User Agreement

Summit Learning User Agreement

Effective Date July 5, 2023 (summary of updates)

We have done our best to write this User Agreement in simple and clear terms. In order to facilitate your understanding of the User Agreement we have added notes that provide short summaries of the legal language in plain English.

Introduction

The Summit Learning Program is a personalized approach to teaching and learning inspired by the vision to equip every student to lead a fulfilled life. Gradient Learning (“Gradient Learning” “we”, “us” and “our”), a California nonprofit public benefit organization and a 501(c)(3) nonprofit organization, operates the Summit Learning Program (the “Program”), including the Summit Learning Platform located at www.summitlearning.org (the “Platform”). With support from the Chan Zuckerberg Initiative, LLC (“CZI”), Gradient Learning offers the Program and Platform as a free service to schools that sign an agreement with Gradient Learning.

The Learning Services (defined below) are designed to facilitate strong relationships between teachers and students through real-time data about progress towards goals, access to ongoing feedback, and access to a wide range of learning resources that enable students to build on what they learn from the teacher by self-directing some of their learning, too.

Use of the Services (defined below) is governed by this User Agreement (the “User Agreement”) and our Privacy Policy (the “Privacy Policy”) which sets forth the personal information that we collect and how we use and share it.

1. Contract and Services

1.1 Contract

When you use our Services you agree to all of the terms in this User Agreement and our Privacy Policy. You agree that by registering for, accessing or using our Services, you are agreeing to enter into a legally binding contract with Summit Learning (even if you are using our Services for your work at a school). This User Agreement also applies to (a) the parents, legal guardians, or caregivers (“Caregivers”) of Student Users (defined below), (b) teachers, employees, officials, or agents of Partner Schools (defined below) (“School Personnel”) who register for the Learning Services (“Licensed Users”) and (c) visitors to our Web Services who do not have registered accounts or anyone who is not logged in to their registered account (“Visitors”). Students currently enrolled in Partner Schools are referred to as “Student Users” (“Student Users” together with Licensed Users, are “Users”).

We have separate terms of service for the schools and school districts who partner with us (“Partner Schools”). If you are using the Services with an account created by your school or school district, your school or school district has signed a Program Agreement with Summit Learning. For more information on the Program Agreement, Data Privacy Addendum and School Terms of Service applicable to Partner Schools, please visit the Summit Learning Privacy Center.

If you do not agree to the terms in this User Agreement and our Privacy Policy, do not register for, access, or otherwise use any of our Services.

1.2 Services

This User Agreement applies to www.summitlearning.org (“Web Services”) and the Program features accessed through www.summitlearning.org (“Learning Services”) (collectively, the Web Services and Learning Services are “Services”); our provision of the Services, and your access to and use of them.

1.3 Change

We may modify this User Agreement or our Privacy Policy from time to time. Except as otherwise provided in this User Agreement, if we make material changes to this User Agreement, including changes that impair your rights, we will provide you at least 30 days prior notice pursuant to this Section 1.3. We will seek to provide you notice through our Services, or by other means, to provide you the opportunity to review the changes before they become effective. We agree that changes cannot be retroactive. The notice will indicate which sections contain material modifications and what choices you may have. Your continued use of our Services after we publish or send a notice about our changes to these terms means that you are consenting to the updated terms following their “effective date.” If you object to any changes, you must stop using or accessing the Services. If we make any changes to this User Agreement or Privacy Policy, you can request a copy of the prior versions by contacting us at privacy@summitlearning.org.

1.4 Content and Services of Others

The Services may include educational content (e.g., Encyclopedia Britannica) originating from and created by third parties that we do not own or control. We do not own or control these other services or content, even if accessible from our Services, including, for example, links to third-party services that a school or teacher may make available in educational content they upload into the Learning Services.

2. Obligations of Users

2.1 Learning Service Eligibility. Only currently enrolled students, Caregivers, and School Personnel are allowed to access the Learning Services. Creating an account with false information is a violation of our terms. The right to access and use the Services is not granted in jurisdictions outside the United States.

2.2 Accounts and Passwords. You agree to: (1) choose a strong and secure password; (2) keep your password secure and confidential; (3) properly log out from your account at the end of each session; (4) not transfer or share your account; and (5) follow the law and the terms of this User Agreement. You are responsible for anything that happens through your account unless you report misuse through the contact information in Section 11 below.

