GRADELINK TERMS OF SERVICE

Effective August 29, 2024

The following Terms of Service (the “Agreement”) govern your use of the websites, mobile applications, and other online and mobile services that link to or post this Agreement (collectively, the “Services”) that are operated by Gradelink Corporation (“Gradelink,” “we,” “our,” “us”). These Terms of Service incorporate the following addenda which are set forth below:

Portal Access Addendum
Privacy Policy Addendum
Data Processing Addendum

Your use of the Services constitutes your acceptance of the Agreement. This Agreement sets forth the terms pursuant to which Gradelink will create, develop, and grant access to its Services, and how Customers, Authorized Employees, and Users may access and use them.

1. Parties: This Agreement primarily governs the relationship between Gradelink and its Customers. However, it also applies to Users, such as teachers, parents, guardians, and students. Each of the following is a “party” and collectively are the “parties” to this Agreement.

a. Gradelink: Gradelink Corporation is a California corporation with offices at 26741 Portola Parkway, Suite 1E-649, Foothill Ranch, CA 92610. In this Agreement, the term “Gradelink” (or “our company”, “we” and “us”) includes Gradelink Corporation and its subsidiaries and affiliates.

b. Customers: Schools and other educational institutions who purchase Gradelink’s Services through subscriptions or online orders (each, an “Order”) are each referred to in this Agreement as “Customer.” An “Authorized Employee” is an individual administrator, teacher, employee, agent, or contractor of Customer or one of Customer’s Schools for whom the Services have been purchased pursuant to the terms of an Order and this Agreement, and who has been supplied credentials by Customer (or by Gradelink at Customer’s request) and is authorized by Customer to use the Services on behalf of Customer.

c. Users: Customers may issue credentials to the Services for accessing student records and School information to a student’s parents or legal guardians, or Eligible Students (each, a “User”). These terms apply to Users. Users assume responsibility for all activities under their credentials. The Portal Access Addendum set forth specific terms governing a User’s access to the Services.

2. Termination. Gradelink or Customer may terminate this Agreement under the following circumstances:

a. Termination for Breach: In addition, Gradelink or Customer may terminate all Orders and this Agreement, effective on written notice to the other party, if the other party materially breaches this Agreement, and such breach (if capable of cure) remains uncured 30 days after the non-breaching party provides the breaching party with written notice of such breach. In cases where termination arises from Service Removal (described below) or Gradelink’s material breach, (1) Customer shall not be obligated to pay any additional amounts specified in the Order following the effective date of removal or termination, and (2) Gradelink will refund to Customer a pro rata share of any unused amounts prepaid by Customer under the applicable Order for the remaining portion of the current Order Term (a “Pro-Rated Refund”). In all other cases, regardless of whether Customer uses the Services at the levels reflected in the Orders or otherwise, Customer will not be entitled to a refund of Fees paid and any unpaid Fees outstanding will become immediately due and payable.

b. Termination for Failure to Pay Fees: Gradelink may terminate any and all Orders upon written notice to Customer if Customer fails to pay any amount due under an Order, and such failure continues more than 15 days after Gradelink’s delivery of written notice.

c. Expiration: Upon expiration or earlier termination of an Order: (1) all rights granted to Customer with respect to Services under such Order will terminate; and (2) Customer will pay to Gradelink any fees payable for Customer’s and any Authorized Employees’ use of Services through the effective date of the termination, together with all other amounts in accordance with the Order and this Agreement.

d. Data Retention: Provided Customer has paid all amounts due under this Agreement, and subject to any applicable shorter Service retention periods, for up to 30 days from the effective date of termination, an Authorized Employee designated by Customer will be permitted to continue to access and download Customer Information that was accessible to Authorized Employees through the Services immediately prior to termination. Customer’s designated Authorized Employee’s access and use will continue to be subject to the terms of this Agreement, provided the Authorized Employee shall not access or use the Services other than to download Customer Information.

e. Service Removal. In addition to the foregoing, any Service or feature thereof may be removed from this Agreement by Gradelink without penalty or liability to Customer upon 90 days’ prior written notice to Customer. However, Gradelink shall not remove any Service that has been developed or created for Customer pursuant to this Agreement during the Term of an Order. If Gradelink discontinues a standard, non-customized Service by providing notice to Customers, such removal shall be deemed effective immediately upon receipt of such notice. If removal of a Service or feature thereof is unacceptable to Customer, Customer may terminate the applicable Order.

3. Orders. Customer may procure Services from Gradelink by executing any number of Orders pursuant to the terms of this Agreement. “Order” means a separate order for Services pursuant to this Agreement: (a) completed and submitted by Customer online at Gradelink’s website and accepted by Gradelink or (b) executed by Gradelink and Customer. In the event of a conflict in terms between an Order and this Agreement, the terms of the Order shall take precedence solely with respect to the subject matter of that Order.

a. Renewal. Unless either party gives the other Party written notice of its intention not to renew an Order 30 or more days prior to the end of the Order’s then current term, if any, or unless otherwise specified in the Order, the Order will automatically renew for another subsequent term for the same duration as the initial term (each, a “Renewal Order Term”) until a new Order is executed or terminated.

b. Pricing. Gradelink agrees to sell to Customer the Services listed on a mutually executed Order. Any rates or prices not specified in an Order shall be set forth in Gradelink’s current Fee Schedule. All references to pricing shall be in U.S. currency.

c. Fee Increases. Gradelink will review its Fee Schedule during the term of an Order and revise it on an annual basis.

d. Taxes. Customer shall be responsible for all applicable state, local, and national sales and use taxes, or other transactional taxes, properly due on the Services being provided under this Agreement. In those jurisdictions where Gradelink is required to collect and remit such transactional taxes, Gradelink will deduct them from Customer’s account and bill Customer accordingly.

e. Fees and Payment Terms. Customer agrees to pay all fees charged by Gradelink for Customer’s use of Services in accordance with this Agreement and the Order executed by both Parties (“Fees”). If payment terms are not specified in an Order, Customer agrees to net 21 payment terms via ACH or electronic debit for undisputed invoices. Except in the event of a good faith dispute, if Customer fails to make payment when due, without limiting Gradelink’s other rights and remedies: (a) Gradelink may charge interest on the past due amount at a rate of 1.5% per month or, if lower, the highest rate permitted under applicable law; (b) Customer shall reimburse Gradelink for all reasonable costs incurred by Gradelink in collecting any late payments or interest, including attorneys’ fees and costs; and (c) if such failure continues for 30 days or more, Gradelink may suspend Customer’s access to the Services until such amounts are paid in full. Customer must assert any dispute of Fees in writing within 15 days of receipt of the invoice giving rise to the dispute. Gradelink will not exercise its suspension or termination rights or apply interest on late Fees if Customer disputes the applicable charges reasonably and in good faith and provides reasonable cooperation to resolve the dispute.

4. Professional Services and Scopes of Work. At Customer’s request, Gradelink may implement certain customizations and enhancements to the Services for Customer and its Schools pursuant to written scopes of work executed by Gradelink and Customer as a separate Order.

5. Affiliated Schools. With Gradelink’s approval, Customer may authorize affiliated school sites within a common school district or other school system (each, a “School”) to access and utilize Customer’s Services and data therein, along with corresponding instructions regarding each School’s use thereof. Schools may likewise upload data into the Services (“School Data”) with instructions for Gradelink’s processing and access by Customer. Gradelink reserves the right to approve any new Schools and proposed processing. Where a School has not entered into an Order or other separate agreement directly with Gradelink, Customer may authorize that School to access and use the Services under an existing Order between Gradelink and Customer. In such cases, references to “Customer” in the applicable Order and this Agreement will be deemed references to both Customer and the School. Customer will be jointly and severally liable for each of its School’s compliance with this Agreement only on those Orders for which the school has not contracted directly with Gradelink. As between Gradelink and Customer, Customer accepts full liability for the acts and omissions of its Schools under such an Order.

a. Gradelink may require a Customer’s School to enter into a commercially reasonable agreement (including online terms and conditions) with Gradelink prior to providing Services to such School under this Agreement, such as an Order or participation agreement.

b. An obligation for a School to buy from Gradelink shall not arise under this Agreement, nor any participation agreement, unless and until the School has executed a participation agreement and executed an Order to Gradelink for such Services.

6. Confidentiality. The term “Confidential Information” shall mean any non-public information, whether oral, written, visual, or otherwise, disclosed in confidence by or on behalf of a party, including schools, or disclosed by such party’s affiliates (“Disclosing Party”) to the other party or its affiliates (“Receiving Party”), or to the directors, partners, officers, employees, agents, or advisors (including attorneys, accountants, or consultants) (collectively, “Representatives”) of the Receiving Party, whether before or after Effective Date of this Agreement, which: (i) if in tangible form or other media that can be converted to readable form, is marked clearly as secret, confidential, or proprietary when disclosed; or (ii) if oral or visual, is identified as secret, confidential, or proprietary and delivered within ten (10) business days following the oral or visual disclosure. In addition, a party’s Confidential Information includes, without the need to mark it as such, any of a party’s or its affiliates’: requests for proposals, requests for information, project plans, information technology strategies, forecasts, employee and Gradelink information, software (including all documentation, code, and specifications), hardware and system designs, architectures, structure and protocols, products, processes, inventions, methods, trade secrets, customers, operational information, and other information concerning its facilities and such other information that a reasonable person would consider to be confidential or proprietary regardless of the form or manner of disclosure to the Receiving Party. The pricing, terms, and conditions of Orders are Confidential Information of Gradelink and Customer; however, Customer may disclose this Agreement (including all addenda hereto and applicable Orders) to its Schools and their Representatives.

a. Treatment of Confidential Information. The Receiving Party shall take the following actions when it receives Confidential Information: (i) use the Confidential Information only for the purposes of performing its obligations and/or exercising its rights under this Agreement; (ii) restrict disclosure of the Confidential Information to Representatives with a need to know the Confidential Information for performing their responsibilities in connection with this Agreement; (iii) advise those Representatives of the obligation not to disclose the Confidential Information; (iv) copy the Confidential Information only as necessary for its Representatives who need it in connection with performance of their responsibilities under this Agreement; and (v) use, and require its Representatives to use, the same degree of care as is used with the Receiving Party’s Confidential Information, which degree of care shall in no event be less than reasonable care.

b. Exceptions to Confidential Treatment. The obligations above do not apply to any Confidential Information that the Receiving Party can demonstrate: (i) the Receiving Party possessed prior to disclosure by the Disclosing Party, without an obligation of confidentiality; (ii) is or becomes publicly available without breach of this Agreement by the Receiving Party, other than pursuant to a security or data breach; (iii) is independently developed by the Receiving Party without use of any Confidential Information of the Disclosing Party; (iv) is rightfully received by the Receiving Party from a third party without an obligation of confidentiality to the Disclosing Party; or (v) is a School record that has been appropriately designated as “directory information” pursuant to FERPA.

c. Legal Proceedings. If, in the reasonable opinion of its legal counsel, a Receiving Party is required by law to disclose any Confidential Information of the Disclosing Party in connection with any legal proceeding, then the Receiving Party may disclose such information; provided, the Receiving Party shall notify the Disclosing Party within a reasonable time period prior to disclosure (unless prohibited under applicable law from doing so) in order to permit the Disclosing Party a reasonable opportunity to seek appropriate protective measures.

d. Destruction/Return of Confidential Information. Within 30 days from the termination or expiration of this Agreement or the receipt of a written request of the Disclosing Party, the Receiving Party shall, at the Disclosing Party’s option, either: (i) return the Confidential Information to the Disclosing Party; or (ii) certify in writing to the Disclosing Party that such Confidential Information has been destroyed in such a manner that it cannot be retrieved. Notwithstanding the foregoing, the Receiving Party may retain one archival copy of the Confidential Information solely for compliance with laws and evidentiary purposes in the event of any dispute regarding this Agreement or the Confidential Information. Each party’s obligations to protect Confidential Information from unauthorized disclosure under this Section shall survive the termination of this Agreement. Customer Information shall be retained or destroyed at the direction of the Customer.

