GRADEPEN END USER LICENSE AGREEMENT ®
Effective Date: November 16, 2016
Welcome to Gradepen! We invite you to access our website and use the Gradepen service, but please note that your invitation is subject to your agreement with these Terms of Service. This document describes in detail your rights and our rights relating to the provision of the Service (as defined below), so please review these Terms carefully.
What Are the Terms of Service?
What Is the Gradepen Service?
The Gradepen Software (as defined below), the Gradepen service, and other products, services and websites hosted or made available by Gradepen, including the support pages are collectively referred to in these Terms as the “Service”. In exchange for being enabled to use the Service, you agree to abide by these Terms.
If This Is a Contract, Who Are the Parties?
You are one party to this contract. If you reside in the United States or Canada, then the other party to this contract is Gradepen Corporation, a corporation headquartered in California. If you reside outside of the United States and Canada, then the other party to this contract is Gradepen do Brasil Serviços de Aplicações Ltda., a company headquartered in the city of Recife, State of Pernambuco, Brazil (“Gradepen Brasil”). (Gradepen Corporation and Gradepen Brasil, as applicable, may be referred to in these Terms of Service as “Gradepen,” “we” and sometimes “us”).
Is This the Only Contract I Have with Gradepen?
It depends upon how you interact with the Gradepen service and our software applications. If you install the Gradepen Software on your computing devices, you may be asked to agree to an end user license agreement. If you use related Gradepen products or services (such as Gradepen’s website) or participate in our User Forum, you may also need to enter into a separate agreement with us (usually by clicking “accept” or “agree”).
Will These Terms of Service Ever Change?
Changes in these Terms are almost certain to happen, due to changes in our Service and the laws that apply to us and you. If we make a change, we’ll do our best to provide you with advance notice, although in some situations, such as where a change is required to satisfy applicable legal requirements, an update to these Terms may need to be effective immediately. We’ll announce changes here at our site. We will also try to explain the reasons for the change.
If we do update these Terms, you are free to decide whether to accept the updated terms or to stop using our Service (see “How is My Account Closed” below); your continued use of the Service after the effectiveness of that update will be deemed to represent your agreement with, and consent to be bound by, the new Terms. Except for changes made by us as described here, no other amendment or modification of these Terms shall be effective unless set forth in a written agreement expressly amending these Terms and bearing a written signature by you and us. For clarity, email or other communications will not constitute an effective written agreement for this purpose.
What Do I Have to do to Use the Gradepen Service?
First, you need to create an Gradepen service account. You create an account by providing us with an email address and creating a password. We refer to this as your “Account Information.” We encourage you to use a distinct and non-obvious password that is different from passwords you use for any other service. You are responsible for maintaining the accuracy, completeness and confidentiality of your Account Information, and you will be responsible for all activities that occur under your account, including activities of others to whom you have provided your Account Information. We will not be liable for any loss or damage arising from your failure to provide us with accurate information or to keep your Account Information secure. If you discover any unauthorized use of your Account Information or suspect that anyone may be able to access your private Content without authorization, you should immediately change your password and notify our Customer Support team.
Second, you will need to access your account through a web browser. Gradepen has no responsibility for the availability of the Internet and other telecommunication services necessary to access the Service.
Can I Share My Account with Someone Else?
Gradepen service accounts should not be shared. If you share your Account Information with anyone, that other person may be able to take control of the account, and we may not be able to determine who is the proper account holder. We will not have any liability to you (or anyone you share your Account Information with) as a result of your or their actions under those circumstances. We strongly urge you not to share your Account Information with anyone.
Once I Have an Account, What Are My Rights in the Gradepen Service?
Once your account is created and you accept these Terms, we grant you a limited, non-exclusive license to use the Service subject to these Terms, for so long as you are not barred from receiving the Service under the laws applicable to you, until you close your account voluntarily or until we close your account pursuant to these Terms. In addition, we grant you a personal, worldwide, royalty-free, non-assignable and non-exclusive license to use the Gradepen Software provided to you by or on behalf of Gradepen, for the sole purpose of enabling you to use the Gradepen Software and enjoy the benefit of the Service, subject to any applicable license terms provided with the Gradepen Software and these Terms, until your rights are terminated in accordance with such license and/or these Terms. You do not obtain any other right or interest in Gradepen or the Service.
What Is the License I Have to Grant to Gradepen?
