TERMS OF SERVICE FOR CLANBEAT
Last updated on 21.09.2020
INTRODUCTION
These Terms of Service (hereinafter “Terms of Service”) are adopted by Clanbeat Education OÜ (Estonian registered company, registry code 14530865, address Tina str 26, 10126 Tallinn, Estonia, e-mail address [email protected]) (Clanbeat, we, us and our).
Clanbeat is a company established under the laws of Republic of Estonia, operating the Clanbeat website www.clanbeat.com, its subdomains (hereinafter “Web Site”), and the web-based Clanbeat solutions, including the software, databases, interfaces, associated media, documentation, updates, new releases and other components or materials incorporated therein or integrated therewith (hereinafter collectively “Platform”).
Clanbeat Platform provides a digital learning environment for schools, teachers and students. Clanbeat Platform enables students and teachers to reflect, communicate and support each other, plan, monitor well-being and progress. All services enabled through the Platform are referred to as the “Services”.
The specific content and description of the Services may vary from time to time. The Services are subject to continuous changes for the purposes of improvement of the Platform, the Services and better experience and impact. You can find information about the content of the Platform and the Services on the Web Site.
These Terms of Service shall apply to all persons who use the Services. Once accepted by the representative of the School, the Terms of Service shall form a legally binding agreement between the School and Clanbeat for using the Platform and the Services (hereinafter “Agreement”) by the School, Teacher(s) and Student(s).
1. IMPORTANT DEFINITIONS
| “User” | Any person who has registered a user account on the Platform; users can have a role of a Student or a Teacher. |
| “Teacher” | User who uses the Services in the role of a teacher; for the purposes of these Terms of Service, a “teacher” also means any employee of the School or any other natural person providing services to the School. |
| “School” | A legal entity that is an educational institution and that has entered into a Service Agreement with us under the Terms of Service to enable the Students and Teachers to use the Platform and the Services. |
| “Service(s)” | Any Services made available through the Platform at the time of adopting the Terms of Service and as updated. |
2. SERVICES
2.1. The Platform and the Services provide a digital learning environment for Schools, Students and Teachers. The Users are provided an opportunity to use the features of the Platform. The current features include the following:
2.1.1. Profile building and sharing,
2.1.2. Communication with others,
2.1.3. Planning,
2.1.4. Tracking well-being,
2.1.5. Self-reflection,
2.1.6. Monitoring progress data,
2.1.7. Receiving ideas for improvement.
2.2. As Clanbeat is working hard to improve the Services and the content provided, the Services are subject to continuous changes for purposes of improvement of the Platform. The exact scope of the Services and opportunities offered by the Platform are visible through your use of the Platform after logging in.
3. ACCESSING THE SERVICES
3.1. For accessing the Services, a representative of the School shall register as a User and accept the Terms of Service. After the acceptance of the Terms of Service by the representative of the School, the binding agreement between the School and Clanbeat is deemed to be concluded on these Terms. Any natural person accepting the Terms of Service on behalf of the School (including teachers) confirms that he/she has a valid authorization from the School to enter into a binding agreement on behalf of the School and confirms that any registration information submitted is true, accurate, and complete.
3.2. After the registration of the School has been confirmed by Clanbeat, the Teacher and Student accounts can be created by using a unique join code. Registration details and validation process will be provided by Clanbeat. Any natural person entering details for creating an account confirms that any registration information submitted is true, accurate, and complete.
3.3. For avoidance of any doubt, the Platform or the Services may not be used by any User if such User does not accept the Terms of Service. The School shall be solely responsible that all Users of the School (Teachers and Students) use the Platform and the Services in accordance with these Terms of Service and accept the Terms of Service. Subject to applicable law, the School shall arrange that the Terms of Service are read and accepted by a legal guardian of each Student, if required.
4. RIGHTS GRANTED TO USERS
4.1. Subject to the Terms of Service, the User is granted a limited non-exclusive license to use the Platform and the Services.
4.2. The Platform (including all features of the Platform) is solely and exclusively owned and operated by Clanbeat. Intellectual property rights, including, but not limited to, any and all copyrights, trademarks, service marks and trade names contained in the Platform, are owned by Clanbeat, its affiliates and/or third-party licensors.
4.3. The User is not allowed to lease, rent or commercialise in other way software or other features provided to her/him via the Platform or by the provision of the Services. The use of the Platform or the Services does not grant the User ownership of any content of the Platform or the Services.
