Updated: October 7, 2016
Welcome to Level Data. This page explains the terms by which Customer may use and otherwise interact with our online website, applications/services, and software provided on or in conjunction with Level Data’s proprietary service, technology, and infrastructure for the distribution of tools and technologies to enable users to access, use, and analyze data, materials, and information relevant to the education market (such applications and software, collectively, “Applications,” and such service, technology, and infrastructure, the “Managed Service”).
THESE TERMS OF SERVICE (the “Terms”) GOVERN THE USE OF LEVEL DATA SERVICES (the “Services”) BY Customer, THE CUSTOMER (YOU, YOUR, CUSTOMER), SO PLEASE CAREFULLY READ THEM BEFORE USING THE SERVICES. IF CUSTOMER LEA/SEA REQUIRES A SEPARATE MOU PLEASE FIND OUR STANDARD MOU HERE.
Customer may accept this Agreement by signing a Quotation or taking another action that indicates Customer acceptance of this Agreement. By agreeing to these Terms, Customer agrees to the terms of this Agreement.
If Customer are entering into this Agreement on behalf of a District, Department of Education, ISD, or other legal entity, Customer represent that Customer have the authority to bind such entity and its affiliates to these terms and conditions, in which case the terms “Customer”, “Customer” shall refer to such entity and its affiliates. If Customer does not have such authority, or if Customer does not agree with these terms and conditions, Customer must not accept this Agreement and may not use Level Data Services.
By accepting this Agreement, Customer acknowledges and authorizes Level Data to have secure access Customer’s Library, Transportation, Nutrition, Special Education, Directory, Student Information System (the “SIS”) and / or other systems data via Private VPN, Secure File Transfer Protocol (“SFTP”), Secure Shell (“SSH”), or other secure method for the purpose of allowing Level Data to provide Customer software integration. For SIS customizations, Customer hereby acknowledges and authorizes custom code to run inside the SIS and operate on data records inside the SIS data store. The term “Student Information System (“SIS”) includes “education records” as defined in the Family Educational Rights and Privacy Act (“FERPA”) 20 U.S.C. § 1232g.
Customer orders Level Data Services by completing and signing and returning a Quotation for Services. Each accepted, fully executed Quote shall be deemed to be incorporated herein by reference as if attached and made an integral part of this Agreement. This agreement shall function as the memorandum of understanding (MOU) between Level Data and Customer.
If a Customer purchase agreement is required, these Terms of Service must be appended and considered an integral part of this Agreement. Any discrepancies, contradictions, or disputes between this and a Customer Purchase agreement shall default to the meaning, purpose, and function of this agreement. Level Data shall retain all ownership rights to any and all Deliverables excluding, any pre-existing technology or materials supplied by Customer for incorporation into such Deliverable. Level Data grants Customer a royalty-free, non-exclusive, non-transferable, non-assignable worldwide license to use any Deliverable, to the extent necessary to permit Customer to use the Deliverable in connection with Level Data Services during the Term of this Agreement. Customer acknowledges that nothing in this Agreement shall restrict or limit Level Data from performing similar services for any third party.
Customer shall pay all fees or charges as specified on each executed Quotation and Invoice. All payment obligations are non-cancelable and all amounts paid are nonrefundable. Level Data charges and collects in advance for committed subscription fees and in arrears for usage which exceeds such committed amounts as defined on each Quotation or Invoice. Unless otherwise set forth in the applicable Quotation or Invoice, payment terms are net thirty (30) days from the date of Level Data’s Invoice, without offsets or deductions of any kind, and payment is due in US dollars. If payment is to be made via credit card, such payment shall be chargeable upon invoice date. In the event that Customer’s use of Level Data Services exceeds the committed subscription usage, additional Overage fees shall apply as set forth in the applicable Quotation. Such Overage fees shall be assessed annually in arrears.
Level Data reserves the right to suspend or terminate this Agreement, any related Quotations, and Customer’s use of Level Data Services if Customer’s account becomes delinquent and is uncured for a period of ninety (90) days. If Customer believes Customer’s bill is incorrect, Customer must contact Level Data in writing within sixty (60) days of the date of the Invoice containing the amount in question to be eligible to receive an adjustment or credit. Customer agrees to provide Level Data with accurate billing and contact information, including Customer’s legal entity name, street address, e-mail addresses, names, and telephone numbers of authorized billing and Administrator contacts. Customer agrees to update this information within thirty (30) days of any change to it.
