Terms of Service
THESE TERMS OF SERVICE (Terms of Service) ARE A LEGAL AGREEMENT BETWEEN YOU AND CROWDMARK, INC. (Crowdmark). These Terms of Service govern your access to and use of certain of Crowdmark’s products, software, services, and web site, including crowdmark.com, (collectively Services), and any and all information (including forms of exams, tests, essays, lab reports, and other student work ("assessments"), partially or fully competed assessments, and grades, marks and scores on or in connection with partially or fully completed assessments), text, graphics, photos or other materials uploaded, posted, or submitted to, downloaded from, or appearing on the Services (collectively Content).
BY SELECTING “I AGREE”, YOU ARE DEEMED TO HAVE READ AND ARE INDICATING YOUR ACCEPTANCE OF, AND YOU AGREE BE BOUND BY THESE TERMS OF SERVICE. If you do not agree to be bound by these Terms of Service, you are not allowed to use the Services. Wherever used in these Terms of Service, “you”, “your” or similar terms mean the person or legal entity utilizing or accessing the Services.
Your access and use of the Services and your handling of Content must be in accordance with these Terms of Service. If you violate these Terms of Service, you are no longer permitted to use the Services and Crowdmark may (but has no obligation to) terminate these Terms of Service and/or your ability to access or use the Services at any time.
Crowdmark may change these Terms of Service from time to time without notice to you. Your continued use of the Services after any such change shall constitute your acceptance of such change. You are responsible for regularly reviewing the most current version of the Terms of Service which are currently available at: crowdmark.com/legal.
- Crowdmark hereby grants to you, subject to the terms and conditions of these Terms of Service, a revocable, worldwide, limited, non-exclusive, personal, non-transferable and non-assignable license to use the Services (the Crowdmark Licence) to access and use Crowdmark’s Services on your computer system and remotely through the Internet or other communications network agreed to by you and Crowdmark, subject to any limitations, restrictions or requirements specified herein, solely for your own purposes in connection with: (i) in the case of educators, professors and teachers, submitting assessments for completion by, or completed by, students, and grading by graders, markers and facilitators; (ii) in the case of students, submitting partially or fully completed assessments for grading, scoring, marking, or viewing; (iii) in the case of graders, markers and facilitators, grading, scoring, viewing and marking completed assessments; and (iv) in the case of proctors, receiving, reviewing and collecting assessments.
- Crowdmark shall make the Services available to you through the Internet and the Services will be maintained on computer servers and equipment in the possession or control of Crowdmark and made accessible to you through the Internet through a secure password protected site(s) hosted by Crowdmark or a third party. You acknowledge that Crowdmark uses third party service providers and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to run the Services, including third parties to permit the uploading and submission of Content to the Services and to process payments, if any.
- You retain your ownership in and to Content you submit, post or upload to the Services, and your use of the Services does not transfer any ownership from you to Crowdmark. By making Content available to Crowdmark or to others through the Services, you hereby grant Crowdmark and its licensors and third party service providers, without any additional consideration, a worldwide, irrevocable, perpetual, transferable, non-exclusive, royalty-free, fully paid up license (with a right to sublicense) (the Content Licence) to use, copy, reproduce, process, adapt, modify, publish, transmit, display, incorporate, reformat, translate, excerpt, and distribute Content provided through your account, or any part thereof, including in personalized form and in aggregated, anonymous form, through any or all media or distribution methods (whether now known or hereafter developed).
- You hereby waive, in favour of Crowdmark, your moral rights under Canada’s Copyright Act or any successor legislation or similar law under the laws of Canada or the laws of other countries, that you, as author, have or may in your Content.
- You acknowledge and agree that as between you and Crowdmark, Crowdmark and its licensors have and retain all right, title and interest (including copyright, trade-mark, patent, trade secret and all other intellectual property rights) in and to Crowdmark’s Content and the Services, including any code underlying the Services, except as provided to you through the Crowdmark Licence. You acquire no rights whatsoever in or to all or any part of the Services or Crowdmark’s Content except for the limited use rights granted by these Terms of Service. All rights not expressly granted to you in these Terms of Service are reserved to Crowdmark and its licensors.
