Registration and participation on the Site is restricted to those individuals over 18-years of age, or those who possess legal parental or guardian consent, and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations and warranties herein. By registering or participating in the Services, you represent that you are over 18-years of age, or in possession of consent by a legal parent or guardian and have the authority to enter into the terms herein. In any case, you affirm that you are over the age of 13 as the Site is not intended for children under 13. If you are under 13 years of age, do not use the Site. In addition, those who wish to register and participate must meet the minimum requirements laid out in the Terms contained herein. If you do not qualify or do not agree to these terms, you may not use the Site.
- Accessing the Services
- As long as you are complying with the terms of this Agreement and are either, using the Website and/or Services, ZipGrade allows you permission to use and continue to use the Services that you choose to select through the registration process. ZipGrade may change, suspend, or discontinue all or any part of the Services at any time and you agree and acknowledge that ZipGrade can do this. ZipGrade also may impose limits on certain features and services or restrict your access to parts or all of the Services without prior notice of its intent to do so.
- If we decide to make changes, we will post a notice on the Website, and/or send you a notice via e-mail. We reserve the right to change or modify the Terms at our sole discretion at any time. Any change or modification to the Terms will be effective immediately upon posting by us. For any material changes to the Terms, we will take reasonable steps to notify you of such changes. In all cases, your continued use of the Website and/or Services after publication of such modifications, with or without notification, constitutes your binding acceptance of any and all modified Terms. Any dispute that may arise shall be resolved under the Terms in place at the time of any such dispute. As a user of ZipGrade's Website and Services, you are responsible for reviewing and becoming familiar with any new or modified Agreement as well as the modifications to the Website and Services.
- By using the Website and Services, you represent to ZipGrade that: (i) you are of legal age to form a binding contract (or, if you are a minor, you have your parent's or legal guardian's permission to use the Website and Services, and that your parent or legal guardian has read and agrees to this Agreement on your behalf); (ii) all registration information you submit is accurate and truthful; (iii) if you are accepting this Agreement on behalf of an institution, you have the authority to bind that institution to this Agreement and they have agreed to allow you as a teacher or educator to use ZipGrade's Services. If you are accepting this Agreement on behalf of an institution then the term "you" includes yourself and that institution. Further, to the extent your institution has a separate written agreement with ZipGrade, that agreement will define the order of precedence between this Agreement and that separate agreement with respect to any such entity.
- Students: if you are a student accessing the Services at the invitation of a teacher or other school official, the following terms apply to you.
- Only those students who are thirteen (13) years old or older, have been invited by their teacher, school, or district to use the Website and Services may proceed with use of the Website and Services.
- We request very minimal personal information from students to enable use of the Website and Service. If you are a student, please do not send any personal information about yourself to us, other than what we request from you when you are able to sign up for the Website and Services.
- Persons who are thirteen (13) or younger are prohibited from using the Website and Services. For that reason, the sign-up flow for the Service verifies the age of each new student user. By registering, you promise that you provided your real birthdate during your signup, and you are over the age of thirteen (13). Furthermore, any response sent to ZipGrade must come from your parent or legal guardian.
- Teachers: if you are a teacher, aide, or other similar personnel accessing the Website and Services the following terms apply to you:
- You represent and warrant that you have the permission of the learning institution of which you are associated to create an account with ZipGrade.
- You further understand and acknowledge that ZipGrade does not allow children under the age of thirteen (13) years old to use the Website and Services. Accordingly, you agree that children under the age of 13 may not use the Services in any way.
- Parents: if you are a parent of a Student that desires to create an account on the Service then the following terms apply to you:
- No children under the age of thirteen (13) years old shall use the Website and/or Services. If your child desires to open an account, please send an email to signup@ZipGrade.com immediately including sufficient detail so that we may confirm the age of your child and proceed with opening an account if your child is thirteen (13) years old or older.
- You further agree that ZipGrade may send you messages, alerts, and other communications through the Service, including via e-mail, web alert, text messages, and other similar means, in accordance with the preferences you have established and set up through the Services, and you agree to accept such messages, and pay any applicable network access, data usage, or similar fees.
- FERPA and Social Media Features.
