Terms of Use

Effective date: January 1, 2023

This Terms of Use is a legally binding contract between you and GradePro, Inc. (“GradePro,” “we,” or “us”) regarding your use of the GradePro mobile application made available and operated by us (the “Service”).

PLEASE READ THE FOLLOWING TERMS CAREFULLY. BY CLICKING “I AGREE” OR “SIGN IN,” OR BY PROVIDING CREDENTIALS TO USE THE SERVICE, YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THE FOLLOWING TERMS AND CONDITIONS, INCLUDING THE PRIVACY POLICY AND ANY OTHER DOCUMENTS MENTIONED HEREIN (TOGETHER, THESE “Terms”). If you are not eligible, or do not agree to these Terms, then you do not have our permission to use the Service.

These Terms provide that all disputes between you and GradePro with respect to your use of the Service will be resolved by BINDING ARBITRATION, to the fullest extent permitted under applicable law. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract, except for matters that may be taken to small claims court, to the fullest extent permitted under applicable law. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury, and your claims cannot be brought as a class action, to the fullest extent permitted under applicable law. Please review Section 25 (“Dispute Resolution and Arbitration”) for the details regarding your agreement to arbitrate any disputes with GradePro.

OTHER TERMS

  1. Binding on You. WHEN YOU ACCEPT THESE TERMS, YOU AGREE TO IT ON YOUR INDIVIDUAL BEHALF AND, IF YOU ARE AGREEING TO THESE TERMS ON BEHALF OF A CHILD, ON THE CHILD’S BEHALF.
  2. Eligibility. By agreeing to these Terms, you represent and warrant to us that: (a) you are of legal age to enter into a binding agreement; (b) you have not previously been suspended or removed from the Service; (c) your registration and your use of the Service is in compliance with all applicable laws and regulations; and (d) you have read and agree to our Privacy Policy, as further described in Section 13 below.
  3. Your Responsibility for Using the Service. To the fullest extent permitted by law, you assume all risk and GradePro is not responsible for any harm to you or others that may occur from your use of the Service. You may not access or use the Service for any other purpose than as permitted by GradePro under these Terms. Your access is subject to the discretion and control of GradePro under these Terms.
  4. Responsibility for Authorized Users. “Authorized User” means each individual user of the Service permitted to use the Service by you, including a minor child. For the avoidance of doubt, you are responsible and liable for all non-compliance with these Terms by your Authorized Users and any and all acts and omissions by the Authorized Users and their accounts in connection with the Service; the content and data transmitted to or from the Service by you or Authorized Users, or their accounts; and for the effects of any breach of security in connection with the activity of Authorized Users’ accounts in connection with the Service. You are solely responsible for your and the Authorized Users’ interactions with schools in connection with and separate from the Service. You are solely responsible for obtaining, installing, maintaining and operating all necessary software, hardware, and other equipment to use and access the Service. Neither the GradePro Group (defined below) nor licensees or licensors shall bear any responsibility or liability for interruption or non-performance of the Service or for loss and theft of personal data which results in connection with the aforementioned factors. You are solely responsible for any information, images, videos, or other content or materials you upload to or transmit through the Service (“Communications Data”).
  5. Accounts and Registration. To access most features of the Service, you must connect the Service to a school’s gradebook system. When you connect to the gradebook system, you may be required to provide us with some information about yourself, such as your gradebook system credentials. You agree that the information you provide to us is accurate and yours to properly use and that you will keep it accurate and up-to-date at all times. You are solely responsible for maintaining the confidentiality of your information and school gradebook system password and you accept responsibility for all activities that occur through your use of the Service. If you have reason to believe that your account is no longer secure, then you must immediately notify us at [email protected].
  6. Payment. Access to the Service, or to certain features of the Service, may require you to pay fees. Before you pay any fees, you will have an opportunity to review and accept the fees that you will be charged. All amounts are non-refundable, to the fullest extent permitted under applicable law. If GradePro changes the fees for the Service, including by adding additional fees or charges, GradePro will provide you advance notice of those changes. If you do not accept the changes, GradePro may discontinue providing the Service to you.
  7. Licenses
    1. Limited License. Subject to your ongoing compliance with these Terms, GradePro grants you and Authorized Users a limited, non-exclusive, non-transferable, non-sublicensable, revocable right to (i) install the mobile application(s) associated with the Service, and use such mobile applications so installed, solely in object code format on devices that you own or control, and (ii) access and use the GradePro platform solely through the mobile application(s) made available by GradePro, and for (i) and (ii) solely for personal, lawful use as permitted by these Terms.
    2. License Restrictions. Except and solely to the extent permitted by applicable law notwithstanding these restrictions, you may not at any time, directly or indirectly and may not permit any other person or entity to: (i) reproduce, distribute, publicly display, or publicly perform the Service or any part thereof; (ii) reverse engineer, decompile, or make modifications to the Service or any part thereof; or (iii) interfere with or circumvent any feature of the Service or any part thereof, including any security or access control mechanism. If you are prohibited under applicable law from using the Service, you may not use it.
    3. Reservation of Rights. GradePro reserves all rights not expressly granted to you in these Terms. Except for the limited rights and licenses expressly granted under these Terms, nothing in these Terms grants, by implication, waiver, estoppel, or otherwise, to you or any third party any intellectual property rights or other right, title, or interest in or to the GradePro intellectual property.
    4. Open Source Software. The Service may include or incorporate third party software components that are generally available free of charge under licenses granting recipients broad rights to copy, modify, and distribute such components (“Open Source Components”). Although the Service is provided to you subject to these Terms, nothing in these Terms will be deemed to prevent, restrict, or otherwise prevent or restrict you from obtaining such Open Source Components under the applicable third party licenses or to limit your use of such Open Source Components thereunder.
