Agreeing to our Terms
(Effective July 17, 2020)
Thank you for your interest in ZipGrade LLC (“ZipGrade”), which owns and operates the services offered on zipgrade.com (“ZipGrade Website”) and all associated mobile applications (“ZipGrade Apps”) and products and services which Zipgrade now provides or may provide in the future (collectively, the “Service”).
By using the Service you agree and consent to be legally bound by ZipGrade’s Privacy Policy and terms and conditions (“Terms”), which constitute our “Agreement” with you. When you register for an account or gain access and use the ZipGrade Service, you acknowledge that you have read and consent to the Terms. If you are using the Service on behalf of an institution that has a separate written agreement with ZipGrade, then that agreement governs your use of the Service. Please see our Children’s Privacy Policy to see how we protect the Privacy of Children.
Your Warranties and Representations
Your Identity: You represent and warrant that you have accurately identify yourself in your Account and shall maintain the accuracy of your identification. You further represent and warrant that you are an individual eighteen (18) years or older, a corporation, other business entity or Educational Institution authorized to do business pursuant to applicable law.
If you are entering into this Agreement on behalf of a business entity, you must represent that you have the legal authority to duly bind that business to this Agreement; in which case the terms “you”, “your” or “Member” shall refer to that business entity. If you do not have such authority, or if you do not agree with the terms and conditions of our Agreement, then you cannot use the Service.
Your representations of Lawful User of our Service
You represent and agree you will not use the Service in a manner that (i) infringes, violates or misappropriates another’s intellectual property rights, rights of publicity or privacy, or other rights; (ii) violates any international, federal, state or local law, statute, ordinance or regulation or which would render ZipGrade in violation of any applicable laws or regulations, including without limitation COPPA and 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.
Additionally, you represent and warrant that you (i) possess all rights necessary to provide your User Submissions and grant ZipGrade the rights above and (ii) you are solely responsible for compliance with the applicable provisions of COPPA as set forth herein.
Restrictions on Your Use of Our Service
We do our best to keep ZipGrade safe, but we cannot guarantee it. We need your help to keep ZipGrade safe, which includes the following commitments by you when using our Service:
- 1. You will only use the Service as permitted by law, including applicable export or re-export control laws and regulations.
- 2. You will not collect users' content or information, or otherwise access the Service, using automated means (such as harvesting bots, robots, spiders, or scrapers) without our prior permission.
- 3. You will not collect, solicit or otherwise obtain login information or access an account belonging to someone else.
- 4. You will not collect, use or disclose data, including personal information, about other users without their consent or for unlawful purposes or in violation of applicable law or regulations.
- 5. You will not use the Service to do anything unlawful, deceptive, misleading, illegal, unethical, malicious, or discriminatory.
- 6. You will not do anything that could disable, overburden, or impair the proper working or appearance of the Service or prevent other users from using the Service, such as a denial of service attack or interference with page rendering or other Service functionality.
- 7. You will not impersonate a ZipGrade employee, or any other person, or falsely state or otherwise misrepresent your affiliation with any person or entity.
- 8. You will not facilitate or encourage any violations of this Agreement or our policies.
Any violation of the above may be grounds for termination of your right to access or use the Service.
In the event that you breach any of the provisions above, ZipGrade has the right to suspend or terminate your access to the Service, in addition to such other remedies that ZipGrade already has at law, and otherwise pursuant to these Terms.
Your Personal Information
In the course of using the Service, you and other users may provide information which may be used by ZipGrade in connection with the Service which may be visible to other users (“User Submitted Data” or “Personal Information”). Personal Information means any information that (i) directly and clearly identifies an individual, i.e, your name, and/or (ii) can be used in combination with other information to reasonably identify an individual, such as your gender, age or email address. Please visit our Privacy Policy for additional information on the types of information which users are able to provide. Additionally, some User Submitted Data may be deemed an Education Record (as defined below).
You retain all ownership rights that you have in any User Submitted Data. ZipGrade does not claim any ownership rights in the User Submitted Data.
