TERMS OF SERVICE AGREEMENT
Effective Date: June 19th, 2023
To view prior versions, click here.
This Terms of Service agreement (“Agreement”) is a legal agreement between you and Learning Genie, Inc. (“Learning Genie”), and governs how you may use and manage your Learning Genie account and the Service you receive via that access. When you establish an account with us, you agree to abide by the terms and conditions of this Agreement.
NOTE: THIS AGREEMENT INCLUDES A MANDATORY ARBITRATION CLAUSE AND CLASS ACTION WAIVER THAT AFFECTS YOUR RIGHTS.
1. Service Description. For the purposes of this Agreement, the term “Service” means the Internet platform and associated mobile application provided by Learning Genie, together with all software applications, proprietary or otherwise, that comprise the Platform, and any updates, upgrades, derivatives, improvements, enhancements, or extensions of the same. The Service subject to this Agreement also encompasses the Learning Genie Website, together with all copy, graphics, photographs, videos, documentation, and other content.
(a) What the Service Does: The Service has been developed to enable learning institutions to track and evaluate student progress. Among other features, the Service allows teachers and other authorized users to share information regarding student activities with Administrators and Parents, including (but not limited to) progress reports, portfolios, classroom activities, photographs, messages, external links, and assessments via the Learning Genie website and mobile application, in order foster collaboration between all parties involved in order to improve the learning process.
(b) Who can use the Service: School officials such as directors, principals, and district supervisors (collectively “Administrators”) are intended to be the primary account holders. After establishing an account, Administrators then authorize teachers, assistant teachers, and other school personnel (collectively “Teachers”) to access the service, who in turn provide access to parents or legal guardians (collectively “Parents”) to enable them to view reports and access classroom activities.
2. FERPA Compliance Statement. The Family Educational Rights and Privacy Act (20 U.S.C. § 1232g; 34 CFR Part 99) (FERPA) is a Federal law that protects the privacy of student education records. The law applies to all schools that receive funds under an applicable program of the U.S. Department of Education. Under FERPA, the student information they document using the Service does not constitute an official education record, but instead constitutes Directory Information as that term is defined in FERPA. Subject to certain exceptions, a school or district cannot disclose personally identifiable information recorded in a student’s educational record to a third-party provider such as Learning Genie without the written consent of the student’s parents or legal guardians. The exceptions to this prohibition include Directory Information such as that recorded using the Learning Genie Service. As a School Official or Institution providing Directory Information or any other information to Learning Genie, you hereby represent and warrant that your institution has:
(a) Complied with the Directory Information exception, which includes informing parents what information the Institution deems to be Directory Information, and giving parents a reasonable opportunity to opt-out of the disclosure of such information;
(b) Complied with the FERPA School Official Exception by informing parents in their annual notification of FERPA rights that the Institution defines “School Official” to include service providers, and defines “Legitimate Educational Interest” to include services such as the type provided by Learning Genie;
(c) Obtained all necessary parental written consent to share the Directory Information and Educational Records with Learning Genie, in each case, solely to enable Learning Genie to provide the Service.
Further in compliance with FERPA, Learning Genie will: (i) grant Administrators direct control of the use and maintenance of the information provided to Learning Genie in accordance with their policies; (b) comply with Administrators’ data retention, archival, and destruction requirements throughout the term of this Agreement and afterwards; and (c) provide access to information to parents when to do so for the purposes of correcting any inaccuracies therein. For more information on FERPA, click here.
3. AB 1584 Compliance Statement. Pursuant to California AB 1584, as codified in Section 49073.1 of the California Education Code, Learning Genie represents and warrants as follows:
(a) Ownership of Pupil Records: Any and all Pupil Records provided to Learning Genie, or to which Learning Genie has been granted access, are and shall remain the sole property of the School District or educational agency (collectively, “School District”) that provided or granted access to such records.
(b) Pupil-Generated Content: The Learning Genie System does not collect or store any Pupil-Generated content. In the event the System is updated to incorporate such a feature, Learning Genie shall amend this Statement to describe the means by which pupils may retain possession and control of pupil-generated content.
(c) Third Party Access and Use: Learning Genie prohibits all third parties from accessing or utilizing any Pupil Record for any purpose other than those required by or permitted by the contract for Learning Genie’s services.
(d) Parent and Pupil Review Procedures: The System enables any Authorized User to permit parents, legal guardians, and eligible pupils to review personally identifiable information contained in Pupil Records, and to correct erroneous information, in accordance with procedures established by the School District.
(e) Security and Confidentiality of Pupil Records: Learning Genie has designated a Security Compliance Officer (SCO), who is responsible for: (i) ensuring that Learning Genie servers are protected against unauthorized access to the greatest degree possible; (ii) limiting employee access to Pupil Records to whatever extent is required for them to perform their job functions; and (iii) training employees in data security procedures to further ensure compliance with company data security policies.
(f) Unauthorized Disclosure: In the event any Pupil Records are inadvertently disclosed via outside data breach or for any other reason, the SCO shall notify the School District that owns such records immediately upon the discovery of such inadvertent disclosure. The School District may in turn utilize the System to notify affected parents, legal guardians, or eligible pupils via posts within the System, emails, or in such other manner as the School District deems appropriate.
