Last Updated 3 March 2014
Please read carefully the following terms of service. By accessing or browsing the SmarterApp.org site; downloading documents specifications, or source code; registering for services; signing up for mailing lists; or using the Site in any other way, you acknowledge that you are receiving a benefit from Smarter Balanced, and that you have read, understood, and agreed to be bound by the following terms and conditions (without modification) including any additional guidelines and future modifications made by Smarter Balanced or its successor (collectively, the “Terms”). If you are using these services on behalf of an entity, you represent that you are authorized to act on behalf of such entity, and acknowledge and agree that you are binding such entity to these terms.
Table of Contents
These Terms of Service apply to SmarterApp.org web site as well as all associated services including, but not limited to, the source code repository on GitHub and mail lists on Google Groups (collectively, the “Site”).
The SmarterApp.org.org Site is not available to persons under the age of 18 or to any users previously suspended or removed from the Site by Smarter Balanced or its delegate. By registering for any services you represent that you are at least 18 years of age and have not been previously suspended or removed.
(a) Log Files.
As is true of most Web sites, we gather certain information automatically and store it in log files. This information includes internet protocol (IP) addresses, browser type, internet service provider (ISP), referring/exit pages, operating system, date/time stamp, and clickstream data. These data may include personal identifiable information.
A cookie is a small text file that is stored on a user's computer for record-keeping purposes. We may use session ID cookies or persistent cookies. We use session cookies to make it easier for you to navigate our site. A session ID cookie expires when you close your browser. A persistent cookie remains on your hard drive for an extended period of time. You can remove persistent cookies by following directions provided in your Internet browser's 'help' file. For example, a persistent cookie may be used to facilitate subsequent logins or to customize your experience according to previous visits. If you configure your browser to reject persistent cookies you may continue to use the site with only limited impairment. If you reject all cookies your ability to access content or services that require a login will be impaired.
We may store information that we collect through registration and the contributions you make to the community to create a 'profile' of your preferences and activities, to serve the community and to enforce IP and use policies. All contributions you make on the site or associated services are linked to your user profile and login/screen name. If you have shared your profile, any member of the site can view your profile and the information stored there (except your password) and all of your published contributions (but not your unpublished contributions). While we may make available certain privacy settings for your profile, we cannot guarantee that any information that you provide to us in your profile will not be accessible by third parties, such as by unauthorized third party access or other access.
(d) Uses of Information.
(e) Our Commitment to Children's Privacy.
Protecting the privacy of young children is especially important. For that reason, Smarter Balanced does not knowingly collect or maintain personally identifiable information on the SmarterApp.org Site from persons under 13 years-of-age. If Smarter Balanced learns that personally-identifiable information of persons less than 13-years-of-age has been collected on the SmarterApp.org Site without verifiable parental consent, then Smarter Balanced will take the appropriate steps to delete this information. If you are a parent or guardian and discover that your child under the age of 13 has obtained a Smarter Balanced Site account, then you may alert Smarter Balanced at Webmaster@SmarterBalanced.org; and request that Smarter Balanced delete that child’s personal information from its systems.
(f) Newsletters and Notifications.
You may opt-into email-based notifications. These notifications include community news, notifications of content changes and updates, discussion groups and other notifications. You may opt out of notifications at any time. In some cases, these notifications are supplied by third-party providers such as Google Groups and GitHub. Accordingly, you may have to opt-out with each third-party provider to eliminate all SmarterApp.org related communication.
(g) Service-Related Announcements.
We will send you strictly service-related announcements on rare occasions when it is necessary to do so. For instance, if our service is temporarily suspended for maintenance, we might send you an email. Generally, you may not opt-out of these communications, which are not promotional in nature. If you do not wish to receive them, you have the option to deactivate your account.
(h) Personally Identifiable Information.
(i) Associated Services.
The services of associated websites such as GitHub and GoogleGroups are governed by the privacy policies of those sites. This policy does not supersede those policies and only governs the sharing of information between SmarterApp.org and those services. Users are admonished to read the privacy policies of associated sites before enrolling in their services.
(j) Links to Other Sites.
This Web site may contain links to other sites that are not owned, controlled by or associated with SmarterApp.org or Smarter Balanced. Please be aware that we, Smarter Balanced, are not responsible for the privacy practices of such other sites. We encourage you to be aware when you leave our site and to read the privacy statements of each and every Web site that collects personally identifiable information. This privacy statement applies only to information collected by this web site.