4.4. Unless otherwise provided by mandatory provisions of applicable law, the User shall not modify, translate, disassemble, decompile or re-engineer a part or the whole of the Platform or the Services. The User shall not copy, distribute or publish any content of the Platform or the Services or any information obtained or derived there from, unless provided by applicable law.
4.5. The User is prohibited to:
4.5.1. Use the Platform or the Services for any unlawful purpose;
4.5.2. Solicit others to perform or participate in any unlawful acts;
4.5.3. Violate any international or local regulations, rules and laws;
4.5.4. Harass, abuse, insult, harm, defame, slander, disparage, intimidate, or discriminate based on gender, orientation, religion, ethnicity, race, age, national origin, or disability;
4.5.5. Submit any false or misleading information;
4.5.6. Upload or transmit viruses or any other type of malicious code that will or may be used in any way that will affect the functionality or operation of the Software or the Services;
4.5.7. Spam, phish, pharm, pretext, spider, crawl, or scrape;
4.5.8. Use the Services for any obscene or immoral purpose;
4.5.9. Interfere with or circumvent the security features of the Platform or the Services or any related website, other websites, or the Internet;
4.5.10. Transfer her/his account to another party;
4.5.11. Circumvent any technical measures we use to provide the Services.
4.6. Clanbeat does not guarantee that the use of the Services will always be uninterrupted, timely, secure or error-free. The User understands that there might be occasions when the Service may be interrupted for an indefinite time period, including, without limitation, for scheduled maintenance or upgrades, for emergency repairs, or due to failure of telecommunications links and/or equipment.
4.7. Clanbeat is dedicated to improving the Platform and the Services. Therefore, we may, at any time, provide or make available updates or upgrades, including without limitation, bug fixes, service enhancements, new features, deletion of existing functions, or modifications. Updates will be governed by these Terms of Service, unless separate terms and conditions are provided with such updates, in which case that separate terms and conditions shall govern the updates.
4.8. Clanbeat reserves the right to update, change or replace any part of these Terms of Service. We will notify Users of such cases in the course of provision of the Services at least 30 days in advance. Users’ continued use of the Platform or the Services after posting of any changes constitutes acceptance of those changes.
5. OUR RIGHTS
5.1. Clanbeat reserves the right to refuse to provide the Services (including but not limited to access to the Platform) on the basis of the objective justification at any time.
5.2. The User will own the intellectual property rights to the content uploaded to the Platform by the User. However, the User hereby grants Clanbeat a worldwide, non-exclusive, fully paid-up, royalty-free, perpetual, irrevocable, sub-licensable and transferable license to use, reproduce, distribute, modify, adapt, prepare derivative works of, publicly display, publicly perform, and otherwise exploit any content that is uploaded by the User to the Platform or that evolves by the User’s use of the Platform or the Services to the extent that this is necessary for the provision of the Services. Primarily, this means that Clanbeat needs a license to be able to display and make available the content uploaded by the User via the Platform to the User him/herself and to other persons as chosen by the User.
5.3. The School grants Clanbeat a right to generate anonymous statistics concerning the use of the Platform and the Services.
6. PRIVACY
6.1. For the provision of the Services, Clanbeat needs to collect and process personal information about the Users (hereinafter “Personal Data”). Clanbeat processes personal data in accordance with our Privacy Policy, available at www.clanbeat.com/privacy. In case you have any questions regarding our privacy practices, you may contact us at [email protected].
6.2. Please note that upon the use of the Services by Teachers and Students, the data controller of your personal data is your School. By the acceptance of these Terms of Service by the School, Clanbeat and the School are deemed to have entered into Data Processing Agreement annex attached to these Terms of Service.
7. LINKED SITES AND THIRD PARTY CONTENT
7.1. The Platform and the Services may include links to other websites or services or to third party content.
7.2. Clanbeat does not endorse any such linked sites or third party content or the information, material, products, or services contained on or accessible through linked sites shared by the Users. Access and use of linked sites, including the information, material, products, and services on linked sites or available through linked sites is solely at your own risk.
7.3. Clanbeat may endorse linked sites or third party content or the information, material, products, or services contained on or accessible through linked sites referred to in the Platform when it is deemed valuable for the Users.
8. FEES AND PAYMENT
8.1. The Services and use of the Platform may be subject to monthly, fixed or other fees (each a “Fee”) payable by the School as specified in the price list made available via Web Site or as communicated by Clanbeat to the School by e-mail or any other means of communication.