2.3 No Payment. The Services are provided at no charge and there are no features related to purchasing goods and services included in the Services. We never sell or rent User personal information, including for targeted advertising. Please see our Privacy Policy for more information about the data we collect and how we use, share and protect it.

2.4 Notices and Messages. You agree that we can provide notices and messages to you related to the Services in the following ways: (1) within the Services, or (2) sent to the contact information you provided us (e.g., email, mobile number, physical address). You agree to keep your contact information up to date. Please see our Privacy Policy for more information on how we may contact you, and how you may unsubscribe from these communications.

3. Rights and Limits

3.1 Your License to Us.

Our Services include features that require you (e.g. registration) and enable you (e.g. volunteer to answer a survey) to provide information and content. As between you and us, you own the content and information that you submit or post using the Services, and you are only granting us the following non-exclusive license:

A worldwide, transferable and sublicensable (through multiple tiers) right to use, copy, modify, publish, distribute, and process the content, feedback, and information that you provide through our Services (including surveys), without any further consent, notice, and/or compensation. The license rights you grant to us are limited in the following ways:

1. If we agree in writing to additional restrictions on use with regard to any feedback, information and content in the context of our collection of it, we will honor those limits.
2. Our Services do not include any advertising for third-party goods and services. We will not include your content in advertisements for the products and services of third parties to others.
3. Except for Teacher Content in Section 3.2, we will get your additional consent if we want to give others the right to publish your content beyond the Services.
4. By submitting suggestions or other feedback related to our Services to us, you agree that we can (but do not have to) use and share such feedback for any purpose without compensation to you. We will honor any limits we agree to at the time we collect feedback.
5. If content includes personal information, it is subject to our Privacy Policy.
6. Because you own your content and information and we only have non-exclusive rights to it, you may choose to make it available to others.

You agree to only provide content or information that does not violate the law nor anyone’s rights (including intellectual property rights and privacy rights).

3.2 Teacher Content

Licensed Users that are teachers can contribute content such as new curriculum or projects and they have the choice to share this content with other schools in the Program.

By choosing to share this content with other teachers and Partner Schools on the Platform, you are granting us a royalty-free license under a Creative Commons Attribution 4.0 License (“CC License”). This license allows Summit Learning and others to make the content available to other Partner Schools and Users.

Teachers are in control of this sharing and can choose not to share or to turn off sharing for previously shared content. Turning off sharing for previously shared content means that going forward, your content will be available to only Licensed Users within your Partner School. You can also delete your content, but deletion will not prevent use by those who have copied or used it prior to your deletion or revocation of sharing.

If you contribute Teacher Content under a CC License, you will ensure that your content does not contain any personally identifiable information of students and that you have the right and authority to grant the license and other such rights as may be necessary.

3.3 Service Change and Availability

Subject to the terms of our Program Agreement with schools and districts, we may change, suspend or end any aspect of the Services at our discretion. To the extent allowed under law, the changes will be effective without notice, but if they are material changes they will be effective upon notice provided to you directly or through the Services. You agree that we have no obligation to store, maintain or provide you a copy of any content or information that you or others provide, except to the extent required by applicable law or our Program Agreements with Partner Schools.

3.4 Limits

We reserve the right to limit your use of the Services. If we believe that you may be in breach of this User Agreement or law or are misusing the Services (e.g., violating Section 9 below), we reserve the right to temporarily or permanently restrict, suspend, or terminate your access to the Services. If you believe your Services have been wrongfully terminated or restricted, contact us using the contact information provided in Section 11 below.

3.5 Intellectual Property Rights

Subject to the terms of this User Agreement, we grant you a limited right to access the Services, and we reserve all of our intellectual property rights and other proprietary rights in the Services. Using the Services does not give you any right, title, or interest in our Services or the content or information made available through our Services that is not already yours. Trademarks and logos used in connection with the Services are the trademarks of their respective owners. Our logos and other trademarks, service marks, graphics, and logos used for our Services are trademarks or registered trademarks of ours or our licensors.