In order to enable Gradepen to operate the Service, we must obtain from you certain limited license rights to process your Content so that technical actions we take in operating the Service are not considered legal violations. For example, copyright laws could prevent us from processing, maintaining, storing, backing-up and distributing your Content, unless you give us these rights. Accordingly, by using the Service and uploading Content, you are granting Gradepen a license to display, perform and distribute your Content and to modify (for technical purposes, e.g., making sure content is viewable on smart phones as well as computers and other devices) and reproduce such Content to enable Gradepen to operate the Service. You also agree that Gradepen has the right to elect not to accept, post, store, display, publish or transmit any Content in our sole discretion.
You agree that these rights and licenses are royalty free, worldwide and irrevocable, and include a right for Gradepen to make such Content available to, and pass these rights along to, others with whom Gradepen has contractual relationships related to the provision of the Gradepen service, solely for the purpose of providing such services, and to otherwise permit access to or disclose your Content to third parties if Gradepen determines such access is necessary to comply with its legal obligations.
If you elect to use any third party service or application that is integrated with Gradepen, you also agree that the licenses granted to Gradepen in the preceding paragraph shall apply to Content that is submitted or uploaded through such third party service or application. If the third party service or application you elect to use would access or extract Content, you grant Gradepen the right and license to enable third party access to and extraction of your Content. Gradepen does not assume any responsibility for, or liability on account of, the actions or omissions of such third party applications or service providers.
Inasmuch as we rely upon your rights to upload and distribute your Content, you represent and warrant to Gradepen that you have the unfettered legal rights and authority to submit your Content to Gradepen, to make any other user, publication or other distribution of that Content in your use of the Service, and to grant the rights granted to Gradepen under these Terms.
Finally, you understand and agree that Gradepen, in performing the required technical steps to provide the Service to our users, may make such changes to your Content as are necessary to conform and adapt that Content to the technical requirements of connecting networks, devices, services or media.
Are There Rules about What I Can Do on the Gradepen Service?
Yes. Your use of the Service must be in accordance with these Terms. When it comes to your use of the Service, you agree that you are responsible for your own conduct and all conduct under your account. This means all Content – such as text, images, and anything else you can think of, no matter what the form or technical structure (collectively, “Content”) – created, transmitted, stored or displayed in your account, is your sole responsibility as the person who created the Content or introduced it into the Service. This applies whether the Content is kept private, shared or transmitted using the Service or any third party application or services integrated with the Gradepen service. Our User Guidelines provide more specific details regarding prohibited conduct on the Service. If we find that any shared Content in your account violates our Terms of Service (including by violating another person’s intellectual property rights), we reserve the right to un-share or take down such content.
Will Gradepen Employees Look at My Content?
Will Anyone Else See My Content?
It is important to emphasize that the Content that you enter in your Gradepen account, for example the registration of a question, is temporarily private, ie only you can use the question for a limited period of six months, counting from the date the question registration. In this period only you can access the question to use it or to modify it, if you wish. After this period, the question will make accessible to all other Gradepen users, who will be able to use it for the preparation of their tests.
I’m Guessing Gradepen Has Some Rights Relating to the Service?
We do. They’re described here:
- Content Rights: while you own the Content you store within the Gradepen service (subject to third party rights), you acknowledge and agree that Gradepen (and our licensors) own(s) all legal right, title and interest in and to the Service, including, without limitation, all software comprising a part of the Service that is hosted on Gradepen’s servers and all Gradepen software deployed by you or a third party to enable capturing of Content, or any of the Gradepen software applications for compatible computing devices that enable access and use of the Service through such device (the “Gradepen Software”).
- Intellectual Property Rights: in agreeing to these Terms, you also agree that the rights in the Service and Gradepen Software, including all intellectual property rights, such as trademarks, patents, designs and copyrights, are protected by one or more of copyright, trademark, patent, trade secret and other laws, regulations and treaties, in addition to these Terms and any Separate Agreement. In particular, you agree to not modify, create derivative works of, decompile or otherwise attempt to extract source code from any Gradepen Software, unless you are expressly permitted to do so under an open source license, we give you express written permission or you are otherwise legally permitted to do so notwithstanding this prohibition.
