Terms & Conditions

Acceptance of Terms of Service

The following sets forth the agreement (this “Agreement”) between you and FreshGrade Education Inc., doing business as FreshGrade (with its affiliates, “FreshGrade,” “we” or “us”) under which you may use FreshGrade’s website located at FreshGrade.com (the “Website”) and all pages owned and operated by FreshGrade, including, without limitation, all or any part of any content, visual interfaces, images, information, graphics, design, compilation, computer code, products, software, and services thereon, and FreshGrade’s mobile application or any future mobile applications (the “Mobile Application”), and all other elements of the FreshGrade service and other materials that are provided by or in connection with the FreshGrade service (collectively, the “FreshGrade Service”).

By accessing or using the FreshGrade Service, or by clicking a button or checking a box marked “I Agree” (or something similar), you signify that you have read, understood, and agree to be bound this Agreement, and to the collection and use of your information as set forth in our Privacy Policy, whether or not you are a registered user of the FreshGrade Service. Users also must confirm compliance with the terms in Acceptable Use, Prohibited Consent, below. FreshGrade reserves the right to modify these terms and will provide notice of these changes as described below. This Agreement applies to all visitors, users, and others who access the Service.

Please read this Agreement carefully to ensure that you understand each provision.
Where permitted by applicable law, this agreement contains a mandatory individual arbitration and class action/jury trial waiver provision that requires the use of arbitration on an individual basis to resolve disputes, rather than jury trials or class actions.

The term “you” or “your” refers to you whether you are a Visitor” (which means that you simply browse the FreshGrade website and Service), or a “User” of the Service. An “Individual User” as used in these Terms may be a teacher or school or district/board administrator using the free FreshGrade Service. Where applicable, “you” or “your” also means a school or school district or other educational institution otherwise known as an “Enterprise User” using the subscription FreshGrade Service, with whom the User is associated either as a student, teacher, school or district administrator, principal, or parent of a student and is authorized by the Enterprise User to use the Service (an “Authorized User”). The term “User(s)” as used herein will refer to all users of the Service: Individual Users, Authorized Users, and Enterprise Users. In this document, we use the term “School” to refer to teachers, principals, school districts/boards, school administrators and any other User acting on behalf of an educational institution, regardless of whether the User is an Individual User or an Enterprise User. We also use the word “Parent” to refer to both parents and guardians who are responsible for a student.

If you open a FreshGrade account on behalf of a school, district, company, organization, or other entity, then (a) “you” includes you and that entity, and (b) you represent and warrant that you are an authorized representative of the entity with the authority to bind the entity to this Agreement, and that you agree to this Agreement on the entity’s behalf. By connecting to FreshGrade with a third-party service, you give us permission to access and use your information from that service as permitted by that service, and to store your log-in credentials for that service.

Use of and membership in the FreshGrade Service is void where prohibited. By using the FreshGrade Service, you represent and warrant that (a) you have the right, authority, and capacity to enter into this Agreement and to abide by all of the terms and conditions set forth herein; (b) you agree to comply with this Agreement; (c) you acknowledge reading and agreeing to the terms of the FreshGrade Privacy Policy (www.FreshGrade.com/privacy-policy); (d) all registration information you submit is truthful and accurate; (e) you will maintain the accuracy of such information; (f) your use of the FreshGrade Service does not violate any applicable law or regulation; (g) your FreshGrade account has not been suspended or disabled in the past. If you are representing an entity, by using the FreshGrade service, you are certifying that you are authorized to legally bind the entity to this agreement. If you under the age of majority applicable in the jurisdiction where you are resident, you may only use the FreshGrade Service and disclose information to us with your parent’s or guardian’s express consent.
You can review the most current version of this Agreement above. The most current version will supersede all previous versions. By continuing to use the FreshGrade Service after changes are made, you agree to be bound by such changes.

Description of FreshGrade Service

FreshGrade empowers schools, school districts/boards, teachers, parents, and students to be partners in the education journey.
Teachers can capture, document and communicate learning in a way that traditional reporting can’t. The learning moments that are captured through videos, pictures, audio clips and notes, can be shared with parents in real-time. All of which is documented in a secure, individual digital portfolio for each student.

Parents now have a window into their child’s learning through FreshGrade and can track the progress of their child’s learning. Through their account, parents can view and comment on their child’s digital portfolio – providing encouragement and support well ahead of scheduled reporting cycles.

Students are empowered to take greater ownership of their learning. They can log-in and view their digital portfolio, self-reflect on their work and work collaboratively with their teachers and parents to achieve their learning goals, as well as capture moments through videos, pictures, audio clips and notes.

Eligibility

You must be at least 18 years old to download the Mobile Application and/or use the FreshGrade Service. If you are not at least 18, you may download the Mobile Application and/or use the FreshGrade Service only in conjunction with, and under the supervision of, your School or Parent. If you are a student under the age of 18 years, you are prohibited from using the Service unless you have been invited and authorized to use the Service by a School Your School may impose additional policies regarding the use of the FreshGrade Service, with which you must comply.

