Terms of Use

Last Modified: August 22, 2017


Acceptance

Welcome to TenMarks Education, LLC.'s website. These Terms of Use govern your use of www.tenmarks.com, www.10marks.com, and any successor websites of the foregoing, any TenMarks Education software, downloaded from the TenMarks website or obtained elsewhere, and all of the services made available on the TenMarks website (the "Programs"). By using the Programs, you acknowledge that you have read, understood, and agreed to be bound by these Terms of Use and any modifications that may be made to these Terms of Use from time to time. In addition, to the extent our Programs require you to set up an account with a password, if you are designated as the teacher, parent or legal guardian in the account, or are otherwise the person who first registers for the Programs, you agree to be responsible for ensuring that all users on your account comply with these Terms of Use and any modifications that may be made to the Terms of Use from time to time. If you do not agree to these Terms of Use, you should not use the Programs. These Terms of Use constitute a binding legal agreement between you and TenMarks Education, LLC. ("TenMarks," "we," "us," and "our"). If you are using the Programs, on behalf of any entity, you represent and warrant that you are authorized to accept these Terms of Use on such entity's behalf, and that such entity agrees to indemnify you and TenMarks for violations of these Terms of Use. Please read these Terms of Use carefully before accessing or using the Programs.


Modifications

We reserve the right to modify these Terms of Use at any time and in any manner at our sole discretion. Notice of any modification of these Terms of Use will be posted in this section of the TenMarks website, and any such modifications will be effective upon the posting of such notice. Your continued use of the Programs constitutes your binding acceptance of such modifications. Please check this section of the TenMarks website before using the Programs to determine whether a change has been made to these Terms of Use. If you do not agree to any changes in the Terms of Use as they may occur, please arrange to terminate your registration with the TenMarks website immediately and discontinue your use of the Programs. You agree that we are not liable to you or to any third party for any modification of the Terms of Use.


Registration

Before you can use certain parts of the Programs, you may be required to register an account through the TenMarks website. You must be 18 years of age or older, or have the consent of a parent or legal guardian to register for a TenMarks account. You may, also, add or register additional users to use the Programs, who are younger than 18 years old, but only if you are such users' parent or legal guardian, or are an authorized school official. You agree to provide true, accurate, current, and complete information about yourself and the users of the account as prompted by the TenMarks website's registration form (such information, being the "Registration Data"), and you agree to maintain and promptly update the Registration Data to keep it true, accurate, current, and complete. If you provide any information that is untrue, inaccurate, not current, or incomplete, or we have any reasonable grounds to suspect that such information is untrue, inaccurate, not current, or incomplete, we may suspend or terminate your account and refuse to offer you any and all current or future use of the Programs. You agree that, if you provide any personally identifiable information about a child under age 13 in order to allow them to use the Programs, that you are the parent/ legal guardian of such child or are an authorized school official and that you consent to the child's use of the Programs and agree to be bound to these Terms of Use with respect to the child's use. You understand that the privacy policy will apply to the child's use of the Programs. You are responsible for maintaining the confidentiality of your account and password and for restricting access to your computer. You are solely responsible for any activity related to your account. If you suspect any unauthorized use of your account, notify us immediately. You acknowledge and agree that we may preserve user information and may also disclose user information, if required to do so by law or if we believe, in good faith, that such preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce these Terms of Use; (c) respond to claims that any Content violates the rights of third parties; or (d) protect the rights, property, or personal safety of TenMarks, its users, or the public. Without limiting the foregoing, parents and legal guardians understand that they are responsible for the acts and activities of their minor children in connection with any use of the Programs, and that the privacy policy will apply to their family's use of the foregoing.