7. Security.

a. Customer Information: Through Customer’s configuration and use of the Services, Customer has control over the types and amounts of data from Customer’s Environment that are submitted for processing by the Services (collectively, “Customer Information”). By submitting Customer Information to the Services, Customer hereby grants to Gradelink the right, and is expressly instructing Gradelink, to process Customer Information during the Order Term in order to provide and support the Services and as otherwise provided in this Agreement.

b. Data Processing: Parties to this Agreement shall comply with applicable laws concerning the privacy and protection of Personal Information. Customer will be solely responsible for providing any notices required by applicable law to—and receiving and resolving any consents, requests, and authorizations required by applicable law from—individuals whose Personal Information may be included in account data, Customer Information, or Customer credentials. Gradelink agrees during the Term to implement reasonable industry-standard, technical, and organizational security measures as applicable to Gradelink’s Services designed to protect Customer Information and will, at a minimum, utilize industry standard security procedures applicable to the Services (including protection against unauthorized or unlawful processing and against accidental or unlawful destruction, loss or alteration or damage, unauthorized disclosure of, or access to, Personal Information (as such terms are defined in the Data Processing Addendum attached hereto and incorporated herein to the extent required by applicable law) designed to protect the confidentiality and integrity of Personal Information.

c. Use by Customer and Schools. Subject to the applicable Order and this Agreement, Gradelink hereby grants to Customer a limited, non-exclusive right to access and use the Services in accordance with the Service documentation during the Order term for Customer’s Environment. The Terms of Service and the Order shall govern the features, availability, and specifications of Services as they are made available to Customer, Authorized Employees, Users, and other third parties pursuant to this Agreement, Order, or a participation agreement, as applicable, with respect to the Schools, unless otherwise agreed in writing. Subject to the terms of an Order, the Services will support Customer’s collection, monitoring, management, and analysis of data generated by systems, platforms, services, software, devices, sites and/or networks that Customer and its Schools use in each of their own internal business operations (collectively, but exclusive of the subscribed Services, “Customer’s Environment”).

(i) Customer will be solely responsible for: (a) Customer’s Environment, including as necessary to enable Authorized Employees’ access and use of the Services; (b) account data, Customer Information, and Customer credentials (including activities conducted with Customer credentials), subject to Gradelink’s processing obligations under this Agreement; (c) providing any required notices to, and receiving any required consents and authorizations from, Customer’s Authorized Employees, Customer’s Users, and persons whose Personal Information may be included in Account Data, Customer Information, or Customer credentials; and (d) ensuring use of the Services is only for Customer’s Environment and in accordance with the related documentation and applicable third-party terms.

(ii) No provision of this Agreement includes the right to, and Customer shall not, directly or indirectly: (a) enable any person or entity other than Authorized Employees and Users to access and use the Services; (b) attempt to gain unauthorized access to any Service or its related systems or networks; (c) use any Service to access Gradelink Intellectual Property Rights (as defined below) except as permitted under this Agreement; (d) modify, copy, or create any derivative work based upon a Service or any portion, feature or function of a Service; (e) resell, distribute or otherwise make available any Service to any third party, including as part of a managed services offering; (f) except to the extent limited by applicable law, reverse engineer, disassemble or decompile all or any portion of, or attempt to discover or recreate the source code for, the Services or access or use the Services or Documentation in order to (1) copy ideas, features, functions or graphics, (2) develop competing products or services, or (3) perform competitive analyses; (g) remove, obscure or alter any proprietary notice related to the Services; (h) send or store malicious code; (i) use or permit others to use the Services in violation of applicable law; or (j) use or permit others to use the Services other than as described in the applicable Order, related documentation, and this Agreement.

(iii) Customer is responsible for properly using the Services in accordance with the related documentation and securing access passwords, keys, tokens or other credentials used by Customer and its Authorized Employees in connection with the Services (collectively, “Customer Credentials”). Customer agrees to use reasonable efforts to prevent unauthorized access or use of the Services and to promptly notify Gradelink if Customer believes (a) any Customer Credentials have been lost, stolen or made available to an unauthorized third party, or (b) an unauthorized third party has accessed the Services or Customer Information.

8. Intellectual Property Rights and Ownership. As between the parties, each party will retain any and all rights to intellectual property developed by it prior to entering into this Agreement, or in the course of its performance, including all associated registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world (“Intellectual Property Rights”).

a. Customer owns Intellectual Property Rights to Customer’s Environment and Customer Information.

b. Gradelink owns all right, title and interest in and to the Services (including customizations and enhancements), documentation, feedback, software, technology, platforms, applications, user interface, tools, links, text, images, photographs, video, audio, graphics, user interface, and other content (and the selection, coordination, and arrangement of any content), data, analytics, algorithms, or materials included or displayed in or through, provided with or through the use of, or generated from the Services, and any and all improvements to or derivatives of the forgoing, including in each case all associated Intellectual Property Rights.

c. Except as expressly provided in this Agreement, parties are prohibited from copying, reproducing, modifying, distributing, displaying, performing, or transmitting any of the Services or contents of the Services for any purposes, and nothing otherwise stated or implied in the Services confers on you any license or right to do so without Gradelink’s express written consent. To the extent you obtain any rights in the Services, you hereby assign all such rights, title, and interest to Gradelink. Except for the rights expressly granted by one party to the other in this Agreement, all rights are reserved by the granting party.

9. Indemnification.

a. Subject to the conditions in this Section, Gradelink agrees to defend, indemnify and hold harmless Customer, its Schools, and their employees, contractors, agents, officers and directors (collectively, “Customer Indemnitees”), from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including without limitation attorneys’ fees) (collectively, “Losses”) arising out of or related to any legal claim, suit, action or proceeding (each, an “Action”) by a third party alleging use of the Services as permitted under this Agreement infringes such third party’s United States patent or copyright, or misappropriates such third party’s trade secrets (each, a “Customer Infringement Claim”). Gradelink will have no obligation to defend or indemnify Customer for a Customer Infringement Claim to the extent it arises from any of the following (collectively, “Customer-Controlled Matters”): (i) Customer’s Environment, including connections to Customer components, whether enabled through APIs, ancillary tools or otherwise; (ii) Account Data, Customer Information or Customer Credentials (including activities conducted with Customer Credentials), subject to Gradelink’s processing obligations under this Agreement; (iii) Customer’s modification of the Services or combination by Customer of the Services with other products or services if the Service would not have been infringing but for such combination or modification; or (iv) use of the Services by Customer or an Authorized Employee in a manner not authorized by an Order, Service documentation, or this Agreement.

b. If the Services become, or in Gradelink’s opinion are likely to become, the subject of a Customer Infringement Claim, Gradelink may in its discretion and at its own expense: (a) obtain for Customer the right to continue using the Services; (b) modify the Services so that they no longer infringe or misappropriate; or (c) terminate this Agreement and all Orders and issue a Pro-Rated Refund. SECTIONS 9.a AND 9.b STATE GRADELINK’S ENTIRE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDIES FOR ANY CLAIM OF INTELLECTUAL PROPERTY RIGHTS INFRINGEMENT OR MISAPPROPRIATION.

c. Subject to Section 9.d, Customer agrees to defend, indemnify and hold harmless Gradelink, its affiliates and their employees, contractors, agents, officers and directors (collectively, “Gradelink Indemnitees”), from and against any and all Losses arising out of or related to any Action by a third party arising out of or relating to: (i) Customer-Controlled Matters; (ii) Customer’s authorization to introduce Personal Information into the Services; (iii) any claim that Customer Information infringes a third party’s rights, including any claim involving alleged infringement or misappropriation of intellectual property rights; or (iv) Customer’s use of deliverables and other outputs generated by the Services.

d. A Customer Indemnitee or Gradelink Indemnitee (each, an “Indemnitee”) seeking indemnification shall promptly notify the other Party (each, an “Indemnifying Party”), in writing of any Action for which it seeks indemnification and cooperate with the Indemnifying Party at the Indemnifying Party’s expense. The Indemnifying Party shall promptly take control of the defense and investigation of such Action and shall employ counsel of its choice to handle and defend the same, at the Indemnifying Party’s expense. An Indemnitee may participate in and observe the proceedings at its own expense with counsel of its own choice. A Party’s failure to perform any obligations under this Section 9.d will not relieve the Indemnifying Party of its obligations under Section 9.a or 9.c (as applicable) except to the extent that the Indemnifying Party can demonstrate that it has been materially prejudiced as a result of such failure. The Indemnifying Party shall not settle an Action without the Indemnitee’s written consent if such settlement shall require action or payment by the Indemnitee.