Provided that you fully comply with the terms and conditions of this Agreement, we grant to you a limited, personal, non-exclusive, non-transferable and non-sublicensable license to download the Mobile Application and use the FreshGrade Service for your personal, noncommercial use only and as permitted by the features of the FreshGrade Service.

Personal Information and Student Data

“Personal Information” is any information that can identify a specific individual and other information linked to that personal information. “Student Data” is personal information that is directly related to an identifiable student that is maintained by a School or related entity or organization, or by us. To the extent U.S. Law applies, Student Data may include “educational records” as defined by the Family Educational Rights and Privacy Act (“FERPA”), 20 U.S.C. § 1232(g). In Canada, Student Data may be part of the “school record” under the School Act (British Columbia) or similar Canadian provincial or territorial legislation. Contact your school for details.

Confidentiality

FreshGrade agrees to treat Student Data as confidential and not to share it with third parties other than as described in these Terms, and in our Privacy Policy .

Student Data Access

To the extent necessary to provide the Service, we may access and collect Student Data in a variety of ways. In the US, we access, collect and process Student Data as a School Official with a legitimate educational interest pursuant to FERPA 34 CFR Part 99.31(a)(1). You agree that, as between the parties, the School or the parent owns and controls all Student Data, whether provided by the school, teacher, school administrator, student, parent or guardian, or any other third-party.

If a School chooses to integrate the school or district’s/board’s Student Information Management System (“SIS”) with the Service, we will collect and process only that information from the SIS which is necessary for the purposes of providing the Service. By using the Service and integrating the Service with a SIS, you agree to and authorize this data collection. If you do not provide access to your SIS, you may input information manually into the Service.

If a School chooses to provide Student Data manually, a teacher, school administrator or other individual authorized to access the School account may enter the Student Data through the School login and dashboard. You represent and warrant that you have the requisite authority on behalf of your school or institution to agree to these Terms.

We may collect information, including Personal Information, from students authorized to use the Service, but FreshGrade collects such information only at the direction of, and on behalf, of the School.

Personal Information and Student Data Consents and Authority.

You must have the requisite consent and authority to provide Student Data to FreshGrade, or to authorize FreshGrade to collect Student Data through the Service.

If you are school, school district/board, school or district/board administrator, teacher, principal, or other individual, regardless of whether you are an Individual User, Enterprise User or Authorized User, you represent and warrant that you have the authority to provide Personal Information, including Student Data, to FreshGrade for the purpose of providing the Service, and that you have provided appropriate disclosures to your School and to parents regarding your sharing such Personal Information with FreshGrade. FreshGrade and the School each agree to uphold their responsibilities under laws governing Personal Information and Student Data, including in Canada, the Freedom of Information and Protection of Privacy Act (FOIPPA, British Columbia), the School Act (British Columbia), the Personal Information Protection Act (British Columbia), the Personal Information Protection and Electronic Documents Act (PIPEDA, Canada), and other applicable provincial and territorial laws, and, in the U.S., the Family Educational Rights and Privacy Act (FERPA), the Protection of Pupil Rights Amendment (PPRA), and the Children’s Online Privacy and Protection Act (COPPA) and applicable State laws.

As permitted by COPPA, If you are a School providing the Service to children under 13 (whether in the U.S., Canada or elsewhere), you represent and warrant that you have received consent from parents, or have the authority to provide consent on behalf of parents, for us to collect information from students before allowing children under 13 to access our Services. We recommend that all Schools provide appropriate disclosures to students and parents regarding their use of service providers such as FreshGrade and that they provide a copy of our Privacy Policy to parents.

We recommend that you provide a copy of the FreshGrade Privacy Policy to parents and guardians.
You are required to comply with these Terms and all regulations and laws governing the privacy of children and children’s Personal Information in your territory. You represent and warrant that you are in compliance with all applicable data protection laws governing the protection of Personal Information and the sharing of student education records.

Use of Student Data

By submitting or providing us access to Student Data, you agree that FreshGrade may use the Student Data solely for the purposes of (i) providing and supporting the Service, (ii) improving and developing our Service, (iii) enforcing our rights under these Terms, and (iv) as permitted with the User’s consent. Notwithstanding anything to the contrary, we shall not use Student Data to engage in targeted advertising.

Use of Anonymized Student Data

You agree that we may collect and, both during and after the term of our agreement, use data derived from Student Data for our own purposes, provided that such data will be de-identified and/or aggregated to reasonably avoid identification of a specific individual.

Use of Personal Information for Marketing

You agree that FreshGrade may from time to time advertise its services to School Users and to parents, provided that such advertisements shall not be based upon Student Data relating to individually identifiable students. FreshGrade shall not direct advertising or marketing messages to students based on Student Data collected through the Service.