- You may choose to submit comments, corrections, recommendations, suggestions or other ideas to Crowdmark about the Services, including about how to improve the Services (Feedback). By providing Feedback to Crowdmark you agree that: your provision of such Feedback is free of charge, unsolicited and without restriction; Crowdmark can use or disclose to any third party the Feedback without any additional compensation to you; and Crowdmark owns all rights and interest in such Feedback. Crowdmark does not waive any rights to use any Feedback or similar Feedback developed or obtained by Crowdmark.
- Certain words, phrases, names, designs, or logos used in the Services may constitute trademarks, service marks or trade names of Crowdmark or other entities. The display of any such marks or names does not imply that a license has been granted to you or any third party by Crowdmark or other entities. Any unauthorized use or display of the trademarks or trade names of Crowdmark, its affiliates, related companies and their licensors is strictly prohibited.
- When you complete the account creation and registration process, you will create a login and password for you account. You are responsible for maintaining the security of your password and account. You are solely responsible and liable for your account and for any use of the Services and any Content accessed, or made available to others, through your account (even if such Content is accessed, or made available, by others). Crowdmark is not, and will not, be responsible for any loss or damages resulting from your failure to comply with this obligation. Crowdmark encourages you to use a strong password (passwords that use a combination of upper and lower case letters, numbers and symbols) for your account. You agree to immediately notify Crowdmark if you become aware of any unauthorized use of your account or your account login or password.
- You hereby represent, warrant and confirm that you can form a binding contract with Crowdmark, that your use of the Services is in full compliance with the law of the jurisdiction(s) to which you are subject, and that you are not prohibited from using the Services under Canadian law or any other applicable laws.
- You must not use the Services: (i) to engage in any illegal or unauthorized purpose, including in any way that violates laws applicable in Canada or other laws applicable to you, or in any manner that is inconsistent, or could be inconsistent, with applicable local, provincial/state, and national laws and regulations; (ii) in an way that violates or infringes the copyrights, rights of privacy or publicity, or any other rights of any person; (iii) to impersonate or misrepresent your affiliation with any person or entity; (iv) to engage in verbal, physical, written or other abuse (including threats of abuse or retribution) of any Crowdmark customer, employee, member, or officer or any user of the Services; or (v) to upload, post or submit Content, or otherwise make available to others using the Services: (A) any material that is libelous, defamatory, pornographic, obscene, offensive harassing or otherwise actionable or objectionable material in Crowdmark’s sole opinion; (B) any unsolicited message or unauthorized advertising or promotional material or any junk mail, spam or chain letters or messages through e-mail, or any short message service or multimedia message service; (C) any worms, viruses, Trojan horses, scripts, spiders, bots or similar means to harvest or collect information, or any computer code or files of a destructive, disabling or interfering nature (collectively, Viruses), or any Content that contains any of the foregoing; or (D) any material that is in a way that is detrimental to the operation of the Services or that could damage, disable or overburden the Services, or that is detrimental to the access or use of the Services by anyone else, which restriction applies to any use that interferes or attempts to interfere with the normal operations of the Services, including by hacking, deleting, augmenting or altering the Services or any Content.
- You must not, without Crowdmark’s prior written permission (including the permissions granted by these Terms of Service): (i) access or search, or attempt to access or search, the Services by any means (automated or otherwise) except through Crowdmark’s available interfaces and your account; (ii) copy, distribute (including by framing any of the Services on any web site), modify, enhance, translate, reproduce, alter, tamper with, repair, sell, resell, sublicense, rent, lease, or otherwise attempt to exploit the Services; (iii) decompile, disassemble, reverse engineer, or otherwise attempt to discover the code (except to the extent that this restriction is expressly prohibited by law) underlying the Services; (iv) make derivative works of the Services; or (v) modify another website so as to falsely imply that it is associated with the Services, Crowdmark or any other Crowdmark products or services.
- You acknowledge that by using the Services you may be exposed to Content that might be unlawful, or that you might consider to be offensive, harmful, inaccurate, or otherwise inappropriate or deceptive. Crowdmark is not responsible for, and does not pre-screen, Content and Crowdmark is not responsible for the Content accessed or made available to you through the Services.
- You understand that the technical processing and transmission of the Services, including the processing and transmission of Content uploaded, posted, or submitted to the Services from your account, may be transferred and unencrypted and may involve: (i) transmissions over various networks both within and outside of Canada; and (ii) changes to such Content to conform and adapt to technical requirements of connecting networks or devices.