The term of an applicable Quotation will begin on the Effective Date of the Quotation and shall continue for the initial term specified in such Quotation. In the event that a Quotation contains Services added to an existing subscription, such added Services shall be billed on a prorated basis and will be coterminous with the Initial Service Term or applicable Renewal Service Term. Unless otherwise set forth in an applicable Quotation, upon expiration of the Initial Service Term of any Quotation, such Services will renew automatically for a subsequent Renewal Service Term of twelve (12) months, unless either party notifies the other party of its intent to terminate at least thirty (30) days prior to the end of the then current Service Term.
Subject to the terms and conditions of this Agreement, Level Data grants Customer a non-exclusive, non-transferable, non-assignable, worldwide limited license to use the purchased Level Data Services provided hereunder solely for Customer’s own business purposes and only for the specific applications and time periods as set forth in each fully executed Quotation.
Subject to the limited rights expressly granted hereunder, Level Data reserves all rights, title and interest in and to Level Data Services, including all related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein. Customer agrees not to challenge the validity or Level Data’s ownership of the intellectual property rights in Level Data Services. Level Data reserves the right to make changes, modifications and enhancements to Level Data Services from time to time.
Customer shall not permit any third party to access Level Data Services except as permitted herein, create derivative works based on Level Data Services, copy, frame or mirror any part or content of Level Data Services, reverse engineer, or access Level Data Services in order to build a competitive product or service, or copy any features, functions or graphics of Level Data Services.
Subject to the limited rights granted by Customer hereunder, Level Data shall acquire no right, title, or interest from Customer under this Agreement in or to Customer data, including any intellectual property rights therein.
Customer authorizes Level Data to securely access, view, analyze, and manipulate student and staff information for the sole benefit and purpose of the Customer. Customer shall facilitate a means for Level Data to securely access the information in its SIS and other systems as desired by Customer for the implementation and integration of systems at Customer. Level Data shall securely access student information for the purposes of providing software integration, as an outsourced institutional function pursuant to FERPA 34 CFR Part 99.31(a)(1) or a Business Associate as defined by HIPAA (45 CFR 160.103).
Customer may designate third parties who are authorized to securely access its student information. Level Data shall not re-disclose student information to any third parties unless explicitly authorized, in writing, by Customer. Customer may, at any time, revoke any access to student information by providing written notice to Level Data.
Level Data agrees to deem all student information provided to it by Customer from the SIS or other systems as confidential and not to be shared with third parties without written authorization. Further, Level Data agrees to comply with applicable provisions of the Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. 1232g, and other regulations as required.
Confidential information shall not include any information that is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, is received from a third party without breach of any obligation owed to the Disclosing Party, or was independently developed by the Receiving Party. Confidential Information of both parties shall include, without limitation, any amounts paid under, and the terms of, the Agreement, as well as information regarding either party’s business, strategies, plans, suppliers, clients, finances, business plans, product development, technology, and software. For the avoidance of doubt, Level Data’ Confidential Information shall include the proprietary aspects, designs, and features of the Applications and the Managed Service.
Neither party will use the other’s Confidential Information without the other’s written consent as expressly permitted in the Agreement except for the purpose of exercising its rights or carrying out its obligations under the Agreement. Each party will disclose the other’s Confidential Information to its employees, agents, representatives, and consultants only on a need-to-know basis and subject to reasonable confidentiality obligations on such persons. Each party will protect the other’s Confidential Information using the same degree of care, but no less than reasonable care, to prevent the unauthorized use or disclosure of such Confidential Information.
The obligations set forth in this will not apply to any information that: (i) was previously known to either party free of any obligation of confidentiality; (ii) is or becomes publicly available other than by means of unauthorized disclosure by either party; or (iii) is required to be disclosed pursuant to statute, regulation, or order of a court.
Customer may, at any time, terminate relationship with Level Data by providing written notice. Within 72 hours of receipt of notice of termination, Level Data shall cease accessing the Customer’s SIS and/or other systems and destroy any stored student information.
Level Data reserves the right to modify these Terms of Service at any time without notice, but the most current version of the Terms will always be available on its website. If Customer finds the Terms unacceptable at any time, Customer may discontinue its use of the Services. By continuing to use the Services, including accessing Level Data’s website, after the date of any change to these Terms, Customer agrees to be bound by the rules contained in the most recent version of these Terms.
Each party hereby represents, warrants, and covenants that: (i) it has full authority to enter into the Agreement; and (ii) the Agreement shall constitute a valid and binding obligation on such party, enforceable in accordance with the terms of each.