FreshGrade’s Third-Party Service Providers

You acknowledge and agree that FreshGrade may provide access to Student Data to our employees, affiliates, and to certain third party service providers, which have a legitimate need to access such information in order to provide their services to us. Examples include the hosting of our encrypted user content files and customer support portal. We and our employees, affiliates, service providers, or agents involved in the handling, transmittal, and processing of Student Data will be required to maintain the confidentiality of such data.

User-Requested Third-Party Access

FreshGrade may provide users the ability to use and access third-party services through the FreshGrade Service, and to share data, including Student Data, with third-parties through the Service. You consent to allow us to provide access to Student Data to third parties through the Service as directed by the School or User. You acknowledge that we are not responsible for the data practices of third parties with whom you elect to share Student Data or permit students to access through the Service, and that, as between us, you are solely responsible for the third party content and the consequences of providing or transmitting Student Data to such third parties, or authorizing those third parties to access Student Data through the Service.

Student Data Retention and Deletion Requests

Schools may request that we delete or retrieve Student Data in our possession at any time by providing such a request in writing, and we shall comply with such request within thirty (30) days. A Parent seeking to modify, correct, or delete Personal Information in a Student Account that is connected to an active class profile will be instructed to contact the School to discuss data deletion or modification. We archive as “read only” Student Data content that is no longer in active use by a School and will continue to provide access to such data to the Parent and Student unless and until we receive a deletion request. If the archived account is no longer covered by a School license, FreshGrade will delete the archived account, including Personal Information and content associated with such account, after a period of dormancy. We are not required to delete data that has been derived from Student Data so long as it has been anonymized such that it does not reasonably identify an individual.

Data Localization

By using this Service, you consent to the transfer of your personal information to Canada in accordance with this Privacy Policy. You understand that your personal information will be subject to the laws of Canada, which may be different from those of your country of residence.

For Canadian users, we store and process your personal information in full compliance with the British Columbia Personal Information Protection Act (PIPA), the Canada Personal Information Protection and Electronic Documents Act (PIPEDA), and provincial Freedom of Information and Protection of Privacy Acts (FOIPPA).

For United States Users, we store and process your personal information in compliance with FERPA, state laws relating to student data privacy, and other applicable U.S. law.

Security, Access, and Support

Data Breach Notification. We have implemented commercially reasonable administrative, physical and technical safeguards designed to secure Personal Information, including Student Data, from unauthorized access, disclosure and use. In the event we have a reasonable, good faith belief that an unauthorized party has gained access to or been disclosed Personal Information, including Student Data (a “Security Event”), that we have collected or received through the Service, we will promptly notify the School. If, due to a Security Event which is caused by the acts or omissions of FreshGrade or its agents, a notification to an individual, organization or government agency is required under applicable privacy laws, FreshGrade shall be responsible for the timing, content, cost and method of any such legally-required notice and compliance with such laws. With respect to any Security Event which is not caused by the acts or omissions of FreshGrade or its agents, FreshGrade shall reasonably cooperate with School’s investigation of the Security Event, as School requests, at School’s reasonable expense. FreshGrade shall be responsible for the timing, content, cost and method of notice and compliance with such laws as they relate to User accounts that are not associated with an Enterprise User account.

We will not be liable if for any reason the Service (or any part of it) is unavailable at any time or for any period. Additionally, access to the Service may be suspended temporarily and without notice in the case of system failure, maintenance or repair or for reasons beyond our control. Additionally, access to the internet, if employed, is your sole responsibility and the responsibility of the Internet provider(s) you select. FreshGrade does not accept any responsibility for failure of the Service due to Internet facilities.

RESTRICTIONS

Except as expressly authorized herein, you agree to the following restrictions:

  • You may not use, copy, modify, translate, publicly perform or display, transmit, publish, edit, adapt, reproduce, or transfer the right to use the Mobile Application or the FreshGrade Service except as expressly provided in this Agreement.
  • You may not reverse engineer, reverse compile, disassemble, or otherwise attempt to discover the source code of the Mobile Application or the FreshGrade Service or create derivative works based on the Mobile Application or the FreshGrade Service.
  • You agree that you shall only use the Mobile Application or the FreshGrade Service in a manner that complies with all applicable laws in the jurisdiction in which you use the Mobile Application or the FreshGrade Service, including, but not limited to, applicable restrictions concerning privacy, copyright and other intellectual property rights.
  • You agree not to upload, post, e-mail or otherwise send or transmit any material that contains viruses or any other computer code, files or programs designed to interrupt, destroy, usurp, modify or limit the functionality of the Mobile Application or the FreshGrade Service or any computer software, hardware, telecommunications equipment or other equipment or devices associated with the FreshGrade Service. You also agree not to interfere with the servers, networks or other devices or equipment connected to or used in connection with the FreshGrade Service or to violate any of the procedures, policies or regulations of such networks, devices or equipment, or of any service providers associated with or connected to the FreshGrade Service.
  • You may only access the FreshGrade Service for your own personal and/or school-related purposes and not for commercial purposes. You may not (and you agree not to) use, copy, distribute, transmit, broadcast, sell, or do anything else with the FreshGrade Service for any other purpose.
  • We reserve the right to discontinue any aspect of the Service at any time.