Fee Based Purchases

Some parts of the Programs may be offered to you on a fee basis. From time to time, we may offer different Programs, and the fees for such Programs may vary. All fees are quoted and must be paid in U.S Dollars. If you elect to make a fee-based purchase and transmit to TenMarks a purchase request, you warrant that your use of the particular credit card or other TenMarks accepted payment method is authorized and that all information that you submit to TenMarks, or any third party designated by TenMarks, is true and accurate (including, without limitation, your credit card number and expiration date), and you agree to pay all fees, including any applicable sales taxes, you incur. If you are using the Programs on behalf of a tax exempt entity, you can find instructions for requesting a tax refund on the Amazon Tax Exemption Program website. Any account name, password, or user ID supplied to you in connection with any fee-based purchase is personal to you, and you may not transfer or make available your account name, password, or user ID to others. Any distribution by you of such account name, password, and/or user ID may result in cancellation of the fee-based part of the Programs without refund and the imposition of additional charges based on your unauthorized use.


Content

The Programs may allow you and other third parties to post data, text, code, messages, opinions, advice, statements, reviews, comments, and other materials and information (collectively, "Content"). All Content, whether publicly posted on or privately transmitted via the Programs, is the sole responsibility of the person from whom the Content originated and not of TenMarks, or its shareholders, directors, officers, or employees. TenMarks may review and delete any Content, in whole or in part, that in the sole judgment of TenMarks violates these Terms of Use or that might be offensive, illegal, or that might violate the rights of or harm any third parties. Nonetheless, under no circumstances will TenMarks or its stockholders, directors, officers, employees, agents, representatives, partners, or affiliates be held liable for any loss or damage caused by your reliance on Content obtained through the Programs. It is your responsibility to evaluate the Content available through the Programs. Although Content will not be pre-screened or reviewed, we reserve the right to refuse or delete any Content. DO NOT SUBMIT OR DISTRIBUTE ANY UNSOLICITED SUBMISSIONS; NO IMPLIED CONTRACT. TenMarks likes to hear from you. However, please do not send to TenMarks any creative or original materials such as ideas for software products, games, or other products, or any other creative suggestions, ideas, notes, drawings, concepts or other information. TenMarks shall be free to use any such ideas, concepts, know-how, or techniques contained in any communication you send to the TenMarks website for any purpose whatsoever, including but not limited to developing, manufacturing and marketing products using such information and shall not be liable to you or to any person claiming through you for any exploitation or disclosure of any submission.


Licenses

When you post Content (which, for purposes of this Licenses section, shall not include anything generated by students), you hereby grant (or warrant that the owner of the Content grants) us and each user of the Programs a royalty-free, perpetual, irrevocable, fully sublicensable, worldwide, non-exclusive right to use, reproduce, modify, translate, adapt, publish, create derivative works of, transmit, distribute, perform, display, delete (in whole or in part), and incorporate the Content for any purpose and without acknowledgement to you. By posting or providing Content, you represent and warrant that public posting and use of your Content by us and any of our users will not infringe on or violate the rights of any third party. In addition subject to the terms of this Agreement, we grant to you a limited, personal, non-exclusive, non-transferable license to use the Programs to the extent you have the right to do so. Your right to access the Programs will be limited by the terms of this Agreement. Except for this license granted to you, we retain all right, title, and interest in and to the Programs, including all related intellectual property rights. The Programs are protected by applicable intellectual property laws, including United States copyright law and international treaties. Except as otherwise explicitly provided in this Agreement or as may be expressly permitted by applicable law, you will not, and will not permit or authorize third parties to: (a) reproduce, modify, translate, enhance, decompile, disassemble, reverse engineer, or create derivative works of the Programs; (b) rent, lease, or sublicense the Programs or otherwise assign any rights to the Programs in whole or in part; nor (c) circumvent or disable any security or technological features or measures in the Programs. You may not export or re-export the Programs without (a) the prior written consent of TenMarks; and (b) complying with applicable export control laws and obtaining any necessary permits and licenses.


