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TERMS OF SERVICE

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This Terms of Service agreement ("Agreement") is entered into between Classy Apps LLC, with offices in Colorado ("we," “us” or “our”), and the institution or other entity agreeing to these terms ("Customer"). This Agreement is effective as of the date Customer clicks the "Accept" button below or, if applicable, the date the Agreement is countersigned by us (the "Effective Date"). If you are accepting this Agreement on behalf of Customer, you represent and warrant that: (i) you have all requisite authority to legally bind Customer to this Agreement; (ii) you have read and understand this Agreement; and (iii) you agree, on behalf of Customer, to this Agreement.  If Customer has not accepted this Agreement, then Customer is not permitted to access or use the Services.  This Agreement governs all access to and use of the Services by Customer, Administrators and End Users.

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  1. Data Privacy. 

    • Data Collection and Use.  We will only collect Customer Data necessary to fulfill our duties as outlined in this Agreement and for the limited purposes set forth in our Privacy Policy.  We will use Customer Data only for the purpose of fulfilling our duties and providing services under this Agreement, for improving services under this Agreement, and for the limited purposes set forth in our Privacy Policy.  We will not use any Customer Data to advertise or market to students or their parents.  Advertising or marketing may be directed to Customer only if student information is properly de-identified.  We may use de-identified Customer Data for product development, research, or other purposes.  De-identified Customer Data will have all direct and indirect personal identifiers removed.  This includes, but is not limited to, name, ID numbers, date of birth, demographic information, location information, and school ID.  We will not attempt to re-identify de-identified Customer Data and will not transfer de-identified Customer Data to any party unless that party agrees not to attempt re-identification. 

    • No Data Mining.  We are prohibited from mining Customer Data for any purpose other than those agreed to by the parties.  Customer Data mining or scanning of user content for the purpose of advertising or marketing to students or their parents is prohibited.

    • Data Sharing.  Customer understands that we will rely on one or more subcontractors to perform services under this Agreement.  We agree to share the names of these subcontractors with Customer upon request.  All subcontractors and successor entities of ours will be subject to the terms of this Agreement.

    • Data Transfer or Destruction.  We will ensure that all Customer Data in our possession and in the possession of any subcontractors, or agents to which we may have transferred Customer Data, are destroyed or transferred to Customer under the direction of Customer when the Customer Data is no longer needed for its specified purpose, at the request of Customer.

    • Rights and License in and to Data.  The parties agree that all rights, including all Intellectual Property Rights, shall remain the exclusive property of Customer, and we have a limited, non-exclusive license solely for the purpose of performing our obligations as outlined in this Agreement.  This Agreement does not give us any rights, implied or otherwise, to Customer Data, content, or intellectual property, except as expressly stated in this Agreement.  This includes the right to sell or trade Customer Data.

    • Access.  Any Customer Data held by us will be made available to Customer upon request by Customer.

    • Security Controls.  We will store and process Customer Data in accordance with industry best practices.  This includes appropriate administrative, physical, and technical safeguards to secure Customer Data from unauthorized access, disclosure, and use.  We will conduct periodic risk assessments and remediate any identified security vulnerabilities in a timely manner.  We will also have a written incident response plan, to include prompt notification to Customer in the event of a security or privacy incident, as well as best practices for responding to a breach of personally identifiable information.  We agree to share our incident response plan with Customer upon request.

  2. Intellectual Property Rights.  As between the parties, we own all Intellectual Property Rights in the Services.  This Agreement does not grant Customer any Intellectual Property Rights, implied or otherwise, in or to the Services.

  3. FERPA. The parties acknowledge that Customer Data may include FERPA Records.  To the extent that Customer Data includes FERPA Records, Customer agrees that we will be considered a "School Official" under FERPA and will comply with FERPA.

  4. Administrators.  The Services allow Administrators to administer End User Accounts and access the Customer Data of Customer’s End Users.  Customer shall obtain and maintain all consents necessary from End Users to permit such administrative and data access authority of Administrators. Customer agrees that our responsibilities do not include the internal management or administration of the Services for Customer.

  5. Notices. We may provide notice to Customer under this Agreement by: (a) sending an email to the address designated by Customer to receive email notifications from us; or (b) posting a notice through the Services.  Customer may provide notice to us under this Agreement by sending an email to support@classcred.com.  Notice will be deemed received by a party (x) in the case of email, when the email is sent, regardless of whether the party to be notified has actually received the email or (y) in the case of notice by us through the Services, at the time the notice is posted.

  6. Changes to the Services.  We may modify, update or upgrade the Services at any time and temporarily suspend access to the Services for maintenance, upgrades, troubleshooting or similar purposes.  We may discontinue the Services at any time and for any reason and without liability to us.  Customer acknowledges that the Services might not be available in all territories or jurisdictions.