OTHER CHARGES

In connection with your use of the FreshGrade Service, you may be subject to charges imposed by your broadband, wireless or other applicable carriers. Payment of such charges is solely your responsibility.

ELECTRONIC COMMUNICATIONS

By downloading and/or using the FreshGrade Service, you consent to receiving electronic communications and notices from FreshGrade. You agree that any notice, agreement, disclosure or other communications that we send to you electronically will satisfy any applicable legal communication requirements, including that such communications be in writing.

OWNERSHIP

You agree that use of the FreshGrade Service does not constitute any basis for ownership of the FreshGrade Service and that FreshGrade, its affiliates or its licensors own all legal right, title, and interest in and to the FreshGrade Service and all information, materials, images, software, photographs, articles, functions, text and other content solely provided by or on behalf of FreshGrade on the FreshGrade Service (specifically excluding any of your User Content (as defined below) (collectively, “FreshGrade Content”)). The FreshGrade Service and all of the FreshGrade Content, and the selection and arrangement thereof, are protected by the copyright laws and other intellectual property laws. We reserve all rights not expressly granted herein in and to the FreshGrade Service and FreshGrade Content. Unless otherwise noted, the FreshGrade name and all other trademarks, service marks, trade names, logos or other designations of source displayed on the FreshGrade Service are the property of FreshGrade, 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 FreshGrade Service shall be construed as granting any license or right not expressly set forth herein. Any unauthorized use of the FreshGrade Service or any of the FreshGrade 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 FreshGrade Service or FreshGrade Content.

USER CONTENT

You are solely responsible for any content that you create, transmit, or display while using the Services. You further acknowledge and agree that your access to the Services and any User Content posted by other users shall by at your own risk and FreshGrade is not liable for any errors, or omissions in any User Content, whether posted by you or another User, nor is FreshGrade liable for any damages or losses you might suffer in connection with such User Content or other content available on the Service. We have no duty to take any action regarding how you may interpret or use the content available on the Service, including other User’s User Content, and you explicitly release us from all liability for any and all User Content and other content you have accessed, downloaded, or acquired through the Services.

Some areas of the Service allow Users to submit, post, display, provide, or otherwise make available content such as profile information, videos, images, music, comments, questions, and other content or information (any such materials a User submits, posts, displays, provides, or otherwise makes available on the Service is referred to as “User Content”). FreshGrade does not endorse or approve any User Content that you or other Users contribute or post. FreshGrade respects the intellectual property rights of others. You must have the legal right to upload any User Content to the FreshGrade Service. You may not upload or post any User Content to the FreshGrade Service that infringes the copyright, trademark or other intellectual property rights of a third party nor may you upload User Content that violates any third party’s right of privacy or right of publicity. You may upload only User Content that you are permitted to upload by the owner or by law.

By posting your User Content, you do not lose any ownership rights you may have to it. However, you understand that certain portions of the FreshGrade Service allow other Users to view, edit, share, and/or otherwise interact with your User Content, as detailed below. By providing or sharing User Content through the Service, you agree to allow others to view, edit, share, and/or interact with your User Content in accordance with your settings and this Agreement. FreshGrade has the right (but not the obligation) in its sole discretion to remove any User Content that is shared via the Service. FreshGrade may also aggregate your User Content with other User Content for the purpose of compiling information regarding users of the Service as a whole and delivering such aggregated information to third parties in connection with operating, accessing and marketing the FreshGrade Service. Such aggregate information will not contain any personal information which could identify an individual or institution.

By submitting, posting, displaying, providing, or otherwise making available any User Content on or through the FreshGrade Service, you expressly grant, and you represent and warrant that you have all rights necessary to grant, to FreshGrade a royalty-free, sublicensable, transferable, non-exclusive, worldwide license to use, copy, print, distribute, display and perform (“Use”) of all such User Content and your name, voice, and/or likeness as contained in your User Content, in whole or in part, and in any form, media or technology, whether now known or hereafter developed, solely as necessary to provide the Services as set forth herein. You also grant each user of the FreshGrade Service a non-exclusive license to access your User Content through the FreshGrade Service and to Use your User Content as permitted through the functionality of the FreshGrade Service (subject to your account settings and permissions and any copyright notices you include in your User Content), the account settings and data sharing functionality of the School or Enterprise User with which your account may be associated, the privacy restrictions in the FreshGrade Service, and under this Agreement.

At the conclusion of each academic year, FreshGrade may suspend the ability to post new User Content to any specific classroom; provided, however, that any Student or Parent will be permitted to review, request to delete or otherwise access the archived User Content associated with that Student or Parent.