- Crowdmark has the right (but not the obligation) in its sole discretion to refuse or remove any Content. Crowdmark may (but has no obligation to) remove Content, and terminate accounts for any reason whatsoever, including accounts containing Content that Crowdmark determines, in its sole discretion, to be unlawful, offensive, harmful, inaccurate, or otherwise inappropriate or deceptive (including Content that Crowdmark determines in its sole discretion to: (i) be libelous, defamatory, pornographic, obscene, or otherwise objectionable; and (ii) violate these Terms of Service or any third party’s intellectual property rights).
- You represent that: (i) you own all right, title and interest, including copyright, in and to any Content uploaded, posted or submitted to the Services through your account; or (ii) you have permission to upload, post, or submit any Content to the Services uploaded, posted or submitted to the Services through your account; or (iii) you have rights in the Content uploaded, posted or submitted to the Services necessary to grant the rights contemplated in these Terms of Service.
- Your use of certain of the Services may be subject to Crowdmark’s the current subscription charges (Fees) applicable to some of the Services you may select from time to time. Any Services subject to Fees will be clearly marked as such and may be subject to special terms and conditions in addition to these Terms of Service. All Fees are exclusive of taxes, levies, withholdings or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, withholdings or duties in addition to the Fees.
- If you subscribe for Services that are subject to Fees, you must pay all Fees plus all applicable taxes owed by you to Crowdmark, in the currency agreed to by you and Crowdmark at the time you subscribe for those Services that are subject to Fees, using a valid credit card acceptable to Crowdmark in its sole discretion prior to Crowdmark making those Services available to you. In the event of non-payment of any amount owed by you to Crowdmark, Crowdmark reserves the right to terminate or suspend the Services at any time.
- If you subscribe for Services that are subject to Fees, you shall pay all Fees owed by you to Crowdmark, if any, in advance of period in which Services are to be provided by Crowdmark or on an itemized basis. Fees and are non-refundable, in whole or in part, except where required by applicable laws.
- If you state that your country is outside of Canada, you agree that you are non-resident of Canada, and not registered for GST/HST purposes in Canada.
- Crowdmark may change the Services at any time and from time to time without giving you notice. Any changes to the Services, including releases of new features, tools or resources, shall be subject to these Terms of Service. Crowdmark may also stop (temporarily or permanently) providing the Services (or any part of the Services) to you or to anyone else without notice.
- Fees for certain of the Services are subject to change upon 30 days notice from Crowdmark to you, which notice may be provided to you by Crowdmark at the e-mail address you provided when you registered for your Crowdmark account.
- Crowdmark is not, and will not, be liable to you or to any third party for any change to the Fees or Services, including suspension or discontinuance of the Services.
If you choose to cancel your Crowdmark account you are solely responsible for doing in accordance with Crowdmark’s then current cancellation procedure (the Cancellation Procedure) set out on Crowdmark’s website at crowdmark.com If you follow the Cancellation Procedure, Crowdmark will, subject to any licences granted hereunder, cancel you account immediately and Crowdmark will use reasonable efforts to delete all Content uploaded, posted or submitted to the Services from your account promptly after cancellation. After you have cancelled your account, you cannot recover Content previously uploaded, posted or submitted to the Services from your account. Crowdmark is not responsible for the loss of any Content due to your cancellation of your account.
Crowdmark, in its sole discretion, has the right to terminate these Terms of Service, or to suspend, terminate or restrict your access to any of the Services, or any other Crowdmark service, for any reason and at any time without notice. If Crowdmark decides to terminate your access to any of the Services, Crowdmark may deactivate, suspend or delete your account or your access to your account, and may delete all Content uploaded, posted, or submitted to the Services through your account. For greater certainty, if you engage in any behaviour Crowdmark considers, in its sole discretion, to be offensive or in violation of thee Terms of Service, Crowdmark may, in its sole discretion, terminate your access to the Services and your account without notice. Crowdmark reserves the right to refuse to provide the Services to you for any reason at any time.
