DESSA System Terms of Service
Welcome to Aperture Education! These Terms of Service (these “Terms”) govern your access to and use of the Aperture Education website and services, including (1) any information and content made available via the Aperture Education website and services, and (2) any browser extensions, mobile applications and other downloadable apps we provide (collectively, the “Services”), so please read them carefully before using the Services.
Please note that the Children’s Online Privacy and Protection Act (“COPPA”) requires that online service providers such as Aperture Education obtain parental or guardian consent before they collect personal information from children under age 13. To ensure compliance with COPPA, Aperture Education will only permit the collection of personal information from a child under age 13 if that child’s school, school district, other educational organization, and/or teacher has agreed to obtain the parental or guardian consent required by COPPA. Therefore, you agree that:
- You are solely responsible for ensuring compliance with COPPA;
- You have obtained written consent from all parents or guardians of children under age 13 who will be accessing and providing any personal information via the Services; and
- If you are a teacher, you have obtained any required authorization from your school, school district or other educational organization to use the Services and provide any student access to the Services.
Changes to the Terms
We may revise and update these Terms from time to time in our sole discretion. If we make material changes to these Terms, we will post a notification on the Aperture Education website and we will attempt to notify you by email. All changes are effective immediately when we post them, and apply to all access to and use of the Services thereafter. Your continued use of the Services following the posting of revised Terms means that you accept and agree to the changes. As we will be continually refining the Services and adding more features, you are expected to check this page each time you access the Services so you are aware of any changes, as they are binding on you.
Accessing the Services
Except in the case of paid Services, we reserve the right to withdraw or amend the Services in our sole discretion without notice. We will not be liable if for any reason the Services are unavailable at any time or for any period. You are responsible for (1) making all arrangements necessary for you to have access to the Services and (2) ensuring that all persons, including students, who access the Services through your account with Aperture Education or your school’s or organization’s account with Aperture Education are aware of these Terms and comply with them.
If you choose, or are provided with, a user name, password or any other piece of information as part of our security procedures, you must treat such information as confidential, and you must not disclose it to any other person or entity. You also acknowledge that your account is personal to you and agree not to provide any other person with access to the Services or portions of it using your user name, password or other security information. You agree to notify us immediately of any unauthorized access to or use of your user name or password or any other breach of security. You also agree to ensure that you exit from your account at the end of each session. You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information.
Notwithstanding the forgoing, you are permitted to provide access to the Services to your students (“Authorized Users”) via your Aperture Education account to allow them to use the Services. Authorized Users may access the Services via their own user names and passwords.
We have the right to disable any user name, password or other identifier, whether chosen by you or provided by us, at any time if, in our opinion, you have or any Authorized User has violated any provision of these Terms.
Except as otherwise specified in the applicable order form (“Order Form”), or Proposal (“Proposal”) all fees for the Services must be paid in full within 30 days from the date of invoice. All fees are non-refundable.
Intellectual Property Rights
The Services and all textual, graphic and video content made available via the Services are owned by Aperture Education, LLC and its licensors and are protected by United States and international copyright, trademark, patent, trade secret and other intellectual property or proprietary rights laws.
These Terms permit you to use the Services for your personal, non-commercial use and the use of your students only. You must not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store or transmit the Services, other than User Content (as defined below), except as follows:
- Your computer may temporarily store copies of Services materials in RAM incidental to your accessing and viewing those materials.
- You may store files that are automatically cached by your web browser for display enhancement purposes.
- If we provide desktop, mobile or other applications for download, you may download copies to your computers or mobile devices solely for your own personal, non-commercial use, provided you agree to be bound by our end user license agreement for such applications.
- If we provide social media features, you may take actions that are enabled by such features.
- Without limiting the foregoing, if we provide video content as part of the Services, such as webinars, you may only use such content for your internal purposes, and you may not permit access to or distribute such content to any third parties.
You must not, and you must not permit any Authorized User to:
- Modify copies of any materials from the Services except for the creation, revision, deletion and sharing of records as permitted by the Services.
- Use any illustrations, photographs, video or audio sequences or any graphics separately from the accompanying text.
- Delete or alter any copyright, trademark or other proprietary rights notices from copies of materials from the Services.
- Access or use for any commercial purposes any part of the Services.
If you wish to make any use of material on the Services other than that set out in this section, please address your request to: clientsuccess@Apertureed.com.