10. Limitations of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT AS OTHERWISE PROVIDED IN THIS SECTION:

a. Types of Recoverable Damages. IN NO EVENT SHALL EITHER CUSTOMER OR GRADELINK, ITS AFFILIATES OR THEIR EMPLOYEES, AGENTS, CONTRACTORS, OFFICERS OR DIRECTORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR BUSINESS INTERRUPTION, LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES ARISING OUT OF OR RELATING TO THIS AGREEMENT.

b. Cap on Liability. IN NO EVENT SHALL EITHER CUSTOMER OR GRADELINK’S CUMULATIVE AND AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE FEES PAID OR PAYABLE TO GRADELINK BY CUSTOMER UNDER THE APPLICABLE ORDER(S), INCLUDING PRIOR ORDERS FOR THE SAME SERVICES, IN THE 12 MONTHS PRECEDING THE EVENT GIVING RISE TO THE LIABILITY. THE EXCLUSIONS AND LIMITATIONS IN THIS SECTION (COLLECTIVELY, THE “EXCLUSIONS”) APPLY WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER BASIS, EVEN IF THE NON-BREACHING PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.

c. Exclusions. THE LIMITATION OF LIABILITY IN SECTION 10.b SHALL NOT APPLY TO A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 9, CUSTOMER’S BREACH OF SECTION 7.b, OR CUSTOMER’S PAYMENT OBLIGATIONS TO GRADELINK UNDER THIS AGREEMENT. THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THE EXCLUSIONS IN DETERMINING TO ENTER INTO THIS AGREEMENT AND THE PRICING FOR THE SERVICES.

11. Disputes and Arbitration

a. Disputes. When a dispute arises, the representatives of the Parties who are directly involved shall use their best efforts to resolve it in good faith within a period of fifteen (15) business days. If, after such fifteen (15) business day period, the dispute remains unresolved then the vice presidents or equivalent of the applicable departments shall use their best efforts to resolve the dispute in good faith within a period of ten (10) business days. If, despite their best efforts, the dispute remains unresolved after such ten (10) business day period, then the chief executive officers or department head of the respective parties shall be briefed on the matter and shall use their best efforts to resolve the dispute in good faith within five (5) business days. The Parties may submit the dispute to mediation, in which case the Parties shall have 60 days to complete mediation.

b. Arbitration Agreement. All disputes not resolved pursuant to the terms of Section 11.a, above, relating in any way to this Agreement, or any other claims, whether based on contract, common law, statute, or otherwise, that have arisen or may arise between Gradelink, its parent, subsidiaries, affiliates, divisions, associates, predecessors, stockholders, officers, directors, employees, agents, and representatives and Customer, its parent, subsidiaries, affiliates, divisions, associates, predecessors, stockholders, officers, directors, employees, agents, and representatives, whether arising out of or relating to: (i) this Agreement (including any alleged breach thereof); and (ii) the Services, including the pricing, marketing, promoting, manufacturing, and availability or unavailability of any Service, shall be resolved exclusively through mediation and/or final and binding arbitration, rather than a court, in accordance with the terms of this Section 11, except that Customer or its Schools may assert individual claims in small claims court, if Customer’s claims qualify. This Section 11 shall apply to all disputes between Customer and Gradelink or any of their respective Authorized Employees, Users, parents, students, subsidiaries, affiliates, divisions, associates, predecessors, stockholders, officers, directors, employees, agents, and representatives, regardless of whether Customer is proceeding on its behalf or as service provider, assignee, sublicensee, delegate, or agent of or on behalf of any other person or entity.

c. Arbitration Procedures. All arbitrations pursuant to this Agreement shall be conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) as then in effect. The arbitration proceedings shall be held in Orange County, California and shall utilize the laws of the state governing this Agreement, pursuant to Section 13.e hereof. The arbitration shall be before a single arbitrator selected by the parties in accordance with the Commercial Arbitration Rules of the AAA pursuant to its rules on selection of arbitrators. The arbitrator shall render a formal, binding non-appealable resolution and award on each issue as expeditiously as possible but not more than ten (10) business days after the hearing. In any arbitration, discovery by each party shall be limited to three (3) depositions of not more than eight (8) hours each, twenty-five (25) interrogatories, and fifty (50) requests for production of documents per side. Prior to conduct of discovery, each party shall, without the need of a request from the other party, produce to the other side all documents such party shall use in its case in chief, and a list of all witnesses (not to exceed three (3)) it will call in support of its case. All discovery disputes shall be resolved by the arbitrator. The prevailing party in the arbitration shall be entitled to reimbursement of its reasonable attorneys’ fees, and the parties shall use all reasonable efforts to keep arbitration costs to a minimum. For the avoidance of doubt, any and all information exchanged during the arbitration process shall be governed by the confidentiality provisions of this Agreement set forth in Section 6.

d. Severability. Without limiting the severability provision in Section 13.h of this Agreement, if a court or the arbitrator decides that any term or provision of this Section 11 other than Section 11.a above is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified. If a court or the arbitrator decides that any provision of Section 11.a is invalid or unenforceable, then the entirety of this Section 11 shall be null and void. The remainder of this Agreement will continue to apply.

e. Equitable Relief. This Section 11 shall not limit either party’s right to immediately seek (without waiting for such arbitration) equitable relief from a court, including injunctive relief.

12. Notice. Any notice required or permitted to be given or made under this Agreement by one of the parties hereto to the other shall be in writing and shall be deemed to have been sufficiently given or made for all purposes if: (i) sent by email (with a reply acknowledging receipt thereof, excluding computer-generated automatic replies), (ii) nationwide overnight carrier (with tracking and confirmation) to the address specified below, or (iii) mailed by certified mail, return receipt requested, postage prepaid, addressed to such other party at its respective address as follows:

13. General Provisions.

a. Waiver. The failure of either party to insist upon the strict observation or performance of any provision of this Agreement or to exercise any right shall not impair or waive any such right. Every right given by this Agreement to the parties may be exercised from time to time and as often as appropriate.

b. Entire Agreement. These Terms and Conditions and the addenda constitute the final written expression of all terms and conditions of this Agreement relating to the subject matter hereof. This Agreement supersedes all previous communications, representations, and agreements, promises, or statements, either written or orally communicated, with respect to such subject matter hereof.

c. Modification. Gradelink reserves the right to make any changes to this Agreement at any time. If we supplement, supersede, or otherwise amend this Agreement at any time, the amended Agreement will take effect immediately when it is posted. You should therefore periodically visit this page to review the then-current Agreement. Your use of the Services after our posting of amendments to this Agreement will constitute your acceptance of this Agreement, as modified. If, at any time, you do not wish to accept this Agreement, you may not use the Services. If an Order specifies a fixed term of twelve (12) months or longer, any conflicting modifications will instead take effective immediately upon the start of the next Renewal Order Term. In either case, if Customer objects to the updated Agreement, as its sole and exclusive remedy, Customer may choose not to renew, including canceling any terms set to renew automatically.

d. Compliance with Law. Each party shall perform its obligations under this Agreement in a manner that complies with all applicable national, federal, state and local laws, rules and regulations, ordinances and administrative orders (“Applicable Laws”). For purposes of this Agreement, all sales between Gradelink and Schools are expected to occur solely within the United States and use of all Services subject to this Agreement will occur in the United States.

e. Governing Law. This Agreement shall be governed by and interpreted in accordance with the laws of the State of California without regard to its conflict of law provisions. Any legal action or proceeding arising under or relating to this Agreement shall be brought exclusively in the state or federal courts located in Orange, California, and the parties expressly consent to personal jurisdiction and venue in those courts. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods are specifically excluded from application to this Agreement.

f. Force Majeure. In the event either party cannot perform its obligations under this Agreement due to force majeure event, such as: an act of God, change in applicable law, mandate of any government, war, terrorism, civil disturbance, destruction of or damage to production facilities or materials, labor dispute, fire, earthquake or storm, pandemic, failure of public utilities or common carriers, or any other cause, in each case, beyond such party’s reasonable control (each a “Force Majeure Event”); the affected party shall not be deemed in breach of this Agreement and shall be exempt from any liability arising from such Force Majeure Event, excluding payment obligations; provided that such Party: (i) promptly notifies the other party and (ii) diligently pursues mitigation of any such Force Majeure Event. If such Force Majeure Event is expected to last more than 90 days; Gradelink may discontinue the sale to Customer or its Schools, permanently or temporarily, of any affected Service, all without liability or further obligation of Gradelink.

g. Assignment. Subject to the exceptions below, neither party may assign any of its rights or obligation under this Agreement, whether by operation of law or otherwise, without the other party’s prior written consent, and any purported assignment in violation of this Section is void. This Agreement is binding upon and inures to the benefit of the Parties hereto and their respective permitted successors and assigns.

(i) Assignment by Customer: So long as Customer remains current in the payment of all amounts when due, Customer may assign this Agreement in connection with any merger, consolidation, or reorganization involving Customer (regardless of whether Customer is a surviving or disappearing entity), or a sale of all or substantially all of Customer’s business or assets relating to this Agreement to an unaffiliated third party.

(ii) Assignment by Gradelink: Gradelink may assign this Agreement and its Orders in connection with any merger, consolidation or reorganization involving Customer (regardless of whether Customer is a surviving or disappearing entity), or a sale of all or substantially all of Customer’s business or assets relating to this Agreement to an unaffiliated third party.

h. Severability. If any provision of this Agreement shall be held to be invalid, illegal, or unenforceable, the remaining provisions hereof shall not in any way be affected unless the purposes of this Agreement cannot be achieved. In such event, the parties will use commercially reasonable efforts to substitute a valid, legal and enforceable provision that is acceptable to both of them.

i. Business Day. In the event a payment or delivery due date is a weekend or holiday, such payment or report shall be due on the immediately following business day of the Term.

j. Survival. Any terms of this Agreement that would, by their nature, survive the expiration or termination of this Agreement will so survive including, Section 3 (Orders), but only as to Administrative Fees earned prior to such expiration/termination; Section 6 (Confidentiality) for the time period set forth therein; Section 8 (Rights and Ownership); Sections 9 and 10 (Indemnification and Limitations of Liability); Section 11 (Disputes and Arbitration); and Section 13 (General Provisions).

k. Relationship of the Parties. This Agreement does not in any way create nor shall it operate or be construed so as to create the relationship of employer and employee, principal and agent, or joint venture or partnership between Customer and Gradelink, or the other Parties subject to this Agreement, and in no circumstances shall any of Customer’s or Gradelink’s respective agents, employees or contractors be considered to be the employee, agent, or joint venture or partner of the other or in any manner assume or create or attempt to assume or create any obligation or make any contract, agreement, representation or warranty on behalf of or in the name of the other, unless and to the extent specifically and expressly authorized herein. Rather, at all times the relationship of the parties hereunder shall be that of independent contractors with respect to one another. Each of the parties shall exercise or enforce all of its rights and perform all of its obligations in a commercially reasonable manner.

l. Injunctive Relief. Each Party acknowledges that, in the event of any breach of this Agreement by it, the other Party would be irreparably harmed and could not be made whole by monetary damages. Accordingly, it is agreed that, in addition to any other remedy to which they may be entitled, the non-breaching Party shall be entitled to an injunction to prevent breaches of, and to compel specific performance of this Agreement.

m. Cumulative Remedies. In the event a party breaches any of the representations, warranties, covenants or other obligations in this Agreement, the other party may exercise all rights and remedies available under this Agreement, at law or in equity. All rights and remedies are cumulative, and the exercise of any right or remedy shall be without prejudice to the right to exercise any other right or remedy provided herein, at law or in equity.

n. Interpretation. In this Agreement: (a) section headings are for reference only and do not affect the interpretation of this Agreement, and (b) defined terms include the plural as well as the singular.

o. Third Party Beneficiaries. This Agreement is for the sole benefit of the Parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer on any other person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement. Authorized Employees, Users, Schools, and the Indemnitees are not intended third-party beneficiaries to Customer’s rights under this Agreement and shall not be entitled to exercise Customer’s rights under this Agreement.