If you are a copyright owner, authorized to act on behalf of one, or authorized to act under any exclusive right under copyright, please report any Content on the Services that allegedly infringes your copyright by sending to Crowdmark at email@example.com a notice with the following information: (i) physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive copyright that is allegedly infringed; (ii) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works on the Services are covered by a single notification, a representative list of such works on the Services; (iii) identification of the Content 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 Crowdmark to locate the material; (iv) information reasonably sufficient to permit Crowdmark to contact you, such as an address, telephone number, and, if available, an electronic mail address at which you may be contacted; (v) a statement that you have a good faith belief that the use of the Content in the manner complained of is not authorized by the copyright owner, its agent or the law; (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 owner of the exclusive right that is allegedly infringed; and (vii) URLs identifying the allegedly infringing material along with any other information that might assist in the investigation of your claim. Upon receipt of this information, Crowdmark will respond expeditiously and follow its notice and Content take down procedure, including having the disputed material removed from the Services and notifying the user who uploaded, posted or submitted the allegedly infringing Content. If you materially misrepresent that any material infringes your copyright, you may be liable for damages, including court costs and legal fees.
THE SERVICES ARE PROVIDED TO YOU “AS IS” AND ON AN “AS AVAILABLE” BASIS, WITH ALL FAULTS AND WITHOUT ANY WARRANTIES, REPRESENTATIONS OR CONDITIONS OF ANY KIND, INCLUDING WITH RESPECT TO AVAILABILITY, COMPATIBILITY, VIRUSES, DISABLING DEVICES OR OTHER CODE THAT MANIFESTS DESTRUCTIVE PROPERTIES.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, CROWDMARK MAKES NO, AND DISCLAIMS ANY AND ALL, WARRANTIES, REPRESENTATIONS AND CONDITIONS OF ANY KIND WITH RESPECT TO QUALITY, ACCURACY, USEFULNESS, SUITABILITY, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, CURRENCY, OR TIMELINESS OF THE SERVICES OR ANY CONTENT, WHETHER EXPRESS, IMPLIED OR COLLATERAL, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OR THAT THE SERVICES ARE OR WILL BE SECURE, COMPLETE OR FREE OF ERRORS, VIRUSES, BUGS, PROBLEMS OR OTHER LIMITATIONS OR WILL OPERATE WITHOUT INTERRUPTION.
YOUR USE OF THE SERVICES IS ENTIRELY AT YOUR OWN RISK. YOU ACKNOWLEDGE THAT THE INTERNET IS NOT A SECURE MEDIUM AND PRIVACY AND CONFIDENTIALITY CANNOT BE GUARANTEED.
CROWDMARK AND ITS AFFILIATES AND LICENSORS ARE NOT, AND WILL NOT BE, RESPONSIBLE FOR ANY DAMAGES YOU OR A THIRD PARTY MAY SUFFER AS A RESULT OF YOUR USE OF THE SERVICES (INCLUDING WITHOUT LIMITATION, ANY USE OF CONTENT OR OTHER MATERIALS OR INFORMATION YOU ACCESS FROM OR PROVIDE TO CROWDMARK, DIRECTLY OR INDIRECTLY, THROUGH THE SERVICES) OR FOR ANY INCOMPLETENESS, ERRORS, SECURITY, VIRUSES, BUGS, PROBLEMS, OMISSIONS, INACCURACIES OR OTHER LIMITATIONS IN THE SERVICES OR ANY CONTENT, OR INTERRUPTIONS IN THE SERVICES.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, CROWDMARK AND ITS AFFILIATES AND LICENSORS ARE NOT LIABLE, WHETHER BASED ON STATUE, WARRANTY, CONTRACT, TORT, LAW, EQUITY, (INCLUDING BUT NOT LIMITED TO NEGLIGENCE, GROSS NEGLIGENCE OR WILFUL MISCONDUCT), PRODUCT LIABILITY, STRICT LIABILITY, STATUTORY LIABILITY, BREACH OF A FUNDAMENTAL TERM, FUNDAMENTAL BREACH, OR ANY OTHER LEGAL THEORY, FOR ANY LOSS OR DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION ANY (I) DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE LOSS OR DAMAGE, (II) LOST PROFITS OR SAVINGS, (III) BUSINESS INTERRUPTION, (IV) LOSS OF PROGRAMS OR DATA (INCLUDING ANY CONTENT), (V) LOST REVENUE OR FAILURE TO REALIZE EXPECTED SAVINGS, (VI) LOSS OF USE, (VII) PERSONAL INJURY, (VIII) FINES, FEES, PENALTIES, OR (VI) ANY OTHER LOSSES OR DAMAGES WHETHER OR NOT CROWDMARK IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, RESULTING FROM YOUR USE OF, OR THE INABILITY TO MAKE USE OF, THE SERVICES.