In order to allow ZipGrade to provide its Service to you, you hereby grant to us a limited, non-exclusive, royalty-free, and transferable (to a successor only) right to: (i) use, copy, store, distribute, publicly perform and display, modify, and create derivative works (such as changes we make so that your content may perform better with our Service) such User Submitted Data as necessary to provide, improve and make the Service available to you and other users, including through future media in which the Service may be distributed; and (ii) use for other purposes permitted by the ZipGrade Privacy Policy.
Zipgrade will only share and use your personally identifiable information in accordance with ZipGrade’s current Privacy Policy at http://www.zipgrade.com/privacy.
Zipgrade’s right to use your information will terminate when you (1) delete any User Submitted Data; (2) you or your Institution (as defined below) delete(s) an Education Record; (3) you delete any personal information; or (4) you delete your account, unless your content has been shared with others, and they have not deleted it. When you delete records from your Institution (“Education Records”), or personal information, it is deleted in a manner similar to emptying a computer’s recycle/trash bin. However, any removed User Submitted Data may persist in backup copies for a reasonable period of time, but will not be available to others. You are responsible for making sure that you have all rights in the User Submitted Data, including the rights necessary for you to grant us permission to User Submitted Data.
We appreciate your feedback and suggestions about ZipGrade, but are not obligated to compensate you for providing it to us.
Privacy
Your privacy is extremely important to us. We take care to limit what information we collect and how it may be used. We further strive to assist you in understanding our policies. Please read our Privacy Policy which explains how we treat your personal information and protect your privacy when you use our Service. By using our Service, you agree that ZipGrade can use such data according to the terms set forth within our Privacy Policy.
Additional Terms
Teachers and school administrator: if you are a teacher, administrator, aide, or similar personnel (“School Official” or “Teacher”) accessing the Service on behalf of a school, school district, or similar educational institution (“Education Institution” or simply, "Institution"), the following terms apply to you:
(i) You agree that you are acting on behalf of and have permission from your Institution to enter into this Agreement and to use the Service as part of your curriculum. You further agree, represent and warranty that you have complied with all applicable laws regarding notification and consent to use student information and educational records.
(ii) Only School Officials who are current employees of the Institution may use the Service on the Institution’s behalf. Upon termination of a teacher or other staff member's employment with the Institution, such individual must return and cease using all login details and student access he or she has in his or her possession. If at any time you learn a user of the Service claims to be affiliated with your Institution who is not, in fact, affiliated with your Institution, you will notify Zipgrade immediately.
FERPA
Certain information that may be provided to ZipGrade by School Officials that is directly related to a student and maintained by an Institution, may be considered an education record (“Education Record”) under the Family Educational Rights and Privacy Act (“FERPA”). Additionally, certain information, provided to Zipgrade by School Officials about a student, such as student name and grade level, may be considered directory information under FERPA (“Directory Information”) and thus not an Education Record. A school may not generally disclose personally identifiable information from an eligible student’s Education Records to a third party without written consent of the student’s parent and/or eligible student or without meeting one of the exemptions set forth in FERPA (“FERPA Exemption(s)”), including the exemption for Directory Information (“Directory Information Exemption”) or disclosure to school officials with a legitimate educational interest (“School Official Exemption”).
As a Teacher, you agree that at least one of the following is true:
A. As School Officials or an Institution providing Directory Information or any Education Record to ZipGrade, you represent, warrant and covenant to ZipGrade, as applicable, that your Institution has:
- (i) complied with the Directory Information Exemption, including, without limitation, informing parents and eligible students what information the Institution deems to be directory information and allowing parents and eligible students a reasonable amount of time to request that schools not disclose directory information about them; and/or
- (ii) complied with the School Official Exemption, including, without limitation, informing parents in their annual notification of FERPA rights that the Institution defines “School Official” to include service providers and defines “legitimate educational interest” to include services such as the type provided by ZipGrade; or
- (iii) obtained all necessary parental or eligible student written consent to share the Directory Information and Education Records with Zipgrade, in each case, solely to enable Zipgrade’s operation of the Service.