PORTAL ACCESS ADDENDUM

Last Updated on August 29, 2024

Introduction

Welcome to Gradelink’s Portal

At the direction of your school, Gradelink (“our,” “us,” or “we”) provides authorized individuals such as parents, legal guardians, students, and others (each, a “User”) with an online system for accessing Gradelink’s Services through mobile applications and websites (“Portal”). The Portal is made available to you at the direction of your school (Gradelink’s Customer) according to the terms of Gradelink Terms of Service, including this Portal Access Addendum. By using and accessing the Portal, you agree to be bound by and to comply with the Terms of Service and any other applicable terms and conditions posted on any individual page of this Service (“Agreement”).

In order to use the Portal, you must obtain access to the web through devices that access web-based information. You must provide all equipment necessary to make such connection to the web, including a computer and modem or other access device. In addition, you must:

1) Provide true, accurate, current and complete information about yourself as prompted by the Portal’s registration form; and

2) Maintain and promptly update such registration authorization information to keep it true, accurate, current and complete.

Acceptance of Terms

Gradelink provides the Services to your school subject to Gradelink Terms of Service which incorporate this Addendum. This Addendum governs your access and use of the Portal. The Terms of Service and this Addendum may be updated by Gradelink from time to time without prior notice to you. Unless explicitly stated otherwise, any new features that augment, change or enhance the Portal, including the release of new Gradelink services, shall be subject to the Terms of Service and this Addendum. You can review the most current version of the Terms of Service and this Addendum at any time.

In addition, when using components of the Portal, you agree to any applicable guidelines or rules that may be posted on the Portal from time to time. All such guidelines or rules are hereby incorporated by reference into this Addendum and the Terms of Service.

By accessing, browsing, and/or using the Portal, a User who is a parent acting on behalf of a minor student acknowledges and represents that you have read and understood these Terms of Service and the addenda, and that you, as well as your child or children, agree to be bound by the Terms of Service and comply with all applicable laws and regulations, including those of the United States.

You understand and agree that the Service is provided “AS-IS” to your school and at the direction of your school’s administration, and that Gradelink assumes no responsibility for the timeliness, deletion, mis-delivery, or failure to store any user communications, data, or personalization settings. Please review Gradelink’s “Disclaimer of Warranties” below.

Information Collection and Disclosure

Personally Identifiable Information collected about you by Gradelink is treated in accordance with our Privacy Policy and applicable law. If you do not agree to the Terms of Service or the Privacy Policy, you must cease use of Gradelink Services.

Gradelink collects and analyzes data on how groups of people may use Gradelink solely for the purpose of improving and enhancing its Services. Gradelink does not analyze information on how particular individuals use the service. However, information on individual usage of the system, including but not limited to individual IP addresses, may be analyzed on a case-specific basis to resolve technical difficulties or to assist in resolving or investigating any misuse of the Service.

In addition, Gradelink may provide individual usage information to your school if your school requests such information to assist in the investigation of fraudulent, abusive, or criminal activity or any other use of Gradelink that violates your school’s rules or policies.

Gradelink requires authorized Users to create a screen name and password, which is stored on the site, and may collect other basic information such as name, address, email, etc. depending on the needs of your school or the Service.

This information is not given or sold to any third parties unless required by your school as part of your school’s information management efforts.

Your school may also use Gradelink for all purposes that include public forums, on-line discussions or message boards. Your school will decide how it wishes to use public forums, online discussions and message boards.

These information collection, management, and disclosure practices apply to parents, teachers, administrators, and students.

If you are a parent, you must verify that you agree that this is acceptable for you as well as any of your children who may use Gradelink. If you are a teacher or school administrator, you must also verify that this is acceptable for you as well as any of your students that use Gradelink

Delivery and Processing of Customer Information

Gradelink provides a Web- and app-based information system (“Services”) for managing the receipt and delivery of school information (“Customer Information”).

1) Title
Title to all of the Customer Information processed by the Services remains with your school (“Customer”) that wishes to deliver information to you or receive information from you (“User”). Gradelink does not and will not take sole title or possession to any of the Customer Information.

2) Customer Information Warranty
Information delivered or received through the Services will be subject to any warranty or disclaimer or warranties by the Customer that delivers or receives the Customer Information. You agree to deal directly with the Customer regarding any and all warranty issues. Gradelink therefore disclaims all warranties related to the Customer Information, as it does not own, have title to, sell, or transfer the Customer Information except as authorized by the Customer.

3) Service Release
Gradelink manages the receipt and delivery of Services and has no control over the quality, accuracy, or safety of the Customer Information in the Customer’s instance or the ability of the Customer to provide any particular quality, accuracy, or safety with respect to the Customer Information.

4) Use of Customer Information
By using this Site, you expressly agree that you will use the Customer Information in strict compliance with all applicable laws and regulations, including any and all laws and regulations involving the rights of privacy. You agree to use the Customer Information as it is intended to be used.

5) User Ability to Opt-Out.
If you are the parent and guardian of a student using Gradelink’s Service or Site, and cease to agree with Gradelink’s Terms of Use or Privacy Policy at some point in the future, you may opt-out by contacting Gradelink via email or phone, which will deactivate your account and your child’s account, and obtain authorization from your school (the “Customer”) to erase any personal information that has been collected through the Portal. The fastest way to opt-out is to contact your school administrator.

Third Party Services or Products Obtained Through Gradelink

Gradelink may:

1) Provide Users with promotional information via e-mail regarding services offered by Gradelink or services or products offered by third parties. Users may opt out of receiving third-party promotions by contacting Gradelink.

2) Make third-party services or products available to Users. However, Gradelink does not act as an agent or broker on behalf of any third parties that may offer services or products through Gradelink’s website. Gradelink does not negotiate individual contracts, purchases, or sales with any User on behalf of these third parties.

Users may contract directly with third parties to obtain third-party services or products through the Gradelink website. Payment shall be made directly to the third parties providing those services in accordance with User’s agreement with the third party. Gradelink makes no representations on behalf of third parties, nor is Gradelink responsible for the statements, actions, or omissions of third parties. Inclusion of a third-party service or product on Gradelink’s website is not an endorsement of that service or product. Gradelink encourages Users electing to use such services or products to review the terms of the agreements with those third parties. If User is not satisfied with the services or products provided by third parties, User must contact the third parties directly.

Registration Obligations

In consideration of your use of the Service, you agree to:

1) Provide true, accurate, current and complete information about yourself as prompted by the Service’s registration form (such information being the “Registration Data”); and

2) Maintain and promptly update the Registration Data to keep it true, accurate, current and complete.

If you provide any information that is untrue, or we have reasonable grounds to suspect that the information is untrue, inaccurate, not current, or incomplete, Gradelink may suspend or terminate your access to the Service and this Site and refuse any and all current or future use of the Service (or any portion thereof).

It is a condition of your use of this Service that you do NOT:

1) Impersonate any person or entity, including, but not limited to, an official of Gradelink, Customer (“school district or school”), a school district or school representative, guide or host, or falsely state or otherwise misrepresent your identity or affiliation with a person or entity;

2) Upload, post, email or otherwise transmit any Information that is unlawful, harmful, threatening, harassing, defamatory, vulgar, invasive of another’s privacy, hateful, or otherwise objectionable;

3) Upload, post, email or otherwise transmit any Information that you do not have a right to transmit under any law or any Information that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party;

4) Collect or store personal data about other Users;

5) Disrupt the normal flow of dialogue, cause a screen to “scroll” faster than other users of the service are able to type, or otherwise act in a manner that negatively affects other Users’ ability to engage in exchanges;

6) Upload, post, email or otherwise transmit any material that contains software viruses, or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software;

7) Upload, post, email or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” or “chain letters”;

8) Forge headers or otherwise manipulate identifiers in order to disguise the origin of any information transmitted through the Services;

9) Interfere with or disrupt (or attempt to interfere with or disrupt) the Service or servers or networks connected to the Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Service;

10) “Stalk” or otherwise harass anyone; or

11) Harm minors in any way.

Both Gradelink and your school district or school (the “Customer”) reserve the right at all times to disclose any information posted by you or any other User as necessary to satisfy any law, regulation or governmental request, or to edit, refuse to post or to remove any information or materials, in whole or in part, that in either Gradelink or Customer’s sole discretion are objectionable or in violation of this Agreement.

Member Account and Credentials

As an authorized User, you will have the opportunity to select a password and you will receive one or more account designations upon completing the Service’s registration process. Please select a password that would not be obvious to someone trying to guess your password and change it occasionally as an added precaution. You are responsible for maintaining the confidentiality of the password and account, and you are fully responsible for all activities that occur under your password or account identification.

You agree to:

1) Immediately notify Gradelink of any unauthorized use of your password or account or any other breach of security

2) Ensure that you exit from your account at the end of each session.

Gradelink cannot and will not be liable for any loss or damage arising from your failure to comply with this Section.

User Conduct
You understand, acknowledge and/or agree:

1) All information, data, text, photographs, messages and other materials (“Information”), whether publicly posted or privately transmitted, are the sole responsibility of the person from which such Information originated. Among other things, this means that you, and not Gradelink, are entirely responsible for all Information that you send or receive via the e-mail messaging system or otherwise transmit via the Service.

2) Gradelink does not control the Information posted via the Service and the Site and, therefore, does not guarantee the accuracy, integrity or quality of such Information.

3) By using the Service or the Site, you may be exposed to Information generated by other Users that may be offensive, indecent or objectionable. Under no circumstances will Gradelink be liable in any way for any Information, including, but not limited to, for any errors or omissions in any Information, or for any loss or damage of any kind incurred as a result of the use of any Information posted, emailed or otherwise transmitted via the Service or the Site.

4) To use the Service in a manner consistent with any and all applicable laws and regulations. Specifically, you agree not to use the Service for any unlawful, offensive, harassing, or deceitful purpose, or take any action that, in Gradelink’s and the Customer’s sole opinion, restricts or inhibits other users from using and enjoying the Service or the Site, such as but not limited to, the use of vulgar, profane or otherwise offensive language; inappropriate aliases; committing or discussing with the intention to commit illegal activities.

