Effective Date: November 25, 2013
These Terms of Service (the "Terms") are a legally binding contract between you and Engrade, Inc. ("Engrade", "we" or "us"). We are an online service that provides on its websites, including engrade.com and engradepro.com (the “Site”) certain embedded applications which enables teachers to upload, store and share with their students, class related materials and enables their students to view and download such materials, as well as other educational materials] (the “Service”). These Terms form a binding agreement between you and Engrade, and govern your use of the Service, including the information and resources available to you through the Site.
THIS AGREEMENT SETS FORTH THE LEGALLY BINDING TERMS FOR YOUR USE OF THE SERVICE. BY ACCESSING, DOWNLOADING ANY CONTENT FROM, OR USING THE SERVICE, YOU HEREBY AGREE TO BE BOUND BY THIS AGREEMENT AND REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THE AGREEMENT AND TO ABIDE BY ALL OF THE TERMS AND CONDITIONS SET FORTH HEREIN. YOU MAY NOT USE THE SERVICE IF YOU ARE PROHIBITED BY LAW FROM USING THE SERVICE OR RECEIVING ANY OF THE CONTENT HEREIN. IF YOU ARE ACCESSING THE SERVICE ON BEHALF OF A SCHOOL, COMPANY, ENTITY, OR ORGANIZATION, YOU REPRESENT AND WARRANT THAT YOU ARE AN AUTHORIZED REPRESENTATIVE OF SUCH SCHOOL, COMPANY, ENTITY, OR ORGANIZATION WITH THE AUTHORITY TO BIND IT TO THE AGREEMENT. IF YOU DO NOT AGREE WITH ALL PROVISIONS OF THIS AGREEMENT, YOU MAY NOT ACCESS, DOWNLOAD AND CONTENT FROM, OR USE THE SITE. IF THE PARTIES HAVE ENTERED INTO A WRITTEN AND PEN-SIGNED LICENSE AGREEMENT REGARDING THE SUBJECT MATTER HEREOF, THAT AGREEMENT WILL SUPERSEDE THIS AGREEMENT TO THE EXTENT OF ANY CONFLICT.
IMPORTANT NOTE REGARDING CHILDREN
1.3 Schools. If you are accepting this Agreement on behalf of a School:
(b) You agree to use the Service solely for the benefit of your School and the students in your School, and not for commercial purposes. If at any time your School does not have the authority to act as the agent of a Child Student’s Parent, you agree to notify us immediately.
2. Permissible Use; Limited License. You agree to use the Services only for purposes that are permitted by these Terms and any applicable law or regulation. Engrade grants you a personal, limited, non-transferable, non-exclusive license (x) to access and use the Services and related documents, information and other content that Engrade makes available to you via the Service (the “Engrade Content”) solely for the purpose of reviewing the Engrade Content for your personal use, and (y) to use and reproduce a reasonable number of copies of any teaching materials made available via the Services. The rights granted to you under these Terms are subject to the following restrictions: (i) you will not license, sell, rent, assign, host, distribute, transfer, or otherwise commercially exploit any portion of the Services on any media without Engrade’s prior written approval; (ii) you will not alter, adapt, modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Services or Engrade Content; (iii) you will not access the Services to build a similar or competitive product or service; (iv) except as expressly stated herein, no part of the Service or Engrade Content may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (e) any future release, update, or other addition to the functionality of the Service shall be subject to these Terms. We reserve the right in, our sole discretion, (1) to restrict your use of the Services, any Engrade Content and any third party’s User Content (as defined below) at any time, with or without notice for any or no reason, and (2) modify, suspend, or discontinue the Service or any part thereof without notice. You agree that Engrade will not be liable to you or to any third party for any modification, suspension or discontinuance of the Service or any part thereof.
3. Ownership. You agree that use of the Services does not constitute any basis for ownership of the Services and that Engrade, its affiliates or its licensors owns all legal right, title, and interest in and to the Services and all information, materials, images, software, photographs, articles, functions, text and other content solely provided by or on behalf of Engrade on the Services (specifically excluding any User Content (as defined below)) (collectively, “Engrade Content”) is the sole property of Engrade, as between you and Engrade. The Services and all of the Engrade Content, and the selection and arrangement thereof, are protected under the copyright laws and other intellectual property laws of the United States and other countries. We reserve all rights not expressly granted herein in and to the Services and Engrade Content. Unless otherwise noted, the Engrade name and all other trademarks, service marks, trade names, logos or other designations of source displayed on the Services are the property of Engrade, its affiliates or licensors. All third party trademarks, service marks, trade names, logos or other designations of source are the property of their respective owners. Nothing on the Services shall be construed as granting any license or right not expressly set forth herein. Any unauthorized use of the Services or any of the Engrade Content will terminate the permission or license granted herein and may violate applicable law. You will not alter, adapt or otherwise modify any part of the Services or Engrade Content.