8.2. The Services and use of the Platform are not subject to any Fee payable by the Students.
8.3. If the Services and use of the Platform is subject to Fee(s), such Fee(s) shall be paid by the School based on the invoice(s) issued by Clanbeat. Each invoice submitted by Clanbeat to the School becomes due and payable within 28 calendar days of the date of the invoice, unless otherwise agreed between the Parties. In case of delay in any payments, we may request the School to pay a delay interest of 0.05% of the delayed amount per each day of delay.
8.4. Clanbeat reserves the right to change the Fees payable from time to time. We will notify you about such changes through the Web Site or by e-mail. Section 4.8. shall apply in such case.
9. LIABILITY AND IDEMNIFICATION
9.1. The Services, the Platform and any content or features made available through the Web Site are provided “as is” and “as available” without any warranties of any kind either express or implied. Although Clanbeat works hard and gives its best to ensure that the Services are always available and in case of any interruption we we will do our best to fix such interruption as quickly as possible to ensure the best user experience, Clanbeat does not provide any guarantees regarding the Services, the Platform and/or the Web Site. In particular, we shall not be responsible for the following:
9.1.1. Any interruption, discontinuance, suspension or other type of unavailability of the Web Site, the Platform or the Services;
9.1.2. Any interruption or cessation of transmission to or from the Web Site, the Platform or the Services;
9.1.3. Any bugs, viruses, Trojan horses or the like, which may be transmitted to or through the Web Site, the Platform or the Services;
9.1.4. Deletion of, corruption of, or failure to store any content or data;
9.1.5. The incompatibility of technologies used for accessing the Web Site, the Platform or the Services.
9.2. The School agrees to use the Platform and the Services only for purposes of Users’ growth and well-being and provision of educational services, in accordance with the applicable legislation in the field of education at the location of the School (for example applicable Basic Schools and Upper Secondary Schools Act as adopted in the jurisdiction of the School). Clanbeat is not liable, if the School does not use the Platform and the Services in accordance with applicable law.
9.3. Clanbeat is not liable for any breach or damages that is caused by incorrect, incomplete or misleading information provided by the School, any Teacher or any Student upon use of the Web Site, the Platform or the Services.
9.4. Clanbeat is liable for any breach of this Agreement only to the extent the breach by Clanbeat is intentional or grossly negligent.
9.5. Clanbeat’s liability in respect of any Services provided to Schools shall be limited to the total amount of Fees the Schools have actually paid for such Services. Clanbeat shall not be liable for any damages other than direct proprietary damages. Any limitations of our liability set out in these Terms of Service shall not apply in case of any intentional breach of the Agreement by Clanbeat.
9.6. Clanbeat shall not be liable for anything that is the result of any events beyond our reasonable control (“Force Majeure”), including, but not limited to, acts of nature, storm, fire, earthquake, explosion, pandemic, flood, war, insurrection, riots, terrorism, crime, labor shortages and strikes, lockout or other industrial action, embargoes, terrorism, crime, the weather and climate conditions, default or failure of a third party, electrical failure, confiscation and action or threat of action of any government or government agency.
10. TERM AND TERMINATION
10.1. The Agreement is concluded without a term.
10.2. The Agreement can be terminated by the School or Clanbeat ordinarily, by serving the other party a 30 days prior notice.
10.3. Clanbeat is entitled to terminate the Agreement extraordinarily with the School if the School or any Teacher or Student of the School has materially violated the Agreement, including in case the School, the respective Teacher or Student has not remedied any violation within 10 days after being notified by us.
10.4. In case of the termination of the Agreement, the School shall pay all outstanding invoices and other outstanding amounts, if applicable.
11. GOVERNING LAW AND JURISDICTION
11.1 These Terms of Service are governed by the laws of the Republic of Estonia.
11.2. Any disputes arising from these Terms of Service will be settled in the Harju County Court in the Republic of Estonia.
12. MISCELLANEOUS
12.1 If any term of these Terms of Service is held to be invalid, unenforceable or illegal in whole or in part for any reason, that term shall be enforced to the maximum extent permissible. The validity and enforceability of the remaining terms, or portions of them, will not be affected.
PERSONAL DATA PROCESSING AGREEMENT
This personal data processing agreement (the “Data Processing Agreement”) is an annex to the agreement (the “Agreement”) between Clanbeat and the School (each also a “Party” and collectively the Parties”) under which Clanbeat provides the School the Platform to provide virtual learning environment (the Services).
In connection with the provision of the Services under the Agreement, Clanbeat processes certain personal data for the School. To ensure the secure, correct and lawful processing of personal data, the Parties have agreed to supplement the Agreement and enter into this Data Processing Agreement as an annex to the Agreement.
In case of a conflict between the Agreement and the Data Processing Agreement with regard to the processing of personal data, the Data Processing Agreement shall prevail and apply.