- Right to Modify the Service: we retain the right, in our sole discretion, to implement new elements as part of and/or ancillary to the Service, including changes that may affect the previous mode of operation of the Gradepen service or Gradepen Software. We expect that any such modifications will enhance the overall Service, but it is possible that you may not agree with us. We also reserve the right to establish limits to the nature or size of storage available to you, the number of transmissions, the ability to send or receive email messages, the nature or size of any index or library information, the nature of, or your continued ability to access or distribute, your Content and other data, and impose other limitations at any time, with or without notice. You also acknowledge that a variety of Gradepen actions may impair or prevent you from accessing your Content or using the Service at certain times and/or in the same way, for limited periods or permanently, and agree that Gradepen has no responsibility or liability as a result of any such actions or results, including, without limitation, for the deletion of, or failure to make available to you, any Content. You agree that we shall not be liable to you or to any third party for any modification, suspension or discontinuance of any part of the Service. However, if you are a subscriber for a paid version of the Service (each a “Paid Service”) and find that any such modifications or interruption of the Paid Service adversely affects you, you may notify our Customer Support team, explain the adverse impact the modification has created and, if you desire, request a termination of your Paid Service. Upon receipt of any such request, we will endeavor to promptly remedy the adverse impact caused by the modification, extend the duration of your Paid Service subscription for a period of time equal to the interruption and/or refund a portion of your Paid Service subscription fee equal to the remaining unused term of the Paid Service subscription, as we determine appropriate.
- Right to Use Third-Party Software: Gradepen may from time to time include as part of the Service and Gradepen Software computer software supplied by third parties which is utilized by permission of the respective licensors and/or copyright holders on the terms provided by such parties. We provide information about some of this third party software here and within the particular Gradepen Software. Gradepen expressly disclaims any warranty or other assurance to you regarding such third party software.
- Right to Update Our Software: in connection with any modification of the Service, Gradepen may automatically download software updates on your computers and devices from time to time with the intention of improving, enhancing, repairing and/or further developing the Service. Gradepen will endeavor to provide you with the option of whether or not to install the update; however, in certain circumstances (e.g., security risks), Gradepen may require you to install the update to continue accessing the Service. In all cases, you agree to permit Gradepen to deliver these updates to you (and you to receive them) as part of your use of the Service.
How Does Gradepen Respond to Copyright or Other Intellectual Property Violations?
We respond to clear and complete notices of alleged infringement of copyright, trademark or other intellectual property laws that satisfy the requirements in these Terms (which we believe to comply with the United States Digital Millennium Copyright Act [www.copyright.gov] and other applicable laws). If you believe that your intellectual property rights have been violated, please notify our Compliance team according to the instructions provided by our IP Rights Compliance Program and we will investigate. Note that each owner of intellectual property is responsible for protecting their rights and taking any legal or other action they determine to be appropriate to do so, and Gradepen does not accept any obligation to take any particular action to enforce or protect any party’s intellectual property rights on their behalf.
Can studants Use Gradepen?
Where Does My Data Go?
How is My Account Closed?
You may simply stop accessing your account for six continuous months, so our system will suspend your account after this period of inactivity. If you do not access your account for a period of one year, your account will be blocked. If you wish to reactivate it simply send an email to firstname.lastname@example.org, requesting the unlocking of the email associated with the account. Remember that your registered content (registered questions) become accessible to other users after six months.
Gradepen may take action to temporarily limit your use of the Service, suspend access to your account, or close your account, with or without notice according to these Terms. Reasons for Gradepen suspending or closing your account may include, without limitation: (i) breach or violation of these Terms (including the User Guidelines) or any Separate Agreement, (ii) an extended period of inactivity (determined in Gradepen’s sole discretion), (iii) your nonpayment of any fees or other sums due Gradepen or any other party related to your use of the Service, (iv) the discontinuance or material modification of the Service (or any part thereof) or (v) unexpected technical or security issues or problems or extensive Unsupported Use.
If your account is suspended, we'll send you a notification for the email you've added to your account.
If I Have a Great Idea to Share with Gradepen, What Are My Rights?
When you submit any ideas, suggestions, documents and/or proposals relating to the Service (or other products or services) to Gradepen through the “Contact Us,” User Forum or Support interfaces or through any other channel or mechanism (collectively, “Contributions”), you acknowledge and agree that: (i) your Contributions do not contain confidential or proprietary information; (ii) Gradepen is not under any obligation of confidentiality, express or implied, with respect to the Contributions; (iii) Gradepen shall be entitled to use or disclose (or choose not to use or disclose) such Contributions for any purpose, in any way; (iv) Gradepen may have something similar to the Contributions already under consideration or in development; (v) your Contributions automatically become the property of Gradepen without any obligation of Gradepen to you; and (vi) you are not entitled to any accounting, compensation or reimbursement of any kind from Gradepen under any circumstances.