Level Data hereby warrants that the Applications and the Managed Service will perform substantially in accordance with its documentation or specifications. The foregoing warranty shall not apply to performance issues of the Applications and the Managed Service: (i) caused by factors outside of our reasonable control; (ii) that result from any actions or inactions of Customer or any third parties; or (iii) that result from Customer data structure, operating environment, or equipment.
Customer hereby represent and warrant that Customer are the owner of or otherwise have the right to use and provide all materials furnished or licensed by Customer to us in connection with the Agreement, and that such materials do not now and will not at any relevant time infringe upon any third-party’s intellectual property rights.
THE SERVICES, AND ALL MATERIALS, INFORMATION, AND SERVICES INCLUDED IN THE LEVEL DATA SITE AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH NO WARRANTIES WHATSOEVER. LEVEL DATA INC. AND ITS LICENSORS EXPRESSLY DISCLAIM TO THE FULLEST EXTENT PERMITTED BY LAW ALL EXPRESS, IMPLIED, AND STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. LEVEL DATA INC. AND ITS LICENSORS DISCLAIM ANY WARRANTIES REGARDING THE SECURITY, RELIABILITY, TIMELINESS, AND PERFORMANCE OF THE SERVICES. LEVEL DATA INC. DOES NOT WARRANT THAT (I) THE SERVICES WILL MEET Customer’S SPECIFIC REQUIREMENTS, (II) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE, (IV) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY Customer THROUGH THE SERVICES WILL MEET Customer’S EXPECTATIONS, AND (V) ANY ERRORS IN THE LEVEL DATA SITE WILL BE CORRECTED. LEVEL DATA INC. AND ITS LICENSORS DISCLAIM, ANY WARRANTIES FOR ANY INFORMATION, CONTENT OR ADVICE OBTAINED THROUGH THE SERVICES. LEVEL DATA INC. AND ITS LICENSORS DISCLAIM ANY WARRANTIES FOR SERVICES OR GOODS RECEIVED THROUGH OR ADVERTISED ON THE LEVEL DATA INC. SERVICES OR RECEIVED THROUGH ANY LINKS PROVIDED BY THE LEVEL DATA SITE OR SERVICES.
UNDER NO CIRCUMSTANCES SHALL LEVEL DATA INC. OR ITS LICENSORS BE LIABLE TO CUSTOMER ON ACCOUNT OF MISUSE OF OR RELIANCE ON THE SERVICES OR LEVEL DATA SITE ARISING FROM ANY CLAIM RELATING TO THIS AGREEMENT OR THE SUBJECT MATTER HEREOF. SUCH LIMITATION OF LIABILITY SHALL APPLY TO PREVENT RECOVERY OF DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, AND PUNITIVE DAMAGES WHETHER SUCH CLAIM IS BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE. SUCH LIMITATION OF LIABILITY SHALL APPLY WHETHER THE DAMAGES ARISE FROM USE OR MISUSE OF AND RELIANCE ON THE SERVICES OR LEVEL DATA SITE, FROM INABILITY TO USE THE SERVICES OR LEVEL DATA SITE, OR FROM THE INTERRUPTION, SUSPENSION, OR TERMINATION OF THE SERVICES OR LEVEL DATA SITE (INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES).
THIS LIMITATION SHALL ALSO APPLY, WITHOUT LIMITATION, TO THE COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOST PROFITS, LOST REVENUE, OR LOST DATA. SUCH LIMITATION SHALL FURTHER APPLY WITH RESPECT TO THE PERFORMANCE OR NON-PERFORMANCE OF THE SERVICES OR LEVEL DATA SITE OR ANY INFORMATION OR MERCHANDISE THAT APPEARS ON, OR IS LINKED OR RELATED IN ANY WAY TO, THE LEVEL DATA INC. SERVICES. SUCH LIMITATION SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE FULLEST EXTENT PERMITTED BY LAW.
IN NO EVENT WILL LEVEL DATA’S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY RECEIVED BY LEVEL DATA IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM UNDER THESE TERMS AND AN APPLICABLE CUSTOMER OR PARTNERSHIP AGREEMENT (AND IN THE CASE OF A PARTNERSHIP AGREEMENT, SUCH AMOUNTS WILL BE NET OF PAYMENTS TO PARTNER).
Certain of the Managed Services may allow Customer or Customer’s users to post content such as profile information, comments, questions, articles, and other content or information (any such materials Customer submit, post, display, or otherwise make available on the Applications or Managed Service, “User Content”). Level Data claims no ownership rights over User Content created, uploaded, or transmitted by Customer. The User Content Customer’s users create remains Customers; however, by sharing the User Content through the Applications, Customer agree to allow others to view, edit, and share Customer User Content in accordance with this Agreement. However, Level Data may, in its sole discretion, remove any User Content shared via the Applications.