You agree that FreshGrade may use your feedback, suggestions, or ideas in any way, including in future modifications of the FreshGrade Service, other products or services, advertising or marketing materials. Without eliminating any rights or restrictions governing FreshGrade’s use of your User Content, You grant FreshGrade a perpetual, worldwide, fully transferable, sub-licensable, irrevocable, fully paid-up, royalty-free license to use the feedback you provide to FreshGrade in any way. FreshGrade will not sell, publish or share your feedback in a way that could identify you without your explicit permission.

PUBLIC CONTENT AND THIRD PARTY SERVICES

The FreshGrade Service may, now or in the future, allow for users to use the FreshGrade Service to host public forums or messaging boards for online discussion or message posting. These are public forums, and information that you post may be available to other members of the FreshGrade Service or the public.

The FreshGrade Service may, now or in the future, allow for users to use the FreshGrade Service to host public forums or messaging boards for online discussion or message posting. These are public forums, and information that you post may be available to other members of the FreshGrade Service or the public.

The FreshGrade Service may contain links to other third party websites, advertisements, or programs that are not controlled by or affiliated with FreshGrade. FreshGrade does not endorse, assume any responsibility for and is not responsible for the content, offers or privacy policies of such third party sites and programs. Your dealings with third party sites are between you and the applicable third party. You expressly relieve FreshGrade from any and all liability arising from your use of any third-party website, service, or content, including without limitation User Content from third party sites or services submitted by other Users of the FreshGrade Service. Additionally, your dealings with or participation in promotions of service providers found on the FreshGrade Service, including payment and delivery of goods, and any other terms (such as warranties) are solely between you and such service providers. You agree that FreshGrade shall not be responsible for any loss or damage of any sort relating to your dealings with such service providers.

ACCOUNTS; PASSWORDS; SECURITY

You will need an account in order to use the FreshGrade Service as a User. You may not use another person’s account without permission. When you are setting up your account, you must give us accurate and complete information. You are responsible for your account information and password and you shall keep all such information current. We reserve the right to suspend your account and/or require you to alter your password if we believe for any reason that your password is no longer secure. You may not share your FreshGrade account password with any other person for any reason. We are not liable for any loss or damage arising from your failure to comply with the above requirements.

NOTICE AND TAKE DOWN PROCEDURES AND COPYRIGHT AGENT

Since we respect artist and content owner rights, it is Company’s policy to respond to alleged infringement notices that comply with the Digital Millennium Copyright Act of 1998 (“DMCA”).

If you believe any materials accessible on or from the FreshGrade Service infringe your copyright, you may request removal of those materials (or access thereto) from the FreshGrade Services by contacting FreshGrade at the following email: care@freshgrade.com and providing the following information:

  • Identification of the copyrighted work that you believe to be infringed. Please describe the work, and where possible include a copy or the location (e.g., URL) of an authorized version of the work.
  • Identification of the material that you believe to be infringing and its location. Please describe the material, and provide us with its URL or any other pertinent information that will allow us to locate the material.
  • Your name, address, telephone number and (if available) e-mail address.
  • A statement that you have a good-faith belief that the complained of use of the materials is not authorized by the copyright owner, its agent, or the law.
  • A statement that the information that you have supplied is accurate, and indicating that “under penalty of perjury,” you are the copyright owner or are authorized to act on the copyright owner’s behalf.
  • A signature or the electronic equivalent from the copyright holder or authorized representative.

In an effort to protect the rights of copyright owners, we maintain a policy for the termination, in appropriate circumstances, of subscribers and account holders who are repeat infringers.

DISCLAIMERS; NO WARRANTIES

The FreshGrade service and any third-party media, software, services, materials or applications made available in conjunction with or through the FreshGrade Service are provided “as is” and without warranties of any kind either express or implied. To the fullest extent permissible pursuant to applicable law, FreshGrade and its affiliates, licensors, suppliers, and partners disclaim all warranties, express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, and non-infringement of proprietary rights.

FreshGrade and its affiliates, suppliers and partners do not warrant that the functions contained in the FreshGrade service will be uninterrupted or error-free, that any defects will be corrected, or that the FreshGrade service or the server that makes it available is free of viruses or other harmful components.

FreshGrade, and its licensors, suppliers and partners, do not warrant or make any representations regarding the use or the results of the use of the FreshGrade service in terms of its correctness, accuracy, reliability, or otherwise. You (and neither FreshGrade nor its suppliers and partners) assume the cost of any necessary servicing, repair, or correction. You understand and agree that you download, purchase, or otherwise obtain media, materials, or other data through the use of the FreshGrade service at your own discretion and risk and that you will be solely responsible for any damage to your equipment, wireless device or loss of data that results from such material or data.

Certain state laws do not allow limitations on implied warranties or the exclusion or limitation of certain damages. If these laws apply to you, some or all of the above disclaimers, exclusions, or limitations may not apply to you, and you may have additional rights.