Does Gradepen Serve Ads?
What Else Do I Need to Know?
- Third-Party Links, Content and Programming: wWe may include or recommend third party resources, materials and developers and/or links to third party websites, content and applications as part of, or in connection with, the Service. We may have little or no control over such sites or developers and, accordingly, you acknowledge and agree that (i) we are not responsible for the availability of such external sites, content or applications; (ii) we are not responsible or liable for any content or other materials or performance available from such sites or applications and (iii) we shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, materials or applications.
- Indemnity: You agree to indemnify and hold Gradepen, its subsidiaries, affiliates, officers, agents, employees, advertisers, Service Providers and other partners harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including legal and other professional fees) arising from or in any way related to any third party claims relating to your use of any of the Service, any violation of these Terms of Service or any other actions connected with your use of the Service (including all actions taken under your account). In the event of such claim, we will endeavor to provide notice of the claim, suit or action to the contact information we have for the account, provided that any failure to deliver such notice to you shall not eliminate or reduce your indemnification obligation hereunder.
- Limitation of Liability.: to the maximum extent permitted by law, the Service Is Available “As Is.” YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
- YOUR USE OF THE SERVICE AND THE PURCHASE AND USE OF ANY PRODUCTS OR SERVICES ARE ALL AT YOUR SOLE RISK. THE SERVICE IS PROVIDED AND PRODUCTS ARE SOLD ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, GRADEPEN EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
- GRADEPEN DOES NOT WARRANT THAT (i) THE SERVICE WILL MEET ALL OF YOUR REQUIREMENTS; (ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (iii) ALL ERRORS IN THE SOFTWARE OR SERVICE WILL BE CORRECTED.
- ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER OR OTHER DEVICE OR LOSS OF DATA RESULTING FROM THE DOWNLOAD OR USE OF ANY SUCH MATERIAL.
- NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM GRADEPEN OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS OF SERVICE. YOU EXPRESSLY UNDERSTAND AND AGREE THAT GRADEPEN, ITS SUBSIDIARIES, AFFILIATES, SERVICE PROVIDERS, AND LICENSORS, AND OUR AND THEIR RESPECTIVE OFFICERS, EMPLOYEES, AGENTS AND SUCCESSORS SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, COVER OR OTHER INTANGIBLE LOSSES (EVEN IF GRADEPEN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICE OR TO USE PROMOTIONAL CODES OR GRADEPEN POINTS; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, PRODUCTS, DATA, INFORMATION OR SERVICE PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (iii) UNAUTHORIZED ACCESS TO OR THE LOSS, CORRUPTION OR ALTERATION OF YOUR TRANSMISSIONS, CONTENT OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON OR USING THE SERVICE, OR PROVIDING ANY SERVICES RELATED TO THE OPERATION OF THE SERVICE OR RELATED TO THE GRADEPEN; (v) GRADEPEN’S ACTIONS OR OMISSIONS IN RELIANCE UPON YOUR ACCOUNT INFORMATION AND ANY CHANGES THERETO OR NOTICES RECEIVED THEREFROM; (vi) YOUR FAILURE TO PROTECT THE CONFIDENTIALITY OF ANY PASSWORDS OR ACCESS RIGHTS TO YOUR ACCOUNT INFORMATION; (vii) THE ACTS OR OMISSIONS OF ANY THIRD PARTY USING OR INTEGRATING WITH THE SERVICE OR OFFERING PRODUCTS THROUGH THE GRADEPEN MARKET; (viii) ANY ADVERTISING CONTENT OR YOUR PURCHASE OR USE OF ANY ADVERTISED OR OTHER THIRD-PARTY PRODUCT OR SERVICE; (ix) THE TERMINATION OF YOUR ACCOUNT IN ACCORDANCE WITH THE TERMS OF THESE TERMS OF SERVICE; OR (x) ANY OTHER MATTER RELATING TO THE SERVICE.