Usage Guidelines and Restrictions

You agree not to use the Programs to:


1) upload, post, e-mail, or otherwise transmit any Content that contains personally identifying information (such as actual names, phone numbers, mailing addresses, e-mail addresses and URL), unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically, or otherwise objectionable;


2) harm minors in any way or write comments that in any way refer to person(s) under 18 years of age;


3) impersonate any person or entity, or otherwise misrepresent your affiliation with a person or entity;


4) upload, post, e-mail, or otherwise transmit Content that you do not have a right to transmit under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships, or under nondisclosure agreements);


5) upload, post, e-mail, or otherwise transmit Content that infringes any patent, trademark, trade secret, copyright, or other proprietary rights ("Rights") of any party;


6) upload, post, e-mail, or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other forms of solicitation;


7) upload, post, e-mail, or otherwise transmit any material that contains software viruses or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment;


8) interfere with or disrupt the Programs, or servers or networks connected to the Programs, or disobey any requirements, procedures, policies, or regulations of networks connected to the Programs;


9) intentionally or unintentionally violate any applicable local, state, national, or international law, "stalk" or otherwise harass another, or collect or store personal data about other users;


10) use any automated means to access the Programs or collect any information from the Programs (including, without limitation, robots, spiders, or scripts); or


11) frame the Programs, utilize framing techniques to enclose any service mark, logo, or other proprietary information, place pop-up windows over its pages, or otherwise affect the display of its pages. This means, among other activities, that you must not engage in the practices of "screen scraping," "database scraping," or any other activity with the purpose of obtaining lists of users or other information.


Termination

You agree that TenMarks, in its sole discretion, may terminate your password, account (or any part thereof), and use of the Programs, and remove and discard any Content within the Programs, for any reason, including, without limitation, for lack of use or if TenMarks believes that you have violated or acted inconsistently with the letter or spirit of these Terms of Use. TenMarks may also in its sole discretion and at any time modify or discontinue providing the Programs, or any part thereof, with or without notice. You agree that any modification or termination of your access to the Programs may be effected without prior notice, and you acknowledge and agree that TenMarks may immediately deactivate or delete your account and all related information and Content in your account and bar any further access to such information or to the Programs. If we terminate your access to a fee-based part of the Programs, we will give you a prorated refund based on the number of days remaining in your license or subscription. However, we will not give any refund for termination related to conduct that we determine, in our discretion, violates these Terms of Use or any applicable law, involves fraud or misuse of the license, or is harmful to our interests or another user. You agree that TenMarks shall not otherwise be liable to you or any third party for any modification or termination of your access to the Programs.


Privacy

Any information submitted to the Programs is subject to our Privacy Policy, the terms of which are incorporated into these Terms of Use. Our Privacy Policy may be found by clicking Privacy Policy here. Please review our Privacy Policy carefully.

End User Consent. If you are using the Programs on behalf of a school, your administrator, principal, and teacher accounts may have the ability to access, monitor, use, or disclose data related to your personnel's and students' ("End Users") use of the Programs. You will obtain and maintain all required consents from End Users to allow: (i) your access, monitoring, use, and disclosure of this data and our providing you with the ability to do so, and (ii) your End User’s use of the Programs.

Student Data Privacy Laws. We will comply with the provisions of student data privacy laws applicable to our provision of the Programs to you under these Terms of Use.

FERPA. For purposes of the provision of the Programs, we will be considered a "school official" with "legitimate educational interests" in personally identifiable information from education records regulated by the Family Educational Rights and Privacy Act ("FERPA") and its implementing regulations. We will abide by the limitations and requirements imposed by 34 CFR 99.33(a) on school officials. We will not use or disclose student education records regulated by FERPA without consent of the parent or eligible student, except as necessary to provide the Programs or to comply with the law or requests of a governmental or regulatory body (including subpoenas or court orders). We will give you reasonable notice of a request of a governmental or regulatory body to allow you to seek a protective order or other appropriate remedy (except to the extent our compliance with the foregoing would cause us to violate a court order or other legal requirement).