B. You have notified the ZipGrade application that it should not store student data on its servers by logging into the www.zipgrade.com website with your ZipGrade user and selecting ‘Disable Syncing’ on the ‘My Account’ screen. With this selection, all student data for this account will be purged from the ZipGrade servers in a reasonable time while remaining solely on your physical device. Note that no features requiring student data will be available on the website when an account has disabled the syncing process.
ZipGrade will never share Education Records with third parties except (i) as directed by a ZipGrade user (i.e., teacher sharing with another teacher or parent); or (ii) as required by law or a lawful court order as stated in our Privacy Policy.
Education Records are never used or disclosed for third party advertising or any kind of first- or third-party behaviorally-targeted advertising to students or parents.
ZipGrade Technology
ZipGrade Technology is protected by copyright and other intellectual property laws. You are not allowed to use, store, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, create derivative works from, display, license, sell or otherwise exploit the ZipGrade Technology for any purposes other than as expressly permitted under this Agreement. You will not decompile, reverse engineer, or otherwise attempt to obtain the source code of any ZipGrade Technology. “ZipGrade Marks” means the trademarks, service marks, logos, or any other trade name, trademarks, service marks and other distinctive or proprietary brand features of Zipgrade.
Using our Service does not give you any right of ownership to any intellectual property rights in our Service or the ZipGrade Technology. These terms do not grant you the right to use any ZipGrade Marks. Nor are you allowed to remove, obscure, or alter any copyright or other legal notices displayed in or along with our Service.
Modification to the Agreement
We may modify this Agreement to reflect changes in the law or changes with regard to our Service. You should examine the Agreement on a regular basis to see whether it has been modified. We will post notices of modifications to this Agreement on the top of this page. Changes will become effective when (a) you use the Service after you become aware about the change, or (b) thirty days after they are posted (whichever is sooner). However, changes addressing new functions for a Service or changes made for legal reasons are effective immediately. Your continued use of the Service, following notice of the changes to the Agreement, constitutes your acceptance of our amended terms and/or policies. If you do not agree to the modified Agreement, you must discontinue your use of the Service.
ZipGrade will not change how Education Records are used or shared under this Agreement without advance notice and consent from a School Official or Institution.
Experimental and Beta Features
We may provide experimental features for you to try. These experimental features are not guaranteed to work the first time or any time. These features may abruptly and unexpectedly cease functioning, or disappear altogether. Other features of ZipGrade are not regularly tested for compatibility with experimental features. Experimental features will be added and old ones removed, possibly (probably) without notice.
WARRANTY DISCLAIMER AND LIMITATION OF LIABILITY
We provide our Service using a commercially reasonable level of skill and care and we hope that you will enjoy using them. But there are certain things that we don’t promise about our Service.
DISCLAIMER OF WARRANTIES. THE SERVICE (AND ANY ASSOCIATED CONTENT OR SOFTWARE) ARE PROVIDED ON AN “AS IS” BASIS. ZIPGRADE EXPRESSLY DISCLAIMS ALL WARRANTIES OR REPRESENTATIONS OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, REGARDING THE ZIPGRADE TECHNOLOGY, SERVICE, AND CONTENT, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF QUALITY, ACCURACY, PERFORMANCE, AVAILABILITY, MERCHANTABILITY, QUIET ENJOYMENT, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ZIPGRADE MAKES NO REPRESENTATION OR WARRANTY THAT THE SERVICE WILL MEET YOUR REQUIREMENTS, BE ERROR FREE OR UNINTERRUPTED, THAT ALL ERRORS WILL BE CORRECTED OR THAT THE SERVICE ARE FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS WHICH MAY HARM OR DAMAGE YOUR COMPUTER, LAP TOP, NOTEBOOK OR SMART PHONE.
LIMITATION OF LIABILITY. UNDER NO LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO NEGLIGENCE, SHALL ZIPGRADE OR ITS SUCCESSORS, AFFILIATES, CONTRACTORS, EMPLOYEES, LICENSORS, PARTNERS OR AGENTS, BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, COST OF COVER, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES (EVEN IF ZIPGRADE HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM OR RELATING TO (i) THIS AGREEMENT; (ii) YOUR USE OR THE INABILITY TO USE THE SERVICE, CONTENT, OR USER SUBMISSIONS; OR (iii) ANY INTERACTION WITH ANY THIRD PARTY THROUGH OR IN CONNECTION WITH THE SERVICE, INCLUDING OTHER USERS.
