Version Effective Date: March 25, 2019
Welcome to the Achieve3000® Website and the Achieve3000 Learning System, the Internet-based learning system that integrates technology into the classroom curriculum!
PLEASE READ THIS DOCUMENT CAREFULLY BEFORE YOU ACCESS OR USE THE SITE. BY ACCESSING OR USING THE SITE, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS SET FORTH BELOW. IF YOU DO NOT WISH TO BE BOUND BY THESE TERMS AND CONDITIONS, PLEASE DO NOT ACCESS OUR SITE.
These Terms govern, as applicable, (i) your individual use of the Website, (ii) your individual receipt of and participation in Achieve3000 Learning System services through the Website (the “Services”), and (iii) your use of content obtained through the Website or via the Services (the “Content”). Please read these Terms carefully; they impose legal obligations on you and on Achieve3000, and establish our legal relationship. By using the Services or Content or accessing our Website, you are acknowledging that you have read and understood these Terms and agree to be legally bound by them.
2.Relationship with Your School
Achieve3000 enters into agreements (either a Terms of Service or Master Subscription Agreement) with schools and school districts, whereby Achieve3000 agrees to provide students and others in or associated with such schools or school districts with access to its Services and Content (as applicable, a “Subscriber Agreement”). If your school or school district has entered into this type of agreement with Achieve3000 (as applicable, a “Participating School District”), then you are eligible to receive the benefits of these Services and Content.
3.Obtaining a Password; Use of Your Password
If you are an Authorized User, we will provide you with a user id and a password. You are eligible for a user id and password if you are within a Participating School District, and you are either (i) a student, (ii) a teacher, or (iii) an administrator identified to us by the Participating School District or you are the parent of an identified student. You will use your user id and password to access the password-protected areas of our Website to obtain Services and Content.
Please keep in mind that we will treat anyone who uses your user id and password as “you.” We will provide this user with all of the rights and privileges that we provide to you. Therefore, we recommend that you maintain your user id and password in confidence, and that you refrain from disclosing this information to anyone who might “pretend” to be you with respect to the Services and your use of our Website. We also recommend that you notify us immediately if you suspect that someone is using your user id and password in this manner.
4.Grant of Rights to Website Visitors
As a general Website visitor, you are granted the right to access all areas of the Website other than the password-protected areas (“Permitted Visitor Areas”). You may access and view Permitted Visitor Areas for your personal and non-commercial use for educational purposes only, and you may not modify, copy, distribute, or otherwise use Content or Services available on these Permitted Visitor Areas.
5.Grant of Rights to Authorized Users
In this Section, Achieve3000 gives to Authorized Users – meaning Participating School District students, parents of students, teachers, and administrators (for purposes of this section only, “You” and “Your”) – access to the Services and Content procured associated with the applicable Participating School District and Subscriber Agreement. In this section we also impose restrictions on Your use of our Content outside the Services. Similar to a “library” that keeps track of books it has lent, and limits circulation to users with library cards, we prohibit circulation of our Content and Services to users who do not have passwords, as further detailed below.
5.1 Rights to Access and Use for Educational Purposes
Subject to Your compliance with these Terms, Achieve3000 hereby grants You the right to access and use the Website and the Services and Content we offer to Your school through the Website. These rights are strictly limited to Your personal, educational, and non-commercial use of the Website, Services, and Content in connection with Your schoolwork, if You are a student, or the assignment of schoolwork or monitoring of an associated student’s progress, if You are a parent, teacher, or administrator.
5.2 Right to Print Content for Classroom Use
Subject to Your compliance with these Terms, Achieve3000 hereby grants You the right to make copies of the Content, so long as you comply with the following requirements: (i) You make and use the copies solely for educational purposes with other Authorized Users, (ii) You use the copies within a classroom or other educational setting where only Authorized Users are present (with the exception of incidental persons who may be present in de minimis numbers); (iii) the number of copies You make is reasonable in light of such purposes; and (iv) You retain and in no way obscure or modify any and all Content-related copyright or other proprietary notices on the copies.
https://www.achieve3000.com/about/terms-use/5.3 Duration of Rights
You will continue to enjoy your rights under Section 5.1 (Rights to Access and Use for Educational Purposes) and Section 5.2 (Right to Print Content for Classroom Use) for the duration of the applicable Subscriber Agreement, unless Your password is revoked or suspended for misconduct, as set out in Section 10 (Revocation or Suspension of Use Privileges).