5) Not to submit, publish, or display on the Service or the Site any defamatory, inaccurate, abusive, obscene, profane, sexually oriented, threatening, racially offensive, or illegal material; nor will you encourage the use of controlled substances. Transmission of material, information or software in violation of any local, state or federal law is prohibited and is a breach of the Terms of Service.

6) Not to upload, post or reproduce in any manner any materials protected by copyright without the permission of the copyright owner.

7) Gradelink does not pre-screen Information, but that Gradelink and its designees shall have the right (but not the obligation) in their sole discretion to refuse or move any Information that is available via the Service or the Site. Without limiting the foregoing,

8) Gradelink and its designees shall have the right to remove any Information that violates the Terms of Service or is otherwise objectionable.

9) You must evaluate, and bear all risks associated with, the use of any Information, including any reliance on the accuracy, completeness, or usefulness of such Information

10) You may not rely on any Information created by Gradelink or our business partners or submitted to Gradelink.

11) Gradelink may preserve Information and may also disclose Information if permitted by the Privacy Policy and/or required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to:

a) Comply with legal process

b) Enforce the Terms of Service

c) Respond to claims that any Information violates the rights of third parties

d) Protect the rights, property, or personal safety of Gradelink, its business partners, its users and the public

12) The technical processing and transmission of the Service or the Site, including your Information, may involve:

a) Transmissions over various networks

b) Changes to conform and adapt to technical requirements of connecting networks or devices

Public Information on Gradelink

For purposes of the Terms of Service, “publicly accessible areas of the Service” are those accessible by the general public. By way of example, a publicly accessible area of the Service would include announcement boards, news pages, teacher pages, message boards and forums, member profiles, and calendars.

With respect to all Information you elect to post to publicly accessible areas of the Service or the Site, you grant Gradelink the royalty-free, perpetual, irrevocable, non-exclusive and fully sub-licensable right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such Information (in whole or part) worldwide and/or to incorporate it in other works in any form, media, or technology now known or later developed and to exercise the same rights with respect to such works.

You also permit any Service user to access, display, view, store and reproduce such Information. Subject to the foregoing, the owner of such Information your school or school district (“Customer”) retains any and all rights that may exist in such Information.

Indemnity

By using this Site, you expressly agree to indemnify, defend, and hold harmless Gradelink, its officers, directors, employees, and representatives from and against any suits, losses, claims, demands, liabilities, costs, and expenses (including reasonable attorneys’ fees and expenses) that Gradelink may sustain or incur as a result of any claim against them based upon negligence, breach of warranty, strict liability in tort, contract, or any other theory of law brought by you or by third parties arising out of, directly or indirectly, the use of any Gradelink Service, Product, Portal, or Site, including claims based in whole or part on a claim of negligence by Gradelink.

You agree to indemnify, defend, and hold harmless Gradelink, its officers, directors, employees, and representatives from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of information you submit, post to or transmit through the Services or Portal, your use of the Services or Portal, your connection to the Services or Portal, your violation of the Terms of Service, or your violation of any rights of another, including claims based solely or in part on the negligence of Gradelink.

No Resale or Transfer of Service

We grant to you a limited, non-exclusive, non-transferable, revocable license to use the Services, Portal, and Site only for the Customer’s and Gradelink’s intended purposes. You may not:

1) Sell, resell, transfer in any way or otherwise use or commercially exploit the Service other than by using it for its intended purposes in connection with your individual use of the Service.

2) Reproduce, prepare derivative works from or otherwise commercially exploit any portion of the Service for any commercial purposes outside the primary purposes of your business.

3) Modify, translate, decompile, disassemble, reverse engineer or otherwise attempt to derive the source code for the computer systems and other technology that operate the Service or create derivative works based on the Service. For purposes of the Terms of Service, “reverse engineering” shall mean the examination or analysis of the Service to determine the source code, structure, organization, internal design, algorithms or encryption devices of the Service’s underlying technology.

The license granted to you under the Terms of Service will automatically terminate upon termination of your account. Gradelink and the Customer have the right to terminate the license of any User at any time for any or no reason, solely in the discretion of Gradelink and Customer.

General Practices Regarding Information Use and Storage

You acknowledge and/or agree that Gradelink:

1) May establish general practices and limits concerning use of the Service, including, without limitation, the maximum number of days that messages or other uploaded Information will be retained by the Service, the maximum number of messages that may be sent from or received by an account on the Service, the maximum size of any message that may be sent from or received by an account on the Service, the maximum disk space that will be allotted on Gradelink’s servers on your behalf, the maximum number of times (and the maximum duration for which) you may access the Service in a given period of time, the maximum time during which your use of your Gradelink account may remain inactive and the price you are asked to pay to use the Service.

2) Has no responsibility or liability for the deletion or failure to store any messages and other communications or other Information maintained or transmitted by the Service.

3) Reserves the right to log off accounts that are inactive for an extended period.

4) Reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice.

Refer to the Privacy Policy Addendum for further clarifications.

Availability and Modification to Service

As owner of the Services, Gradelink:

1) May use commercially reasonable efforts to ensure that the Services are available for Customer’s and User’s use; however, Gradelink makes no guarantee that the Services will be available 24 hours per day, 7 days a week, or that the Services will be error-free. Errors include but are not limited to interruptions, server downtime, errors in coding, and malfunctions.

2) Reserves the right at any time and from time to time to:

a) Modify or discontinue, temporarily or permanently, the Service (or any part thereof) or the Site with or without prior notice; and

b) Add, delete, or modify from time to time the Service or the Site offered and will provide reasonable notice of such changes if the changes materially impact Customers’ and Users’ ability to use the Services.

3) May, but shall have no obligation to, contact you to provide information about changes to the Services.

You agree that Gradelink and/or its subsidiaries, officers, directors, employees, and representatives shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Services or Portal, including any modification, suspension or discontinuance of the Services or Portal that may have been caused solely or in part by Gradelink’s negligence.

Termination

You agree that:

1) Gradelink, in its sole discretion, may terminate your password, account identification or password or use of the Service, and that the educational institution that holds title to information you have generated through the Service may remove and discard any data stored within the Service or on the Site, for any reason, including, without limitation, for lack of use or if Gradelink believes that you have violated or acted inconsistently with the letter or spirit of the Terms of Service, and the educational institution agrees.

2) Any termination of your access to the Service (or any portion thereof) under any provision of this Terms of Service may be affected without prior notice by Gradelink and the Customer

3) Gradelink may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the Service or the Site.

4) Gradelink shall not be liable to you or any third-party for any termination of your access to the Service or the Site.

5) Gradelink shall have no obligation following any termination, including liability based solely or in part based on negligence on the part of Gradelink.

6) If you wish to terminate use of the Service or the Sites you may do so at any time by contacting Gradelink or your school or school administrator (“Customer”).

Dealings with Advisors and Service Providers

Your correspondence or business dealings with, or participation in promotions of, advertisers or service providers found on or through the Service, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such advertiser or service providers.

You agree that Gradelink shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such advertisers or service providers on the Service or the Site, including liability based solely or in part based on negligence on the part of Gradelink.

Links and Software

The Service, or other third parties, may provide links to other websites or resources. Because Gradelink has no control over such sites and resources, you acknowledge and agree that:

1) Gradelink is not responsible for the availability of such external sites or resources, does not endorse and is not responsible or liable for any Information, advertising, products, or other materials on or available from such websites or resources.

2) Gradelink shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such Information, goods or services available on or through any such site or resource.

3) Any software or files that are made available for download from the Site (“Software”) are the copyrighted work of Gradelink and/or its suppliers and partners.

4) Use of the Software is governed by the terms of the end user license agreement, if any, that accompanies or is included with the Software (“License Agreement”).

5) End users shall not install or use any Software that is accompanied by or includes a License Agreement, unless the end user first agrees to the License Agreement terms.

6) For any Software not accompanied by a license agreement, the following shall constitute the License Agreement: Gradelink hereby grants to you a personal, nontransferable license to use the Software for viewing and otherwise using the Site in accordance with these terms and conditions, and for no other purpose.

Gradelink Proprietary Rights

You acknowledge and agree:

1) The Service and any necessary software used in connection with the Service (“Software”) contain proprietary and confidential information that is protected by applicable intellectual property and other laws.

2) Information contained in sponsor advertisements or information presented to you through the Service, Gradelink partners, or advertisers is protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws.

3) Not to modify, rent, lease, loan, sell, distribute or create derivative works based on the Service or the Software, in whole or in part except as expressly authorized by Gradelink, Gradelink partners, or advertisers.

Disclaimer of Warranties

You expressly understand and agree that:

1) Your use of the service is at your sole risk. The service is provided on an “as is” and “as available” basis.

2) Gradelink expressly disclaims all warranties of any kind, whether express or implied, including, but not limited to the implied warranties of merchantability, fitness for a particular purpose and non-infringement.

3) Gradelink makes no warranty that:

a) The service will meet your requirements;

b) The service will be uninterrupted, timely, secure, or error-free;

c) The results that may be obtained from the use of the service will be accurate or reliable;

d) The quality of any products, services, information, or other material purchased or obtained by you through the service will meet your expectations; or that

e) Any errors in the Service will be corrected.

4) Any material downloaded or otherwise obtained through the use of the service is done at your own discretion and risk and that you will be solely responsible for any damage to your computer system or loss of data that results from the download of any such material.

5) The security mechanisms implemented by Gradelink and its business partners may have inherent limitations, and you must determine for yourself that the security and performance of the service sufficiently meet your requirements.

6) Gradelink and its business partners are not responsible for your data whether residing on our or your servers.

7) No advice or information, whether oral or written, obtained by you from Gradelink or through or from the service or site shall create any warranty not expressly stated in the Terms of Service.

Limitation of Liability

You expressly understand and agree that Gradelink shall not be liable for any direct, indirect, incidental, special, consequential, exemplary or other damages, including but not limited to, damages for loss of profits, goodwill, use, data, business interruption or other intangible losses (even if they have been advised of the possibility of such damages or result in whole or in part from the negligence of Gradelink) arising or relating in any way to the service or the site.

Even if all other releases and waivers contained in this agreement are deemed inapplicable or unenforceable, your sole remedy for any claim or damage of any kind against Gradelink, arising out of or relating to the service or the site shall not exceed the greater of $1,000 or the amount the customer has paid to Gradelink for access to or use of the service or site during the 12 months preceding the occurrence of the cause of action.

Exclusions and Limitations

Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages.