4. User Content.
4.2 User Content License. When you upload User Content to the Services, you expressly grant to Engrade for Engrade, its affiliates, employees, agents, representatives, licensors or other third party partners, a non-exclusive, perpetual, worldwide, complete, sub-licensable and irrevocable right to quote, re-post, publish, use, adapt, translate, archive, store, reproduce, modify, create derivative works from, syndicate, license, print, sublicense, distribute, transmit, broadcast, and otherwise communicate, and publicly display or perform the User Content and to provide such User Content to any other user of the Services, or any portion thereof, in any manner or form and in any medium or forum, whether now known or hereafter devised, without notice, payment or attribution of any kind to you or any third party. You grant Engrade all licenses, consents and clearances to enable Engrade to use such User Content for such purposes. You waive and agree not to assert any moral or similar rights you may have in such User Content.
The Services to which you post User Content also permit other users to access and use that User Content. Therefore, you also grant all other users of the relevant Services the right to use, copy, modify, display, perform, create derivative works from, and otherwise communicate and distribute your User Content on or through the relevant Services without further notice, attribution or compensation to you5.
4.3 School Uploads. If you are a School using or uploading personal information of your students to the Site, you agree to comply with your obligations under the family educational rights and privacy act (“FERPA”) (see www.ed.gov/policy/gen/guid/fpco/ferpa).
5. Removal of Content. Engrade reserves the right (but has no obligation) to remove, block, edit, move or disable User Content that is objectionable to us for any reason. The decision to remove User Content or other Content at any time is in Engrade’s sole and final discretion. To the maximum extent permitted by applicable law, Engrade does not assume any responsibility or liability for User Content or for any failure to or delay in removing User Content or other Content. You are solely responsible for your User Content and may be held liable for User Content that you post.
6. DMCA Notice. Engrade respects the intellectual property of others and asks that users of our services do the same. In connection with our services, we have adopted and implemented a policy respecting copyright law that provides for the removal of any infringing materials and for the termination, in appropriate circumstances, of users of our online services who are repeat infringers of intellectual property rights, including copyrights. If you are a copyright owner or an agent thereof and believe any User Content is unlawfully infringing upon the copyrights in a work, and wish to have the allegedly infringing material removed, you must submit a notification of claimed infringement under the Digital Millennium Copyright Act (“DMCA”) by providing notice to Engrade through the address listed below and the following information:
(i) Identification of the copyrighted work that you claim to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
(ii) (a)Identification of the material on our services that you claim is infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit us to locate the material, and (b) a request that we remove such material;
(iii) Information reasonably sufficient to permit us to contact you, such as an address, telephone number, and, if available, an electronic mail address;
(iv) A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law;
(v) A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; and
(vi) A physical or electronic signature of a person authorized to act on behalf of the owner of a copyright that is allegedly infringed.
You acknowledge that if you fail to comply with substantially all of the above requirements of this Section your DMCA notice may not be valid and we may not be able to remove infringing content.
The designated Copyright Agent for Engrade is:
2800 28th Street, Suite 306
Santa Monica, CA 90405
7. Rules of Conduct. You agree to the following rules of conduct when using the Services or posting any User Content:
(i) You shall not post, transmit, promote, or distribute content that is illegal including hacking, cracking, taking advantage of exploits or cheats and/or distribution of counterfeit software, for that will harass, threaten, embarrass, or do anything else to another user that is unwanted, such as repeatedly sending unwanted messages or making personal attacks or statements about race, sexual orientation, religion, heritage, etc.
(ii) You shall not transmit or facilitate distribution of content that is harmful, abusive, hateful, racially, religiously or ethnically offensive, obscene, threatening, bullying, vulgar, sexually explicit, defamatory, infringing, invasive of personal privacy or publicity rights, encourages conduct that would violate a law or in a reasonable person's view, objectionable and/or inappropriate. Hate speech is not tolerated.
(iii) You shall not disrupt the flow of chat in chat rooms with vulgar language, abusiveness, hitting the return key repeatedly or inputting large images so the screen goes by too fast to read, use of excessive shouting by using all caps in an attempt to disturb other users, "spamming" or flooding.
(iv) You shall not impersonate another person (including celebrities), indicate that you are an Engrade employee or representative, or attempt to mislead users by indicating that you represent Engrade or any other third party that are not.
(v) You shall not attempt to get a password, account information, or other private information from anyone else using the Services or post any person’s real-world information without such person’s permission.
(vi) You shall not upload any content that you do not own or have permission to distribute in accordance with these Terms.