4. Disclaimer and Limit of Liability

4.1 No Warranty

TO THE EXTENT ALLOWED UNDER LAW, WE (AND OUR SERVICE PROVIDERS AND LICENSORS) (A) DISCLAIM ALL IMPLIED WARRANTIES AND REPRESENTATIONS (E.G. WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, OR THAT THE DATA IS ACCURATE OR COMPLETE); (B) DO NOT GUARANTEE THAT THE SERVICES WILL FUNCTION WITHOUT INTERRUPTION OR ERRORS, AND (C) PROVIDE THE SERVICES (INCLUDING CONTENT AND INFORMATION) ON AN “AS IS” AND “AS AVAILABLE” BASIS.

SOME LAWS DO NOT ALLOW CERTAIN DISCLAIMERS, SO SOME OR ALL OF THESE DISCLAIMERS MAY NOT APPLY TO YOU.

4.2 Exclusion of Liability

TO THE EXTENT PERMITTED UNDER LAW (AND UNLESS WE HAVE ENTERED INTO A SEPARATE WRITTEN AGREEMENT THAT OVERRIDES OR AMENDS THIS CONTRACT), WE (AND OUR SERVICE PROVIDERS AND LICENSORS) SHALL NOT BE LIABLE TO YOU OR OTHERS FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY LOSS OF DATA, OPPORTUNITIES, REPUTATION OR GOODWILL, PROFITS OR REVENUES, RELATED TO THE SERVICES (E.G. DOWN TIME OR LOSS, USE OF, OR CHANGES TO, YOUR INFORMATION OR CONTENT). IN NO EVENT SHALL SUMMIT LEARNING’S LIABILITY (AND THE LIABILITY OF OUR SERVICE PROVIDERS AND/OR LICENSORS), INCLUDING DIRECT DAMAGES EXCEED, IN THE AGGREGATE FOR ALL CLAIMS, ONE HUNDRED DOLLARS ($100).

THIS LIMITATION OF LIABILITY IS PART OF THE BASIS OF THE BARGAIN BETWEEN YOU AND US AND SHALL APPLY TO ALL CLAIMS OF LIABILITY (E.G. WARRANTY, TORT, NEGLIGENCE, CONTRACT, LAW) AND EVEN IF WE AND OUR SERVICE PROVIDERS AND/OR LICENSORS HAVE BEEN TOLD OF THE POSSIBILITY OF ANY SUCH DAMAGE, AND EVEN IF THESE REMEDIES FAIL THEIR ESSENTIAL PURPOSE.

THE LAWS IN SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY, SO THESE LIMITS MAY NOT APPLY TO YOU. IF YOU ARE A NEW JERSEY RESIDENT, OR A RESIDENT OF ANOTHER U.S. STATE THAT PERMITS THE EXCLUSION OF THESE WARRANTIES AND LIABILITIES, THEN THE LIMITATIONS IN SECTION 4 SPECIFICALLY DO APPLY TO YOU.

5. Termination

Either of us may terminate this User Agreement at any time with notice to the other. On termination, you lose the right to access or use the Services. The following shall survive termination:

• Our rights to use and disclose your content and feedback;
• Sections 2.4(2), 3, 4, 5, 6, 7, 10, and 11; and
• Any amounts owed by either party prior to termination remain owed after termination.

If you wish to terminate your account, you must start the process by contacting your Partner School.

6. Arbitration Agreement and Class Action Waiver

THIS SECTION CONSTITUTES AN ARBITRATION AGREEMENT (“Arbitration Agreement”); IT REQUIRES YOU AND GRADIENT LEARNING TO AGREE TO RESOLVE ALL DISPUTES BETWEEN US THROUGH BINDING INDIVIDUAL ARBITRATION, SO PLEASE READ IT CAREFULLY.

6.1 Applicability

In the unlikely event we end up in a legal dispute, you and Gradient Learning agree that all Disputes, including Enforceability Disputes, will be resolved exclusively in binding arbitration on an individual basis, except that you and Gradient Learning are not required to arbitrate IP Disputes. Notwithstanding the foregoing, either you or Gradient Learning may bring an individual action in small claims court.

• A “Dispute” means a dispute, claim or controversy arising out of or relating to the Services or this User Agreement; or whether that dispute is (1) based on past, present or future events and includes claims and disputes that arose between the parties before the effective date of this User Agreement; and (2) in tort, contract, warranty, state, regulation, or other legal or equitable basis.
• An “Enforceability Dispute” means a Dispute relating to the interpretation, applicability, or enforceability of this Arbitration Agreement, including the formation of the contract, the arbitrability of any Dispute, and any claim that all or any part of this agreement is void or voidable.
• An “IP Dispute” means a Dispute relating to the ownership or enforcement of intellectual property rights.