6.Achieve3000 Ownership; Reservation of Rights
The information, software, artwork, text, video, audio, pictures, content, trademarks, trade dress, and other intellectual property on the Website, or embodied in the Services or the Content, are the proprietary property of Achieve3000 and its licensors and are protected by U.S. and international copyright and other intellectual property laws. Achieve3000 retains all rights with respect to the Website, the Services, and the Content except those expressly granted to you in these Terms. You agree not to duplicate, publish, display, distribute, modify, or create derivative works from the material on the Website except as expressly allowed in Section 5.2 (Right to Print Content for Classroom Use), or unless specifically authorized in writing by Achieve3000.
7.Links to Third-Party Sites
The Website may contain links or produce search results that reference links to third-party websites (collectively “Linked Sites”). Achieve3000 has no control over these Linked Sites or their content or data collection practices and does not assume responsibility or liability for any content, opinions, or materials available on Linked Sites, or for any data collection by any such Linked Sites. Achieve3000 does not endorse the content of any Linked Site, nor does Achieve3000 warrant that a Linked Site will be free of computer viruses or other harmful code that can impact your computer or other Web-access device. By using the Website to search for or link to another site, you agree and understand that such use is at your own risk.
Although we take no responsibility for Linked Sites, if you experience a problem with a Linked Site, please let us know at email@example.com, and we will investigate the link and take appropriate action.
8.Code of Conduct
Our Website provides chat rooms, bulletin boards, email services, and other services that allow you to interact with other Authorized Users (“Interactive Services”). As a condition to your use of the Website, the Services, and the Content, including the Interactive Services, you agree to follow our code of conduct (the “Code of Conduct”), set out below. Under this Code of Conduct, you will not:
- Use the Website in a manner that could disable, overburden, or impair the Website or interfere with any other party’s use and enjoyment of the Website, such as through sending “spam” email.
- Seek to obtain access to any materials or information we have not intentionally made available to you through the Website, whether through “hacking” or through other means.
- Submit material that is intentionally false, defamatory, threatening, or harassing. For example, you will not display or distribute messages that harass an individual or group because of their sex, race, religious beliefs, national origin, physical attributes, or sexual preference.
- Infringe our or any third party’s copyright, patent, trademark, trade secret, or other proprietary rights or rights of publicity or privacy. Note that electronic materials – such as music, videos, games, images, and text in electronic form — can easily be copied, modified and sent over networks (such as the Internet). These electronic materials are thus extremely vulnerable to unauthorized distribution and copyright infringement. You may not transmit such materials over the Website without the copyright owner’s permission or without a legitimate “fair use” justification for the transmittal.
- Collect or attempt to collect electronic copies of Content through screen shots, screen scraping, or other manual or automated techniques.
- Disseminate materials that invade the privacy of others, such as photographs, video clips, sound recordings, personally identifiable information, or other materials that reveal personal, private, or sensitive information about another person, without that person’s consent.
- Distribute outside the group of Authorized Users within your class and school information these users have submitted for use on the Website.
- Transmit or display obscene materials, particularly those that contain child pornography or other pornographic images or content.
- Frame, or assist third parties in framing, any of the Web pages contained in the Website. Such framing is strictly prohibited under these Terms.
- Transmit materials that contain any viruses, Trojan horses, worms, time bombs, cancelbots, or other computer-programming or routines that are intended to damage, detrimentally interfere with, surreptitiously intercept, or expropriate any system, data, or personal information.
- Create direct or indirect links to other websites or to this Website from other websites if you lack express written permission or the authority to do so.
- Seek to use for financial gain the Website, related computer facilities, or information available on the Website.
- Use the Website for any purpose that is unlawful or prohibited by these Terms. For example, you will not use the Website, Services, or Content to violate any law, statute, or regulation (including, without limitation, those governing export control, consumer protection, unfair competition, anti-discrimination, or false advertising).
We will enforce the above Code of Conduct as we deem necessary. Please understand, however, that Achieve3000 does not control – and does not necessarily endorse — the content, messages, or information found in any Interactive Service. When you participate in the Interactive Services, you do so at your own risk, and we expressly disclaim responsibility for the content, messages, or information found in any Interactive Service.
9.Monitoring of Interactive Services; Removing Postings
We expect each user of our Website to act responsibly and to respect the rights of others. We seek to protect the integrity and security of our computing systems and to protect our community of users from claims of intellectual property infringement and other claims or threats, such as those detailed in our Code of Conduct. Toward these ends, we reserve the right in our discretion to (i) monitor your use of the Website and email and other messages transmitted through the Website, (ii) restrict or foreclose access to certain Internet sites or other resources via the Website, and (iii) take other actions we deem necessary to protect our community of users and our resources. Due to this monitoring, you cannot expect that communications through our Website will remain “private” or otherwise free from our review.