Accordingly, some of the above limitations may not apply to you. The Limitation of Liability section nevertheless applies to the fullest extent allowed by law.

Notice

Notices to you may be made via either email, or regular mail. Gradelink may also provide notices of changes to the Terms of Service or other matters by displaying notices or links to notices generally on the Service.

Trademarks and Copyright Information

Gradelink, Gradelink’s logo, and other Gradelink logos and product and service names are trademarks of Gradelink (the “Gradelink Marks”). Without Gradelink’s prior permission, you agree not to display or use in any manner, the Gradelink Marks.

Gradelink’s web pages at Gradelink.com and other related URLs (and all reviewable pages, underlying program code and accompanying services and documentation related to that site is: Copyright © 2024 Gradelink Corporation, ALL RIGHTS RESERVED.

Permission is hereby granted to print in hard copy portions of Gradelink.com for the sole purposes of placing or approving a request or order using the Service or archiving business records. Any other use of any portion of Gradelink.com or any other co-branded site established with our partners, including reproduction for purposes other than those specified herein, modification, distribution, or publication, are expressly prohibited without the prior written permission of Gradelink.

Legal Advice

Gradelink does not offer legal advice, and any references to federal, state or local law, regulation, legal terminology, or statute are for informational purposes only. Legal references at Gradelink’s website are meant to inform Users of issues that may be relevant to their use. Such references are meant to facilitate independent research into matters collateral to the services Gradelink provides.

Gradelink makes no representation, warranty, or claim that the information available on the website is current or accurate. Do not act or rely upon any of the resources and information available in the website without seeking professional legal advice.

General Information

The Terms of Service and the Privacy Policy for this web site referred to herein constitute the entire agreement between you and Gradelink and govern your use of the Service, superseding any prior agreements between you and Gradelink.

You also may be subject to additional terms and conditions that may apply when you use services of our business partners, third-party Information, or third-party software. The Terms of Service and the relationship between you and Gradelink shall be governed by the laws of the State of California without regard to its conflict of law provisions.

You and Gradelink agree to submit to the personal and exclusive jurisdiction of the courts located within the county of Orange County, California. The failure of Gradelink to exercise or enforce any right or provision of the Terms of Service shall not constitute a waiver of such right or provision. If any provision of the Terms of Service is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the Terms of Service remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or the Terms of Service must be filed within six (6) months after such claim or cause of action arose or be forever barred. The Terms of Service do not constitute legal advice.

Users of the service should consult their own counsel for answers to legal questions. The section titles in the Terms of Service are for convenience only and have no legal or contractual effect.

Violations

Please report any violations of the Terms of Service to us by email at legal@gradelink.com.

Browser Compatibility

To use Gradelink’s Services, you must use an up-to-date SSL-enabled browser, such as Microsoft Edge, Google Chrome, Safari, or Firefox. The “key” icon that, in some browsers, indicates SSL encryption may not appear when you are viewing encrypted pages in Gradelink’s Services due to the use of multiple frames. However, the information you provide will be encrypted.

Acceptance of Terms of Service

By using Gradelink’s Services, you acknowledge that you have read these Terms of Service, that you understand them, and that you agree to be bound by them.

If you are a parent, you verify and agree that Gradelink’s Services and these Terms of Service are acceptable to you and that your minor children may use Gradelink. If you are a teacher, you agree that the Services and the Terms of Service are acceptable to you and to any of your students that may use Gradelink.

If you, as a parent, do not agree to the Terms of Service, including this Privacy Policy, regarding your or your student’s use of the Services, you and your students are not authorized to use Gradelink’s Services.

PRIVACY POLICY ADDENDUM

Updated August 8, 2024

This Privacy Policy is an addendum to and incorporated into Gradelink’s Terms of Service. This Privacy Policy explains how Gradelink collects, uses, and discloses personal information as part of our primary business processes for delivering and promoting the Services. We collect data from you or about you or your student when:

1) Your school uses our Gradelink Student Information System (SIS), Gradelink App, and Portal; and/or
2) You or your organization are a current, former, or potential Gradelink customer.

Our processes are different for these two sources of personal data. We detail our policies and processes for each of these two categories separately:

1. GRADELINK STUDENT INFORMATION SYSTEM (SIS) AND PORTAL

Schools in the U.S., E.U., and other countries across the world are subject to the regulations of their country, region, and locality. These regulations typically mandate procedures and guidelines for school recordkeeping. Schools contract with Gradelink to provide a Student Information System to maintain their records. The U.S. FERPA regulations and the E.U. GDPR regulations assign the school (not Gradelink) the responsibility for administering privacy rights including informing parents and students about their privacy policies.

Therefore, students, parents, and school staff interested in privacy matters regarding their school’s use of Gradelink SIS and Portal should consult their school and request their FERPA Notice or GDPR Privacy Policy. Please contact the Data Protection Officer (see contact information below) via email for any questions or concerns regarding Gradelink’s Privacy Policy.

In order to maximize transparency and enable both Gradelink and your school to comply with applicable law, Gradelink offers the following information regarding how personal information is collected, used, disclosed, shared, or sold.

What data do schools collect using Gradelink’s SIS and the Portal?

Information is collected by a school’s teachers and administrators to maintain records on a school’s students, parent/guardians, staff, and volunteers. Student and parent information varies by school and can include student demographics, family information, classes, grades, attendance, discipline, individualized education plans, medical records, tuition, billing and other information. Staff information includes demographics, course, classroom, and student assignments. Volunteer information includes demographics, background checks, and volunteer records.

In some cases, parents and students may enter their personal information directly into the system through the Portal at the school’s direction. For example, students or parents who wish to receive school news, course assignments, or grade reports from the school may supply their email address either to the school or by subscribing through the Portal.

What is the business or commercial purpose for the data?

Schools use the Services to maintain their records and communicate with the School’s community.

What information is disclosed or sold?

Gradelink contracts with a highly secure third-party data center and subprocessors to operate its systems, host its data, and deliver the Services. Gradelink does not otherwise disclose data to any third party nor sell any personal data. Some schools report aggregate census data and other information to third parties. Consult your school regarding their policies regarding release of personal data and student data. Regulations for US and EU schools prohibit schools from selling any student information.

What are my rights regarding my information or my student’s information?

U.S. and E.U. regulations direct students and parents to communicate directly with their school regarding rights, for example, to access information and to correct inaccuracies. Certain jurisdictions, including California, provide certain rights to all residents, which include:

• The right to submit a consumer request to know what personal information about you, if any, is maintained by Gradelink;
• The right to request deletion of your information; and
• The right to opt-out of sale of your personal information.

What are the processes and details for exercising my rights under California law?

These rights may be exercised by California residents by sending the request to our Data Protection Officer (see contact information below). An authorized agent may use the same process. Our response will be to inform you that due to contractual obligations with your school, we are prohibited from releasing, altering, or deleting any personal information, and that you should contact your school to exercise these rights. Gradelink does not verify the identity of any individual exercising these rights. Gradelink’s process for implementing these requests is simply to refer your request to your school.

Commitment to Non-Discrimination

Gradelink will not discriminate against any individual for exercising their rights under California or other applicable law.

2. CURRENT, PREVIOUS, OR POTENTIAL CUSTOMERS OF GRADELINK

What Personal Data does Gradelink Collect?

Gradelink collects school administrator names, titles, employer names, addresses, contact information (email, phone), correspondence history and notes regarding current, previous, and potential customers.

What Sources are used to collect Personal Data?

Gradelink collects personal information when you telephone or email us, from our website, referrals, trade shows, purchased lists, school websites, and during the customer service delivery process.

What is the Business or Commercial Purpose for the Personal Data?

Personal Data is collected as part of the sales and marketing effort, for the delivery of the Gradelink Student Information System, and in the case of previous customers, for our record retention requirements.

Will you use my data for any additional purposes?

Gradelink’s use of your data is limited to the delivery of Gradelink’s Services to its Customers as described in the Terms of Service and the Privacy Policy.

Is my Personal Data sold (including consumers under 16 years)?

Gradelink does not sell personal data.

What is the Legal Basis for collecting my Personal Data?

The legal basis under the GDPR regulation is consent in the case of potential customers and performance of contract for current and previous customers.

What Third-Parties receive my Personal Data?

Gradelink uses trusted service providers who provide business operations and communications services.

In Which Countries is my Personal Data stored?

Most data is stored in the United States. A small amount of data is kept in France, with a contracted service provider that helps improve Gradelink’s communications reliability.

How long is my data Retained?

Gradelink maintains current customer data including student attendance records and student transcript records indefinitely for as long as customer maintains service. Unless otherwise mandated differently by applicable law or regulation, the general retention period for information after Services conclude is 3 years (36 months). Retention periods may be prolonged in cases where there is an ongoing investigation by authorities, if there are records of personal data that are needed by the Customer to prove compliance with any legal requirements; or when exercising legal rights in cases of lawsuits or similar court proceeding under applicable. Some categories of non-critical data such as individual assignment records older than 36 months may be purged periodically to improve system and resource efficiency.

Am I Required to Provide my personal information?

Users of the Portal and the Gradelink Services are only required to provide their Personal Data to the extent that they wish to use Gradelink’s Portal and Services. Customers (schools) use Gradelink’s Services to process personal information of students, parents, employees, and volunteers in order to use Gradelink’s Services.

What are your data protection rights?

Your legal rights vary based on your residency. EU residents are granted rights under GDPR, US students and parents have rights under FERPA and various state laws, and California residents have rights under CCPA. For information collected from current, former, or potential Customers of Gradelink, as well as Gradelink employees, contractors, vendors and other contacts, Gradelink uses the following processes to ensure that your privacy rights are protected:

• The right to access – You have the right to request Gradelink for copies of your personal information. When you make a request, we may verify your identity by asking details regarding information you have provided us. We will then provide you, via email or other reasonable means, the information that you have requested.
• The right to rectification – You have the right to request that Gradelink correct any information you believe is inaccurate. You also have the right to request Gradelink to complete information you believe is incomplete.
• The right to erasure – You have the right to request that Gradelink erase your personal data, under certain conditions. When you make a request, we will verify your identity by asking you details regarding information you have provided to us. We will complete your request unless other obligations prohibit us from honoring you request. We will send you a conformation when we have completed the process, and if we are prohibited from erasing your data, we will explain why.
• The right to restrict processing – You have the right to request that Gradelink restrict the processing of your personal information, under certain conditions.
• The right to opt out of sale of your information. You may make a request to opt out of any sale of your information. After you make a request, you will receive a reply that Gradelink’s policy is to not sell any information and your request is thereby honored.
• The right to withdraw consent – If you originally provided Gradelink consent to use your information, you have the right to withdraw this consent at any time.
• The right to lodge a complaint – You have the right to lodge a complaint. EU residents may lodge a complaint with your country or local data protection office. US residents may complain with the appropriate state agency.

