These Terms of Service (“Terms”) are an agreement between you, whether personally or on behalf of an entity (“you” or “your”) and ERB (“ERB,” “we,” “us” or “our”), concerning your access to and use of the website located at writingpractice.erblearn.org, the ERB Writing Practice assessment platform (“ERB Writing Practice”), and any other online products or services that we operate and that include a link to this Terms of Service (collectively, the “Services”). “You” or “your” means a visitor or a user (whether signed in or not) of the Services.
Please read these Terms carefully before you start to use the Services.
These Terms set forth the legally binding agreement that governs your use of the Services. If you do not agree with all of the provisions of these Terms, do not access, browse, or use the Services. ERB reserves the right to modify these Terms so long as it provides notice of these changes to you as described below. These Terms apply to all visitors, users, and others who access or otherwise use the Services (“you” or “Users”). If you open an ERB account on behalf of a School, company, organization, or other entity, then “you” includes you and that entity.
ERB Writing Practice collects Student Data: The Services include an Internet-based writing assessment and communication platform for use in educational settings by Schools, called ERB Writing Practice. Providers of educational services, such as schools, school districts, or teachers (collectively, “Schools”) may subscribe to ERB Writing Practice for educational purposes. When ERB contracts with a School to provide ERB Writing Practice, we may collect or have access to Student Data (defined below) provided by the School or the student. We consider Student Data to be confidential, and we limit our uses of Student Data to those purposes described in Section 4 below. If you have any questions about reviewing, modifying, or deleting personal information of a student, please contact your School directly.
1. Access to the Services; Beta Services
Subject to these Terms, ERB grants you a personal, non-exclusive, non-transferable, revocable right to use the Services solely for your own personal, non-commercial purposes.
The rights granted to you in these Terms are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Services, in whole or in part, or any content displayed on the Services; (b) you shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Services; (c) you shall not access the Services in order to build a similar or competitive website, product, or service; and (d) except as expressly stated herein, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means. Unless otherwise indicated, any future release, update, or other addition to functionality of the Services shall be subject to these Terms. All copyright and other proprietary notices on the Services (or on any content displayed on the Services) must be retained on all copies thereof. Schools are solely responsible for all the acts and omissions of their users. You acknowledge and agree that, except as expressly set forth in these Terms, ERB will have no obligation to provide you with any support or maintenance in connection with the Services. To use the Services, you must obtain access to the Internet, either directly or through devices that access web-based content, and pay any service fees or other costs associated with such access. In addition, you must provide all equipment necessary to make such a connection to the Internet, including a computer or other access device.
We may offer certain Services as closed or open beta services (“Beta Services”) for the purpose of testing and evaluation. You agree that we have the sole authority and discretion to determine the period of time for testing and evaluation of Beta Services. We will be the sole judge of the success of such testing and the decision, if any, to offer the Beta Services as commercial services. You will be under no obligation to acquire a subscription to use any paid Service as a result of your subscription to any Beta Service. We reserve the right to fully or partially discontinue, at any time and from time to time, temporarily or permanently, any of the Beta Services with or without notice to you. You agree that ERB will not be liable to you or to any third party for any harm related to, arising out of, or caused by the modification, suspension or discontinuance of any of the Beta Services for any reason.
2. Accounts and Registration
To use certain features of the Services, you must register for an account and provide certain information about yourself in the account registration form. Each registration is for a single user only. By creating an account, you agree to, and shall (a) provide accurate, current and complete account information, (b) maintain and promptly update, as necessary, your account information, (c) maintain the security of your account credentials, (d) be responsible for the acts or omissions of any third party who has authority to access or use the account on your behalf, and (e) immediately notify us if you discover or otherwise suspect any security breaches related to the Services or your account. You may make any changes to your registration information by following the instructions on the Services. You may delete your account at any time, for any reason, by following the instructions on the Services. ERB may suspend or terminate your account in accordance with Section 14, Term and Termination, below.