- FERPA: certain information that may be provided to ZipGrade by teachers and other users, such as student directory information and performance metrics, may be considered an educational record ("Education Record") under the Family Educational Rights and Privacy Act ("FERPA"). FERPA prohibits schools from sharing educational records without the consent of the student and/or the student's parent, and ZipGrade is not responsible and has no control over what information an educational establishment or school may provide it with regard to student information. For that reason, if you are a parent or student, you hereby agree and consent to ZipGrade storing and accessing such Education Records. Further if you are a teacher, you represent that your school or district has obtained all necessary consent to share such Educational Records with ZipGrade, in each case, solely to enable ZipGrade's operation of the Services from your parent, legal guardian, or other person authorized to provide such permission.
- Under the federal laws, students have a number of rights concerning his/her scholastic records. These policies are outlined as follows: The Family Educational Rights and Privacy Act ("FERPA") (20 U.S.C. § 1232g; 34 CFR Part 99) is a Federal law that protects the privacy of student education records. The law applies to all schools that receive funds under an applicable program of the U.S. Department of Education. Students have the right to inspect and review their own education records maintained by the school which they attend. If you are a student, you should contact teacher or school administrator about obtaining copies of your records. For additional information or technical assistance, you may call (202) 260-3887 (voice). Individuals who use TDD may call the Federal Information Relay Service at 1-800-877-8339, or you may contact the Family Compliance Office at the following address: Family Policy Compliance Office, U.S. Department of Education, 400 Maryland Avenue, SW, Washington, DC 20202-4605 Complete information on the overview of all Family Educational Rights and Privacy Act (FERPA) policies and guidelines found by contacting the Family Policy Compliance Office, Washington, DC.
- Social media: ZipGrade may at some point incorporate functions that allow you to interact with the Service through your accounts on third-party services, such as social networks or network storage sites ("Linked Accounts"), such as with "Like" and "Share" buttons, or similar features. If in the future you choose to use such features, you hereby grant and allow ZipGrade permission to access and use your Linked Account for the purpose of processing your requests. Your use of Linked Accounts is subject to the applicable third party terms.
- Website Content
- The Services and the contents of the Website are intended solely for the personal, non-commercial use. Therefore, the Website and Services shall only be used by you in accordance with the terms of this Agreement. Any software, technology, and materials displayed or performed on the Website, (including, but not limited to text, graphics, articles, photographs, images, illustrations - also known as the "Content", are protected by copyright and other intellectual property laws. You shall abide by all copyright notices, trademark rules, information, and restrictions contained in any Content accessed through the Services, and shall not use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell or otherwise exploit for any purposes whatsoever any Content or third party submissions or other proprietary rights not owned by you: (i) without the express prior written consent of the respective owners, and (ii) in any way that violates any third party right.
- The Website is protected by copyright as a collective work and/or compilation, pursuant to U.S. copyright laws, international conventions, and other copyright laws. You may not modify, publish, transmit, participate in the transfer or sale of, reproduce (except as expressly provided in this Section 4), create derivative works based on, distribute, perform, display, or in any way exploit, any of the Content, software, materials, or Services in whole or in part.
- You may download a single copy of the Content (and other items displayed on the Website for download) for personal non-commercial use only, provided that you maintain all copyright and other notices contained in such Content. You shall not store any significant portion of any Content in any form. Copying or storing of any Content other than personal, noncommercial use is expressly prohibited without prior written permission from ZipGrade or from the copyright holder identified in such Content's copyright notice. You shall not link to the Website without ZipGrade's prior written consent, except in accordance with the terms of this Agreement.
- Under no circumstances will ZipGrade be liable in any way for any Content, including, but not limited to, any errors or omissions in any Content, or any loss or damage of any kind incurred in connection with use of or exposure to any Content posted, emailed, accessed, transmitted, or otherwise made available via the Services.
- You are free to Share, copy, distribute and transmit the answer sheets under the following conditions: (i) Attribution: you must attribute the answer sheets to ZipGrade; (ii) Share Alike: if you alter, transform, or build upon the answer sheets provided by ZipGrade, you may distribute any resulting modified answer sheets with the understanding that ZipGrade is appropriately credited and that any derivative work is made available with that understanding made clear.
- Your Warranties and Representations.