(vii) You shall not upload files that contain a virus, worm, spyware, time bombs, corrupted data or other computer programs that may damage, interfere with or disrupt the Services or otherwise interfere with any other person’s ability to use the Services.
(viii) You shall not post messages for any purpose other than personal communication, including advertising or promotional messaging, chain letters, pyramid schemes, or other commercial activities.
(ix) You shall not use or distribute unauthorized "auto" software programs, "macro" software programs or other "cheat utility" software program or applications.
(x) You shall not modify or attempt to modify any part of the Services that Engrade does not specifically authorize you to modify.
(xi) You shall not attempt to use any Engrade software on or through any service that is not controlled or authorized by Engrade.
(xii) You may not conduct any activities that violate the laws of any jurisdiction including but not limited to intellectual property, defamation, invasion of privacy, identity theft, hacking, stalking, fraud and the distribution of counterfeit software.
Specific Services may also post additional rules that apply to your conduct on those services. If you encounter another user who is violating any of the Rules of Conduct, please report this activity to Engrade by emailing email@example.com.
8. Third-Party Content. The Services may include hyperlinks to other third-party web sites, content or resources. Engrade has no control over such third-party websites, content or resources. You acknowledge and agree that Engrade is not responsible for the availability of any such sites, content or resources and does not endorse any advertising, products, or other materials on or available from such web sites or resources.
9. Accounts. To use certain features of the Website or Service, you will need to create an account with Engrade (“Account”), and provide certain information about yourself as prompted by the Website registration form. You represent and warrant that: (a) all required registration information you submit is truthful and accurate; and (b) you will maintain the accuracy of such information. You may delete you Account at any tmie, for any reason, by following the instructions on the Website. Engrade may suspend or terminate your Account in accordance with Section 17. You are responsible for maintaining the confidentiality of you Account login information and are fully responsible for all activities that occur under your Account. You agree to immediately notify Engrade of any unauthorized use, or suspect unauthorized use of you Account or any other breach of security. Notwithstanding the foregoing, if you are a School, you may allow your students to use your Account. Engrade will not be liable for any loss or damage arising from your failure to comply with the above requirements.
11. Personally Identifiable Data.
a. Engrade may receive student records data, including personally identifiable information about students, from educational institutions (including teacher, administrators and representatives of such). Engrade will only use such information about students in accordance with the purposes for which the information was provided by the educational institution and will act only on the instructions of the educational institution in processing such data about students.
b. Any educational institution, or any teacher, administrator or representative thereof, that submits any educational records data or personally identifiable data about any student to Engrade, represents and warrants that: (i) it has obtained prior consent to disclose data to Engrade, or that it is disclosing the data under a permissible exception under section 99.31 of the Family Educational Rights and Privacy Act (“FERPA”), 34 C.F.R. § 99.31; and (ii) it shall disclose only those records that are necessary for the provision of the services that it has engaged Engrade to perform.
12. Authorized Users. By using any Services, you affirm that you are at least 13 years of age. If you are under the age of 13 years, you may not access or use the Services without the consent of your parent or guardian and his or her agreement to these Terms on your behalf and his or her full responsibility for your compliance with them. You agree that you and/or your parent or guardian are fully able and competent to enter into the terms, conditions, obligations, representations and responsibilities set forth in these Terms, and to abide and comply with these Terms. You may not access or use the Services, or create and account, if you are unable to form a legal binding agreement with Engrade.
13. Changes to the Service. Engrade updates the Services frequently. You agree that Engrade can make changes, additions, substitutions, and reductions to the Services without notice to you, and that Engrade is not liable to you for these changes.
14. DISCLAIMER OF WARRANTY. YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK AND THE SERVICES ARE PROVIDED "AS IS" AND AS AVAILABLE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ENGRADE DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, STATUTORY OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, FUNCTIONALITY, AVAILABILITY AND NON-INFRINGEMENT, UNLESS SUCH WARRANTIES ARE LEGALLY INCAPABLE OF EXCLUSION. ENGRADE DOES NOT REPRESENT OR WARRANT THAT THE SERVICES WILL MEET YOUR REQUIREMENTS OR THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, OR FREE FROM ERROR, THAT ERRORS WILL BE CORRECTED IN A TIMELY MANNER, OR THAT YOU WILL BE ABLE TO ACCESS OR USE THE SERVICES AT TIMES OR LOCATIONS OF YOUR CHOOSING.