Disclaimers of Warranties; Limitations on Liability

The Programs (including all Content) are provided "as is"; TenMarks makes no representations or warranties of any kind with respect to the Programs, the Content, or any contents therein. TenMarks assumes no liability or responsibility for any errors or omissions in providing the Programs or the Content, any losses or damages arising from the use of the Content, or any conduct by users of the Programs. TENMARKS EDUCATION, INC. EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES RELATING TO THE PROGRAMS AND THE CONTENT, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, AUTHENTICITY, TITLE, AND NON-INFRINGEMENT. In addition, TenMarks does not represent or warrant that the information on or accessible via the Programs is complete, current or will be updated or corrected. TenMarks does not warrant, endorse, guarantee, or assume responsibility for any product or service advertised or offered by a third party through the site or any hyperlinked site or featured in any banner or other advertising. While TenMarks attempts to make your access and use of the Programs safe, TenMarks cannot and does not represent or warrant that the Programs, or its server(s) are free of viruses or other harmful components; therefore, you should use industry recognized software to detect and disinfect viruses. TENMARKS EDUCATION, LLC.'S AND ITS AFFILIATES', SUPPLIERS', AND THEIR RESPECTIVE OFFICERS', DIRECTORS', STOCKHOLDERS', EMPLOYEES', AGENTS', AND REPRESENTATIVES' LIABILITY UNDER THESE TERMS OF USE IS LIMITED TO DIRECT, OBJECTIVELY MEASURABLE DAMAGES. TENMARKS EDUCATION, LLC. AND ITS AFFILIATES, SUPPLIERS, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, STOCKHOLDERS, EMPLOYEES, AGENTS, AND REPRESENTATIVES WILL NOT BE HELD LIABLE FOR ANY INDIRECT OR SPECULATIVE DAMAGES (INCLUDING, WITHOUT LIMITING THE FOREGOING, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, AND SPECIAL DAMAGES) INCLUDING, BUT NOT LIMITED TO, LOSS OF USE, BUSINESS INTERRUPTIONS, LOSS OF DATA, AND LOSS OF PROFITS, REGARDLESS OF WHETHER THESE PARTIES HAD ADVANCE NOTICE OF THE POSSIBILITY OF ANY SUCH DAMAGES. TENMARKS EDUCATION, INC.S' AND ITS AFFILIATES', SUPPLIERS', AND THEIR RESPECTIVE OFFICERS', DIRECTORS', STOCKHOLDERS', EMPLOYEES', AGENTS', AND REPRESENTATIVES' TOTAL LIABILITY TO YOU FOR ANY CLAIM ARISING OUT OF OR RELATING TO THE PROGRAMS, THE CONTENT, OR THESE TERMS OF USE, WHETHER IN CONTRACT OR IN TORT, SHALL NOT EXCEED $100 OR THE AMOUNTS PAID BY YOU TO US UNDER THIS AGREEMENT DURING THE 12 MONTHS BEFORE THE LIABILITY AROSE, WHICHEVER IS GREATER. EACH PROVISION OF THESE TERMS OF USE THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS UNDER THESE TERMS OF USE BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE FEES WE CHARGE, IF ANY, AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS OF USE. THE LIMITATIONS IN THIS SECTION WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY UNDER THESE TERMS OF USE. Some states do not allow the foregoing limitations of liability, so they may not apply to you. ANY AND ALL PORTIONS OF THIS DISCLAIMER SHALL AUTOMATICALLY APPLY TO ALL IMPROVEMENTS AND/OR AMENDMENTS AS THEY APPEAR IN THE PROGRAMS. If you are dissatisfied with the Programs, or with any terms, conditions, rules, policies, guidelines or practices of using the Programs, your sole remedy is to discontinue using the Programs.


Indemnity

You agree to indemnify and hold TenMarks or its stockholders, directors, officers, employees, agents, representatives, partners, or affiliates harmless from any loss, liability, claim, or demand, including reasonable attorneys' fees, arising out of, resulting from or connected with the use, modification, misinterpretation, misuse, or reuse by you of the Programs, or Content, including without limitation these Terms of Use.


Links and Advertising

We may provide, or third parties may provide, links to other websites or resources that are beyond our control. We make no representations as to the quality, suitability, functionality, or legality of any sites to which links may be provided, and you hereby waive any claim you might have against us, with respect to such sites. TENMARKS EDUCATION, LLC. IS NOT RESPONSIBLE FOR THE CONTENT ON THE INTERNET OR WEB PAGES THAT ARE CONTAINED OUTSIDE THE PROGRAMS. Your correspondence or business dealings with, or participation in promotions of, other users, advertisers, or partners found on or through the Programs, and any other terms, conditions, warranties, or representations associated with such dealings, are solely between you and such user, advertiser, or partner. You agree that we are not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such advertisers or partners on the Programs.