6.2 Waivers

• Waiver of Jury Right. YOU AND GRADIENT LEARNING ARE EXPRESSLY GIVING UP ALL RIGHTS TO A JURY TRIAL OR COURT TRIAL BEFORE A JUDGE, EXCEPT AS EXPRESSLY PROVIDED IN THIS ARBITRATION AGREEMENT. The arbitrator’s decision will be final and binding on both you and us, subject to review solely on the grounds set forth in the Federal Arbitration Act (“FAA”).
• Waiver of Class or Consolidated Actions. YOU AND GRADIENT LEARNING AGREE THAT ALL DISPUTES MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, COLLECTIVE ACTION, OR REPRESENTATIVE BASIS. The validity of this waiver – and whether an action may proceed as a class, collective, or representative action – must be decided by a court.

6.3 Initiating a Dispute

To initiate a Dispute, a party must send to the other party written notice of that Dispute containing: (a) the name, address, and contact information of the party giving notice; (b) the facts giving rise to the Dispute; and (c) the relief requested. Notices sent to Gradient Learning must be sent by mail to the address provided in Section 11 of this User Agreement.

You and we agree that we shall (in good faith) meet and attempt to resolve the Dispute within 30 days. If the Dispute is not resolved during that time period, then you and a representative of Gradient Learning shall (in good faith) meet and attempt to resolve the Dispute through non-binding mediation with a mutually agreed-upon mediator within 30 additional days. If you and we do not reach an agreement to resolve the dispute within that 60-day period, you or we may commence an arbitration proceeding or file a claim in small claims court.

6.4 Arbitration Rules and Procedure

• Rules. **The FAA governs the interpretation and enforcement of this Arbitration Agreement. Judicial Arbitration & Mediation Services, Inc. (“JAMS”) will administer the arbitration before a single arbitrator, and the arbitration will be initiated and conducted according to the Streamlined Arbitration Rules and Procedures (the “JAMS Rules**”), to the extent they are not inconsistent with the terms of this Arbitration Agreement. The JAMS Rules and instructions about how to initiate an arbitration are available at https://www.jamsadr.com/rules-streamlined-arbitration (as of the date of this agreement) or 1-800-352-5267.
• Fees. Pursuant to the JAMS Consumer Arbitration Minimum Standards, Gradient Learning will bear all costs of the arbitration (including any JAMS Case Management Fee and all professional fees for the arbitrator’s services), except for the filing fee if you are the party initiating the arbitration.
• **Manner and Location of Arbitration. **You may choose to have the arbitration conducted by telephone, in writing, online, or in person. If in person, you may choose to have the arbitration conducted (a) in San Mateo County, California, (b) in the county where you live, or (c) at another location that you and we agree upon.

6.5 Opt out

You may opt out of this Arbitration Agreement by notifying us no later than 30 days after first becoming subject to it. Your notice must include your name, address, and a clear statement that you want to opt out of this Arbitration Agreement. Notices sent to Gradient Learning must be sent by mail to the address provided in Section 11 of this User Agreement.

6.6 Severability

If any portion of this Arbitration Agreement is found to be unlawful, void or for any reason unenforceable, then that portion shall be severed and the remainder of this Arbitration Agreement shall be given full force and effect.

7. General Terms

7.1 Severability

If a court with authority over this User Agreement finds any part of it unenforceable, you and we agree that the court should modify the terms to make that part enforceable while still achieving its intent. If the court cannot do that, you and we agree to ask the court to remove that unenforceable part and still enforce the rest of this User Agreement.

7.2 Entire Agreement

To the extent allowed by law, the English language version of this User Agreement is binding and other translations are for convenience only. Except for Partner Schools that enter into Program Agreements (and Data Privacy Addendums with us), this User Agreement (including the Privacy Policy) is the only agreement between us regarding the Services and supersedes all other related oral or written agreements or policies. This User Agreement shall govern the relationship between you and Summit Learning. If there is a conflict between this User Agreement, the Privacy Policy, or any other agreement between you and Summit Learning (collectively, “Other Agreements”), the terms of this User Agreement shall apply and take precedence unless specifically provided otherwise in this User Agreement, Privacy Policy, or the Other Agreements.