- Exclusions and Limitations: NOTHING IN THESE TERMS OF SERVICE (INCLUDING THE LIMITATION OF LIABILITY PROVISIONS) IS INTENDED TO EXCLUDE OR LIMIT ANY CONDITION, WARRANTY, RIGHT OR LIABILITY WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE CAUSED BY WILLFUL ACTS, NEGLIGENCE, BREACH OF CONTRACT OR BREACH OF IMPLIED TERMS, OR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, ONLY THOSE LIABILITY AND OTHER LIMITATIONS WHICH ARE LAWFUL IN YOUR JURISDICTION (IF ANY) WILL APPLY TO YOU AND OUR LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
- What Law Applies to My Use of Gradepen? If you are a resident of the United States or Canada, these Terms and the relationship between you and Gradepen (including any dispute) shall be governed in all respects by the laws of the State of California, United States of America, as they apply to agreements entered into and to be performed entirely within California between California residents, without regard to its conflict of law provisions.. If you reside outside of the United States and Canada, these Terms and the relationship between you and Gradepen (including any dispute) shall be governed in all respects by the laws of Brazil and shall be considered to have been made and accepted in Brazil, without regard to conflict of law provisions. If any provision of these Terms of Service is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the Terms of Service remain in full force and effect.
- What Do I Do If I Think I Have a Claim Against Gradepen? Let us Know About Your Complaint. We want to know if you have a problem so we encourage you to contact our Customer Support team if you have any concerns with respect to the operation of the Service or any Gradepen Software, as we want to ensure that you have an excellent experience.
- Initiating a Formal Claim: If you conclude that we have not satisfied your concern and that you must pursue legal action, you agree that your claim must be resolved by the processes set forth in these Terms. Gradepen provides the Service to you on the condition that you accept the dispute resolution provisions described below, so if you initiate any claim against Gradepen in any other manner, you shall be in violation of these Terms and you agree that Gradepen shall be entitled to have such action dismissed or otherwise terminated and you agree to reimburse Gradepen for its reasonable costs incurred in defending against such improperly initiated claim. You agree that prior to initiating any formal proceedings against Gradepen, you will send us a notice to our attorneys at legal notice AT Gradepen DOT com and state that you are providing a “Notice of Dispute.” Upon receipt of a Notice of Dispute, you and we shall attempt to resolve the dispute through informal negotiation within sixty (60) days from the date the Notice of Dispute is sent. If the dispute remains unresolved, either you or we may initiate formal proceedings according to these Terms. Except where our dispute is being resolved pursuant to an arbitration (as provided below), if you are a resident of the United States or Canada, you agree that any claim or dispute you may have against Gradepen must be resolved exclusively by a state or federal court located in San Mateo County, California. You agree to submit to the exclusive personal jurisdiction of the courts located within San Mateo County, California (and, for the avoidance of doubt, to exclude the jurisdiction of any other court) for the purpose of litigating all such claims or disputes. Except where our dispute is being resolved pursuant to an arbitration (as provided below), if you are not a resident of the United States and Canada, you agree that any claim or dispute you may have against Gradepen must be resolved exclusively by the courts in Recife, Brazil. You agree to submit to the exclusive personal jurisdiction of the courts located within Recife, Brazil (and, for the avoidance of doubt, to exclude the jurisdiction of any other court) for the purpose of litigating all such claims or disputes.
- Alternative Dispute Resolution Process: Unless you are subject to the Arbitration Agreement set out below, and subject to any applicable laws, if a claim arises between you and Gradepen where the total value of such claim is less than US$10,000, the party initiating the claim may elect to have the dispute resolved pursuant to a binding arbitration process that does not require attendance in person. This “Alternative Dispute Resolution Process” shall be initiated by either party sending notice to the other, in which event you and Gradepen agree to use our reasonable efforts to agree within thirty (30) days upon an individual or service to manage the Alternative Dispute Resolution Process (the “Arbitration Manager”) according to the following requirements: (i) neither party shall be required to attend any proceeding in person, (ii) the proceeding will be conducted via written submissions, telephone or online communications or as otherwise agreed upon, (iii) the fees for the Arbitration Manager will be borne equally by the parties or be submitted to the Arbitration Manager to determine as part of the dispute and (iv) the judgment rendered by the Arbitration Manager may be entered in any court of competent jurisdiction for enforcement. If you are a resident of the European Union (EU), please note that we offer this Alternative Dispute Resolution Process, but we cannot offer you the European Commission Dispute Platform as we do not have an establishment in the EU.
- Arbitration Agreement
- If you reside in the United States or are otherwise subject to the US Federal Arbitration Act, you and Gradepen agree that any and all disputes or claims that have arisen or may arise between us - except any dispute relating to the enforcement or validity of your, our or either of our licensors’ intellectual property rights - shall be resolved exclusively through final and binding arbitration, rather than in court, except that you may assert claims in small claims court, if your claims qualify. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.