INDEMNIFICATION; HOLD HARMLESS; RELEASE

You agree to indemnify, hold harmless and release FreshGrade, its officers, directors, stockholders, affiliates, and its and their licensors, suppliers and partners, from any claims, losses, damages, liabilities, including attorney’s fees, arising out of (i) your use or misuse of the FreshGrade Service, (ii) breach of any of this Agreement, (iii) your violation of any applicable law or the rights of any other person or entity, (iv) the display, playback, publishing, hosting, sharing and/or selling or other distribution of any content made available by you through or by the FreshGrade Service, including, without limitation, your User Content; (v) your willful misconduct; or (vi) any other party’s access and use of the FreshGrade Service with your unique username, password or other appropriate security code. FreshGrade reserves the right, at our own expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims.

LIMITATION OF LIABILITY AND DAMAGES

Under no circumstances, including, but not limited to, negligence, shall FreshGrade or its subsidiaries, parent companies, affiliates, licensors, contractors, employees, officers, directors, agents, or third party partners or suppliers, be liable to you or to any third party for any special, punitive, indirect, incidental, consequential, or exemplary damages that result from your use of or inability to use the FreshGrade service or any cause of action arising hereunder, even if FreshGrade or a FreshGrade authorized representative has been advised of the possibility of such damages.

In no event shall FreshGrade or its subsidiaries, parent companies, affiliates, licensors, contractors, employees, officers, directors, agents, or third party partners or suppliers’ total liability to you for all damages, losses, and causes of action arising out of or relating to these terms of service or your use of the FreshGrade service (whether in contract, tort, warranty, or otherwise) exceed the amount paid by you, if any, for accessing the FreshGrade service during the twelve (12) months preceding your claim or one hundred dollars ($100), whichever is greater.

Applicable law may not allow the limitation or exclusion of liability or incidental or consequential damages, so the above limitation or exclusion may not apply to you. In such cases, FreshGrade’s liability will be limited to the extent permitted by law.
Notwithstanding the foregoing, in no event shall FreshGrade, regardless of the cause of action, have any liability for any damages incurred by reason of any products or services sold or provided to you by third parties other than FreshGrade and received by you through or advertised on the FreshGrade service or received by you through any links provided on the FreshGrade service.

MOBILE APPLICATION PROVIDER

In the event you are using the FreshGrade Services in connection with a mobile device and an application (an “Application”) accessed through or downloaded from any app store or distribution platform (like the Apple App Store or Google Play) where the Application is made available (each an “Application Provider”). You acknowledge and agree that:

  • This Agreement is concluded between you and FreshGrade, and not with the Application Provider, and FreshGrade (not the Application Provider), is solely responsible for the Application.
  • The Application Provider has no obligation to furnish any maintenance and support services with respect to the Application.
  • In the event of any failure of the Application to conform to any applicable warranty, you may notify the Application Provider, and the Application Provider may refund the purchase price for the Application to you (if applicable) and to the maximum extent permitted by applicable law, the Application Provider will have no other warranty obligation whatsoever with respect to the Application. Any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of FreshGrade.
  • The Application Provider is not responsible for addressing any claims you have or any claims of any third party relating to the Application or your possession and use of the Application, including, but not limited to: (i) product liability claims; (ii) any claim that the Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
  • In the event of any third party claim that the Application or your possession and use of that Application infringes that third party’s intellectual property rights, FreshGrade will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by this Agreement.
  • The Application Provider, and its subsidiaries, are third party beneficiaries of this Agreement as related to your license of the Application, and that, upon your acceptance of the terms and conditions of this Agreement, the Application Provider will have the right (and will be deemed to have accepted the right) to enforce this Agreement as related to your license of the Application against you as a third party beneficiary thereof.
  • You must also comply with all applicable third party terms of service when using the Application.

PRIVACY

We care about the privacy of our users. You understand that by using the FreshGrade Services you consent to the collection, use and disclosure of your personal information and aggregate and/or anonymized data as set forth in our Privacy Policy, and to have your personal information collected, used, transferred to and processed in Canada and the United States.

GOVERNING LAW, ARBITRATION, AND CLASS ACTION/JURY TRIAL WAIVER

Governing Law

Any such use of the Mobile Application and/or the FreshGrade Service, and any materials contained therein, may not be lawful by certain persons or in certain territories. You are responsible for compliance with the laws of whatever jurisdiction you are in at the time. In Canada, this Agreement shall be governed by and construed in accordance with the laws of the province of British Columbia, unless the laws of the province in which the User is located. In the United States, this Agreement shall be governed and construed in accordance with the laws of California and you agree to submit to the personal jurisdiction of the federal and state courts located in Santa Clara County, California. For Users outside Canada and the United States, this Agreement shall be governed by and construed in accordance with the laws of British Columbia, Canada.