If you would like to exercise any of these rights, send an email to our Data Protection Officer, whose contact information is listed below under “How to contact us”. Please also note:

• If you make a request, we will respond to you within one month.
• Your authorized agent may exercise any of your rights on your behalf.
• Your agent should include the legal authorization such as power of attorney or other legal document valid in your local jurisdiction.
• You have the right to not be discriminated against in any way for exercising your rights and we honor that right.

Obligations to Provide us your Personal Information

Current and prospective customers and users must provide their personal data for us to discuss and/or deliver Gradelink’s services.

Changes to our Gradelink Services Privacy Policy

Gradelink reviews and updates this Privacy Policy periodically and places any updates on this webpage and in the Portal. This Privacy Policy was last updated on August 29, 2024.

Legal Compliance

Gradelink’s Services and Customers are subject to international, national, and state/provincial laws and regulations. These include the European Union’s General Data Protection Regulation (GDPR), U.S. state laws including the California Consumer Protection Act (CCPA), and other laws and regulations. Schools using Gradelink’s Services collect personal information on their students under 13 years of age. While neither these schools nor Gradelink are subject to the Children’s Online Privacy Protection Act (COPPA), our school customers are generally subject to the strict privacy regulations specified in FERPA.

How to contact us

If you have any questions or complaints about our Gradelink Services Privacy Policy, the data we process, or you would like to exercise one of your data protection rights, please contact our data protection officer:

Data Protection Officer: Jonathan Kim

Phone: +1.800.742.3083
Or Direct +1.949.504.8564

Or, via standard mail:

Gradelink Corporation (Attn: Data Protection Officer)
26741 Portola Pkway #1E-649
Foothill Ranch, CA 92610
United States of America

DATA PROCESSING ADDENDUM

Updated August 29, 2024

This Data Processing Addendum (“DPA”) is by and between Customer (“Customer” or “School”), a School (as defined below), and Gradelink Corporation (“Gradelink”) (collectively, the “Parties”).

ARTICLE I: DEFINITIONS

As used in this DPA, the following terms shall have the following meanings:

1. Breach: The unauthorized acquisition, access, use, or disclosure of personally identifiable information in a manner not permitted by State and federal laws, rules and regulations, or in a manner which compromises its security or privacy, or by or to a person not authorized to acquire, access, use, or receive it, or a Breach of Gradelink’s security that leads to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to personally identifiable information.

2. Commercial or Marketing Purpose: means the sale, use or disclosure of personally identifiable information for purposes of receiving remuneration, whether directly or indirectly; the sale, use or disclosure of personally identifiable information for advertising purposes; or the sale, use or disclosure of personally identifiable information to develop, improve or market products or services to students.

3. Disclose: To permit access to, or the release, transfer, or other communication of personally identifiable information by any means, including oral, written or electronic, whether intended or unintended.

4. Education Record: An education record as defined in the Family Educational Rights and Privacy Act and its implementing regulations, 20 U.S.C. 1232g and 34 C.F.R. Part 99, respectively.

5. Eligible Student: A student who is eighteen years of age or older.

6. Encrypt or Encryption: As defined in the Health Insurance Portability and Accountability Act of 1996 (HIPAA) Security Rule at 45 CFR 164.304, means the use of an algorithmic process to transform electronic information into an unusable, unreadable, or indecipherable form in which there is a low probability of assigning meaning without use of a confidential process or key.

7. NIST Cybersecurity Framework: The U.S. Department of Commerce National Institute for Standards and Technology Framework for Improving Critical Infrastructure Cybersecurity Version 1.1.

8. Parent: A parent, legal guardian or person in parental relation to the Student.

9. School Personal Information: Means personally identifiable information from the records of the as defined in section 99.3 of Title 34 of the Code of Federal Regulations implementing the Family Educational Rights and Privacy Act, 20 U.S.C 1232g, and Teacher or Principal APPR Data, as defined below that is processed by Gradelink on behalf of the School pursuant to the Terms of Service.

10. Release: Shall have the same meaning as Disclose.

11. School: the Customer, to the extent that it falls into one of the following categories: (a) Any public elementary or secondary school including a charter school, universal pre-kindergarten program authorized pursuant to New York Education Law (“Education Law”) § 3602-e, (b) an approved provider of preschool special education, any other publicly funded pre-kindergarten program, (c) a school serving children in a special act school district as defined in Education Law § 4001, (d) an approved private school for the education of students with disabilities, (e) a State-supported school subject to the provisions of Article 85 of the Education Law, or (f) a State-operated school subject to the provisions of Articles 87 or 88 of the Education Law. This includes “Educational Agency” as defined in Education Law 2-d, a school district, board of cooperative educational services, school, charter school, or education department.

12. Student: Any person attending or seeking to enroll in the School.

13. Student Data: a Student’s School Personal Information as defined in section 99.3 of Title 34 of the Code of Federal Regulations implementing the Family Educational Rights and Privacy Act, 20 U.S.C 1232g.

14. Subcontractor: Gradelink’s non-employee agents, consultants and/or subcontractors engaged in the provision of services pursuant to the Terms of Service.

15. Teacher or Principal APPR Data: School Personal Information relating to the annual professional performance reviews of classroom teachers or principals that is confidential and not subject to release under the provisions of Education Law §§ 3012-c and 3012-d.

ARTICLE II: PRIVACY AND SECURITY OF SCHOOL PERSONAL INFORMATION

1. Compliance with Law.

In order for Gradelink to provide certain services (“Services”) to the School pursuant to Gradelink’s Terms of Service maintained at Gradelink’s website (“Terms of Service”); Gradelink may receive School Personal Information regulated by several state and federal laws and regulations, among them, the Family Educational Rights and Privacy Act (“FERPA”) at 12 U.S.C. 1232g (34 CFR Part 99); Children’s Online Privacy Protection Act (“COPPA”) at 15 U.S.C. 6501-6502 (16 CFR Part 312); Protection of Pupil Rights Amendment (“PPRA”) at 20 U.S.C. 1232h (34 CFR Part 98); the Individuals with Disabilities Education Act (“IDEA”) at 20 U.S.C. 1400 et seq. (34 CFR Part 300); the California Consumer Privacy Act, Cal. Civ. Code §§ 1798.100 et seq. (“CCPA”); New York Education Law Section 2-d; and the Commissioner of Education’s Regulations at 8 NYCRR Part 121. The Parties enter this DPA to address the requirements of applicable law. Gradelink agrees to maintain the confidentiality and security of School Personal Information in accordance with applicable laws, rules, and regulations.

2. Authorized Use.

Gradelink has no property or licensing rights or claims of ownership to School Personal Information, and Gradelink must not use School Personal Information for any purpose other than to provide the Services set forth in the Terms of Service. Neither the Services provided nor the manner in which such Services are provided shall violate applicable law.

3. Data Security and Privacy Plan.

Gradelink shall adopt and maintain administrative, technical and physical safeguards, measures, and controls to manage privacy and security risks and protect School Personal Information in a manner that complies with applicable laws and regulations and the School’s policies. Gradelink’s Data Privacy and Security Plan outlines such safeguards, measures, and controls including how Gradelink will implement all applicable state, federal and local data security and privacy requirements. Gradelink’s Data Security and Privacy Plan is made available to Customer as needed on a confidential basis.

4. School’s Data Security and Privacy Policy

Some state laws and regulations require Schools to adopt a data security and privacy policy. Gradelink shall comply with the School’s data security and privacy policy and other applicable policies to the extent required by applicable law.

5. Right of Review and Audit.

Upon request by the School, Gradelink shall provide the School with copies of its policies and related procedures that pertain to the protection of School Personal Information. It may be made available in a form that does not violate Gradelink’s own information security policies, confidentiality obligations, and applicable laws. At School’s expense, Gradelink will be subject to periodic review of its privacy and security safeguards, measures and controls as they pertain to the requirements of New York State laws and regulations, and the School’s policies applicable to Gradelink. As an alternative to undergoing this review, Gradelink may provide the School with a recent industry standard independent audit report on Gradelink’s privacy and security practices as an alternative to undergoing an audit.

6. Gradelink’s Employees and Subcontractors.

(a) Gradelink shall only disclose School Personal Information to Gradelink’s employees and subcontractors who need to know the School Personal Information in order to provide the Services and the disclosure of School Personal Information shall be limited to the extent necessary to provide such Services. Gradelink shall ensure that all such employees and subcontractors comply with the terms of this DPA.

(b) Gradelink shall ensure that each subcontractor performing functions pursuant to the Terms of Service where the subcontractor will receive or have access to School Personal Information is contractually bound by a written agreement that includes confidentiality and data security obligations equivalent to, consistent with, and no less protective than, those found in this DPA.

(c) Gradelink shall examine the data security and privacy measures of its subcontractors prior to utilizing the subcontractor. If at any point a subcontractor fails to materially comply with the requirements of this DPA, Gradelink shall: notify the School and remove such subcontractor’s access to School Personal Information; and, as applicable, retrieve all School Personal Information received or stored by such subcontractor and/or ensure that School Personal Information has been securely deleted and destroyed in accordance with this DPA. In the event there is an incident in which the subcontractor compromises School Personal Information, Gradelink shall follow the Data Breach reporting requirements set forth herein.

(d) In cases where Gradelink engages a subcontractor to perform part of the Services, the data protection obligations imposed on Gradelink by applicable law and contract shall apply to the subcontractor.

(e) Gradelink must not disclose School Personal Information to any other party unless such disclosure is required by statute, court order or subpoena, and Gradelink makes a reasonable effort to notify the School of the court order or subpoena in advance of compliance but in any case, provides notice to the School no later than the time the School Personal Information is disclosed, unless such disclosure to the School is expressly prohibited by the statute, court order or subpoena.

7. Training.

Gradelink shall ensure that all its employees and Subcontractors who have access to School Personal Information have received or will receive training on the applicable laws governing confidentiality of such data prior to receiving access.

8. Termination

The obligations of this DPA shall continue and shall not terminate for as long as Gradelink or its sub-contractors retain School Personal Information or retain access to School Personal Information.

9. Data Return and Destruction of Data.

(a) Protecting School Personal Information from unauthorized access and disclosure is of the utmost importance to the School, and Gradelink agrees that it is prohibited from retaining School Personal Information or continued access to School Personal Information as part of the Services beyond the period specified in the School’s Order, Gradelink’s standard offline archive retention schedule (typically 3 years), the School’s request, or applicable law. As applicable, upon expiration or termination of the Terms of Service, Gradelink shall transfer School Personal Information to the School in a format agreed to by the Parties.