- Limited Warranty Disclaimer & Limitation of Liability
- Services are offered "AS IS". ZipGrade has no special relationship with you. Nor is it in any fiduciary relationship with you. You acknowledge that ZipGrade has no control over, and no duty to take any action regarding: any users that might gain access to the Services; what Content you access through the Services; what effects the Content may have on you; how you may interpret or use the Content; or what actions you may take as a result of having been exposed to the Content. You hereby forever release ZipGrade from all liability for you having acquired or alternatively having not acquired Content through the Services. The Services may contain, or direct you to websites containing, information that some people may find offensive or inappropriate. ZipGrade makes no representations concerning any content contained in or accessed through the Services, and ZipGrade shall not be responsible or liable for the accuracy, copyright compliance, legality or decency of material contained in or accessed through the Services. ZipGrade makes no representations or warranties regarding suggestions or recommendations of services or products (including Content provided by publishers) offered or purchased through the Services. Services are provided "as is" without any warranty of any kind from ZipGrade or others unless, with respect to others (only), otherwise made expressly and unambiguously in writing by a designated third party for a specific product. To the greatest extent permissible pursuant to applicable law, the services, content, website and any software are provided on an "as is" basis, without warranties of any kind, either express or implied or statutory, including, without limitation, implied warranties of merchantability, fitness for a particular purpose, non-infringement, or that use of the services will be uninterrupted or error-free.
- Total Disclaimer for of any Direct, Incidental, Special, or Consequential Damages. In no event will ZipGrade, its managers, officers, directors, or employees be liable to you or any other party for any direct, indirect, special or other special, consequential, and/or incidental damages arising out of or in connection with (i) your use of the service, site content, third party materials; (ii) the use or access of or inability to use or access the service or any content available through the service; or (iii) any interaction with any third party through or in connection with the service, including other users, whether based in tort, contract or other legal theory, even if ZipGrade is expressly advised of the possibility of such damages. In no event will ZipGrade, its managers, officers, directors, or employees be liable to you in the aggregate for any damages incurred in excess of the greater of any fees you have actually paid to ZipGrade for use of the services in the six months prior to the events giving rise to the claim. ZipGrade further disclaims any and all alleged lost profits, business or opportunity arising out of your use of its Webpage and/or Services. Your sole remedy shall be a refund.
- Applicable law may not allow for the limitation or exclusion of liability of incidental or consequential damages or the capping of overall liability, so the above limitations or exclusions may not apply to you. In such cases, you agree that because such warranty disclaimers and limitations of liability reflect a reasonable and fair allocation of risk between you and ZipGrade, and are fundamental elements of the basis of the bargain between you and ZipGrade, ZipGrade's liability will be limited to the maximum extent permitted by law. You understand and agree that ZipGrade would not be able to offer the service to you on an economically feasible basis without these limitations.
- Registration and Security
- Digital Millennium Copyright Act Compliance
- General: ZipGrade respects the rights of copyright owners and expects its users to do the same. Therefore, as required by the Terms and Conditions contained herein, infringing content may not be submitted to the Service or used in, whole or in part, in any User Content.
- User Content: if you upload User Content that contains any copyrighted work, including literary works, visual works, musical works, sound recordings, audiovisual works, or other work or any combination of the foregoing, then you must be the owner of such works or have all required rights, licenses, consents, and permissions to use such works on the Service and grant the rights granted herein. In addition to being grounds for removal of your User Content, termination of your account, and any other remedy ZipGrade may have against you, your failure to own or obtain such rights may subject you to civil and/or criminal liability, the damages for which can be significant.
- Copyright Owner Rights: if you are a copyright owner or an agent thereof, and you believe any content submitted to and hosted on the Service infringes your copyrights, then you may submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") by providing ZipGrade's Designated Copyright Agent with the following information in writing:
- a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works on the Service are covered by a single notification, a representative list of such works on the Service;
- identification of the material that is claimed to be 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 ZipGrade to locate the material;
- information reasonably sufficient to permit ZipGrade to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;
- a statement that the complaining party has 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 (for example, "I am under the good faith belief that the use of the copyrighted content that is identified herein is not authorized by the copyright owner, its agent, or the law."); and
- a statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed (for example, "I swear, under penalty of perjury, that the information in this notification is accurate and that I am the copyright owner, or authorized to act on behalf of the copyright owner, of the copyright(s) that is/are allegedly infringed by the aforementioned content.").