3. Eligibility and Authority
ERB does not allow children to subscribe to the Services, but only adults who can subscribe or otherwise purchase the Services with a credit card or other permitted payment method. If you are under eighteen (18) years of age, you may use the Services at the direction of your School or through a purchase your parent or guardian makes on your behalf. You may be responsible for complying with additional policies from your School regarding use of the Services. If you subscribe to the Services or otherwise open an ERB account for use by students in a School, you represent and warrant that you are an authorized representative of the School with the authority to bind the School to these Terms, and that you agree to these Terms on the School’s behalf. If you contact ERB to take any action with respect under an account, you represent and warrant that you have all necessary authority to request such actions from or on behalf of the School.
The U.S. Children's Online Privacy and Protection Act (“COPPA”) requires online service providers to obtain verifiable parental consent before collecting personal information from children under 13. If you are a School providing the Services to children under 13, you represent and warrant that you have the authority to provide consent on behalf of parents for ERB to collect information from students under 13 before allowing such students to access the Services. Schools acknowledge that they should provide appropriate disclosures to students and parents regarding their use of service providers such as ERB.
4. Student Data
ERB may collect or have access to Student Data that is provided by the School or a student using ERB Writing Practice. “Student Data'' is personal information that is directly related to an identifiable student and may include “educational records” as defined by the Family Educational Rights and Privacy Act (“FERPA”). The School or the student, and not ERB, owns and controls Student Data. The School represents and warrants that it has the valid and enforceable right to provide ERB all Student Data and materials furnished hereunder for use in accordance with these Terms. ERB’s collection and processing of Student Data may be as a School Official with a legitimate educational interest pursuant to FERPA. The parties each agree to uphold their respective obligations with respect to Student Data under FERPA and COPPA.
ERB has implemented administrative, physical and technical safeguards designed to secure the personal information in ERB’s possession and control from unauthorized access, disclosure and use. If an unauthorized party gains access to Student Data that we have collected or received through the Services under these Terms, we will promptly notify the School and reasonably cooperate with the School in its investigation of such event.
5. Ownership of the Services
You acknowledge that all text, graphics, and other works on the Services, the design and coding of the Services, all computer programs used and licensed in connection with the Services, the look and feel of the Services, and all the intellectual property rights, including copyrights, patents, trademarks, and trade secrets therein, are owned by ERB or ERB’s suppliers. Neither these Terms (nor your access to the Services) transfers to you or any third party any rights, title or interest in or to such intellectual property rights, except for the limited access rights expressly set forth in Section 1. ERB and its suppliers reserve all rights not granted in these Terms, and there are no implied licenses granted under these Terms.
6. Legal Requirements; Privacy Statement
7. Fees; Cancellation
As a School subscribing to the Services, you expressly agree that we are authorized to charge you the fee associated with the subscription term (e.g., monthly or yearly) that you chose during registration. Please note that prices and charges are subject to change with notice. All fees and other amounts payable by you hereunder are exclusive of taxes and similar assessments. Without limiting the foregoing, you are responsible for all sales, use and excise taxes and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental or regulatory authority on any amounts payable by you hereunder, other than any taxes imposed on ERB’s income.
A School may cancel its account at any time, and cancellation will be effective immediately. Schools will continue to have access to the Services until the current billing period ends. We do not provide refunds or credits for any partially used subscription term. To cancel your subscription, contact Writing Practice support at (866) 691-1245.
8. User Content
“User Content” means any and all information and content that a user submits, uploads, displays, posts, or otherwise transmits to or through the Services. We claim no ownership rights over User Content created by you. The User Content you create remains yours. You are solely responsible for your User Content. You must have the legal right to the User Content you submit to the Services. You assume all risks associated with use of your User Content, including any reliance on its accuracy, completeness or usefulness by others, or any disclosure of your User Content that personally identifies you or any third party. You hereby represent and warrant that your User Content does not violate the provisions of Section 9 below. You may not represent or imply to others that your User Content is in any way provided, sponsored or endorsed by ERB. Because you alone are responsible for your User Content, you may expose yourself to liability if, for example, your User Content violates the provisions of Section 9 below. You agree that ERB will not be responsible for any loss or damage incurred as the result of any interactions involving User Content. If there is a dispute between you and any Services user, we are under no obligation to become involved.