No right, title or interest in or to the Services or any content on the Services is transferred to you, and all rights not expressly granted are reserved by Aperture Education. Any use of the Services not expressly permitted by these Terms is a breach of these Terms and may violate copyright, trademark and other laws.
The Aperture Education name and certain related names, logos, product and service names, designs and slogans are trademarks of Aperture Education or its licensors. You must not use such marks without the prior written permission of Aperture Education. All other names, logos, product and service names, designs and slogans on this website are the trademarks of their respective owners.
Third Party Content
The Services may contain content and services developed by third parties and provided to us under license (“Third Party Content”). You (the “Customer,” for purposes of this section of these Terms) agree to Third Party Content license terms as follows:
- The Customer and each Authorized User is hereby granted a limited, non-exclusive, non-transferable right and license to access and use within the State in which the Customer and each Authorized User is organized, authorized and resides (the “Customer and each Authorized User Territory”) to provide non-commercial access to and use of Third Party Content, including assessments, lessons and item banks (and materials associated with the items such as reading passages and graphics and scoring materials) that may be made available to Customer and each Authorized User solely as part of the Services. The Customer and each Authorized User are strictly prohibited from using or promoting any Third Party Content within or as high stakes assessments. The results of high-stakes assessments are used for purposes other than improving instruction and student learning, such as graduation tests, college admissions tests and teacher evaluation assessments. All rights, licenses and privileges related to the Third Party Content that are not expressly granted to the Customer and each Authorized User under these Terms will remain exclusive to Third Party Content provider(s). Without limiting the generality of the foregoing, the Customer and each Authorized User acknowledge that the Third Party Content provider(s) retains all rights under copyright and all other intellectual property rights in and to the Third Party Content, including all assessments, revisions, modifications, translations, derivatives, or other adaptations or transformations of the Third Party Content (collectively the “Derivative Works”). The Customer’s and each Authorized User’s rights to access and use the Third Party Content shall terminate upon the termination of these Terms. The Customer and each Authorized User acknowledge that use of the Third Party Content after termination of these Terms is strictly prohibited and would constitute infringement of the Third Party Content provider(s)’ proprietary rights.
- Pursuant to these Terms, the Customer and each Authorized User acknowledges and agrees that certain content may expire or otherwise terminate during the term of these Terms. Any rights in and to Third Party Content will at all times be limited and subject to the rights of the Third Party Content provider(s) in and to the respective Third Party Content. Throughout the term of these Terms, Aperture Education and the Third Party Content provider(s) will have the right, at their sole discretion, to modify the content, and to delete, and require the deletion by the Customer and each Authorized User, of specific Third Party Content.
- The Customer shall cause any proprietary notice that appears in the Third Party Content included in the Services to be displayed on any copies thereof as it appears in any of the Third Party Content.
You may use the Services only for lawful purposes and in accordance with these Terms. You agree not to use the Services or allow any Authorized User to use the Services:
- In any way that violates any applicable federal, state, local or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the U.S. or other countries).
- For the purpose of exploiting, harming or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information or otherwise.
- To send, knowingly receive, upload, download, use or re-use any material which does not comply with the Content Standards set out in these Terms.
- To transmit, or procure the sending of, any advertising or promotional material, including any “junk mail,” “chain letter” or “spam” or any other similar solicitation.
- To impersonate or attempt to impersonate an Aperture Education employee, another user or any other person or entity (including, without limitation, by using e-mail addresses or screen names associated with any of the foregoing).
- To engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Services, or which, as determined by us, may harm Aperture Education or users of the Services or expose them to liability.
Additionally, you agree not to or allow any Authorized User to:
- Use the Services in any manner that could disable, overburden, damage, or impair the Aperture Education website or interfere with any other party’s use of the Services, including their ability to engage in real time activities through the Services.
- Use any robot, spider or other automatic device, process or means to access the Services for any purpose, including monitoring or copying any of the material on the Services.
- Use any manual process to monitor or copy any of the material on the Services or for any other unauthorized purpose without our prior written consent.
- Use any device, software or routine that interferes with the proper working of the Services.
- Introduce any viruses, trojan horses, worms, logic bombs or other material which is malicious or technologically harmful.
- Attempt to gain unauthorized access to, interfere with, damage or disrupt any parts of the Services, the server on which the Services is stored, or any server, computer or database connected to the Services.
- Attack the Services via a denial-of-service attack or a distributed denial-of-service attack.