(g) Post-Contract Data Deletion: Learning Genie hereby certifies that, upon the termination of a service contract with a School District, it shall isolate and permanently delete any and all Pupil Records belonging to such School District that may remain on the System, unless the School District or applicable regulations require the retention of such data, in which case the records shall be deleted upon the expiration of the retention period. Prior to deleting any Data Records, Learning Genie shall first ensure that the School District has downloaded backups of the same.
(h) FERPA Compliance: Learning Genie offers School Districts utilizing the System the means to comply with their obligations under the Federal Educational Rights and Privacy Act (20 USC §1232(g)), by enabling Authorized Users to inspect and review Pupil Records and to correct any inaccuracies therein as described in Section 4 of this Agreement.
(i) Prohibition Against Targeted Advertising: Learning Genie strictly prohibits the use of any personally identifiable information included in a Pupil Record to direct targeted advertising for any product or service. In furtherance of this prohibition, Learning Genie does not sell, trade, or rent any element of personally identifiable information to any third party.
For more information on AB 1584, click here.
4. SB 1177 Compliance Statement. Pursuant to California SB 1177, as codified in Section 22584 of the California Business and Professions Code, Learning Genie represents and warrants as follows:
(a) Security Procedures: Learning Genie has designated a Security Compliance Officer (SCO), whose responsibilities are set forth in Section 5(d) of this Agreement;
(b) Authorized Deletion: Learning Genie will permanently delete any student information upon the request of an authorized school district or educator representative.
(c) Further in compliance with SB1177, Learning Genie does not:
(i) Use any element of personally identifiable information (PII) of any student for the purpose of directing targeted advertising on its website or application;
(ii) Use any information (including persistent unique identifiers), created on or gathered by the Service, to amass a profile about a K-12 student except in furtherance of K-12 school purposes;
(iii) Sell, trade, or rent any information relating to K-12 students to any third party for any purpose whatsoever;(iv) Disclose any information created or gathered by the System unless such disclosure is authorized by the Code.
For more information on SB 1177, click here.
5. End User License Agreement (EULA). Learning Genie hereby grants you a revocable, non-exclusive, non-transferable, limited right and license to access and use the Service. The term of your License shall commence on the date that you create your account and will end if your account is terminated by either you or Learning Genie. Learning Genie reserves the right to immediately terminate your license if you use the Service in breach of the terms set forth herein. In addition to the other terms set forth in this Agreement, the License granted herein is premised on the following understandings:
(a) Payment: You must keep your account current in order to continue utilizing the Service. If you fail to pay for the Service as agreed, we reserve the right to freeze your account until it is made current or terminate the existing license.
(b) Ownership: This Agreement and License does not confer title, ownership, or any other rights concerning your use of the Service that are not set forth herein. Learning Genie retains all right, title and interest in and to the Service, including, but not limited to, all copyrights, trademarks, trade secrets, trade names, proprietary rights, patents, titles, computer codes, and all other rights whether registered or not and all applications thereof. The Service is protected by applicable laws and treaties worldwide, and may not be copied, reproduced or distributed in any manner or medium, in whole or in part, without prior written consent from Learning Genie. All rights not expressly granted to you herein are reserved by Learning Genie.
(c) General Restrictions: Violating any of the following restrictions may result in the immediate termination of your License. You agree not to: (i) post and share any information that is abusive, threatening, obscene, defamatory, libelous, or otherwise objectionable and offensive, (ii) infringe any copyright, trademark, patent, trade secret, or other proprietary right of any third party; (iii) commercially exploit the Service in any manner; (iv) provide your password or otherwise grant access to your Learning Genie account to any third parties for any purpose whatsoever; (iv) reverse engineer, decompile, disassemble, translate, or prepare derivative works of the System, or otherwise modify the same, in whole or in part; (v) use the Service to display material that may be subject to copyright protection without the express consent of the copyright owner; (vi) remove, obscure or modify any copyright, trademark or other proprietary rights notices, marks or labels contained within the System; (vii) misrepresent the source of ownership of the System; or (viii) otherwise access or utilize the System in any manner other than permitted by this Agreement.
(e) Parents: Parents who choose to utilize the sharing features of the Service do so at their own risk. Any information that you willingly choose to share with another user through the Service or in a publicly accessible area will be available to other users who access that content, and Learning Genie will not be held responsible for how others choose to use it. Parents are further required to follow any school regarding privacy and are forbidden from publicly sharing photographs that contain any child who is not their own, without the consent of that child’s parent.
(f) Electronic Signature Policy: All documents, agreements, records, and other correspondence between and among any User of the Service and Learning Genie that require a signature to have legal effect shall be signed electronically in a manner consistent with the Electronic Signatures in Global and National Commerce Act, 15 USC 96, et. seq. Any electronically signed agreement shall be considered as valid and enforceable as an original, signed document.