YOU EXPRESSLY ACKNOWLEDGE AND CONFIRM THAT THE CONTENT LICENCE AND THE LIMITATIONS AND EXCLUSIONS CONTAINED IN THESE TERMS OF SERVICE ARE FAIR AND REASONABLE IN THE CIRCUMSTANCES, AND THAT CROWDMARK WOULD NOT HAVE ENTERED INTO THESE TERMS OF SERVICE AND LICENSED THE SERVICES BUT FOR YOUR PROVISION OF THE CONTENT LICENCE AND YOUR AGREEMENT TO SUCH LIMITATIONS AND EXCLUSIONS.
You hereby agree to indemnify Crowdmark or its licensors, subsidiaries, affiliates, and related companies, and each of their respective officers, directors, employees, shareholders, agents, representatives, business partners, information providers and licensors and their respective successors and assigns (together Crowdmark Entities) harmless from and against all losses, expenses, damages, liabilities, expenses and costs, including reasonable legal fees, suffered by any of the Crowdmark Entities, directly or indirectly, resulting from: (a) your use of the Services; (b) the uploading, posting or submission of any Content to the Services through your account; and (c) your violation of these Terms of Service.
- The provisions of these Terms of Service regarding “Restrictions on Use”, “Payment Matters”, “Cancellation”, “Termination and Suspension”, “Ownership and Licences”, “Disclaimers”, “Limitation of Liability”, “Indemnification” and “General” and any provisions which by their nature survive, shall survive the termination of these Terms of Service.
- The failure of Crowdmark to exercise or enforce any right or provision of these Terms of Service shall not constitute a waiver of such right or provision, and no waiver of any right or provision of these Terms of Service shall be deemed a further or continuing waiver of such right or provision.
- These Terms of Service constitute the entire agreement between you and Crowdmark and govern your use of the Services, superseding any prior agreements between you and Crowdmark (including, but not limited to, any prior versions of the Terms of Service). If you are a corporation, organization, partnership or other non-individual entity, you shall cause your employees, agents, contractors, director and officers to comply with these Terms of Service and shall be responsible at all times for all such employees, agents, contractors, directors and officers.
- If any provision of these Terms of Service is determined by a court of competent jurisdiction to be void, invalid or otherwise unenforceable by a court of competent jurisdiction, that provision shall be enforced to the maximum extent permissible so as to effect the intent of these Terms of Service and such determination shall not affect the remaining provisions contained herein.
- You may not assign these Terms of Service or any of your rights or obligations under these Terms of Service to a third party without the prior written consent of Crowdmark. Crowdmark may assign the Terms of Service or its rights or obligations under these Terms of Service to any party at any time without notice to you. Subject to the foregoing, these Terms of Service shall enure to the benefit of and be binding upon you and Crowdmark and your/its respective successors (including any successor by reason of amalgamation) and assigns.
- These Terms of Service are governed, interpreted and construed in accordance with the laws of the Province of Ontario and the applicable laws of Canada, without giving effect to any principles of conflicts of laws contained therein, and you hereby consent and submit to the exclusive jurisdiction of the Courts of Ontario. These laws apply to your access to, or use of, the Services, notwithstanding your domicile, residency or physical location. The Services are intended for use only in jurisdictions where they may lawfully be offered for use. You and Crowdmark specifically disclaim the UN Convention on Contracts for the International Sale of Goods.
- It is the express wish of the parties to these Terms of Service that these Terms of Service and all related documents be drawn up in English. C’est la volonté expresse des parties que la présente convention ainsi que les documents qui s'y rattachent soient rédigés en anglais.
- If you have any questions or concerns about these Terms of Service, the practices of Crowdmark or your dealings with Crowdmark, you may contact a representative of Crowdmark by e-mail to firstname.lastname@example.org or by regular mail to:
101 College Street, Suite 402
Toronto, Ontario, M5G 1L7
Terms of Service last updated: July 25, 2013.
© 2013 Crowdmark, Inc. All rights reserved.