- Otherwise attempt to interfere with the proper working of the Services.
The Services may allow you to create, revise, delete and share records and other content and may contain message boards, chat rooms, personal web pages or profiles, forums, bulletin boards and other interactive features (collectively, “Interactive Services”) that allow users to post, submit, publish, display or transmit to other users or other persons (hereinafter, “post”) content or materials (collectively, “User Content”) on or through the Services.
All User Content must comply with the Content Standards set out in these Terms.
You retain full ownership of your User Content. By providing any User Content on the Services, you grant us the right to use, reproduce, modify, perform, display, distribute and otherwise disclose such material, but only for purposes of providing the Services.
You represent and warrant that:
- You and each Authorized User own or control all rights in and to the User Content and have the right to grant the license granted above to us.
- All of your User Content does and will comply with these Terms.
You understand and acknowledge that you are responsible for any User Content you or an Authorized User submit or contribute, and you, not Aperture Education, have full responsibility for such content, including its legality, reliability, accuracy and appropriateness.
We are not responsible, or liable to any third party, for the content or accuracy of any User Content posted by you or any other user of the Services.
Monitoring and Enforcement
We have the right to:
- Remove or refuse to post any User Content for any reason in our sole discretion.
- Take any action with respect to any User Content that we deem necessary or appropriate in our sole discretion if we believe that such User Content violates these Terms, including by violating the Content Standards, infringing any intellectual property right, threatening the personal safety of users of the Services or the public, or by potentially creating liability for Aperture Education.
- Disclose your identity to any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy.
- Take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Services.
Without limiting the foregoing, we have the right to fully cooperate with any law enforcement authorities or court order requesting or directing us to disclose the identity of anyone posting any materials on or through the Services. YOU WAIVE AND AGREE TO INDEMNITY, DEFEND, AND HOLD HARMLESS APERTURE EDUCATION FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY APERTURE EDUCATION DURING OR AS A RESULT OF ITS INVESTIGATIONS AND FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY EITHER APERTURE EDUCATION OR LAW ENFORCEMENT AUTHORITIES.
However, we can neither review all material before it is posted on the Services nor ensure prompt removal of objectionable material after it has been posted. Accordingly, we assume no liability for any action or inaction regarding transmissions, communications, or content provided by any user or third parties. We have no liability or responsibility to anyone for performance or non-performance of the activities described in this section.
Term and Termination
These Terms commence upon the date you begin using the Services or, if you signed an Order Form or Proposal, for the Subscription Period set forth in the Order Form.
Either party may, in addition to other relief, terminate the Services and these Terms if the other party breaches any material provision of these Terms and fails within ten (10) days after receipt of notice of default to correct such default or to commence corrective action reasonably acceptable to the aggrieved party and proceed with due diligence to completion. Either party will be in default of these Terms if it becomes insolvent, makes an assignment for the benefit of its creditors, or a receiver is appointed or a petition in bankruptcy is filed with respect to the party and is not dismissed within thirty (30) days.
In addition, we have the right to immediately suspend or terminate your account (and all Authorized Users under your account) and your access to the Services immediately if you violate the “Prohibited Uses” section of these Terms.
Upon expiration of the Subscription Period or termination of your account, your user profile may be removed from the Services, User Content relating to your account may be removed from the Services, and User Content relating to your account will not be available to you. However, you understand that removed content may persist in backup copies for a reasonable period of time. Aperture Education has no obligation to maintain or provide the content and may delete all content provided unless legally prohibited from doing so.
Ninety (90) days after the end of the Subscription Period or termination of your account, Aperture Education will automatically deidentify any personal data (including student data) received from you. If you want to extract any such personal data from the Services, you must do so before the end of the Subscription Period or termination of your account.
These content standards (the “Content Standards”) apply to any and all User Content. User Content must in its entirety comply with all applicable federal, state, local and international laws and regulations. Without limiting the foregoing, User Content must not:
- Contain any material which is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory or otherwise objectionable.
- Promote sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation or age.
- Infringe any patent, trademark, trade secret, copyright or other intellectual property or other rights of any other person.
- Be likely to deceive any person.
- Promote any illegal activity, or advocate, promote or assist any unlawful act.
- Cause annoyance, inconvenience or needless anxiety or be likely to upset, embarrass, alarm or annoy any other person.
- Impersonate any person, or misrepresent your identity or affiliation with any person or organization.