7.3 No Waiver

If we don’t act to enforce a breach of this User Agreement, that does not mean that we have waived our right to enforce this User Agreement. Any waiver by us must be in writing.

7.4 Assignment

You may not assign or transfer this User Agreement (or your use of Services) to anyone without our consent. However, you agree that Gradient Learning may assign this User Agreement in connection with a reorganization, or to a successor or assign or affiliate that agrees to assume our obligations under this User Agreement (and Privacy Policy) without your consent. There are no third-party beneficiaries to this User Agreement.

7.5 Notices

You agree that the only way to provide us legal notice is at the address provided in Section 11 of this User Agreement.

7.6 Marketing Communications.

You agree to receive marketing communications from Gradient Learning, consistent with applicable law, including announcements about upcoming professional development training, events, and new products or services.

8. For Caregivers

If, as a Caregiver of a Student User, you provided contact information to your school, your account (“Parent Account”) will be set up by your Student User’s teacher or Partner School. At the direction of your school, we may send an invitation to you to log in to your Parent Account via the contact information that your Student User’s teacher or Partner School provided to us to set up your Parent Account. The invitation may be sent via email or SMS text message. [Note: Your carrier may charge you fees for text messages.] We may also send you informational text messages, including, but not limited to, messages: (1) providing information related to your student’s use of the Services; (2) supplying information that you request; or (3) responding to your inquiries regarding your account or use of the Services. If you, as a Caregiver, provide your telephone number to your student’s school, you are consenting to Gradient Learning (on behalf of and at the direction of your student’s school) sending informational text messages closely related to your school’s mission.

We will not charge Users for our text message features. However, message and data rates may apply, depending on your plan with your wireless or other applicable provider. If you no longer want to receive such text messages, you may text “STOP” at any time and/or contact us (see Section 11 below). After doing so, we will send you confirmation of this opt-out via text message. For more information, please see our Privacy Policy and FAQs.

9. Service Rules:

You agree:

(a ) That you will: (1) Comply with all applicable laws, including, without limitation, privacy laws, publicity laws, intellectual property laws, anti-spam laws, export control laws, tax laws, and regulatory requirements; and (2) Provide accurate information to us.

(b) That you will not: (1) Use or attempt to use another’s account or share your account with another; (2) Use the Services in violation of applicable law or any school policies; (3) Disable, circumvent or intentionally bypass any security feature, access controls or use limits of the Services; (4) Disclose information that you do not have the right to disclose (such as confidential information of others); (5) Violate the intellectual property rights or other proprietary rights of others; (6) Post anything that contains software viruses, worms, or any other harmful code or interfere with the operation of, or place an unreasonable load on, the Services (e.g., spam, denial of service attack); (7) Imply or state that you are affiliated with or endorsed by Summit Learning without our express consent; (8) Rent, lease, loan, trade, sell/resell or otherwise monetize the Services or access to them; and/or (9) Use the Services to degrade others on the basis of gender, race, class, ethnicity, national origin, religion, sexual preference, orientation or identity, disability, or other classification.

10. Complaints Regarding Content (DMCA)

We respect the intellectual property rights of others. We require that content posted by Licensed Users does not violate the intellectual property rights of third parties. Please see our Digital Millennium Copyright Act (DMCA) Notification Guidelines in the Help Center for more information. If you believe your intellectual property rights have been violated through the Services, information on how to contact us is available through our DMCA Notification Guidelines.

11. How To Contact Us

If you have any questions about this User Agreement, our Privacy Policy or our practices, please contact privacy@summitlearning.org. To report misuse of your account, please contact security@summitlearning.org.

You can learn more about Gradient Learning on our website, http://gradientlearning.org/ and about the Summit Learning Program in our FAQs.

You can also reach us by mail at Gradient Learning ℅ Procopio at 818 W. Seventh Street, Suite 930, Los Angeles, CA 90017, and by email at legal@summitlearning.org.

You can find more information in this Summit Learning Help Center Article.

12. Privacy and Security

Your privacy is extremely important to us, and we limit what we collect and how we use it. Please read our Privacy Policy and Data Privacy Addendum which explains how we treat and protect personal information when you use the Services.