IN NO EVENT WILL ZIPGRADE OR ITS SUCCESSORS, AFFILIATES, CONTRACTORS, EMPLOYEES, LICENSORS, PARTNERS OR AGENTS, BE LIABLE TO YOU IN THE AGGREGATE (FOR ALL POTENTIAL CLAIMS BY YOU) FOR ANY DAMAGES INCURRED IN EXCESS OF THE GREATER OF ANY FEES YOU HAVE ACTUALLY PAID TO ZIPGRADE FOR USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE EVENTS GIVING RISE TO THE CLAIM, OR ONE HUNDRED DOLLARS ($100).
Registration and Security
As a condition to using our Service, you may be required to register with Zipgrade and select a password and username or provide additional contact information ("Zipgrade User ID"). You must provide Zipgrade with accurate, complete, and updated Zipgrade User ID information. You may not select or use as a Zipgrade User ID a name of another person with the intent to impersonate that person. You will not provide any false information or create an account for anyone other than yourself without permission. 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 and will not share with anyone or let anyone else access your account. You may not transfer your account to anyone without express prior written consent of Zipgrade.
You represent, warrant and covenant all registration information you submit is truthful and accurate.
Indemnity
You will indemnify, defend, and hold Zipgrade, its parents, partners, subsidiaries, affiliates, officers, and employees harmless from and against all damages, losses, demands, liabilities, settlements, costs and expenses of any kind (including reasonable attorneys' fees) from any claim or demand made by any third party relating to or arising out of (i) your access to, use, or misuse of the Service, (ii) your violation of this Agreement (including any failure to obtain or provide any necessary consent and/or violation of applicable laws or regulations), or (iii) the infringement by you or any third party using your account of any intellectual property or other right of any person or entity, including in connection with your User Submissions.
Termination
This Agreement shall remain in full force and effect while you use the Service. You may terminate your use of the Service or your account at any time by contacting us at privacy@zipgrade.com – parents, you can also terminate your child’s account the same way, although we will need to verify your identity. Zipgrade may suspend or terminate your access to the Service 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 loss of information associated with your account. Upon termination of your account, your right to use the Service 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.
Dispute Resolution
a) Generally: In the interest of resolving disputes between you and Zipgrade, you hereby agree that any and all disputes arising in connection with this Agreement shall be resolved by binding arbitration with the American Arbitration Association (“AAA”). Your consent to arbitrate any dispute with Zipgrade includes, but is not limited to all claims arising out of or relating to any aspect of this Agreement, 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 this Agreement. You understand and agree that, by entering into this Agreement, you are waiving the right to a trial by jury or to participate in any class action law suit against Zipgrade. b) Arbitration: 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 AAA, 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. c) 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, PO Box 729, New Lenox, IL 60451, United States of America. 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. d) Jurisdiction and Venue: Any arbitration hearings will take place at a location to be agreed upon in Chicago, Illinois. 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. e) Choice of Law: These Terms and the corresponding Privacy Policy shall be governed by the internal laws of the State of Illinois, without reference to Illinois’ principles of conflicts of law.Miscellaneous
The failure of either party to exercise, in any respect, any right provided for herein shall not be deemed a waiver of any further rights hereunder. Zipgrade shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond Zipgrade's reasonable control. If any provision of this Agreement is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement is not assignable by you. Zipgrade may transfer, assign or delegate this Agreement and its rights and obligations without restriction. Unless and solely to the extent that you or your Institution have a separate written agreement with Zipgrade that governs your use of the Service (in which case such agreement will control), you agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that the Agreement may not be modified, except as otherwise provided herein. This Agreement and any subsequent versions of this Agreement posted to the Website will be deemed a writing signed by both parties. No agency, partnership, joint venture, or employment is created as a result of this Agreement and you do not have any authority of any kind to bind Zipgrade in any respect whatsoever.