- Our arbitration proceedings would be conducted by the American Arbitration Association ("AAA") under its rules and procedures applicable at that time, including the AAA's Supplementary Procedures for Consumer-Related Disputes (to the extent applicable), as modified by our Arbitration Agreement. You may review those rules and procedures, and obtain a form for initiating arbitration proceedings at the AAA's website. The arbitration shall be held in the county in which you reside or at another mutually agreed location. If the value of the relief sought is US$10,000 or less, either of us may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on us subject to the arbitrator's discretion to require an in-person hearing. Attendance at an in-person hearing may be made by telephone by you and/or us, unless the arbitrator requires otherwise. The arbitrator will decide the substance of all claims in accordance with the laws of the State of California, including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different Gradepen users, but is bound by rulings in prior arbitrations involving the same user to the extent required by applicable law. The arbitrator's award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court possessing jurisdiction over the parties, except for a limited right of appeal under the Federal Arbitration Act.
- YOU AND GRADEPEN AGREE, AS PART OF THE ARBITRATION AGREEMENT, THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS PART OF ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. WE REFER TO THIS AS THE “PROHIBITION OF CLASS AND REPRESENTATIVE ACTIONS.” UNLESS BOTH YOU AND WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN YOUR OR OUR CLAIM WITH ANOTHER PERSON'S OR PARTY'S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE OR CLASS PROCEEDING. THE ARBITRATOR MAY ONLY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY'S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER GRADEPEN USERS.
- Except with respect to the Prohibition of Class and Representative Actions, if a court decides that any part of this Arbitration Agreement is invalid or unenforceable, the other parts of this Arbitration Agreement shall continue to apply. If a court decides that the Prohibition of Class and Representative Actions is invalid or unenforceable, then this entire Arbitration Agreement shall be null and void. The remainder of these Terms and this Section (What Do I Do if I think I Have A Claim Against Gradepen?) will continue to apply.
- Claims Are Time-Barred: You agree that regardless of any statute or law to the contrary or the applicable dispute resolution process, any claim or cause of action you may have arising out of or related to use of the Service or otherwise under these must be filed within one (1) year after such claim or cause of action arose or you hereby agree to be forever barred from bringing such claim. The provisions of this section, entitled “Claims Are Time-Barred” shall be deemed to constitute a separate written legally binding agreement by and between you and us.
- Special Notice for California Users: Under California Civil Code Section 1789.3, users of the Service from California are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210. You may contact us via email at legal notice contact AT Gradepen DOT com
A couple of final, but important, points. First, these Terms constitute the entire agreement between you and Gradepen and govern your use of the Service, except for, and then only to the extent that you have entered into a Separate Agreement. These Terms supersede any prior agreements or earlier versions of these Terms between you and Gradepen for the use of the Service as of the Effective Date indicated at the top of these Terms. If, through accessing or using the Service, you utilize or obtain any product or service from a third party, you may additionally be subject to such third party’s terms and conditions applicable thereto, and these Terms shall not affect your legal relationship with such third party.
Second, you acknowledge and agree that each affiliate of Gradepen shall be a third party beneficiary to these Terms and that such other companies shall be entitled to directly enforce, and rely upon, any provision of these Terms which confers a benefit on (or provides rights in favor of) them. Other than this, no other person or company shall be a third party beneficiary to these Terms.
Finally, the section headings in these Terms of Service are for convenience only and have no legal or contractual effect.
GRADEPEN DATA USAGE (Effective Date: November 16, 2016)
In order to function properly, Gradepen needs access to several different software components and services on your device, some of which contain your personal information. This article describes information our applications collect from your device, and how we use that information.
When you install, modify, or use the Gradepen application, you may see permission requests or alerts regarding all of the device capabilities the application could potentially use. For example, on Android you will see a long, generic, technical list of device capabilities upon installation of the app, while on iOS you will see device permission requests pop up as they are used in the app. Rather than list such permissions exhaustively, this article describes how each Gradepen application uses key device features that may access or use your personal information. Many of these capabilities may be turned on or off through your device settings or your Gradepen account settings.
- Hardware Identity: Gradepen stores your device's unique hardware identifiers (IMEI, SIM number, or other identifier) and description on our servers in order to:
- allow you to review and revoke devices from your account settings.
- enable promotional account upgrades.
- calculate anonymous aggregate statistics on the number of unique devices accessing the Gradepen service.