  8. Notifications and Automatic Alerts. Under some circumstances, GradePro may present you with notifications, prompts with links to additional information, or suggested actions based on GradePro’s analysis of your Communications Data and other information you have provided to GradePro. GradePro makes no representations or warranties about the accuracy, reliability, completeness, or timeliness of any push notifications. You accept that any reliance on these notifications will be at your own risk, and GradePro disclaims all liability arising from your use of them or reliance upon them. You agree that GradePro may send notifications to your mobile device for Service-related or marketing purposes, if they are enabled, provided that we do so in accordance with the GradePro Privacy Policy. You may turn off push notifications through your mobile device application settings.
  9. Prohibited Conduct. You may access and use the Service only for personal, lawful purposes. You are responsible for any transmission you send, receive, post, access, or store via our Service, including the content of any communication. By using the Service you agree not to, directly or indirectly, and may not permit any Authorized Users or any other person to:
    1. use or access the Service (i) from a jurisdiction where such use or access is not authorized, (ii) for any illegal purpose, or (iii) in violation of any local, state, national, or international law;
    2. conduct activities that may be harmful to others or that could damage GradePro’s reputation;
    3. violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third party intellectual property right, or violating any third party privacy right;
    4. post, upload, or distribute marketing or advertising links or content, or any other content that is unlawful, defamatory, libelous, inaccurate, or that a reasonable person could deem to be objectionable, profane, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate;
    5. use scrapers, robots, or other data gathering devices not provided by GradePro on or through the Service;
    6. interfere with security-related features of the Service, including by: (i) disabling or circumventing features that prevent or limit use or copying of any content; or (ii) reverse engineering, decompiling, or otherwise attempting to discover the source code of any portion of the Service, including the app(s), except to the extent that such activity is expressly permitted by applicable law notwithstanding this restriction;
    7. interfere with the operation of the Service or any user’s enjoyment of the Service, including by: (i) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (ii) making any unsolicited offer or advertisement to another user of the Service; (iii) attempting to collect personal information, or other information about another user or third party without their consent; or (iv) interfering with or disrupting any network, equipment, or server connected to or used to provide the Service, or violating any regulation, policy, or procedure of any such network, equipment, or server;
    8. perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation or accreditation, accessing any other Service account without permission, or falsifying your account registration information;
    9. modify, translate, or create derivative works, adaptations or compilations of, or based on, the Service or part thereof, or use, copy or reproduce the Service or any part thereof other than as expressly permitted in these Terms;
    10. use the Service during any activity that may distract you from safely using the Service; for example, using the Service while driving or operating machinery;
    11. use the Service for timesharing or service bureau purposes or otherwise for the benefit of a third party entity that is not affiliated with Customer; or
    12. attempt to do any of the acts described in this Section 3, or assist or permit any person in engaging in any of the acts described in this Section 3.
  10. Third Party Services and Linked Websites. Websites and services provided by third parties (including those of schools and school gradebook systems) are not under our control, and we are not responsible for any third party services or content or data received from them. GradePro does not endorse any information or data on linked sites or any associated organization, product or services or any school or school gradebook systems. GradePro makes no representations or warranties about the accuracy, reliability, completeness, or timeliness of any data received from schools or school gradebook systems to which you connect the Service. You accept that any reliance on this data will be at your own risk, and GradePro disclaims all liability arising from your use of or reliance upon the data. GradePro is not responsible for the acts or omissions of schools or school gradebook systems.
  11. Information on the Service. All information contained on the Service and through the Service is for personal use only and may not be sold, redistributed or used for any commercial purpose.
  12. Termination of Use; Discontinuation and Modification of the Service. You may terminate your use of the Service at any time. If you violate any provision of these Terms (including payment obligations), your permission from us to use the Service will terminate automatically. In addition, GradePro may in its sole discretion suspend or terminate your access to the Service at any time if you violate any provision of these Terms, if we no longer provide any part of the Service, or for another reason, with or without notice. We also reserve the right to modify or discontinue the Service at any time (including by limiting or discontinuing certain features of the Service), temporarily or permanently, without notice to you. To the fullest extent permitted under applicable law, we will have no liability whatsoever on account of any change to the Service or any suspension or termination of your access to or use of the Service. Upon the termination of your use of the Service, GradePro has no obligation (but may) to retain any information submitted through the Service.
  13. Privacy Policy; Additional Terms
    1. Privacy Policy. Please read the GradePro Privacy Policy carefully for information relating to our collection, use, storage and disclosure of your personal information. You explicitly consent to the collection, hosting, use, disclosure and other processing or handling of your personal information (including sharing data with third party providers) as described in the GradePro Privacy Policy.
    2. Credentials for Service Development and Operational Purposes. If you provide us with school gradebook system sign in credentials, you warrant that they are your credentials and you have the right to use those credentials and to provide them to us for the purposes of our development and operation of an interface to store and display the gradebook system data through the Service on your device and for customer service purposes, as more fully described in the GradePro Privacy Policy.
    3. Consent to Communications and Monitoring of Use of the Service. By providing us with your contact information and using the Service, you agree to receive email communications, SMS and other text messages, and push notifications from or on behalf of GradePro in connection with the Service at the email address and telephone number you provided and the mobile device on which you installed the Service. These messages may be for informational purposes, such as to provide you with the information you requested, to seek Feedback (defined below) from you regarding the Service, or to send messages relating to: failed sign ins, notifications and reminders relating to grades, and updates to services and terms of service of GradePro.