Arbitration
(not applicable in Quebec in respect of consumer agreements or other provinces that prohibit mandatory arbitration for consumer agreements) Read this section carefully because it requires the parties to arbitrate their disputes and limits the manner in which you can seek relief from Company.

For any dispute with Company, you agree to first contact us at care@freshgrade.com and attempt to resolve the dispute with us informally. In the unlikely event that Company has not been able to resolve a dispute it has with you after sixty (60) days, we each agree to resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief as provided below) arising out of or in connection with or relating to this Agreement, or the breach or alleged breach thereof (collectively, “Claims”), by binding arbitration by JAMS, under the Optional Expedited Arbitration Procedures then in effect for JAMS, except as provided herein. JAMS may be contacted at www.jamsadr.com. The arbitration will be conducted in Santa Clara County, California, unless you and Company agree otherwise. If you are using the Service for commercial purposes, each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules, and the award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. If you are an individual using the Service for non-commercial purposes: (i) JAMS may require you to pay a fee for the initiation of your case, unless you apply for and successfully obtain a fee waiver from JAMS; (ii) the award rendered by the arbitrator may include your costs of arbitration, your reasonable attorney’s fees, and your reasonable costs for expert and other witnesses; and (iii) you may sue in a small claims court of competent jurisdiction without first engaging in arbitration, but this does not absolve you of your commitment to engage in the informal dispute resolution process. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section shall be deemed as preventing Company from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of our data security, Intellectual Property Rights or other proprietary rights.

Class Action/Jury Trial Waiver
(not applicable in Quebec in respect of consumer agreements or other provinces that prohibit class action/jury trial waivers for consumer claims)

With respect to all persons and entities, regardless of whether they have obtained or used the Service for personal, commercial or other purposes, all Claims must be brought in the parties’ individual capacity, and not as a plaintiff or class member in any purported class action, collective action, private attorney general action or other representative proceeding. This waiver applies to class arbitration, and, unless we agree otherwise, the arbitrator may not consolidate more than one person’s Claims. You agree that, by entering into this Agreement, you and Company are each waiving the right to a trial by jury or to participate in a class action, collective action, private attorney general action, or other representative proceeding of any kind.

WAIVER

Any provision of this Agreement may be waived only by a written instrument executed by the party entitled to the benefit of such provision. The failure of any party at any time to require performance of any provision of this Agreement shall in no manner affect such party’s right at a later time to enforce the same. A waiver of any breach of any provision of this Agreement shall not be construed as a continuing waiver of other breaches of the same or other provisions of this Agreement.

SEVERABILITY

If any provision of this Agreement shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions.

ASSIGNMENT

We may assign our interest in this Agreement. You may not assign or transfer this Agreement. We may also assign or delegate certain of our rights and responsibilities under this Agreement to independent contractors or other third parties. Any attempted transfer or assignment in violation hereof shall be null and void.

RIGHT TO TERMINATE

Your rights under this Agreement will automatically terminate without notice from FreshGrade for any reason, including if you fail to comply with any term of this Agreement. In case of such termination, you must cease all use of the FreshGrade Service and FreshGrade may immediately restrict your access to the FreshGrade Service.

HEADINGS

The heading references herein are for convenience purposes only, do not constitute a part of these Terms of Service, and shall not be deemed to limit or affect any of the provisions hereof.

ENTIRE AGREEMENT

This is the entire agreement between us relating to the subject matter herein and shall not be modified except in writing, signed by both parties, or by a change to this Agreement made by FreshGrade as set forth above.

NOTIFICATION PROCEDURES AND CHANGES TO THE AGREEMENT

FreshGrade may provide notifications, whether such notifications are required by law or are for marketing or other business related purposes, to you via email notice, written or hard copy notice, or through posting of such notice on our website, as determined by FreshGrade in our sole discretion. FreshGrade reserves the right to determine the form and means of providing notifications to you and the other users of the FreshGrade Service, provided that you may opt out of certain means of notification as described in this Agreement. FreshGrade is not responsible for any automatic filtering you or your network provider may apply to email notifications we send to the email address you provide us.

FreshGrade may, in its sole discretion, modify or update this Agreement from time to time, and so you should review this page periodically. When we change the Agreement in a material manner, we will update the ‘Effective Date’ date at the top of this page and notify you that material changes have been made to the Agreement. Your continued use of the FreshGrade Service after any such change constitutes your acceptance of the new Terms of Service. If you do not agree to any of these terms or any future Terms of Service, do not use or access (or continue to access) the FreshGrade Service.

Terms of Service changes with respect to Student Data. We will use our best efforts to provide at least 30 days-notice of a Terms of Service change that may involve collecting, using, storing, or sharing Student Data in a materially different way than was disclosed in our previous Terms of Service, so that you have sufficient time to evaluate the change in practice. If you do not choose to accept the changes, you may opt-out by deleting your account before the changes take effect. You may request previous versions of this Terms of Service by contacting us at care@freshgrade.com.