We follow generally accepted industry standards to protect the personal information submitted to us, both during transmission and once we receive it. No method of transmission over the Internet, or method of electronic storage, is 100% secure, however. Therefore, while we strive to use commercially acceptable means to protect your personal information, we cannot guarantee its absolute security. If you have any questions about security on our Web site, you can email us at Webmaster@SmarterBalanced.org.
(l) Business Transitions.
In the event SmarterApp.org or Smarter Balanced goes through a business transition, such as a merger, or acquisition by another entity, your personally identifiable information will likely be among the assets transferred. You will be notified via prominent notice on our Web site for 30 days of any such change in ownership or control of your personal information.
(m) Legal Disclaimer.
(n) Contact Us.
4. Individual Features and Services.
When using the SmarterApp.org Site, you may be subject to any additional posted guidelines or rules applicable to specific services and features which may be posted from time to time (the "Guidelines"). All such Guidelines are hereby incorporated by reference into these Terms.
5. Modification of these Terms.
Smarter Balanced reserves the right, at our discretion, to change, modify, add, or remove portions of these Terms at any time. Please check these Terms and any Guidelines periodically for changes. Your continued use of the Smarter Balanced Site after the posting of changes constitutes your binding acceptance of such changes. For any material changes to these Terms, such amended terms will automatically be effective thirty days after they are initially posted on the SmarterApp.org Site.
6. Copyright and License.
The SmarterApp.org Site is owned and operated by Smarter Balanced. The visual interfaces, graphics, design, compilation, information, computer code (including source code or object code), products, software, services, and all other elements of the Smarter Balanced Site provided by Smarter Balanced (the "Materials") are protected by United States copyright, laws and international conventions. Except for any contributions that are provided and owned by contributors and publishers, all Materials contained on the Smarter Balanced Site are the property of Smarter Balanced or its subsidiaries or affiliated companies and/or third-party licensors. Except where otherwise stated, all copyrighted materials are released for use under a Creative Commons Attribution 4.0 license.
The trademarks SmarterApp, SmarterApp.org, Smarter Balanced, Smarter Balanced Assessment Consortium, SmarterBalanced.org, associated logos and derivatives are proprietary to Smarter Balanced. Use of these trademarks in any way other than a simple reference to the site or organization or proper attribution requires explicit permission from Smarter Balanced. Uses requiring permission include but are notblimited to: endorsement, claims of quality and certification. Use of trademarks for attribution of works not originating with or acknowledged by Smarter Balanced constitutes fraud.
π. All Your Base Are Belong to Us
In case you actually read this far, this heading and section are offered purely for entertainment purposes. This section does not constitute any meaningful or binding part of the terms of service. "Your base" don't necessarily "belong to us."
8. Digital Millenium Copyright Act.
It is Smarter Balanced’s policy to respond promptly to notices of alleged copyright infringement. Notices should comply with the Digital Millennium Copyright Act. For more information, please read Smarter Balanced’s DMCA Guidelines below. Smarter Balanced may promptly terminate without notice your access to the Smarter Balanced Site if you are determined by Smarter Balanced to violate any of the acceptable use policies referenced in this terms of service.
Digital Millennium Copyright Act Notification Guidelines
(a) Notification of Infringement.
It is our policy to respond to clear notices of alleged copyright infringement. This section explains the information that must be included in these notices, as required by the Digital Millennium Copyright Act (“DMCA”). Upon receipt of a DMCA compliant notice, Smarter Balanced will expeditiously remove or disable access to the content that is the subject of the notice. If you are a copyright owner or an authorized agent thereof, and you wish to file a notice of infringement with us, then you may submit a notice by providing the Smarter Balanced Designated Copyright Agent with the following information in writing (please consult your legal counsel or See 17 U.S.C. Section 512(c)(3) to confirm these requirements):
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
- Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works on the SmarterApp.org Site are covered by a single notification, a representative list of such works at that site.
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Smarter Balanced to locate the material.
- Information reasonably sufficient to permit Smarter Balanced to contact you, such as an address, telephone number, and, if available, an electronic mail address at which you may be contacted.
- A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
- A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. Please note that under Section 512(f) of the DMCA, any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability. If you are unsure whether the material available online infringes your copyright, we suggest that you contact an attorney before sending us a notice. Please note that Smarter Balanced may, at our discretion, send a copy of such notices to a third-party for publication. As such, your letter (with personal information removed) may be forwarded to Chilling Effects (www.chillingeffects.org) for publication.
The administrator of an affected site or the provider of affected content may make a counter notification under sections 512(g) (2) and (3) of the DMCA. If you elect to send us a counter notice, to be effective it must be a written communication that includes the following (please consult your legal counsel or See 17 U.S.C. Section 512(g) (3) to confirm these requirements):
- A physical or electronic signature of the subscriber.
- Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled.
- A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled.
- The subscriber’s name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber’s address is outside of the United States, for any judicial district in which Smarter Balanced may be found, and that the subscriber will accept service of process from the person who provided notification under subsection (c) (1) (C) or an agent of such person. Please note that under Section 512(f) of the Copyright Act, any person who knowingly materially misrepresents that material or activity was removed or disabled by mistake or misidentification may be subject to liability.
(c) Designated Copyright Agent.
The Smarter Balanced Designated Copyright Agent to receive notifications and counter-notifications of claimed infringement can be reached as follows: Address: Attention - Copyright Agent, Smarter Balanced Assessment Consortium, Mail stop - 47200, Old Capitol Building, P.O. Box 47200, Olympia, WA 98504-7200. Email: webmaster@SmarterBalanced.org. Phone: (360) 725-6000. For clarity, only DMCA notices should go to the Smarter Balanced Designated Copyright Agent. Any other feedback, comments, requests for technical support or other communications should be directed to Smarter Balanced through webmaster@SmarterBalanced.org. You acknowledge that if you fail to comply with all of the requirements of this section, your DMCA notice may not be valid.
(d) Account Termination
In appropriate circumstances, Smarter Balanced will promptly terminate, without notice, the accounts of those determined in our sole discretion to be "repeat infringers."
9. Prohibited Conduct.
By using the SmarterApp.org Site you agree not to:
9.1 use the Smarter Balanced Site for any purposes other than to disseminate or receive original or appropriately licensed content and/or to access the Smarter Balanced Site as such services are offered by Smarter Balanced;
9.2 redistribute content in any way contrary to the license under which it is distributed;
9.3 post, upload, or distribute any Contributions or other content that is unlawful or that a reasonable person could deem to be objectionable, offensive, indecent, pornographic, harassing, threatening, embarrassing, distressing, vulgar, hateful, racially or ethnically offensive, or otherwise inappropriate;
9.4 impersonate any person or entity, falsely claim an affiliation with any person or entity, or access the Smarter Balanced Site accounts of others without permission, forge another person’s digital signature, misrepresent the source, identity, or content of information transmitted via the Smarter Balanced Site, or perform any other similar fraudulent activity;
9.5 delete the copyright, license statement, attribute or other proprietary rights on the Smarter Balanced Site or Contributions;
9.6 make unsolicited offers, advertisements, proposals, or send junk mail or spam to other Users of the Smarter Balanced Site. This includes, but is not limited to, unsolicited advertising, promotional materials, or other solicitation material, bulk mailing of commercial advertising, chain mail, informational announcements, charity requests, and petitions for signatures;
9.7 use the Smarter Balanced Site for any illegal purpose, or in violation of any local, state, national, or international law, including, without limitation, laws governing intellectual property and other proprietary rights, and data protection and privacy;
9.8 defame, harass, abuse, threaten or defraud Users of the Smarter Balanced Site, or collect, or attempt to collect, personal information about Users or third parties without their consent;
9.9 use the Smarter Balanced Site if you are under the age of 13 years old;
9.10 remove, circumvent, disable, damage or otherwise interfere with security-related features of the Smarter Balanced Site or Contributions, features that prevent or restrict access to private or sensitive information, or features that enforce limitations on the use of the Smarter Balanced Site or Contributions;
9.11 intentionally interfere with or damage operation of the Smarter Balanced Site or any user’s enjoyment of them, by any means, including denial of service attacks, uploading or otherwise disseminating viruses, adware, spyware, worms, or other malicious code.
10. Termination; Terms of Service Violations.
10.1 Smarter Balanced. You agree that Smarter Balanced, in its sole discretion, for any or no reason, and without penalty, may terminate any account (or any part thereof) You may have with Smarter Balanced or your use of the SmarterApp.org Site and remove and discard all or any part of your account, User profile, and any Contribution, at any time. Smarter Balanced may also in its sole discretion and at any time discontinue providing access to the SmarterApp.org Site, or any part thereof, with or without notice. You agree that any termination of your access to the SmarterApp.org Site or any account You may have or portion thereof may be affected without prior notice, and You agree that Smarter Balanced will not be liable to You or any third party for any such termination. Any suspected fraudulent, abusive or illegal activity may be referred to appropriate law enforcement authorities. These remedies are in addition to any other remedies Smarter Balanced may have at law or in equity. As discussed herein, Smarter Balanced does not permit copyright infringing activities on the SmarterApp.org Site, and will terminate access to the Site, and remove all Contributions or other content submitted by any Users who are found to be repeat infringers.