15. LIMITATION OF LIABILITY. YOU UNDERSTAND AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ENGRADE, ITS OWNERS, SUBSIDIARIES, DIRECTORS, EMPLOYEES, ATTORNEYS, AFFILIATES, AGENTS, REPRESENTATIVES, AND LICENSORS WILL NOT BE LIABLE TO YOU FOR: (I) ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL CONSEQUENTIAL OR EXEMPLARY DAMAGES WHICH MAY BE INCURRED BY YOU, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, ARISING OUT OF OR RELATED TO YOUR USE OF THE SERVICES OR THESE TERMS. THIS SHALL INCLUDE BUT NOT BE LIMITED TO ANY LOSS OF PROFIT (WHETHER INCURRED DIRECTLY OR INDIRECTLY), ANY LOSS OF GOODWILL OR REPUTATION, ANY LOSS OF DATA, COST TO PROCURE OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSS; OR (II) ANY LOSS OR DAMAGE THAT MAY BE INCURRED BY YOU AS A RESULT OF: ANY CHANGES THAT ENGRADE MAY MAKE TO THE SERVICES; ANY PERMANENT OR TEMPORARY CESSATION IN THE PROVISION OF THE SERVICES OR ANY FEATURES OF THE SERVICES); THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE, ANY CONTENT AND OTHER COMMUNICATIONS DATA MAINTAINED OR TRANSMITTED BY OR THROUGH YOUR USE OF THE SERVICES; OR YOUR FAILURE TO KEEP YOUR PASSWORD OR ACCOUNT DETAILS SECURE AND CONFIDENTIAL.
YOU ACKNOWLEDGE AND AGREE THAT YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH ENGRADE, ITS OWNERS, SUBSIDIARIES, DIRECTORS, EMPLOYEES, ATTORNEYS, AFFILIATES, AGENTS, REPRESENTATIVES, AND LICENSORS ARISING OUT OF OR RELATING TO THE SERVICES OR ANY ENGRADE CONTENT IS TO STOP USING THE SERVICES, AND TO CANCEL YOUR ACCOUNT. YOU ACKNOWLEDGE AND AGREE THAT ENGRADE, ITS OWNERS, SUBSIDIARIES, DIRECTORS, EMPLOYEES, ATTORNEYS, AFFILIATES, AGENTS, REPRESENTATIVES, AND LICENSORS ARE NOT LIABLE FOR ANY ACT OR FAILURE TO ACT BY THEM OR ANY OTHER PERSON REGARDING CONDUCT, COMMUNICATION OR CONTENT ON THE SERVICES. IN NO CASE SHALL THE LIABILITY OF ENGRADE, ITS OWNERS, SUBSIDIARIES, DIRECTORS, EMPLOYEES, ATTORNEYS, AFFILIATES, AGENTS, REPRESENTATIVES, AND LICENSORS TO YOU EXCEED THE AMOUNT THAT YOU PAID TO ENGRADE FOR THE SERVICES.
BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL, PUNITIVE OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, THE LIABILITY OF ENGRADE, ITS OWNERS, SUBSIDIARIES, DIRECTORS, EMPLOYEES, ATTORNEYS, AFFILIATES, AGENTS, REPRESENTATIVES, AND LICENSORS SHALL BE LIMITED TO THE FULL EXTENT PERMITTED BY LAW.
16. Indemnification. Upon Engrade’s request, you agree to defend, indemnify and hold harmless Engrade, its owners, subsidiaries, directors, employees, attorneys, affiliates, agents, representatives, and licensors against any claim for any liabilities, damages, losses, judgments and expenses, including attorneys' fees, that arise from or relate to: (a) a breach of these Terms by you; (b) any User Content provided by you on or through the Services; and (c) your use or misuse of the Services or Engrade Content.
Engrade reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to defense by you. This Section shall survive termination of these Terms.
17. Termination of the Service. Engrade reserves the right to stop providing the Services to you at any time for any reason without prior notice.
18. Entire Agreement; Notice; Waiver; Severability. These Terms constitute the whole legal agreement between Engrade and you and completely replace any prior agreements between Engrade and you in relation to the Services. You agree that the company may provide you with notices, including those regarding changes to these Terms, by email, regular mail, or postings on the Services. The failure of Engrade to exercise or enforce any right or provision in these Terms will not be a waiver of any such right or provision. Any waiver of any provision of these Terms will be effective only if in a writing signed by Engrade. If any part of these Terms is held invalid or unenforceable, that portion shall be interpreted in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of Engrade, and the remaining portions shall remain in full force and effect.
19. Third-Party Beneficiaries. You agree that these Terms are not intended to confer and do not confer any rights or remedies upon any person other than the parties to these Terms.
20. Governing Law; Jurisdiction; Venue. These Terms will be governed by the laws of the State of California without regard to its conflict of laws provisions. Engrade and you agree to submit to the exclusive jurisdiction of the courts located within the county of Los Angeles, California to resolve any legal matter arising from these Terms. Notwithstanding this, Engrade will still be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.