Acceptable Use, Prohibited Content

You agree not to post User Content that:

  • infringes a third party’s rights (e.g., copyright, privacy) according to applicable law or contains any information or content that is illegal (including, without limitation, the disclosure of insider information under securities law or of another party’s trade secrets);
  • contains any information or content that we deem to be unlawful, harmful, unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, profane, obscene, or otherwise objectionable, including, without limitation any pornographic content, excessively profane content, hate-related or violent content, or any content advocating racial or ethnic intolerance;
  • content intended to advocate or advance computer hacking or cracking;
  • content related to or enabling gambling;
  • content relating to other illegal activity, including without limitation illegal export of controlled substances or illegal software or drug paraphernalia;
  • phishing;
  • malicious content;
  • may constitute or contribute to a crime or tort or that contains other material, products or services that violate or encourage conduct that would violate any criminal laws, any other applicable laws, or any third-party rights
  • may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to you, to any other person, or to any animal;
  • may create a risk of any other loss or damage to any person or property;
  • seeks to harm or exploit children by exposing them to inappropriate content, asking for personal information details or otherwise;
  • contains any information or content that you do not have a right to make available under any law or under contractual or fiduciary relationships; or
  • contains any information or content that you know is not correct and current; or
  • violates any school or other applicable policy, including those related to cheating or ethics.

PROHIBITED ACTIONS

In addition to and/or as examples of the violations described in the Terms of Service as posted on the Website from time to time, you may not and may not allow any third party to:

  • Send, upload, distribute or disseminate or offer to do the same with respect to any unlawful, defamatory, harassing, abusive, fraudulent, infringing, obscene, or otherwise objectionable content through or using the FreshGrade Service;
  • Use the FreshGrade Service to conduct or forward pyramid schemes and the like;
  • Transmit content using the FreshGrade Service that may be harmful to minors;
  • Impersonate another person (via the use of an email address, through our mobile application or otherwise) or otherwise misrepresent your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity, including logging on to the FreshGrade Service using another user’s account credentials or pretending to be another user;
  • Transmit another party’s intellectual property or other proprietary information without such owner’s or licensor’s permission;
  • Use the FreshGrade Service to violate the legal rights (such as rights of privacy and publicity) of others;
  • Promote or encourage illegal activity;
  • Interfere with other users’ enjoyment of the FreshGrade Service;
  • Sell, trade, resell or otherwise exploit the FreshGrade Service for any unauthorized commercial purpose;
  • Modify, adapt, translate, or reverse engineer any portion of the FreshGrade Service;
  • Remove any copyright, trademark or other proprietary rights notices contained in or on the FreshGrade Service;
  • Reformat or frame any portion of the web pages that are part of the FreshGrade Service‘s administration display;
  • Use the FreshGrade Service in connection with illegal peer-to-peer file sharing;
  • Display any content on or through the FreshGrade Service that contains any hate-related or violent content or contains any other material, products or services that violate or encourage conduct that would violate any criminal laws, any other applicable laws, or any third party rights;
  • Modify the FreshGrade logo or any other FreshGrade marks;
  • Misusing the FreshGrade Service or using the FreshGrade for any purposes other than as intended (e.g., creating a FreshGrade account solely for the purposes of data storage and not to participate and use the FreshGrade Service);
  • Use the FreshGrade Service, or any interfaces provided in connection therewith, to access any FreshGrade products or services in a manner that violates the Agreement or other terms and conditions for use of such FreshGrade products or services;
  • copying, distributing, or disclosing any part of the FreshGrade Service in any medium, including without limitation by any automated or non-automated “scraping”;
  • using any automated system, including without limitation “robots,” “spiders,” “offline readers,” etc., to access the FreshGrade Service in a manner that sends more request messages to the FreshGrade servers than a human can reasonably produce in the same period of time by using a conventional on-line web browser (except that FreshGrade grants the operators of public search engines revocable permission to use spiders to copy publically available materials from our websites for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials);
  • transmitting spam, chain letters, or other unsolicited email;
  • attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the FreshGrade Service;
  • taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure;
  • uploading invalid data, viruses, worms, or other software agents through the FreshGrade Service;
  • collecting or harvesting any personal information, including account names, from the FreshGrade Service;
  • using the FreshGrade Service for any commercial solicitation purposes;
  • interfering with the proper working of the FreshGrade Service;
  • accessing any content on the FreshGrade Service through any technology or means other than those provided or authorized by the FreshGrade Service; or
  • bypassing the measures we may use to prevent or restrict access to the FreshGrade Service, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the FreshGrade Service or the content therein.

CONTACT

FreshGrade is provided by FreshGrade Education Inc.
In the United States:
1215 Main St, PMB 115-CA-123
Tewksbury, MA 01876

In Canada:
#460 Doyle Ave #603,
Kelowna, British Columbia, V1Y 0C2

Contact us by email: care@freshgrade.com

Effective Date: November 1, 2017

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