1. GENERAL PROVISIONS
1.1. The terms used in the Data Processing Agreement are used in the meaning given to them in Article 4 of the General Data Protection Regulation (EU) 2016/679 of the European Parliament and of the Council (hereinafter the “GDPR”) or in the meaning given to them in the Agreement.
1.2. In the context of Article 28 of the GDPR, the School is the data controller of the personal data transferred or made available to Clanbeat in the course of the provision of the Services and Clanbeat is the data processor.
2. GENERAL OBLIGATIONS OF CLANBEAT
2.1. Clanbeat shall process personal data only in accordance with the applicable law, the terms of the Agreement and the terms of this Data Processing Agreement.
2.2. Clanbeat shall process personal data only for the purposes described in the Annex A of the Data Processing Agreement.
2.3. If required by applicable law, Clanbeat shall designate a competent data protection officer in accordance with the applicable law and shall provide the School the name and contact details of the data processing officer.
2.4. Clanbeat shall keep records of all the data processing operations carried out on behalf of the School in accordance with the requirements under the GDPR.
3. GENERAL OBLIGATIONS OF THE SCHOOL
3.1. The School confirms and warrants that upon transferring any personal data to Clanbeat (including any personal data concerning the Teachers and/or Students), the School has acquired all necessary authorisations, consents and permits required by applicable law and the GDPR to submit such personal data to Clanbeat.
3.2. The School confirms and warrants that upon transferring any personal data to Clanbeat (including any personal data concerning the Teachers and/or Students), Clanbeat is entitled to further process such personal data for the purposes of performing the Agreement, including that Clanbeat can provide the Services provided through the Platform to the Teachers and/or Students. To the extent that Students are minors, the School confirms and warrants that the School has obtained necessary consents for transferring personal data of the Students from the legal guardians of each Student, as required by applicable law.
3.3. The School confirms and warrants that upon transferring any personal data to Clanbeat (including any personal data concerning the Teachers and/or Students), all personal data submitted by the School to Clanbeat is accurate, true, relevant and necessary with reference to the performance of the Agreement.
4. CONFIDENTIALITY
4.1. Clanbeat shall ensure the confidentiality of the personal data processed on behalf of the School.
4.2. Clanbeat shall ensure that no unauthorised third parties can access the personal data processed on behalf of the School, for example, employees present in Clanbeat’s premises, who do not need access in relation to the performance of their duties or other service providers, for example, IT service providers etc., who in this specific case do not need access to the personal data in relation to the performance of their duties.
4.3. Clanbeat shall ensure that all the representatives, the employees of Clanbeat and other persons who through Clanbeat come into contact with the personal data processed on behalf of the School are subject to the confidentiality obligation assumed under a contract or the law and Clanbeat shall ensure that their representatives, employees and other persons acting for its benefit maintain the full confidentiality of the personal data.
4.4. Clanbeat shall ensure that all the representatives, the employees of Clanbeat and other persons who through Clanbeat come into contact with the personal data processed on behalf of the School have received appropriate training and instructions for the processing of personal data in accordance with the Agreement, Data Processing Agreement and the applicable law.
5. SECURITY MEASURES
5.1. Clanbeat shall ensure the security of personal data processing for the purposes of protecting personal data from accidental or unauthorised processing, disclosure or destruction.
5.2. Taking into account the state of the art and costs of implementation, and the nature, scope, context and purposes of the personal data processing as well as the risk to the rights and freedoms of natural persons, of varying likelihood and severity, that may result from personal data processing, Clanbeat shall apply appropriate technical and organisational measures upon personal data processing to ensure the security of personal data.
5.3. Upon the application of appropriate technical and organisational measures, Clanbeat shall ensure the capacity of the applied processing measures to ensure the ongoing confidentiality, integrity, availability and resilience of personal data.
5.4. Clanbeat shall inter alia ensure that upon personal data processing, Clanbeat shall use up-to-date information technology solutions, the security of which is regularly tested, ensure that access to Clanbeat’s IT systems and premises is regulated and controlled, ensure the use of up-to-date antivirus and spyware programmes.
5.5. Clanbeat shall log all data processing operations carried out on behalf of the School so that there are log entries on viewing, amending, transferring and deleting personal data.
5.6. The School has the right to authorise an auditor to audit the activity of Clanbeat with regard to the performance of the Data Processing Agreement in accordance with the GDPR. The School shall notify Clanbeat of the audit at least 60 days in advance. The School or an auditor appointed by the School shall carry out the audit during regular working hours and so that the audit interferes with the regular business activity of Clanbeat as little as possible.