- Designated Agent: ZipGrade's Designated Copyright Agent to receive notifications and counter-notifications of claimed infringement can be reached as follows: Attention: John Viebach or by electronic mail at firstname.lastname@example.org. For clarity, only DMCA notices should go to the Designated Copyright Agent. Any other feedback, comments, requests for technical support or other communications should be directed to ZipGrade customer service through email@example.com. You acknowledge that if you fail to comply with all of the requirements of this section, your DMCA notice may not be valid. Please note that under Section 512(f) of the DMCA, any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.
- Dispute Resolution
- Generally: in the interest of resolving disputes between you and ZipGrade in the most expedient and cost effective manner, you and ZipGrade agree that any and all disputes arising in connection with this Agreement shall be resolved by binding arbitration. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Our agreement to arbitrate disputes includes, but is not limited to all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, and regardless of whether the claims arise during or after the termination of these Terms. You understand and agree that, by entering into these Terms, you and ZipGrade are each waiving the right to a trial by jury or to participate in a class action or in a proceeding in which more than one person or claimant may present a claim against ZipGrade.
- Exceptions: notwithstanding subsection (a), the parties agree that nothing herein shall be deemed to waive, preclude, or otherwise limit either of our right pursue enforcement actions through applicable federal, state, or local agencies where such actions are available, or to allow ZipGrade to seek injunctive relief in a court of law, or file suit in a court of law to address intellectual property infringement claims or other situations where there is no adequate remedy of law available to ZipGrade.
- Arbitrator: any arbitration between you and ZipGrade will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, "AAA Rules") of the American Arbitration Association ("AAA"), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting ZipGrade.
- Notice: Process: a party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail or Federal Express (signature required), or in the event that we do not have a physical address on file for you, by electronic mail ("Notice"). ZipGrade's address for Notice is: ZipGrade LLC, 1360 London Road, New Lenox, IL 60451. The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought ("Demand"). We agree to use good faith efforts to resolve the claim directly, but If we do not reach an agreement to do so within 30 days after the Notice is received, you or ZipGrade may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or ZipGrade shall not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any; provided that if our dispute is finally resolved through arbitration in your favor, ZipGrade shall pay you the greater of (i) the amount awarded by the arbitrator, if any, and (ii) the greatest amount offered by ZipGrade in settlement of the dispute prior to the arbitrator's award.
- Fees: In the event that you commence arbitration in accordance with these Terms, ZipGrade will reimburse you for your payment of the filing fee, unless your claim is for greater than $10,000, in which case the payment of any fees shall be decided by the AAA Rules. Any arbitration hearings will take place at a location to be agreed upon in Will County, Illinois, provided that if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a non-appearance based telephonic hearing, or by an in-person hearing as established by the AAA Rules. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In such case, you agree to reimburse ZipGrade for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator's ruling on the merits.
- No Class Actions: you and ZipGrade agree that each may bring claims against the other only in your or its individual capacity through arbitration, and not as a plaintiff or class member in any purported class or representative proceeding. Further, unless both you and ZipGrade agree otherwise, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding.
- Modifications: in the event that ZipGrade makes any future change to this arbitration provision (other than a change to the ZipGrade's address for Notice), you may reject any such change by sending us written notice within 30-days of the change to ZipGrade's address for Notice, in which case your account with ZipGrade shall be immediately terminated and this arbitration provision, as in effect immediately prior to the amendments you reject shall survive. Your continued use, however, of the Services and/or Website after any modification to the arbitration provision indicates your agreement and consent to such modifications and further acknowledges that you are continuing to derive a significant benefit out of ZipGrade's Website and/or Services in spite of any modification to this arbitration provision.
- Enforceability: if only Subsection f of this Section 12 or the entirety of this Section 12 is found to be unenforceable, then the entirety of this Section shall be null and void and, in such case, the parties agree that the exclusive jurisdiction and venue described elsewhere in Section 13 shall govern any action arising out of or related to these Terms.
- Forum: This Agreement shall be governed in all respects by the laws of the State of Illinois without regard to conflict of law provisions. You agree that any claim or dispute you may have against ZipGrade shall be resolved by an arbitral panel located in Cook County, Illinois. You agree to submit to the personal jurisdiction of the courts located within Cook County, Illinois for the purpose of ZipGrade litigating any copyright or trademark claim against.