10.2 You. Your only remedy with respect to any dissatisfaction with (i) the Smarter Balanced Site, (ii) any term of these Terms of Service, (iii) Guidelines, (iv) any policy or practice of Smarter Balanced in operating the Smarter Balanced Site, or (v) any content or information transmitted through the Smarter Balanced Site, is to terminate this Terms of Service and your account.
You agree to indemnify, save, and hold Smarter Balanced, its affiliated companies, contractors, employees, agents and its third-party suppliers, licensors, and partners harmless from any claims, losses, damages, liabilities, including legal fees and expenses, arising out of your use or misuse of the SmarterApp.org Site, any violation by You of these Terms, or any breach of the representations, warranties, and covenants made by You herein. Smarter Balanced reserves the right, at your expense, to assume the exclusive defense and control of any matter for which You are required to indemnify Smarter Balanced, and You agree to cooperate with Smarter Balanced’s defense of these claims. Smarter Balanced will use reasonable efforts to notify You of any such claim, action, or proceeding upon becoming aware of it.
12. Disclaimer; No Warranties.
12.1 No Warranties. To the fullest extent permissible pursuant to applicable law, Smarter Balanced and its affiliates, partners, licensors and suppliers disclaim all warranties, statutory, express or implied, including, but not limited to, implied warranties of merchantability, fitness or a particular purpose, and non-infringement of proprietary rights. No advice or information, whether oral or written, obtained by you from Smarter Balanced or through the SmarterApp.org Site will create any warranty not expressly stated herein. You expressly acknowledge that as used in this section 12 the term Smarter Balanced includes Smarter Balanced’s officers, directors, employees, agents, licensors, and contractors.
12.2 "As is" and "As available" and "With All Faults". You expressly agree that use of the SmarterApp.org Site is at your sole risk. The SmarterApp.org Site and any software, data, information, third-party software, contributions, reference sites, services, or applications made available in conjunction with or through the SmarterApp.org Site are provided on an “as is" and "as available", "with all faults" basis and without warranties or representations of any kind either express or implied.
12.3 Content. Smarter Balanced, its suppliers, licensors, affiliates, and partners do not warrant that the data, contributions, functions, or any other information offered on or through the SmarterApp.org site or any reference sites will be uninterrupted, or free of errors, viruses or other harmful components and do not warrant that any of the foregoing will be corrected.
12.4 Accuracy. Smarter Balanced, its suppliers, licensors, affiliates, and partners do not warrant or make any representations regarding the use or the results of the use of the SmarterApp.org or any reference sites in terms of correctness, accuracy, reliability, or otherwise.
12.5 Harm to Your Computer. You understand and agree that you use, access, download, or otherwise obtain information, software, materials, or data through the SmarterApp.org Site or any reference sites at your own discretion and risk and that you will be solely responsible for any damage to your property (including your computer system) or loss of data that results from the download or use of such material, software, or data.
13. Limitation of Liability and Damages.
13.1 Limitation of Liability. Under no circumstances, including, but not limited to, negligence, will Smarter Balanced or its affiliates, contractors, employees, agents, or third-party partners, licensors, or suppliers be liable for any special, indirect, incidental, consequential, punitive, reliance, or exemplary damages (including without limitation damages arising from any unsuccessful court action or legal dispute, lost business, lost revenues, or loss of anticipated profits or any other pecuniary or non-pecuniary loss or damage of any nature whatsoever) arising out of or relating to these terms or that result from your use of or your inability to use the SmarterApp.org Site or any reference sites, or any other interactions with Smarter Balanced, even if Smarter Balanced or a Smarter Balanced authorized representative has been advised of the possibility of such damages. Applicable law may not allow the limitation or exclusion of liability or incidental or consequential damages, so the above limitation or exclusion may not apply to you. In such cases, Smarter Balanced’s liability will be limited to the fullest extent permitted by applicable law.
13.2 Limitation of Damages. In no event will Smarter Balanced or its affiliates, contractors, employees, agents, or third-party partners, licensors, or suppliers total liability to you for all damages, losses, and causes of action arising out of or relating to these terms or your use of the SmarterApp.org Site or your interaction with other SmarterApp.org site users (whether in contract, tort including negligence, warranty, or otherwise), exceed the amount paid by you, if any, for accessing the SmarterApp.org Site during the twelve months immediately preceding the date of the claim or one hundred dollars, whichever is greater.
13.3 Reference Sites. These limitations of liability also apply with respect to damages incurred by you by reason of any products or services sold or provided on any reference sites or otherwise by third parties other than Smarter Balanced and received through or advertised on the SmarterApp.org Site or received through any reference sites.