- Camera and Microphone: Gradepen uses the camera to read QRcode and test answer sheet.
- Payment for service (correction credits) will be made exclusively at the app store (AppleStore or GooglePlay).
- At this moment the services offered by the website of Gradpen are promocinally free, so you can test and approve our system.
- Gradepen may from time to time make available, directly or through a third party, gift cards or promotional codes or coupons that are redeemable for correction credits, which may be valid for a limited period of time or not. A Promotional Code may specify an expiration date (“Expiration Date”), after which such Promotional Code shall be void. Gradepen is under no obligation to accept an expired or otherwise invalid or void Promotional Code. Promotional Codes have no cash value and, except where expressly permitted by Gradepen, are non-transferrable. Gradepen is under no obligation to provide any compensation in connection with a Promotional Code..
USER GUIDELINES (Effective Date: November 15, 2016)
The Gradepen team works hard to provide you with a service that makes you happier and more productive. We strive to give you a great experience by offering essential apps, making sure that your data is protected and being fully transparent about our data handling practices. In return, we ask that you respect the Gradepen Service and other users, and follow these rules about what not to do when you’re using the Service. Please remember that when you agreed to our Terms of Service (including these Guidelines), you agreed that you are responsible for any and all conduct and Content under your account.
You agree that when you use the Service:
- You Won’t Use Gradepen to Back Up Your Hard Drive or Do Other Things It’s Not Intended For. Gradepen is designed and built around to assist teachers in the elaboration and correction of school tests, while at the same time promoting less effort for elaboration / correction of the tests and higher quality of the content evaluated in the test. Gradepen is not designed for cloud backup, file synchronization, or file storage/archiving (“Unsupported Uses”). Examples of Unsupported Uses include systematically backing up a hard drive, storing a media library, automatically archiving emails or files, or maintaining large quantities of files for storage-only purposes. Using Gradepen for these purposes may result in you and/or other users having a significantly degraded Gradepen experience. The quality of your Gradepen experience depends on using Gradepen for its Intended Uses.
- You Won’t Use Gradepen for Anything Illegal or Promote Illegal Activities. So don’t do things like post instructions on how to assemble bombs; promote harm to any person, group of people (or animals, for that matter), or any governmental or legal entity; or stalk or harass anyone. This also means don’t violate laws or regulations applicable to you or the use of the Service. You, and not Gradepen, are responsible for complying with any laws or regulations applicable to the data in your account.
- You Won’t Violate Our Users’ Rights. Don’t invade another’s privacy, and don’t use someone’s personal data for commercial purposes or in some other manner that violates their rights or applicable laws. This also means you shouldn’t upload, post or otherwise transmit any Content that you don’t have a right to transmit under any law or under contractual or fiduciary relationships (e.g., inside information, confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements). Pornography or racist / homophobic content are also strictly prohibited, which can be punished by suspension or exclusion from your Gradepen account.
- You Won’t Annoy or Scam Our Users. Don’t upload, post or otherwise transmit any unsolicited or unauthorized advertising or promotional materials. Don’t try to solicit users’ passwords or personal information. This also means no engaging in commercial activities within the Service or on behalf of Gradepen without our prior approval (e.g., displaying a banner designed to profit you or any other business or organization or displaying banners for services that provide cash or cash-equivalent prizes to users in exchange for hyperlinks to their web sites). And don’t use the Service as a forwarding means to another website.
- You Won’t Violate IP Rights. Don’t upload, post or transmit Content that infringes the copyright, trademark or other intellectual property or proprietary rights of another party. And don’t take any action that would be in violation of Gradepen'sTrademark Brand Guidelines and Usage Requirements.
- You Won’t Mess With Our Service. Don’t ruin this for everyone. Don’t upload, promote or distribute software viruses or any other kind of computer code, files or programs that attempt to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment. Don’t interfere with our servers or networks connected to the Service, or with the services and networks of the Service Providers whose services we use to help deliver the Service. Don’t try to disguise the origin of any Content transmitted through the Service. Unless Gradepen has given you its prior approval, don’t access or attempt to access the Service by any means other than through the interface provided by Gradepen (including through the use of scripts, web crawlers or the like). And don’t use the Service in a manner that could lead to the interruption of access to the Service for others.