Although we have no – and assume no — obligation to monitor activities on our Website, please understand that we employ filters designed to detect and block the transmission of messages that contain sexually explicit or otherwise inappropriate language. We notify teachers when we detect the use of such language. We reserve the right to refuse to post, or to remove any information or materials, in whole or in part, that we believe, in our sole discretion, are incompatible with our Code of Conduct.
10.Revocation or Suspension of Use Privileges
We reserve the right at any time to terminate or suspend your access to some or all of the Interactive Services or the Website if you engage in an activity that we conclude, in our discretion, breaches our Code of Conduct.
11.Privacy and Your Disclosure of Information through Interactive Services
If you post content to our Website, by electronic mail or otherwise, we will treat the content as non-confidential and nonproprietary to you, except to the extent the content contains any personally identifiable information. By posting content on the Website, you authorize us to use and allow others to use, distribute, modify, and copy the content (excluding any personally identifiable information within the content), without compensation to you and for so long as we deem warranted (collectively, “Use Rights”). Moreover, in posting this content to our Website, you warrant that you have sufficient authority and right to post the information and provide these Use Rights. Our Use Rights shall be limited as required by applicable law.
Achieve3000 does not promise that the Website will be error-free or uninterrupted, or that the Website will provide specific results from your use of any content, search, or link on it. The Website, and all Services and Content within them are delivered on an “AS IS” and “AS AVAILABLE” basis. Achieve3000 does not warrant or represent that files you download from the Achieve3000 sites will be free of viruses or other harmful features. ACHIEVE3000 DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. YOU EXPRESSLY AGREE THAT USE OF THE WEBSITE AND RELATED SERVICES OR LINKED SITES IS AT YOUR SOLE RISK.
14.Limitation of Liability
UNDER NO CIRCUMSTANCES, INCLUDING BUT NOT LIMITED TO BREACH OF CONTRACT, TORT, OR NEGLIGENCE, WILL ACHIEVE3000 BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS) THAT ARISE OUT OF OR ARE RELATED TO YOUR USE OF THE WEBSITE, THE SERVICES, OR THE CONTENT. IN NO EVENT SHALL ACHIEVE3000’S AGGREGATE LIABILITY TO YOU FOR ANY LOSS, DAMAGE, OR CLAIM RELATED TO OR ARISING OUT OF THE WEBSITE, THE SERVICES, OR THE CONTENT EXCEED THE GREATER OF: (I) $250.00 OR (II) THE TOTAL AMOUNTS, IF ANY, ACTUALLY PAID BY YOU TO ACHIEVE3000 FOR ACCESSING THE WEBSITE DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY.
You agree to defend, indemnify, and hold harmless Achieve3000 and its subsidiaries, affiliates, officers, directors, agents, and employees for and from any liability to third parties, including reasonable attorneys’ fees, arising from or related to your breach of these Terms.
16.Contact for Alleged Copyright Infringement
Achieve3000 respects the intellectual property rights of others and requires that its users do the same. If you believe that Content on the Achieve3000 Website or other activity taking place on the Website constitutes infringement of a work protected by copyright (a “Work”), please notify our agent, designated under the Digital Millennium Copyright Act (17 U.S.C. §512) (the “DMCA”) to respond to such concerns, as follows:
331 Newman Springs Road, Suite 304
Red Bank, NJ 07701
Your notice must comply with the DMCA. Upon receipt of a compliant notice, we will respond and proceed in accordance with the DMCA.
17.Access to the Achieve3000 Site
You are solely responsible for the costs of obtaining access to the Website. That access may involve third-party fees (such as Internet service provider or airtime charges), as well as necessary equipment.
18.Additional Terms for Certain Services or Sites
We may offer certain Achieve3000 websites or services that are subject to additional or different terms and conditions. We will notify you if the site or service you are accessing is subject to terms and conditions that differ from these Terms, and you will have the opportunity to decline to participate in such sites or services, if you do not agree with the differing terms and conditions.
19.Modifications to these Terms
We may modify these Terms from time to time to comply with applicable laws or changes to our operations. Modifications to these Terms shall take effect proactively once you access the Website after modification of the Terms. Please feel free to print out a copy of these Terms for your records.
These Terms shall not be assignable by you, either in whole or in part. Achieve3000 reserves the right to assign its rights and obligations under these Terms.
Our Website, Services, and Content and information that you provide to us via our Website are provided and maintained on computing infrastructure located in the United States. If you use our Website from a Member State of the European Union or another region of the world with laws governing data collection and use that differ from those of the United States, then you acknowledge and agree that you are transferring information outside of those regions to the United States and that, by providing information on or to the Website, you consent to that transfer.