13.4 Basis of the Bargain. You acknowledge and agree that Smarter Balanced has offered its products and services, set its prices, and entered into these terms in reliance upon the warranty disclaimers and the limitations of liability set forth herein, that the warranty disclaimers and the limitations of liability set forth herein reflect a reasonable and fair allocation of risk between you and Smarter Balanced, and that the warranty disclaimers and the limitations of liability set forth herein form an essential basis of the bargain between you and Smarter Balanced. Smarter Balanced would not be able to provide the SmarterApp.org Site to you on an economically reasonable basis without these limitations.
13.5 Limitations by Applicable Law. Some states or other jurisdictions do not allow the exclusion of implied warranties, so the above exclusions may not apply to you. You may also have other rights that vary from state to state and jurisdiction to jurisdiction.
14.1 Notice. Smarter Balanced may provide You with notices, including those regarding changes to these Terms of Service, by email, regular mail or postings on the SmarterApp.org Site. Notice will be deemed given twenty-four hours after email is sent, unless Smarter Balanced is notified that the email address is invalid. Alternatively, we may give You legal notice by mail to a postal address, if provided by You through the SmarterApp.org Site. In such case, notice will be deemed given three days after the date of mailing. Notice posted on the SmarterApp.org Site is deemed given 30 days following the initial posting.
14.2 Waiver. The failure of Smarter Balanced to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision. Any waiver of any provision of these Terms will be effective only if in writing and signed by Smarter Balanced.
14.3 Dispute Resolution and Arbitration. (a) Governing Law. These Terms will be governed by and construed in accordance with the laws of the State of Washington, without giving effect to any principles of conflicts of law. (b) Arbitration. For any claim related to these Terms of Service or the Smarter Balanced Site, excluding claims for injunctive or other equitable relief, where the total amount sought is less than ten thousand U.S. Dollars ($10,000.00 USD), either Smarter Balanced or You may elect at any point in or during a dispute or proceeding to resolve the claim through binding non-appearance-based arbitration. A party electing arbitration shall initiate it through an established alternative dispute resolution ("ADR") provider mutually agreed upon by the parties. The ADR provider and the parties must comply with the following rules: (1) the arbitration shall be conducted, at the option of the party seeking relief, by telephone, online, or based solely on written submissions; (2) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and (3) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. (c) Jurisdiction. You agree that any action at law or in equity arising out of or relating to these Terms or Smarter Balanced will be filed only in the state or federal courts in and for Thurston County personal and exclusive jurisdiction of such courts for the purposes of litigating any such action, except as provided in Section 14.3(b) regarding arbitration. Notwithstanding this, either party shall still be allowed to apply for injunctive or other equitable relief to protect or enforce that party’s intellectual property rights in any court of competent jurisdiction where the other party resides or has its principal place of business. (d) Improperly Filed Claims. All claims you bring against Smarter Balanced must be resolved in accordance with this Section 14.3. All claims filed or brought contrary to this Section 14.3 shall be considered improperly filed. Should either party file a claim contrary to this Section 14.3, the other party may recover attorneys' fees and costs up to one thousand U.S. Dollars ($1,000.00 USD), provided that such party seeking such fees has notified the other in writing of the improperly filed claim, and the other has failed to promptly withdraw the claim.
14.4 Severability. If any provision of these Terms or any Guidelines is held to be unlawful, void, or for any reason unenforceable, then that provision will be limited or eliminated from these Terms to the minimum extent necessary and will not affect the validity and enforceability of any remaining provisions.
14.5 Assignment. These Terms and related Guidelines, and any rights and licenses granted hereunder, may not be transferred or assigned by You, but may be assigned by Smarter Balanced without restriction. Any assignment attempted to be made in violation of this Terms of Service shall be void.
14.6 Survival. Upon termination of these Terms, any provision which, by its nature or express terms should survive, will survive such termination or expiration, including, but not limited to sections 6 through 14.
14.7 Headings. The heading references herein are for convenience purposes only, do not constitute a part of these Terms, and will not be deemed to limit or affect any of the provisions hereof.
14.9 Claims. You and Smarter Balanced agree that any cause of action arising out of or related to the smarter balanced site must commence within one (1) year after the cause of action accrues. Otherwise, such cause of action is permanently barred.
15.10 Disclosures. The Smarter Balanced Site is hosted in the United States, and the services provided hereunder are offered by Smarter Balanced: e-mail: SBAC@wested.org Address: Smarter Balanced Assessment Consortium, Mail Stop 47200, Old Capitol Building, P.O. Box 47200, Olympia, WA 98504-7200 Phone: (360) 725-6000; TTY: (360) 664-3631.