You agree that User Content will not contain any financial account identifiers (e.g., credit card numbers or bank account numbers), government issued identifiers (e.g., social security or driver’s license numbers) or other types of sensitive data that is subject to specific or elevated data protection requirements such as the Gramm-Leach-Bliley Act or HIPAA, and we shall have no liability under these Terms for such data.
9. Prohibited Uses
You agree not to use the Services to collect, upload, transmit, display, or distribute any content (a) that violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (b) that is unlawful, harassing, abusive, tortious, threatening, harmful, invasive of another’s privacy, vulgar, defamatory, false, intentionally misleading, defamatory, pornographic, obscene, patently offensive, promotes racism, bigotry, hatred, or physical harm of any kind against any group or individual or is otherwise objectionable; (c) that is harmful to minors in any way; or (d) that is in violation of any law, regulation, or obligations or restrictions imposed by any third party; or (e) that includes credit, debit or other payment card data, other personal financial account numbers, or identifiable health information about others.
In addition, you agree not to: (i) transmit to the Services any computer viruses, worms, or any software intended to damage or alter a computer system or data; (ii) send through the Services unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (iii) use the Services to harvest, collect, gather or assemble information or data regarding other users, including email addresses, without their consent; (iv) interfere with, disrupt, or create an undue burden on servers or networks connected to the Services, or violate the regulations, policies or procedures of such networks; (v) attempt to gain unauthorized access to the Services (or to other computer systems or networks connected to or used together with the Services), whether through password mining or any other means; (vi) harass or interfere with any other user’s use and enjoyment of the Services; (vii) use software or automated agents or scripts to produce multiple accounts on the Services, or to generate automated searches, requests, or queries to (or to strip, scrape, or mine data from) the Services; or (viii) reproduce, duplicate, copy, sell, resell or otherwise exploit for any commercial purposes, any portion of the Services, use of the Services, or access to the Services.
We reserve the right (but have no obligation) to review any content, information or materials that you provide to or through the Services, and to investigate and take appropriate action against you in our sole discretion for any violation of this Section 9 or any other provision of these Terms or if you otherwise create liability for us or any other person. Such action may include removing or modifying such content, materials or information, or terminating your account in accordance with Section 14, Term and Termination, below, and reporting you to law enforcement authorities.
If you submit or otherwise provide us any communications, content or material, including, without limitation, any personal or commercial information, idea, concept or invention, you hereby irrevocably grant to us an unrestricted, worldwide, perpetual, sublicensable (through multiple tiers), royalty-free license to use, reproduce, display publicly, perform, publish, transmit, distribute and otherwise exploit such materials in any medium and for any purpose, and you further agree that we are free to use any ideas, concepts or know-how that you or individuals acting on your behalf provide to us in accordance with the foregoing license grant. You further irrevocably waive any “moral rights” or other rights with respect to attribution of authorship or integrity of materials regarding materials, ideas, concepts or know-how provided to us that you may have under any applicable law under any legal theory. You agree that you will not submit to ERB any information or ideas that you consider to be confidential or proprietary.
11. Linked Websites and Third-Party Applications
We have not reviewed all of the websites linked to the Services, or third-party applications or ads accessible through the Services, and are not responsible for the content of any third-party websites or applications available through the Services. Nothing in the Services, including, without limitation, any links to other websites, should be construed as an endorsement of any products, services or information of any other persons or companies by ERB. Your choice to link to any other websites is at your own risk, and you should review and comply with all terms relating to such websites. ERB reserves the right not to link, or to remove the link, to any website or third-party application at any time. Any links to third-party websites are provided as a convenience to you and are neither owned nor operated by ERB. We have no control over these linked websites and make no representations or warranties with respect to these linked websites. Your viewing and use of any third-party websites is at your sole discretion and risk.