(b) If applicable, once the transfer of School Personal Information has been accomplished in accordance with the School’s written election, Gradelink agrees to return or destroy all School Personal Information from the Services when the purpose that necessitated its receipt by Gradelink has been completed. Thereafter, Gradelink shall ensure that School Personal Information is securely deleted and/or destroyed in a manner that does not allow it to be retrieved or retrievable, read, or reconstructed other than for archival and compliance purposes.

(c) Gradelink shall provide the School with a written certification of the secure deletion and/or destruction of School Personal Information from the Services.

(d) To the extent that Gradelink and/or its subcontractors continue to be in possession of any de-identified data (i.e., data that has had all direct and indirect identifiers removed), they agree not to attempt to re-identify de-identified data and not to transfer de-identified data to any party.

10. Commercial or Marketing Use Prohibition.

Gradelink agrees that it will not sell School Personal Information or use or disclose School Personal Information for a Commercial or Marketing Purpose.

11. Encryption.

Gradelink shall use industry standard security measures including encryption protocols that comply with applicable law and regulations to preserve and protect School Personal Information.

12. Breach.

(a) Gradelink shall promptly notify the School of any Breach of School Personal Information without unreasonable delay no later than seven (7) business days after discovery of the Breach. Notifications required pursuant to this section must be in writing, given by personal delivery, e-mail transmission (if contact information is provided for the specific mode of delivery), or by registered or certified mail, and must to the extent available, include a description of the Breach which includes the date of the incident and the date of discovery; the types of School Personal Information affected and the number of records affected; a description of Gradelink’s investigation; and the contact information for representatives who can assist the School. Notifications required by this section must be sent to the School’s District Superintendent or other head administrator with a copy to the Data Protection Office. Violations of the requirement to notify the School shall be subject to a civil penalty pursuant to Education Law Section 2-d. The Breach of certain School Personal Information protected by Education Law Section 2-d may subject Gradelink to additional penalties.

(b) Notifications required under this paragraph must be provided to the School at the address provided to Gradelink.

13. Cooperation with Investigations.

Gradelink agrees that it will cooperate with the School and law enforcement, where necessary, in any investigations into a Breach. Any costs incidental to the required cooperation or participation of Gradelink or its Authorized Users, as related to such investigations, will be the sole responsibility of Gradelink if such Breach is attributable to Gradelink or its Subcontractors. Otherwise, incidental costs of investigation will be paid by the School.

14. Notification to Individuals.

Where a Breach of School Personal Information occurs that is attributable to Gradelink, Gradelink shall pay for or promptly reimburse the School for the full cost of the School’s notification to Parents, Eligible Students, teachers, and/or principals, in accordance with Education Law Section 2-d and 8 NYCRR Part 121.

15. Termination.

The confidentiality and data security obligations of Gradelink under this DPA shall survive any termination of this DPA but shall terminate upon Gradelink’s certifying that it has destroyed all School Personal Information.

ARTICLE III: PARENT AND ELIGIBLE STUDENT PROVISIONS

1. Parent and Eligible Student Access.

Education Law Section 2-d and FERPA provide Parents and Eligible Students the right to inspect and review their child’s or the Eligible Student’s Student Data stored or maintained by the School. To the extent Student Data is held by Gradelink pursuant to the Terms of Service, Gradelink shall respond within thirty (30) calendar days to the School’s requests for access to Student Data so the School can facilitate such review by a Parent or Eligible Student, and facilitate corrections, as necessary. If a Parent or Eligible Student contacts Gradelink directly to review any of the Student Data held by Gradelink pursuant to the Terms of Service, Gradelink shall promptly notify the School and refer the Parent or Eligible Student to the School.

2. Bill of Rights for Data Privacy and Security.

As required by Education Law Section 2-d, the Parents Bill of Rights for Data Privacy and Security and other supplemental information for the Terms of Service are available upon Customer’s request as exhibits incorporated into this DPA to the extent required by applicable law. Some exhibits may be confidential to Gradelink.

ARTICLE IV: CALIFORNIA PRIVACY REQUIREMENTS

To the extent applicable to Customers subject to the CCPA and in connection with Gradelink’s performance of its obligations under the Agreement, and provisions in this Article shall apply to Gradelink’s processing of School Personal Information. Any capitalized terms not otherwise defined shall have the meaning under the CCPA.

1. The parties agree that Customer is a Business and Gradelink is a Service Provider. Gradelink will process School Personal Information solely for the specific Business Purpose(s) set forth below, as may be modified from time to time in accordance with the CCPA.



Business Purposes for which Gradelink processes School Personal Information: Performing services on behalf of the Customer, including maintaining or servicing accounts, providing customer service, processing or fulfilling orders and transactions, verifying customer information, processing payments, providing financing, providing analytic services, providing storage, or providing similar services on behalf of the Customer. (Cal. Civ. Code § 1798.140(e)(5).) Nothing in these Business Purposes is intended to modify provisions in the Addendum or other instructions that apply to Gradelink’s processing of sensitive personal information.

2. Notwithstanding the foregoing, the parties agree that Gradelink will at all times process Customer sensitive personal information only for the purposes permitted by Section 1798.121(a) of the CCPA and, to the extent applicable, the Service Provider agrees to timely comply with any valid request from a Consumer to the use of sensitive personal information.

3. School Personal Information is disclosed by Customer only for limited and specific Business Purposes. Gradelink will not use, retain, lease, license, transfer, or otherwise disclose School Personal Information for any purpose other than for the Business Purposes specified in the Agreement, including retaining, using, or disclosing School Personal Information for a Commercial Purpose other than the Business Purposes specified in the Agreement, or as otherwise permitted by the CCPA.

4. Gradelink will not combine School Personal Information with any Personal Information that Gradelink (i) receives from or processes on behalf of any other person or persons; or (ii) collects from its own interactions with a Consumer unless Customer provides access credentials to the Consumer. Notwithstanding the foregoing, nothing in this section is intended to restrict Gradelink from combining School Personal Information with other Personal Information solely to the extent expressly permitted by CCPA regulations issued by the Agency unless otherwise prohibited by the CCPA or other applicable laws.

5. Gradelink will not retain, use, or disclose School Personal Information outside of the direct business relationship between Gradelink and Customer except as set forth in this DPA.

6. Gradelink shall immediately notify Customer if Gradelink engages any other person to assist Gradelink in processing School Personal Information for a Business Purpose on behalf of Customer, or if any other person engaged by Gradelink engages another person to assist in processing School Personal Information for that Business Purpose. Gradelink warrants that any person so engaged will be bound by a written contract that requires the person to act as a Service Provider or Contractor and is consistent with the restrictions set forth in this Addendum.

7. Gradelink will permit the Customer to monitor Gradelink’s compliance with this Addendum through reasonable and non-intrusive measures, to include periodic review of Gradelink’s policies and its Data Security and Privacy Plan to the extent that Customer agrees to maintain confidentiality of Gradelink’s documentation and procedures.

8. Gradelink warrants that it will comply with all applicable provisions of the CCPA and will obligate all persons involved in processing School Personal Information to provide the same level of privacy protection required by the CCPA. Gradelink shall notify Customer if Gradelink determines that it can no longer meet its obligations under the CCPA.

9. Gradelink agrees that it will provide Customer with all assistance and cooperation to ensure that Customer is able to take all reasonable and appropriate steps to (i) ensure that Gradelink uses School Personal Information transferred in a manner consistent with Customer’s obligations under the CCPA; and (ii) stop and remediate any unauthorized use of School Personal Information.

10. Consumer Requests.

(a) Gradelink will promptly forward to Customer any Consumer rights requests it receives related to School Personal Information (“Consumer Requests”).

(b) Except as instructed by Customer, Gradelink will not respond to a Consumer Request or otherwise communicate with the individual making the request.

(c) Gradelink agrees to provide Customer with all assistance and cooperation needed to allow Customer to respond to Consumer Requests in compliance with the CCPA, including, but not limited to: (i) deleting or accessing, or enabling the Customer to delete or access, School Personal Information; (ii) notifying any of its own Service Providers or Contractors to promptly delete or access School Personal Information; and (iii) correcting any inaccurate School Personal Information and directing its Service Providers and Contractors to do the same.

(d) Gradelink shall notify any of its service providers, contractors, and/or other third parties who may have accessed School Personal Information from or through the Services, unless only accessed at the direction of the Customer, to delete School Personal Information, unless doing so would involve disproportionate impact.

11. Security.

(a) Gradelink shall implement and maintain the level of privacy protection as required by applicable law, including but not limited to the CCPA.

(b) Gradelink shall implement reasonable and appropriate security measures and maintain physical, technical, and organizational security measures in accordance with industry best practices to protect Personal Information against accidental, unlawful, or unauthorized destruction, loss, alteration, disclosure, and access.

(c) Gradelink shall promptly notify Customer after discovering or becoming aware of a Security Incident or suspected Security Incident. Such notice shall describe the Security Incident, the affected School Personal Information, and the measures Gradelink has taken to contain the Security Incident. Gradelink shall take any additional steps that are reasonably necessary to remedy any non-compliance with this Addendum, including complying with the applicable requirements of the Agreement, and will cooperate with the Customer regarding the investigation and resolution of any Security Incident.

12. Data Deletion. Gradelink will, at Customer’s request, promptly delete all School Personal Information in Gradelink’s possession or control following termination of the Agreement or otherwise upon Customer’s written request. Upon Customer’s request, a representative of Gradelink will provide written confirmation to Customer that all such School Personal Information has been returned or deleted. Notwithstanding the foregoing, Gradelink may retain any School Personal Information necessary to comply with applicable laws, rules and/or regulations, provided that such School Personal Information will be used solely for the purpose of such compliance.

13. Liability. Notwithstanding anything else in this Addendum or in the Agreement, including any limitations of liability or exclusions of damages, Customer agrees to indemnify, defend, and hold Gradelink, its affiliates, and each of their directors, officers, employees, agents, representatives, successors and assignees harmless against any and all losses resulting or arising from any claims arising from this Addendum or the CCPA.

ARTICLE IV: MISCELLANEOUS

In the event of a conflict between and among the terms and conditions of this DPA, including all exhibits and addenda attached hereto and incorporated herein and the Terms of Service, the terms and conditions of this DPA shall govern and prevail, shall survive the termination of the Agreement in the manner set forth herein, and shall supersede all prior communications, representations, or agreements, oral or written, by the Parties relating thereto.

If Customer is a covered entity pursuant to HIPAA and requires Gradelink to process protected health information, the parties agree to negotiate a mutually agreeable business associate agreement.