  7. Suspension.  We may, in our sole discretion, suspend access to any Account if: (a) we believe that this Agreement has been violated; (b) we are required to do so by any law, regulation, court order or other legal requirement; or (c) we believe that such suspension is reasonably necessary to prevent any death or injury to persons or loss or damage to property.

  8. Customer Obligations.  Customer shall: (a) maintain the confidentiality of all passwords and other login credentials associated with Accounts; (b) ensure that all activities under Accounts comply with the terms of this Agreement; (c) use reasonable efforts to prevent unauthorized use of and access to the Services or any Accounts; (d) notify us of any unauthorized use of or access to the Services or Accounts of which it becomes aware.  Customer is responsible for all acts and omissions of its Administrators and End Users and for all activity that occurs on Accounts.

  9. Technical Support.  Customer shall, at its own expense, use reasonable efforts to (i) address questions and complaints from End Users and third parties relating to Customer’s or End Users’ use of the Services and (ii) resolve support issues before escalating them to us.  If, despite such reasonable efforts, Customer is unable to resolve a support issue, then Customer may escalate the issue to us.

  10. Prohibited Activities.  Neither Customer, nor any Administrator or End User, shall: (a) sell or license the Services to a third party; (b) reverse engineer or attempt to gain unauthorized access to the source code of the Services; (c) use the Services for any unlawful or fraudulent purpose; (d) do anything to impair the intended operation of the Services; (e) attempt to expose the Services to any virus or other malicious code or technology; (f) access or use the Services in an attempt to create a substitute or similar service; (g) access or use the Services in such a manner so as to avoid incurring Fees (including, without limitation, by allowing more than one End User to access an End User Account); or (h) use the Services in any activity where use or failure of the Services could lead to death, injury or property damage.

  11. Payments.  Customer shall pay all Fees for the Services at the time such Fees are due.  Unless otherwise expressly agreed by us in writing, Fees for any Subscription Period are due in advance of such Subscription Period.  Customer shall make all payments in U.S. dollars via the payment method prescribed by us.  Customer authorizes us to charge Customer’s method of payment at any time Fees become due.  Fees are exclusive of Taxes.  Customer is responsible for all Taxes related to its use or purchase of the Services and agrees to pay all such Taxes when due.  Customer shall pay all Fees in full without withholding, reduction or setoff of any kind.  All Fees are non-refundable.  Any free period or trial access to the Services is limited to the time period, and subject to the conditions, designated by us and, following such free period or trial access, Customer’s use of the Services will be subject to Fees.

  12. Changes to Fees. We may change our Fees at any time by providing Customer with notice of the change at least 30 days before to the start of the Subscription Period to which such change in Fees applies.

  13. Term and Termination.  This Agreement commences on the Effective Date and continues until terminated in accordance with this Agreement.  Either party may terminate this Agreement upon written notice to the other party, if such other party materially breaches this Agreement and fails to cure sure breach within 30 days following receipt of written notice of such breach from the non-breaching party.  Customer may terminate this Agreement for convenience by providing no less than 30 days prior written notice to us; provided, however, that Customer will remain obligated to pay any Fees for Services which Customer has purchased applicable to the remainder of the then-current Subscription Term for those Services.

  14. Effect of Termination.  Upon termination of this Agreement: (i) all rights granted by one party to the other party under this Agreement will cease immediately (except rights that expressly survive such termination as set forth in this Agreement); (ii) Customer’s access (and its Administrators’ and End Users’ access) to Accounts and the Services will cease immediately; and (iii) all Fees owed by Customer to us will become immediately due and payable.  Customer acknowledges that Customer, and its Administrators and End Users, will no longer have access to Customer Data through the Services upon termination of this Agreement and that we will have no obligation to retain any Customer Data following termination of this Agreement.

  15. Disclaimers. THE SERVICES ARE PROVIDED TO CUSTOMER "AS IS" AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, WE, ON OUR OWN BEHALF AND ON BEHALF OF OUR AFFILIATES, LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SERVICES, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, WE PROVIDE NO WARRANTY, AND MAKE NO REPRESENTATION OF ANY KIND THAT THE SERVICES WILL MEET YOUR SPECIFIC REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS, OR BE ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.

  16. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER THIS AGREEMENT FOR: (a) PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION, OR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES; OR (b) DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED THE GREATER OF FIVE HUNDRED DOLLARS OR THE AMOUNT PAID BY CUSTOMER TO US DURING THE TWELVE MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY.  THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR WE WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  Nothing in this Agreement excludes or limits either party’s liability for matters for which liability cannot be excluded or limited under applicable law.