- Involve commercial activities or sales, such as contests, sweepstakes and other sales promotions, barter or advertising.
- Give the impression that it emanates from or is endorsed by us or any other person or entity, if this is not the case.
Software and Updates
Some use of the Services may require you to download a client software package (“Software”). Aperture Education hereby grants you a limited, nonexclusive, nontransferable, revocable license to use the Software solely to access the Services. Your license to use the Software is automatically revoked if you violate these Terms in a manner that implicates our intellectual property rights. We hereby reserve all rights not expressly granted in these Terms. You must not reverse engineer or decompile the Software, nor attempt to do so, nor assist anyone else to do so.
If you detect an outage or have other issues accessing the Services, you can contact Aperture Education Technical Support as follows: During business hours (8 am – 5 pm ET) or by emailing firstname.lastname@example.org. In addition, support guides and constantly updated support articles are available 24/7 by clicking on the Support hyperlink from within the application.
Compliance with FERPA, COPPA and Other Laws
You agree that we may use any information that you provide or an Authorized User provides to us or that is collected via the Services (i) to provide the Services for your and each Authorized User’s benefit; (ii) to aggregate information in anonymized form for the purpose of preparing benchmarking reports and for other purposes consistent with any applicable legal requirements, including FERPA; and (iii) to utilize data capture, syndication and analysis tools, and other similar tools, to extract, compile, synthesize and analyze any non-personally identifiable data or information resulting from your or an Authorized User’s use of the Services (“Statistical Data”). Statistical Data may be collected and used by us for (i) improving our educational products, (ii) demonstrating the effectiveness of our products and services, (iii) developing new services and applications, and (iv) any lawful business purpose without a duty of accounting to you, provided that the Statistical Data is used only in aggregated form, without specifically identifying you, any student or other individual, or the source of the Statistical Data.
We respect the intellectual property rights of others, and ask that you do the same. It is our policy to terminate the Aperture Education account of anyone who infringes the copyright or intellectual property rights of others. If you believe that any materials you access via the Services infringe your copyright or other intellectual property rights (e.g., trademark infringement or right of publicity), please contact our Copyright Agent at the address below and provide the following information: (1) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest or other intellectual property interest; (2) a description of the copyrighted work or other interest that you believe has been infringed; (3) identification of the content you believe to be infringing in a sufficiently precise manner to allow us to locate that content; (4) adequate information by which we can contact you, including your address, telephone number, and email address; (5) a statement by you that you have a good faith belief that the disputed use is not authorized by the owner of the copyright or other intellectual property right, its agent, or the law; and (6) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the owner’s behalf.
If you believe that any content you posted via the Services that was removed (or to which access was disabled) is not infringing, or that you have authorization from the copyright owner or the owner of the intellectual property, the owner’s agent, or pursuant to the law, to post and use such content, you may send a counter-notice containing the following information to our Copyright Agent: (1) your physical or electronic signature; (2) identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled; (3) a statement that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content; (4) adequate information by which we can contact you, including your name, address, telephone number, and e-mail address; and (5) a statement that you will consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located and a statement that you will accept service of process from the person who provided notification of the alleged infringement. If a counter-notice is received by our Copyright Agent, we may send a copy of the counter-notice to the original complaining party informing this person that the removed content may be replaced or access to the content restored in 10 business days. Unless the copyright owner or owner of the intellectual property files an action seeking a court order against you, the removed content may be replaced, or access to it restored, at our sole discretion.
Our designated Copyright Agent for notices of copyright infringement and counter-notices is:
Aperture Education, LLC
ATTN: Copyright Agent
The Services may contain links to third-party websites or resources. Aperture Education does not endorse and is not responsible or liable for their availability, accuracy, the related content, products, or services. You are solely responsible for your use of any such websites or resources.
Aperture Education represents and warrants that, during the Subscription Period, the Services will operate substantially in accordance with any applicable documentation provided by Aperture Education; provided that (i) the Services are implemented and operated in accordance with all instructions supplied by Aperture Education; (ii) you notify Aperture Education of any defect in the Services within ten (10) calendar days after the appearance thereof; (iii) you have properly used all updates recommended by Aperture Education with respect to any third party or adapter software products that materially affect the performance of the Services; (iv) you have properly maintained all associated equipment, software and environmental conditions in accordance with applicable specifications and industry standards; (v) you have not introduced other equipment or software creating an adverse impact on the Services; (vi) you have paid all amounts due hereunder and are not in default of any provision of these Terms; (vii) any legacy software with respect to which the Services are to operate contains clearly defined interfaces and correct integration code; and (viii) you have made no changes (nor permitted any changes to be made other than by or with the express approval of Aperture Education) to the Services source code, if any is licensed hereunder.