These Terms shall be governed in all respects by the laws of the State of New Jersey without giving effect to its conflicts of law provisions.
If any provision of these Terms is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced.
Headings are for reference purposes only and in no way define, limit, construe, or describe the scope or extent of such section. Achieve3000’s failure to act with respect to a breach by you or others does not waive its right to act with respect to subsequent or similar breaches.
These Terms and, where applicable, your Subscriber Agreement set forth the entire understanding and agreement between Achieve3000 and you with respect to the subject matter hereof and supersede any prior or contemporaneous understanding, whether written or oral.
22. Dispute Resolution
Please read this Section 22 carefully. It is part of your contract with Achieve3000 and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
- Applicability of Arbitration Agreement. All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with the Terms or the use of any product or service provided by Achieve3000 that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this arbitration agreement (“Arbitration Agreement”). Unless otherwise agreed to, all arbitration proceedings shall be held in English. This Arbitration Agreement applies to you and Achieve3000, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under the Terms.
- Notice Requirement and Informal Dispute Resolution. Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief. A Notice to Achieve3000 should be sent to the address set forth in Section 23 below. After the Notice is received, you and Achieve3000 may attempt to resolve the claim or dispute informally. If you and Achieve3000 do not resolve the claim or dispute within thirty (30) days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.
- Arbitration Rules. Arbitration shall be initiated through the American Arbitration Association (“AAA”), an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section. If AAA is not available to arbitrate, the parties shall agree to select an alternative ADR Provider. The rules of the ADR Provider shall govern all aspects of the arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with the Terms. The AAA Consumer Arbitration Rules (“Arbitration Rules”) governing the arbitration are available online at www.adr.org or by calling the AAA at 1-800-778-7879. The arbitration shall be conducted by a single, neutral arbitrator. Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules. Any hearing will be held in a location within 100 miles of your residence, unless you reside outside of the United States, and unless the parties agree otherwise. If you reside outside of the U.S., the arbitrator shall give the parties reasonable notice of the date, time and place of any oral hearings. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. If the arbitrator grants you an award that is greater than the last settlement offer that Achieve3000 made to you prior to the initiation of arbitration, Achieve3000 will pay you the greater of the award or $2,500.00. Each party shall bear its own costs (including attorney’s fees) and disbursements arising out of the arbitration and shall pay an equal share of the fees and costs of the ADR Provider.
- Additional Rules for Non-Appearance Based Arbitration. If non-appearance based arbitration is elected, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise agreed by the parties.
- Time Limits. If you or Achieve3000 pursue arbitration, the arbitration action must be initiated and/or demanded within the statute of limitations (i.e., the legal deadline for filing a claim) and within any deadline imposed under the AAA Rules for the pertinent claim.
- Authority of Arbitrator. If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of you and Achieve3000, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages, and to grant any non-monetary remedy or relief available to an individual under applicable law, the AAA Rules, and the Terms. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and Achieve3000.
- Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in a court and are subject to very limited review by a court. In the event any litigation should arise between you and Achieve3000 in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND ACHIEVE3000 WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
- Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.
- Confidentiality. All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, shall be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law. This paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce this Arbitration Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.
- Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
- Right to Waive. Any or all of the rights and limitations set forth in this Arbitration Agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or affect any other portion of this Arbitration Agreement.
- Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Achieve3000.
- Small Claims Court. Notwithstanding the foregoing, either you or Achieve3000 may bring an individual action in small claims court.
- Emergency Equitable Relief. Notwithstanding the foregoing, either party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.
- Claims Not Subject to Arbitration. Notwithstanding the foregoing, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark or trade secrets shall not be subject to this Arbitration Agreement.
- Courts. In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located within Ocean County, New Jersey, for such purpose.
The following provisions shall survive the termination of these Terms and shall apply indefinitely:
Section 6 (Achieve3000 Ownership; Reservation of Rights)
Section 11 (Privacy and Your Disclosure of Information through Interactive Services)
Section 12 (Submitted Content) (with respect to Use Rights)
Section 13 (Warranty Disclaimer)
Section 14 (Limitation of Liability)
Section 15 (Indemnity)The following provisions shall survive the termination of these Terms and shall apply indefinitely:
Section 6 (Achieve3000 Ownership; Reservation of Rights)
Section 11 (Privacy and Your Disclosure of Information through Interactive Services)
Section 12 (Submitted Content) (with respect to Use Rights)
Section 13 (Warranty Disclaim
Section 20 (Assignment)
Section 21 (General)
Section 22 (Dispute Resolution)
Section 23 (Survival)
24. Contact Us
You may contact us for any reason at the following addresses:
331 Newman Springs Road, Suite 304
Red Bank, NJ 07701