- You Won’t Attempt to Copy or Resell Our Service. Don’t try to reproduce Gradepen or otherwise try to exploit any part of, use of or access to the Service. This includes accounts for Gradepen Premium associated with a Sponsored Group (unless you have been specifically allowed to do so in a Separate Agreement). In addition, don’t attempt to prevent or impair the full and complete display of advertisements or other messaging within the Service.
- You Won’t Pretend to Be Someone You’re Not. Just be yourself. And in particular, don’t pretend to work at or be affiliated with Gradepen if that’s not true.
- You Won’t Exceed the Scope of Your Authorized Use. Don’t access or use features that you don’t have a right to use; don’t mess around with other users’ Content if they haven’t given you permission to do so.
- You should not create or use questions with objectionable content . Don’t upload, publish or display Content that contains nudity, sexually graphic material or racist / homophobic material; that Gradepen deems threatening, abusive, harassing, defamatory, libelous, obscene, invasive, hateful or racially, ethnically or otherwise objectionable; or that Gradepen determines is in conflict with your obligations under applicable local law or these User Guidelines.
While we hope that all users of the Gradepen service comply with these Guidelines, we must caution you that, notwithstanding these Guidelines and the requirements in our Terms of Service, you may be exposed to offensive, indecent or objectionable Content when using the Service. We expect that you understand this and, accordingly, you use the Service at your own risk.
If you encounter any of the prohibited uses listed above, or any other objectionable content, you may contact us at contact AT gradepen DOT com.
Thanks for helping to make Gradepen a great experience for everyone!
COOKIE INFORMATION (Effective Date: November 15, 2016)
What Are Cookies?
Cookies are small data files that a web site you visit may save on your hard drive. They usually include an anonymous unique identifier. A cookie cannot retrieve any other data from your hard drive or pass on computer viruses.
What Cookies and Similar Technologies Does Gradepen Use?
We describe in this document the cookies and similar technologies found on our Service. Please check back here periodically, as we may update this information from time to time.
- Functional Cookies
- Functional cookies are ones Gradepen sets to enable the website to work as intended. These cookies are necessary to enable you to move around our web site and use its features. We use other cookies to help recognize and remember you when you are logged into the Service so we can remember your settings and preferences, such as your language and region or your logged-in state. These cookies also may help us provide services you have asked for, such as watching a video or commenting on our user forum. These cookies do not track your browsing activity on non-Gradepen websites.
- We collect a unique ad tracking identifier (the Advertising Identifier or “IDFA” on Apple devices and the Google Ad ID or “AID” on Android devices) from your device. These identifiers are unique to your device but you can reset them or limit their use through your device settings. These identifiers do not contain your name or email address. We use these ad tracking identifiers together with our analytics technologies in order to inform our targeted advertising initiatives.
IP COMPLIANCE PROGRAM (Effective Date: November 15, 2016)
Owners of intellectual property rights that have a good faith belief that Content uploaded into Gradepen infringes their copyright, trademark or other intellectual property rights may notify our Compliance team by sending an e-mail to email@example.com a written notice to the appropriate address set forth below containing the following information:
- Identify the specific copyrighted work, trademark or other intellectual property that you believe has been infringed upon and, if you are asserting infringement of an intellectual property right other than copyright, the intellectual property right at issue (for example, trademark or patent);
- Identify the Web page URL(s) within the Service containing the copyrighted work or intellectual property that you claim has been infringed and, if possible, the contact information for the person you believe responsible for the infringing act in connection with that that work. Describe the content on the page(s) you believe infringes upon the work identified in item (a) above, including whether the content is a particular image (and describe it in detail) or written work (including the text of the copyrighted work).
- Include the statement: “I have a good faith belief that use of the materials described above as allegedly infringing is not authorized by the owner of the intellectual property rights therein, its agent or the law.”
- Provide your name, mailing address, telephone number and e-mail address.
- Provide a physical or electronic signature of the person authorized to act on behalf of the owner of the copyright, trademark or other intellectual property interest that is allegedly infringed.
- Provide a signed statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright, trademark or other intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
Please note that we may reproduce any legal notice we receive to send to a third-party for publication and annotation, and we may post your notice in place of any removed Content. We will respond and/or take action on all complete and qualified notices within 120 business hours of receiving your correspondence and reserve the right to communicate with you via email or other means.
Please consider carefully taking an action to initiate a claim, as there are consequences for filing a claim without justification. For example, under United States federal law, you may be liable for any damages, including costs and attorneys’ fees incurred by us or our users if you knowingly materially misrepresent that material or activity is infringing.