call 1-888-919-0404 during normal business hours. Outside normal business hours, You may use Our online 24/7 HELP CENTER, SUBMIT AN ONLINE REQUEST or send an email to support@pendalearning.com.
9. Intellectual Property Rights
9.1. You acknowledge that all intellectual property rights including, without limitation, all copyright, database rights, rights in designs and inventions, trade marks (whether registered or unregistered) and all Content appearing within the Website throughout the world belong to Us, Our licensees or affiliates, that rights in the Website are licensed to You and You do not acquire any rights in the Website other than the right to use the Website under the Terms of this license. By Content, We mean the software, video, audio, music, text, characters, communications, images, sounds and all material and information included within the Website and any related Services.9.2. Any use by You of any of Our intellectual property other than as permitted under these Terms may only be undertaken with Our prior express written authorization. Nothing contained within these Terms shall be construed as conferring any right, whether by implication, estoppel or otherwise, to use any intellectual property in the Website other than as expressly permitted in these Terms.
10. Suspension and Termination
10.1. We may suspend, restrict or terminate Your access to the Website, and consequently suspend or terminate the license granted to You under these Terms, if:10.1.1. You fail to pay any Fee for a period of 14 (fourteen) days from the date such Fee is due;
10.1.2. You breach any of the restrictions or provisions in these Terms;
10.1.3. You commit a material or persistent breach of the license which You fail to remedy (if remediable) within 30 (thirty) days after the Service of written notice requiring You to do so;
10.1.4. We commit a material or persistent breach of the license which We fail to remedy (if remediable) within 30 (thirty) days after the Service of written notice requiring Us to do so;
10.1.5. for reasons of system failure, maintenance or repair or due to events beyond Our reasonable control;
10.1.6. We decide to withdraw the Website and related Services from the market for any reason in Our sole discretion;
10.1.7. the Center is permanently closed or is merged with another Center;
10.1.8. We suffer an insolvency event, meaning that We become insolvent or unable to pay Our debts, enter into liquidation, whether voluntary or compulsory (other than for reasons of bona fide amalgamation or reconstruction), pass a resolution for Our winding-up, have a receiver or administrator manager, trustee, liquidator or similar officer appointed over the whole or any part of Our assets, make any composition or arrangement with Our creditors or take or suffer any similar action in consequence of Our debt.
10.2. Should We wish to terminate this license We will notify You in writing by email or within the Website. Upon termination, the rights and the license granted herein will terminate. We will disable Your administrator accounts, teacher accounts and all Learner accounts, and You must cease all use of the Website and related Services.
11. Our Legal Obligations and Limits on Liability
11.1.While the purpose of Penda Learning, its Website, goods and Services is to educationally assist Learners and teachers with supplemental curriculum support, Response To Intervention, classroom differentiation and high-stakes assessment preparation, Penda Learning does not guarantee that a Level 3 - 5 (or equivalent) will be achieved on state tests. Further, no warranty, expressed or implied, is given as to the efficacy of the Service as an educational intervention tool or supplemental curriculum support, and We do not accept any liability for any errors, omissions or unsatisfactory examination results.11.2. Save as expressly provided in this Agreement, We shall not be liable for any loss or damage (including, without limitation, loss of profit, opportunity, savings or any type of indirect, economic or consequential loss) arising in contract, tort or otherwise from the use of or inability to use the Service, or any Content, or from any action or decision taken as a result of using the Service or any Content. We do not exclude or restrict Our liability for fraudulent misrepresentation or for death or personal injury resulting from Our negligence.
11.3. You agree that Our liability to You for any other loss or damage arising in relation to the Agreement shall be limited to an amount equal to the same proportion of the total Fees paid by You under the Agreement at the date of written notification by You to Us of Your claim (‘the claim date’) as the period from the Start Date to the claim date bears to the Contract Period.
11.4. Nothing in the Agreement shall affect Learners’ legal rights as a consumer.
12. Events Outside Our Control
12.1. 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:12.1.1. decision of any court or other judicial body of competent jurisdiction;
12.1.2. unavailability of equipment, power or other commodity;
12.1.3. failure or non-availability of Internet or telecommunications facilities;
12.1.4. computer hardware or software;
12.1.5. acts of God, war, riot, terrorist attack, civil commotion, malicious damage, fires, floods or storm;
12.1.6. strikes or other industrial disputes whether involving Our workforce or that of any other party;
12.1.7. acts of government or other prevailing authorities.
13. Entire Agreement
13.1. The Terms, together with Our Privacy Policy and Purchase Order, constitute the entire agreement between You and Us in relation to Your use of the Website and supersedes any previous arrangement, understanding or agreement between us, relating to the licensing of Penda Learning.14. Severance
14.1. If any of the Terms are or become illegal, invalid or unenforceable in any jurisdiction, that shall not affect:14.1.1 the legality, validity or enforceability in that jurisdiction of any other term or condition, which shall continue to have full force and effect; or
14.1.2 the legality, validity or enforceability in other jurisdictions of that or any other term or condition, which shall continue to have full force and effect.
15. Rights of Third Parties
15.1. A person who is not a party to the Terms may not enforce any of them.16. Waiver
16.1. No waiver of any of the Terms shall be valid unless provided in writing by Us.17. Data Protection, Security and Privacy
17.1. Our Privacy Policy and FERPA documentation set out how We collect and use Your personal data and other information regarding Your privacy. We have in place appropriate technical and organizational security measures to protect data against unauthorized or unlawful processing and accidental loss, destruction or damage.17.2. We will cooperate with any law enforcement authorities or court order requesting or directing Us to disclose the identity of or locate anyone breaching any provision of these Terms due to behavior that may be deemed a criminal offense or otherwise for the prevention or detection of crime or the apprehension or prosecution of offenders. There may be other circumstances in which We may be required by law to disclose information about You or Your use of the Website.
17.3. Services to USA schools fully comply with the Data Protection Act. If You have any queries about how We use Your personal data please contact support@ pendalearning.com.