To the fullest extent permitted by applicable law, you agree to defend, hold harmless and indemnify ERB, its subsidiaries, affiliates, business partners, licensors, service providers, and clients, and their respective officers, employees, agents and representatives from and against any claims, liabilities, costs or damages, including reasonable attorneys’ fees and paralegal fees through final appeals, made by any third party, relating to or arising from your use of the Services, any content, information, or materials that you transmit to or through the Services, any violation of these Terms by you, or any other act or omission by you, including your violation of any rights of another, arising from your use of the Services, your violation of these Terms, (v) your violation of any applicable law or the rights of another person or entity, (vi) your willful misconduct, or (vii) any other party’s access and use of the Services with your unique username, password, or other appropriate security code. You further agree that ERB shall have control of the defense or settlement of any third-party claims. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in an enforceable written agreement between you and ERB.
13. United States Only
The Services are hosted in the United States and are provided for use only by persons located in the United States. All matters relating to the Services are governed exclusively by the laws of the State of North Carolina in the United States of America and not the jurisdiction in which you are located. If you are located outside of the United States and you contact us, please be advised that any information you provide to us will be transferred to the United States and that by submitting information, you explicitly authorize such transfer. We make no claim that the Services or any of its content is accessible or appropriate outside of the United States. Access to the Services may not be legal by certain persons or in certain countries. If you access the Services from outside the United States, you do so on your own initiative and are responsible for compliance with all applicable local laws.
14. Term and Termination
Subject to this Section, these Terms will remain in full force and effect while you use the Services. ERB reserves the right at any time to modify or temporarily discontinue the Services or any part thereof with or without notice, including for any use of the Services in violation of these Terms. You agree that ERB shall not be liable to you or to any third party for any modification, suspension or temporary discontinuance of the Services. In the event of permanent discontinuance of the Services, ERB’s liability is limited to the paid subscription price, pro-rated to the amount of time remaining on the subscription.
Even after your rights under these Terms are terminated, the following provisions of these Terms will remain in effect: Sections 7-10, 12, 14-26.
THE SERVICES ARE PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS, AND ERB (AND OUR SUPPLIERS) EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ALL WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. NEITHER WE NOR OUR SUPPLIERS MAKE ANY WARRANTY THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS, OR WILL BE ACCURATE, RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, LEGAL, OR SAFE.
ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES 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.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM ERB OR THROUGH OR FROM THE SERVICES SHALL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THE AGREEMENT.
THE FOREGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
16. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL ERB, ITS SUBSIDIARIES, AFFILIATES, OR THEIR LICENSORS, SERVICES PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE SERVICES, ANY SERVICES LINKED TO IT, ANY CONTENT ON THE SERVICES OR SUCH OTHER SERVICES, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE.
IN NO EVENT SHALL ERB OR ITS SUBSIDIARIES, PARENT COMPANIES, AFFILIATES, LICENSORS, CONTRACTORS, EMPLOYEES, OFFICERS, DIRECTORS, AGENTS OR THIRD-PARTY PARTNERS' TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR YOUR USE OF THE SERVICES (WHETHER IN CONTRACT, TORT, WARRANTY OR OTHERWISE, EXCEED THE AMOUNT PAID BY YOU, IF ANY, FOR ACCESSING THE SERVICES DURING THE TWELVE (12) MONTHS PRECEDING YOUR CLAIM OR ONE HUNDRED DOLLARS ($100), WHICHEVER IS GREATER.
THE FOREGOING DOES NOT AFFECT ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
17. Governing Law and Jurisdiction
ERB operates the Services from North Carolina, U.S.A. These Terms and the transactions they contemplate, including without limitation their interpretation, construction, performance and enforcement shall be governed by the laws of the State of North Carolina, U.S.A., including its statutes of limitation but without reference to conflict or choice of law provisions that would result in the application of the laws of any other jurisdiction. The exclusive forum for the resolution of any dispute relating to these Terms shall be in the state courts sitting in Wake County, North Carolina, U.S.A., or, if it has jurisdiction, the United States District Court for the Eastern District of North Carolina, and you agree to personal jurisdiction of such courts over you with regard to any dispute relating to
these Terms and agree to service of process on you by email to the address you have submitted on the Services, if any, and by any other means permitted by law.