You warrant, represent and agree that you will not contribute any Content or otherwise use the Services in a manner that (i) infringes or violates the intellectual property rights or proprietary rights, rights of publicity or privacy, or other rights of any third party; (ii) violates any law, statute, ordinance or regulation or which would render ZipGrade in violation of any applicable laws or regulations, including without limitation Children's Online Privacy Protection Act ("COPPA") and the Family Educational Rights and Privacy Act ("FERPA"); (iii) is harmful, fraudulent, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, or otherwise objectionable; or (iv) jeopardizes the security of your account in any way, such as allowing someone else access to your account or password. ZipGrade reserves the right to remove any Content from the Services at any time, for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Content or if ZipGrade is concerned that you may have breached the immediately preceding sentence), or for no reason at all. You remain solely responsible for all Content that you e-mail, transmit, or otherwise disseminate using, or in connection with, the Services, and you warrant that you possess all rights necessary to provide such content to ZipGrade and to grant ZipGrade the rights to use such information in connection with the Services and as otherwise provided herein.
You are responsible for all of your activity in connection with the Services. Any fraudulent, abusive, or otherwise illegal activity may be grounds for termination of your right to access or use the Services. You may not transmit, or cause to transmitted, any communication or solicitation designed or intended to obtain password, account, or private information from any ZipGrade user to violate the security of any computer network, crack passwords or security encryption codes, transfer or store illegal material (including material that may be considered threatening or obscene), or engage in any kind of illegal activity is expressly prohibited. You will not run Maillist, Listserv, any form of auto-responder, or "spam" on the Services, or any processes that run or are activated while you are not logged on to the Website, or that otherwise interfere with the proper working of or place an unreasonable load on the Services' infrastructure. Further, the use of manual or automated software, devices, or other processes to "crawl" or "spider" any page of the Website is strictly prohibited. You will not decompile, reverse engineer, or otherwise attempt to obtain the source code of the Services. You will be responsible for withholding, filing, and reporting all taxes, duties and other governmental assessments associated with your activity in connection with the Services. You may not transfer your account to anyone without express prior written consent of ZipGrade.
As a condition to using Services, you are required to register with ZipGrade and select a password and username ("ZipGrade User ID"). You shall provide ZipGrade with accurate, complete, and updated registration information. Failure to do so shall constitute a breach of this Agreement, which may result in immediate termination of your account. You shall not (i) select or use as a ZipGrade User ID a name of another person with the intent to impersonate that person; or (ii) use as a ZipGrade User ID a name subject to any rights of a person other than you without appropriate authorization. ZipGrade reserves the right to refuse registration of or cancel a ZipGrade User ID in its discretion. You shall be responsible for maintaining the confidentiality of your password.
You will indemnify and hold ZipGrade, its parents, subsidiaries, affiliates, managers, directors, officers, and employees harmless (including, without limitation, from all damages, liabilities, settlements, costs and attorneys' fees) from any claim or demand made by any third party due to or arising out of your access to the Services, use or misuse of the Services, your violation of this Agreement (including any failure to obtain or provide any necessary consent and/or violation of applicable laws or regulations), or the infringement by you or any third party using your account of any intellectual property or other right of any person or entity, including your User Submissions.
Please consult your legal counsel (or see 17 U.S.C. § 512) to confirm these requirements and your compliance therewith. It is ZipGrade's policy to respond to notices of alleged infringement that comply with the DMCA. In addition, ZipGrade will promptly terminate without notice the accounts of Users that are determined by ZipGrade to be "repeat infringers." If ZipGrade receives more than three takedown notices regarding a User's User Content, then that User will be considered a repeat infringer and their account will be terminated.
This Agreement shall remain in full force and effect while you use the Services. You may terminate your use of the Services or your account at any time by contacting us at firstname.lastname@example.org. ZipGrade may suspend or terminate your access to the Services, Website or your account at any time, for any reason (without cause or for your violation of any term of this Agreement), and without warning or notice, which may result in the forfeiture and destruction of all information associated with your membership. Upon termination of your account, your right to use the Services, access the Website, and any Content will immediately cease. All provisions of this Agreement which, by their nature, should survive termination, shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, and limitations of liability.