      If you wish to opt out of marketing emails from us, you can unsubscribe by following the unsubscribe options in the marketing email itself. You understand and agree that you may continue to receive communications while GradePro processes your opt-out request, and you may also receive a communication confirming the receipt of your opt-out request.
    4. Additional Terms. You acknowledge that your use and the use by Authorized Users of the Service is subject to all additional terms, policies, rules, or guidelines to the extent applicable to the Service or certain features of the Service that we may post on or link to from the Service from time-to-time (the “Additional Terms”), such as end-user license agreements for any downloadable software applications, our informed consent forms, if applicable, or rules that are applicable to a particular feature or content on the Service, subject to Section 14. All Additional Terms are incorporated by this reference into, and made a part of, these Terms (as applicable).
  14. Modification of these Terms. We reserve the right, at our discretion, to change these Terms at any time. The updated Terms will be published on our website. If a change to these Terms modifies your rights and obligations, we may notify you through the Service. Modifications are effective upon publication. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose.
  15. Ownership; Proprietary Rights. The Service is owned and operated by GradePro. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, videos, content, information, Product Data (defined below), and all other elements of, collected by, or made available through the Service (“Materials”) provided by GradePro whether registered or unregistered, or pending application for registration in any other jurisdiction are protected by intellectual property and other laws. All Materials included in the Service are the property of GradePro or our third party licensors. Except as expressly authorized by GradePro, you may not make use of the Materials. GradePro reserves all rights to the Materials not granted expressly in these Terms. Nothing in these Terms is intended to transfer intellectual property rights to you. You further undertake and agree not to assert any rights of title of such intellectual property rights whether in law or equity in any jurisdiction.
  16. Usage Data. GradePro shall have the right to monitor and collect usage data about the use of the Service by you and Authorized Users and GradePro may use such usage data to provide and improve the Service, the Materials, content, GradePro’s other products and services, and to help ensure compliance with these Terms. You acknowledge and agree that all such usage data is owned exclusively by GradePro.
  17. Subcontractors. You hereby consent to GradePro’s engagement of third parties (including GradePro’s affiliates) to perform, provide, or support the performance or provision of, all or any portion of the Service.
  18. Feedback. If you choose to provide input or suggestions regarding your experience with the Service or its products or services (“Feedback”), then you hereby grant GradePro an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right to exploit such Feedback in any manner and for any purpose, including to improve the Service and create and improve other products and services.
  19. Indemnity. To the fullest extent permitted under applicable law, you will defend, indemnify, and hold harmless any and all of the GradePro, its affiliates and subsidiaries, and its and their officers, directors, employees, consultants, representatives, licensors, and agents (together, the “GradePro Group”) from and against any and all damages, liabilities, losses, fines, awards, penalties, obligations, judgments, and costs and expenses (including reasonable attorneys’ fees) (“Losses”) related to a third party (including a governmental authority) claim, demand, allegation, suit, proceeding, investigation, or other cause of action (“Claim”) relating to or arising out of, in whole or in part, (a) your access to, use of, or alleged use of, the Service; (b) your breach of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (c) your violation of any third party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; (d) any dispute or issue between you and any third party; (e) fraud, intentional misconduct, criminal acts, or negligence committed by you; or (f) any and all allegations made by your personnel, affiliates, subcontractors, and/or Authorized Users against us in connection with the Service. To the fullest extent permitted under applicable law, we reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of that claim.
  20. Disclaimers; No Warranties. THE SERVICE AND ALL MATERIALS, PRODUCTS, AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS, WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED. GRADEPRO GROUP DISCLAIMS, AND YOU HEREBY EXPRESSLY WAIVE, ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, RELATING TO THE SERVICE AND ALL MATERIALS, PRODUCTS, AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE; AND (C) ANY WARRANTY AS TO WHETHER THE MATERIALS, DATA, COMMUNICATIONS DATA, OR OTHER INFORMATION AVAILABLE THROUGH OR TRANSMITTED BY THE SERVICE IS TRUE, COMPLETE OR ACCURATE. THE GRADEPRO GROUP DOES NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.

    NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM GRADEPRO OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE GRADEPRO GROUP OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. YOU ASSUME ALL RISK FOR ANY HARM OR DAMAGE THAT MAY RESULT TO YOU FROM YOUR USE OF OR ACCESS TO THE SERVICE, YOUR DEALING WITH ANY OTHER SERVICE USER, AND ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE. YOU UNDERSTAND AND AGREE THAT YOU USE THE SERVICE, AND USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN MATERIALS OR CONTENT THROUGH THE SERVICE AND ANY ASSOCIATED SITES OR SERVICES, AT YOUR OWN DISCRETION AND RISK, AND THAT YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE), OR THE LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF THE SERVICE OR THE DOWNLOAD OR USE OF THAT MATERIAL OR CONTENT.

    THE ABOVE PARAGRAPHS APPLY TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW. SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES, IN PARTICULAR A DISCLAIMER OF WARRANTIES PROVIDED OR IMPLIED BY LAW, AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
  21. Limitation of Liability. IN NO EVENT WILL ANY OF THE GRADEPRO GROUP BE LIABLE TO YOU (OR ANY AFFILIATES, EMPLOYEES, OR AUTHORIZED USERS) FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, LOST DATA, REVENUES, OR PROFITS, GOODWILL, REPUTATION, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO THESE TERMS OR YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE THE SERVICE OR ANY MATERIALS, PRODUCTS, OR CONTENT AVAILABLE ON OR THROUGH THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY MEMBER OF THE GRADEPRO GROUP HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.

    THE AGGREGATE LIABILITY OF THE GRADEPRO GROUP TO YOU (AND ALL AFFILIATES, EMPLOYEES, AND AUTHORIZED USERS) FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THESE TERMS OR YOUR USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE, PRODUCTS SOLD THROUGH THE SERVICE, OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF (A) FEES PAID TO GRADEPRO DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CAUSE OF ACTION, OR (B) $8.

    SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. ACCORDINGLY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. FURTHERMORE, NOTHING IN THESE TERMS SHALL OPERATE TO LIMIT OR EXCLUDE ANY LIABILITY THAT CANNOT BE LIMITED OR EXCLUDED BY LAW.

    EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION 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. THE LIMITATIONS IN THIS SECTION 21 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
  22. Force Majeure. To the fullest extent permitted under applicable law, GradePro will be excused from performance under these Terms and shall not be liable for any period that it is prevented from or delayed in performing any obligations pursuant to these Terms, in whole or in part, as a result of a Force Majeure Event. For purposes of this section, “Force Majeure Event” means an event or series of events caused by or resulting from any of the following: (a) weather conditions or other elements of nature or acts of God; (b) acts of war, acts of terrorism, insurrection, riots, civil disorders or rebellion; (c) quarantines or embargoes, (d) labor strikes; (e) telecommunications, network, computer, server or Internet disruption or downtime; (f) unauthorized access to GradePro’s information technology systems by third parties; or (g) other causes beyond the reasonable control of GradePro.
  23. Governing Law and Venue. These Terms and your use of the Service are governed by the laws of the State of Texas without regard to conflict of laws principles. If a lawsuit or court proceeding is permitted under these Terms, then you and GradePro agree to submit to the exclusive jurisdiction of the state courts in Montgomery County, Texas, and federal courts located within the Houston Division of the Southern District of Texas, for the purpose of litigating any dispute, and you hereby consent to the personal jurisdiction and venue thereof. We operate the Service from our offices in the United States, and we make no representation that Materials included in the Service are appropriate or available for use in other locations.
  24. General. These Terms, together with the Additional Terms, and any other agreements expressly incorporated by reference into these Terms, are the entire and exclusive understanding and agreement between you and GradePro regarding your use of the Service. You may not assign or transfer these Terms or your rights under these Terms, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign these Terms at any time without notice or consent. The failure to require performance of any provision will not affect our right to require performance at any other time after that, nor will a waiver by us of any breach or default of these Terms, or any provision of these Terms, be a waiver of any subsequent breach or default or a waiver of the provision itself. Use of section headers in these Terms is for convenience only and will not have any impact on the interpretation of any provision. If any part of these Terms is held to be invalid or unenforceable, the unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect. Upon termination of these Terms, Sections 3-5, 7(b), 7(c), 7(e), 8-31, along with the GradePro Privacy Policy and any other accompanying agreements, will survive.
  25. Dispute Resolution and Arbitration.
    1. Generally. In the interest of resolving disputes between you and GradePro in the most expedient and cost effective manner, you and GradePro agree that every dispute arising in connection with these Terms will be resolved by binding arbitration, to the fullest extent permitted under applicable law. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims (including, without limitation, substantive claims and threshold questions of the applicability and scope of this Section 25) arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, products liability, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND GRADEPRO ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW.
    2. Exceptions. Despite the provisions of Section 25(a), nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (i) bring an individual action in small claims court; (ii) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (iii) seek injunctive relief in a court of law; or (iv) to file suit in a court of law to address an intellectual property infringement claim.
    3. Arbitrator. To the fullest extent permitted under applicable law, any arbitration between you and GradePro will be settled under the Federal Arbitration Act, and governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at (800) 778-7879, or by contacting GradePro.
    4. Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if such other party has not provided a current physical address, then by electronic mail (“Notice”). GradePro’s address for Notice is: GradePro, Inc., Attention: Legal Department, 1350 Rayford Park Rd., Suite A, Spring, TX 77386. The Notice must: (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, you or GradePro may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or GradePro must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any.
    5. Fees. If you commence arbitration in accordance with these Terms, GradePro will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in Montgomery County, Texas, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (i) solely on the basis of documents submitted to the arbitrator; (ii) through a non-appearance based telephone hearing; or (iii) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse GradePro for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
    6. No Class Actions. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, YOU AND GRADEPRO AGREE THAT EACH PARTY MAY BRING CLAIMS AGAINST THE OTHER PARTY ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and GradePro agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