EXCEPT FOR THE EXPLICIT WARRANTIES HEREIN, THE SERVICES AND RELATED SOFTWARE ARE PROVIDED “AS IS” AND “AS AVAILABLE” AT YOUR OWN RISK, WITHOUT WARRANTY OR CONDITION OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WE DISCLAIM ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. Aperture Education will have no responsibility for any harm to your computer system, loss or corruption of data, or other harm that results from your access to or use of the Services. Some states do not allow the types of disclaimers in this paragraph, so they may not apply to you.
Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL APERTURE EDUCATION, ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, CONTRACTORS, SERVICE PROVIDERS, SUPPLIERS OR LICENSORS BE LIABLE FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE, DATA, BUSINESS, GOODWILL, REVENUE, OR PROFITS), REGARDLESS OF LEGAL THEORY, WHETHER OR NOT APERTURE EDUCATION HAS BEEN WARNED OF THE POSSIBILITY OF SUCH DAMAGES; (B) AGGREGATE LIABILITY FOR ALL CLAIMS RELATING TO THE SERVICES MORE THAN THE GREATER OF: (1) $1,000 OR (2) (IF YOU HAVE A PAID ACCOUNT) THE AMOUNTS PAID BY YOU TO APERTURE EDUCATION FOR THE PAST 12 MONTHS IMMEDIATLEY PROCEEDING WHEN THE LIABILITY FIRST AROSE. THE LIMITSTIONS, EXCUSIONS, AND DISCLAIMERS SET FORTH IN THESE TERMS WILL APPLY EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE. Some states do not allow the types of limitations in this paragraph, so they may not apply to you.
Aperture Education agrees to defend, indemnify and hold you harmless from any third-party claim (including reasonable attorneys’ fees) that the Services in the form provided violate or infringe the intellectual property rights of any third party; provided, Aperture Education is given prompt notice of the claim and sole control over the defense and any settlement thereof (except Aperture Education shall not enter into any settlement prejudicial to you without your consent). Aperture Education is not obligated to indemnify you to the extent any claim arises from your breach of these Terms or use of the Services in combination with any software, data, process or technology not supplied by Aperture Education (where there would be no claim, but for such combination) or (ii) unless you provide Aperture Education your reasonable cooperation at Aperture Education’s expense.
You agree to defend, indemnify, and hold harmless Aperture Education, its affiliates, and their respective officers, directors, employees, contractors, agents, licensors, service providers and suppliers from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including reasonable attorneys’ fees) resulting from your violation of these Terms or your use of the Services, including, without limitation, any use of the content, services, and products of the Services other than as expressly authorized in these Terms.
Mobile Application Terms
Miscellaneous Legal Terms
THESE TERMS AND THE USE OF THE SERVICES AND SOFTWARE WILL BE GOVERNED BY NORTH CAROLINA LAW EXCEPT FOR ITS CONFLICTS OF LAWS PRINCIPLES. ALL CLAIMS ARISING OUT OF OR RELATING TO THESE TERMS OR THE SERVICES OR SOFTWARE MUST BE LITIGATED EXCLUSIVELY IN THE FEDERAL OR STATE COURTS OF MECKLENBURG COUNTY, NORTH CAROLINA, AND BOTH PARTIES CONSENT TO VENUE AND PERSONAL JURISDICTION THERE. These Terms constitute the entire and exclusive agreement between you and Aperture Education with respect to the Services, and supersede and replace any other agreements, terms and conditions applicable to the Services. These Terms create no third party beneficiary rights. Aperture Education’s failure to enforce a provision is not a waiver of its right to do so later. If a provision is found unenforceable, the remaining provisions of these Terms will remain in full effect and an enforceable term will be substituted reflecting our intent as closely as possible. You may not assign any of your rights in these Terms, and any such attempt is void, but Aperture Education may assign its rights to any of its affiliates or subsidiaries, or to any successor in interest of any business associated with the Services. Aperture Education and you are not legal partners or agents; instead, our relationship is that of independent contractors.