6. PERSONAL DATA BREACH
6.1. In case of a personal data breach or suspected personal data breach, Clanbeat shall as immediately as possible notify the School of this. In case of a personal data breach of suspected breach or an incident that is likely to escalate into a personal data breach, Clanbeat shall send to the School a notification about the personal data breach, which shall include at least the following information:
6.1.1. A description of the nature of the personal data breach;
6.1.2. The categories and approximate number of data subjects concerned;
6.1.3. The categories and approximate number of personal data records concerned;
6.1.4. The name and contact details of the data protection officer or other contact person of Clanbeat if applicable;
6.1.5. The likely consequences of the personal data breach, incl. the likely consequences to data subject;
6.1.6. Measures taken or proposed to be taken by Clanbeat to address the personal data breach or measures to mitigate its possible adverse effects.
6.2. Clanbeat shall send the notification specified in section 6.1 above to the School immediately and if possible not later than within 24-48 hours as of the occurrence of the personal data breach.
6.3. In case and insofar as Clanbeat is not able to submit the information described in section 6.1 to the School within the term set forth in section 6.2, Clanbeat may submit the information to the School in phases but without undue further delay.
6.4. Clanbeat shall cooperate fully with the School for the purposes of preventing personal data breaches. If a personal data breach occurs, Clanbeat shall cooperate fully with the School to address the personal data breach as efficiently and quickly as possible and/or mitigate its possible adverse effects.
6.5. Clanbeat shall document all personal data breaches, including the facts relating to the personal data breach, its effects and the remedial action taken.
7. RETURN, DELETION AND DESTRUCTION OF PERSONAL DATA
7.1. Upon each request of the School and/or after the termination of the Agreement, Clanbeat shall delete all personal data processed on behalf of the School unless Clanbeat has a legal basis to retain certain data (for example if the Teacher or Student has granted her/his consent to process her/his personal data or if Clanbeat has entered into legal relationship with the Teacher or Student in which case Clanbeat shall be considered as the data controller with regard to the Teacher or Student).
8. SUBPROCESSORS
8.1. If Clanbeat uses subprocessors, Clanbeat shall assume full liability for the subprocessor to process personal data in accordance with the applicable law and this Data Processing Agreement.
9. LIABILITY
9.1. Clanbeat shall not be liable for any administrative fine imposed on the School, damage caused to the School or a claim submitted against the School if these are based on a breach by the School and/or if Clanbeat has not committed such violation.
10. VALIDITY
10.1. The Data Processing Agreement shall be valid from the acceptance of the Terms of Service (i.e. as the moment of conclusion of the Agreement) by the School until Clanbeat is processing personal data on behalf of the School or until the end of the term of Agreement, whichever is the later.
11. FINAL PROVISIONS
11.1. The Data Processing Agreement is governed by the laws of the Republic of Estonia.
11.2. Disputes arising from the Data Processing Agreement will be resolved by negotiations or in Estonian courts, the Harju County Court being the court of first instance.
ANNEX A to the Data Processing Agreement
1. PURPOSE OF DATA PROCESSING
Provision of the Services and the Platform to the School in accordance with the Agreement.
2. DATA SUBJECTS
Any natural person using Clanbeat Platform.
3. CATEGORIES OF PERSONAL AND PLATFORM USAGE DATA
Identification data: first name, family name, date of birth, photo
General data: gender, social media contacts and other contacts, country, nationalities, languages
Contact data: e-mail, phone
School related data: name of the School, role
Other data: other data that is entered by the User to the Platform or submitted to Clanbeat in the course of using the Services, such as learning and life aspirations and information about her/his insights, thoughts, actions, plans, questions, answers and well-being and reactions to those of others etc.
Usage data: data concerning the use of the Platform and the content therein (how often and how the Platform is used, what sections and pages are visited the most, how much time is spent on the Platform etc.). Please be noted that generally we use usage based analytics data only in a generalized and anonymised form.
4. PROCESSING OPERATIONS
Clanbeat processes the data in Clanbeat Platform in order to provide the Platform and the Services in accordance with the terms of the Agreement.
5. PROCESSING PERIOD
The term of the Agreement.
6. SECURITY MEASURES
The data is stored in a database that can only be accessed by authorized Clanbeat employees. The database server is secured (ISO 27001, 27017, 27018 and SOC 1, 2, 3 compliance).
Clanbeat communicates with the database through the API. Each API request is made over a secure SSL connection and must include a valid token. The permit is valid for one hour.