18. Limitation on Time to File Claims
ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS OR THE SERVICES MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES; OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
19. Notice; Changes to Terms
All notices, demands, or consents given by you under these Terms will be in writing and will be deemed given when delivered to ERB at the following contact:
105 East 34th Street, Suite 146
New York, NY 10016
Attn: ERB Writing Practice
Any notices to you may be made via either email or postal mail to the address in ERB’s records or via posting on the Services. Please report any violations of these Terms to ERB at the contact listed below.
ERB may, in its sole discretion, modify or update these Terms from time to time, which will be reflected in the “Last Updated” line set forth below. If such changes are material, we will additionally notify you that material changes have been made to these Terms. Your continued use of the Services following such update constitutes your acceptance of the revised Terms. If you do not agree to any of the terms in this Agreement or to any future terms in a future revision of this Agreement, do not use or access (or continue to access) the Services. Notwithstanding the foregoing, ERB will provide notice to the School in advance of making any material change to these Terms that relate to the collection or use of Student Data.
The Services may be subject to U.S. export control laws and may be subject to export or import regulations in other countries. You agree not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from ERB, or any products utilizing such data, in violation of the United States export laws or regulations.
21. Electronic Communications
The communications between you and ERB use electronic means, whether you use the Services or send us emails, or whether ERB posts notices on the Services or communicates with you via email. For contractual purposes, you (a) consent to receive communications from ERB in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that ERB provides to you electronically satisfy any legal requirement that such communications would satisfy if it were in a hardcopy writing. The foregoing does not affect your non-waivable rights.
ERB is located at the address in Section 26. If you are a California resident, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Product of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210.
23. Entire Terms
These Terms constitute the entire agreement between you and us regarding the use of the Services and supersedes any and all prior understandings and agreements between us respecting such subject matter, except that if you or your company have executed a separate written agreement with us governing your use of the Services, then such agreement shall control to the extent that any provision of these Terms conflicts with the terms of such agreement. Our failure to exercise or enforce any right or provision of these Terms shall not operate as a waiver of such right or provision. The section titles in these Terms are for convenience only and have no legal or contractual effect. The word “including” means “including without limitation”. If any provision of these Terms is, for any reason, held to be invalid or unenforceable, the other provisions of these Terms will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Neither party to these Terms is an agent or partner of the other. These Terms, and your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by you without ERB’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. ERB may freely assign these Terms, and in such case, these Terms shall be binding upon assignees.
105 East 34th Street, Suite 146
New York, NY 10016
Attn: ERB Writing Practice
26. Claims of Copyright Infringement
If you believe that any content or materials on the Services unlawfully infringes the copyrights in a work that you own or control and wish to have the allegedly infringing material removed, the following information in the form of a written notification must be provided to our Designated Agent:
your physical or electronic signature;
identification of the copyrighted work(s) that you claim to have been infringed;
identification of the material on our Services that you claim is infringing and that you request us to remove;
sufficient information to permit us to locate such material;
your address, telephone number, and email address;
a statement that you have a good faith belief that use of the objectionable material is not authorized by the copyright owner, its agent, or under the law; and
a statement that the information in the notification is accurate, and under penalty of perjury, that you are either the owner of the copyright that has allegedly been infringed or that you are authorized to act on behalf of the copyright owner.
If you believe that your content should not have been removed for alleged copyright infringement, the following information in the form of a written notification must be provided to our Designated Agent.
your physical or electronic signature;
identification of the copyrighted material that was removed or disabled;
sufficient information to permit us to locate such material;
your address, telephone number, and email address; and
a statement from you under penalty of perjury, that you have a good faith belief that the content was removed or disabled as a result of a mistake or misidentification.
Please note that, pursuant to 17 U.S.C. § 512(f), any misrepresentation of material fact (falsities) in a written notification automatically subjects the complaining party to liability for any damages, costs and attorney’s fees incurred by us in connection with the written notification and allegation of copyright infringement. Notification of copyright infringement should be sent by mail, fax or email to:
105 East 34th Street, Suite 146
New York, NY 10016
Attn: ERB Writing Practice