6. Representations and Warranties. The Service is made available to you in reliance upon the following representations and warranties: (i) You are a school administrator or have been authorized by an Administrator or Teacher to access the service; (ii) you will not use the Service for the purpose of violating any statute, rule, or regulation; (iii) you will not use the Service to facilitate the distribution of computer viruses, spyware, or any other malicious code; (iv) you will not use the Service to post information that infringes upon the proprietary rights of third parties, including without limitation intellectual property rights, or rights of publicity or privacy; and (vi) you will not use the Service in any manner other than as described herein.
7. Copyright. We respond to properly submitted notices of alleged copyright infringement that comply with applicable law. If you believe that your Content has been copied in a way that constitutes copyright infringement, please provide us with the following information: (i) a physical or electronic signature of the copyright owner or a person authorized to act on their behalf; (ii) identification of the copyrighted work claimed to have been infringed; (iii) identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material; (iv) your contact information, including your address, telephone number, and an email address; (v) a statement by you that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (vi) a statement that the information in the notification is accurate, and, under penalty of perjury, that you are authorized to act on behalf of the copyright owner.
Under the U.S. Digital Millennium Copyright Act, our designated copyright agent for notice of alleged copyright infringement appearing on the Services is:
Attention: Copyright Agent
5868 Owens Avenue Suite 250,
Carlsbad, CA 92008
We reserve the right to remove Content alleged to be infringing without prior notice, at our sole discretion, and without liability to you, and/or to terminate your account if it is determined that you knowingly posted infringing content.
8. No Warranty. Learning Genie makes no representation or warranty that: (a) the Service will be free of errors, bugs, or glitches, or that any such error, bug, or glitch will be corrected; (b) servers that house the System are free of viruses or other malicious code; and (c) your use of the Service is in compliance with applicable regulations, including, without limitation, FERPA, AB1584, and SB1177. THE SERVICE ARE PROVIDED ON AN “AS IS” BASIS WITHOUT ANY WARRANTY WHATSOEVER. LEARNING GENIE PROVIDES NO WARRANTIES WHATSOEVER REGARDING THE ACCURACY, RELIABILITY, OR DELIVERY OF THE SERVICE, AND HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY ARISING FROM COURSE OF DEALING, USAGE, OR TRADE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR TITLE.
The Service may display advertisements for products and services offered by third parties. Learning Genie makes no guarantees about, and assumes no responsibility for, the content of such advertisements, or the availability, delivery, or performance of any product or service offered therein.
9. General Release and Indemnification. In no event shall Learning Genie be liable to you or any other party for any indirect, special, incidental, consequential, or punitive damages, however and wherever arising, that may result from the delivery or failure of the Service, including without limitation to losses incurred due to: (a) software glitches, server failures, power outages, or any other issue beyond Learning Genie’s control; (b) any delays in or failure of the Service to operate as described; (c) any use of the Service in violation of the terms of this Agreement. If you are a California resident, you waive California Civil Code §1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”
You further agree to indemnify, hold harmless, and defend Learning Genie, together with its officers, directors, employees, agents, subsidiaries, and affiliates (the “Indemnified Parties”), from and against any claims, actions, proceedings, and suits (collectively “Claims”) brought against Learning Genie by any third party that are associated with your use of the Service in any manner that violates this Agreement, and expressly agree to assume liability for any damages, settlements, penalties, fines, costs or expenses (including, without limitation, reasonable attorneys’ fees) that may be incurred by Learning Genie in connection with any Claim subject to this section.
10. Arbitration Agreement and Class Action Waiver. You agree to arbitrate all disputes and claims that arise out of or relate to your use of the Service. Therefore, you agree that, by using the Service, you are waiving the right to a trial by jury or to participate in any class action based on or involving claims brought in a purported representative capacity on behalf of the general public, other users, or other persons similarly situated. This agreement to arbitrate includes, but is not limited to, claims arising out of or relating to the Service or your use thereof, regardless of when they may arise. It is understood and agreed that any arbitration proceeding may be conducted telephonically.
11. Choice of Law; Forum. This document shall be governed in all respects by the laws of the United States and the State of California. Any claim or dispute you may have against us, whether subject to mandatory arbitration or otherwise, must be brought in San Diego County, California except as otherwise agreed by the parties. You agree to submit to the personal jurisdiction of the courts located within Los Angeles, California for the purpose of litigating all such claims or disputes. All claims filed or brought contrary to this section shall be considered improperly filed. Should you file a claim improperly, we may recover reasonable attorneys’ fees and costs, provided that we have notified you in writing of the improperly filed claim and you have failed to withdraw the claim promptly.
Such third parties include but are not limited to the following:
(d) Microsoft: Certain functionalities of Learning Genie are powered by Microsoft services, your interaction with these implies acceptance of Microsoft’s Privacy Statement.
13. Modification and Notice of Changes. We reserve the right to change, modify, add or remove portions of this Agreement, without advance notice to you. We will notify you of any such changes by placing a written notice on the sign-in page, together with a link to the amended version. The amended version will include a link to previous versions. Except as stated elsewhere, such amended terms will be effective immediately and without further notice. Your continued use of the Service after the posting of changes constitutes your binding acceptance of such changes.
14. Questions. Please direct any questions concerning this Agreement via email to email@example.com.