  17. Assignment. Customer shall not transfer its rights or obligations under this Agreement without our consent, and any attempted transfer will be null and void.  We may transfer our rights and obligations under this Agreement to a third party.  Neither Customer, nor any Administrator or End User, may transfer an Account without our prior written consent.

  18. Force Majeure. Except for payment obligations, neither party will be liable for delayed performance under this Agreement to the extent caused by circumstances outside of such party’s reasonable control (for example, natural disaster, pandemic, riot, act of terrorism, armed conflict, labor condition, governmental action or Internet disturbance).

  19. Governing Law; Venue. This Agreement is governed by and construed in accordance with the internal laws of the State of Colorado without giving effect to any choice or conflict of law provision or rule; and (b) any legal suit, action, or proceeding arising out of or related to this Agreement shall be instituted exclusively in the federal courts of the United States or the courts of the State of Colorado in each case located in the City and County of Denver. Notwithstanding the foregoing, if Customer is a city, county, or state government entity, then the parties agree that the immediately preceding sentence regarding governing law and venue shall not be included in this Agreement.  Nothing in this Agreement prevents either party from seeking equitable relief in any court of competent jurisdiction.

  20. Miscellaneous.  If any part of this Agreement is unenforceable, the rest of this Agreement will remain in force and effect. Any amendment or waiver to this Agreement must be in writing and signed by us.  If we fail to enforce any aspect of this Agreement, or if we operate in any manner that is inconsistent with any aspect of this Agreement, it will not be a waiver or affect our rights under this Agreement.  We reserve all rights not expressly granted to Customer.  The remedies set forth in this Agreement are cumulative and are in additional to any other remedies available at law or in equity.  There are no third-party beneficiaries to this Agreement. This Agreement is the entire agreement of the parties relating to its subject matter and supersedes any prior or contemporaneous agreements or representations related to its subject matter. This Agreement may be executed in counterparts, including PDF or other electronic copies, which taken together will constitute one instrument.

  21. Survival. The following Sections will survive any expiration or termination of this Agreement: 1 (Data Privacy), 2 (Intellectual Property Rights), 5 (Notices), 14 (Effect of Termination), 15 (Disclaimers), 16 (Limitation of Liability), 17 (Assignment), 18 (Force Majeure), 19 (Governing Law; Venue), 20 (Miscellaneous), 21 (Survival) and 23 (Definitions).

  22. Modifications to this Agreement.  We may modify this Agreement at any time.  If we make any such modifications, we will notify Customer.  Such modifications will become effective 30 days after we provide such notice.  If, within such 30-day period, Customer notifies us that Customer does not agree with this Agreement, as modified, then Customer’s use of the Service will remain governed by this Agreement, as unmodified, until the end of the then-current Subscription Period.   If Customer renews the Subscription Period, however, then this Agreement, as modified, will govern Customer’s use of the Services commencing upon such renewed Subscription Period.  Notwithstanding the foregoing, we will not change how Customer Data is collected, used, or shared under the terms of this Agreement in any way without advance notice to and consent from Customer.

  23. Definitions.  For purposes of this Agreement, in additional to terms defined elsewhere in this Agreement, the following terms have the following meanings:

  • “Account” means any Administrative Account or End User Account.

  • "Administrative Account" means an administrative account provided to Customer by us for administration of the Services.

  • "Administrator" means an individual designed by Customer who, through an Administrative Account, administers the Services to End Users on Customer’s behalf.

  • "Customer Data" means any data submitted, stored, sent or received via the Services by Administrators or End Users.  Customer Data includes student data, metadata and user content.

  • "End User" means an individual, other than an Administrator, whom Customer permits to access and use the Services.

  • "End User Account" means an account established through the Services for an End User.

  • "Fees" means the amounts invoiced to Customer by us for Customer’s subscription to the Services.

  • "FERPA" means the Family Educational Rights and Privacy Act (20 U.S.C. 1232g) and the Family Educational Rights and Privacy Act Regulations (34 CFR Part 99), as amended or otherwise modified from time to time.

  • “FERPA Records” means personally identifiable information from education records that are subject to FERPA.

  • "Intellectual Property Rights" means any and all intellectual property rights in any jurisdiction throughout the world, including, without limitation, rights under patent law, copyright law, trade secret law, trademark law, moral rights law, database rights law, and other similar rights.

  • "Services" means the ClassCred services provided by us and used by Customer under this Agreement.

  • “Subscription Period” means a particular period of time for which Customer has purchased a subscription to access and use the Services.  Subscription Periods are monthly unless otherwise agrees by us.

  • "Taxes" means any and all sales, use, excise, VAT, gross receipt or similar taxes, and all duties, customs fees or similar charges, associated with the sale of the Services, including any related penalties or interest.  Taxes, however, do not includes taxes on our income.

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