Governing Law

If you are using the Programs on behalf of any city, county or state government in the United States, these Terms of Use do not require any particular governing law or venue. If you are using the Programs on behalf of any other person or entity, these Terms of Use are governed by the laws of the State of Washington, without reference to its conflict of law rules. By using the Programs, you consent and submit to the exclusive jurisdiction and venue in the federal and state courts in King County, Washington, for any claim or dispute arising out of these Terms of Use or otherwise related to the Programs. If you use the Programs from other locations you are responsible for compliance with applicable local laws. If any portion of these Terms is held to be unenforceable, the unenforceable portion shall be construed in accordance with applicable law to the greatest extent possible and the remainder of the provisions shall remain in full force and effect.


Release

In the event that you have a dispute with one or more users of the Programs, you release TenMarks and its stockholders, directors, officers, employees, agents, representatives, partners, and affiliates from claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes. If you are a California resident, you waive California Civil Code - 1542, which says: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor."


Claims of Copyright Infringement

TenMarks respects the intellectual property rights of others, and requires that the people who use the Programs do the same. It is our policy to respond promptly to claims of intellectual property misuse. If you believe that your work has been copied and is accessible on the Programs in a way that constitutes copyright infringement, you may notify us by providing our copyright agent with the following information in writing:


1) the electronic or physical signature of the owner of the copyright or the person authorized to act on the owner's behalf;


2) identification of the copyrighted work that you claim has been infringed;


3) identification of the material that is claimed to be infringing and information reasonably sufficient to permit us to locate the material; your name, address, telephone number, and e-mail address;


4) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;


5) a statement made under penalty of perjury that the above information in your notice is accurate and that you are the copyright owner or are authorized to act on the copyright owner's behalf.


Our designated agent to receive notification of claimed infringement under the Digital Millennium Copyright Act ("DMCA") can be reached as follows:


Designated Agent: Sarah Brain
Address of Designated Agent: 4100 E. 3rd Ave, Suite 300, Foster City, CA 94404
E-mail Address of Designated Agent: info@tenmarks.com
Phone number of Designated Agent: + (1) 415-868-4450


After receiving a claim of infringement, we will process and investigate notices of alleged infringement and will take appropriate actions under the DMCA and other applicable intellectual property laws.


If you believe a copyright notice was submitted in error regarding your content, or if you contest the removal of allegedly infringing content, you may submit a counter-notice to TenMarks setting forth your good faith belief that such content was removed in error. In accordance with Sections 512(g)(2) and (3) of the DMCA, such counter-notice must set forth: (a) your full legal name, mailing address, telephone number and electronic or physical signature; (b) identification of the disputed material and its location on the Programs before removal; (c) a statement under penalty of perjury that the material was removed by mistake or misidentification; and (d) a statement that you consent to the jurisdiction of the Federal District Court where your address is located if your address is located in the U.S. or any judicial district in which we may be found if you are located outside the U.S., and that you will accept service of process from the person who provided the original complaint. TenMarks will process any counter-notices in accordance with DMCA requirements and its own internal policies and procedures.


Repeat Infringer Policy

In accordance with the DMCA and other applicable law, TenMarks has adopted a policy of terminating, in appropriate circumstances and at TenMarks's sole discretion, subscribers or account holders who are deemed to be repeat infringers. TenMarks may also at its sole discretion limit access to the Programs and/or terminate the accounts of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.


General

TenMarks's failure to act in a particular circumstance does not waive its ability to act with respect to that circumstance or similar circumstances. By using the Programs, you consent to receiving electronic communications from TenMarks. These communications will include notices about your account and information concerning or related to the Programs. You agree that any notice, agreements, disclosure, or other communications that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing. TenMarks is excused for any failure to perform to the extent that its performance is prevented by any reason outside of its control. In these Terms of Use, the word "including" shall be construed as if followed by the words "but not limited to." These Terms of Use, together with our Privacy Policy, comprise the entire agreement between you and TenMarks and supersede all prior agreements between the parties regarding the subject matter contained herein.


Questions

Please direct any questions regarding these Terms of Use to: termsofuse@tenmarks.com