    7. Modifications to this Arbitration Provision. If GradePro makes any future change to this arbitration provision, other than a change to GradePro’s address for Notice, you may reject the change by sending us written notice within 30 days of the change to GradePro’s address for Notice, in which case you are no longer permitted to use the Service and this arbitration provision, as in effect immediately prior to the changes you rejected, will survive.
    8. Opt-Out Procedure. You can choose to reject this Arbitration Agreement by mailing us a written opt-out notice (“Opt-Out Notice”) in accordance with the terms of this Section. For new users, the Opt-Out Notice must be postmarked no later than 30 days after the date you use the Service for the first time. You must mail the Opt-Out Notice to GradePro, Inc., Attention: Legal Department, 1350 Rayford Park Rd., Suite A, Spring, TX 77386. The Opt-Out Notice must state that you do not agree to the arbitration agreement and must include your name, address, phone number, and the username and school district used for the Service to which the opt-out applies. You must sign the Opt-Out Notice for it to be effective. This procedure is the only way you can opt out of the arbitration agreement. If you opt out of the arbitration agreement, GradePro will likewise not be bound by these arbitration provisions. All other terms of these Terms will continue to apply. Opting out of the arbitration agreement has no effect on any previous, other, or future arbitration agreements that you may have with us. GradePro users who accepted a previous version of these Terms that included an arbitration agreement, and who did not timely opt out of that arbitration agreement, remain bound by the last arbitration agreement that they accepted. Upon receipt of a valid Opt-Out Notice, GradePro will provide the opting out user with a copy of the arbitration agreement from the last version of the Terms that the user accepted, if any exists.
    9. Enforceability. If Section 25(f) is found to be unenforceable or if the entirety of this Section 25 is found to be unenforceable, then the entirety of this Section 25 (except this Section 25(i)) will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 23 will govern any action arising out of or related to these Terms.
  26. Claims. To the fullest extent permitted under applicable law, no action arising out of, in connection with, or relating to these Terms shall be brought by you more than one (1) year after the accrual of the cause of action. This period shall not be extended for any reason, except by the written consent of both parties. All statutes or provisions of law which would toll or otherwise affect the running of the period of limitation are hereby waived and no such statute or provision of law shall operate to extend the period limited in this paragraph, to the fullest extent permitted under applicable law.
  27. Consent to Electronic Communications. By using the Service, you consent to receiving certain electronic communications from us. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that those communications be in writing.
  28. Export. You may not use the Service if you are the subject of U.S. sanctions or of sanctions consistent with U.S. law imposed by the governments of the country where you are using the Services. You must comply with all U.S. or other export and re-export restrictions that may apply to goods, software, technology, and services.
  29. California Consumer Protection Notice. Please note that, if you are a consumer, the limitations in these Terms are intended to be only as broad and inclusive as is permitted by the laws of your state of residence. If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Service or to receive further information regarding use of the Service.
  30. Notice Regarding Apple. This Section 30 only applies to the extent you are using our mobile application(s) on an Apple-branded device. You acknowledge that these Terms are between you and GradePro only, not with Apple Inc. (“Apple”), and Apple is not responsible for the Service and the content thereof. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Service. In the event of any failure of the Service to conform to any applicable warranty, you may notify Apple and Apple will refund any applicable purchase price for the mobile application to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation whatsoever with respect to the Service. Apple is not responsible for addressing any claims by you or any third party relating to the Service or your possession and/or use of the Service, including: (a) product liability claims; (b) any claim that the Service fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection, privacy, or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third party claim that the Service and/or your possession and use of the Service infringe third party’s intellectual property rights. You agree to comply with any applicable third party terms when using the Service. Apple and Apple’s subsidiaries are third party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary of these Terms. You hereby represent and warrant that (x) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (y) you are not listed on any U.S. Government list of prohibited or restricted parties.
  31. Notice Regarding Google. This Section 31 only applies to the extent you are using our mobile application(s) on an Android device in connection with the Services. You acknowledge that this Agreement is between you and us only, not with Alphabet Inc. (“Google”), and Google is not responsible for the Services and the content thereof. You agree that Google is not responsible for any maintenance and support services in connection with the Services.
  32. Contact Information. The Service is offered by GradePro. You may contact us by emailing us at [email protected], or writing to us at 1350 Rayford Park Rd., Suite A, Spring, TX 77386.
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