Customer agrees that neither Customer nor Customer’s users will post User Content that: (i) may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to Customer, to any other person, or to any animal; (ii) may create a risk of any other loss or damage to any person or property; (iii) seeks to harm or exploit children by exposing them to inappropriate content, asking for personally identifiable details or otherwise; (iv) may constitute or contribute to a crime or tort; (v) contains any information or content that we deem to be unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, profane, or otherwise objectionable; (vi) contains any information or content that is illegal (including, without limitation, the disclosure of insider information under securities law or of another party’s trade secrets); (vii) contains any information or content that Customer do not have a right to make available under any law or under contractual or fiduciary relationships; or (viii) contains any information or content that Customer know is not correct and current. Customer agree that any User Content that Customer post does not and will not violate third-party rights of any kind, including without limitation any intellectual property rights or rights of privacy. To the extent that Customer User Content contains music, Customer hereby represents that Customer is the owner of all the copyright rights, including without limitation the performance, mechanical, and sound recordings rights, with respect to each and every musical composition (including lyrics) and sound recording contained in such User Content and have the power to grant the license granted below. Level Data may reject or remove any User Content that we believe, in our sole discretion, violates these provisions.
In connection with User Content, Customer affirms and represent the following:
Customer has the written consent of each and every identifiable natural person in the User Content to use such person’s name or likeness in the manner contemplated by the Service and this Agreement, and each such person has released Customer from any liability that may arise in relation to such use.
Customer User Content and Level Data’s use thereof as contemplated by this Agreement and the Service will not violate any law or infringe any rights of any third party, including but not limited to any Intellectual Property Rights and privacy rights.
Level Data may exercise the rights to Customer User Content granted under this Agreement without liability for payment of any guild fees, residuals, payments, fees, or royalties payable under any collective bargaining agreement or otherwise.
To the best of Customer knowledge, all Customer User Content and other information that Customer provides to us is truthful and accurate.
We take no responsibility and assume no liability for any User Content that Customer or Customer’s user’s upload, post, send, or otherwise transmit via the Applications. Customer shall be solely responsible for Customer User Content and the consequences of posting or publishing it, and Customer agrees that Level Data is only acting as a passive conduit for Customer online distribution and publication of Customer User Content. Customer understands and agree that Customer may be exposed to User Content that is inaccurate, objectionable, inappropriate for children, presents health risks, or may otherwise be unsuited to Customer purpose, and Customer agrees that Level Data shall not be liable for any damages Customer allege to incur as a result of Customer User Content.
By posting any User Content via the Applications, Customer expressly grant, and Customer represent and warrant that Customer has all rights necessary to grant, to Level Data a royalty-free, sub-licensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, reproduce, modify, publish, list information regarding, edit, translate, distribute, syndicate, publicly perform, publicly display, and make derivative works of all such User Content and Customer name, voice, and/or likeness as contained in Customer User Content, in whole or in part, and in any form, media or technology, whether now known or hereafter developed, for use in connection with the Applications and Level Data’s (and its successors’ and affiliates’) business, including without limitation for promoting and redistributing part or all of the Applications (and derivative works thereof) in any media formats and through any media channels. Customer also hereby grants each user of the Applications a non-exclusive license to access Customer User Content through the Application(s), and to use, reproduce, distribute, display and perform such User Content to the extent permitted through the functionality of the Applications and under this Agreement.
Because Level Data respects artist and content owner rights, it is our policy to respond to alleged infringement notices that comply with the Digital Millennium Copyright Act of 1998 (“DMCA”). If Customer believes that Customer’s copyrighted work has been copied in a way that constitutes copyright infringement and is accessible via the Applications and the Managed Service, please notify our copyright agent as set forth in the DMCA. For Customer’s complaint to be valid under the DMCA, Customer must provide the following information in writing:
An electronic or physical signature of a person authorized to act on behalf of the copyright owner;
Identification of the copyrighted work that Customer claim has been infringed;
Identification of the material that is claimed to be infringing and where it is located on the Applications or the Managed Service;
Information reasonably sufficient to permit us to contact Customer, such as Customer’s address, telephone number, and email address;
A statement that Customer has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agents, or law; and
A statement, made under penalty of perjury, that the above information is accurate, and that Customer are the copyright owner or are authorized to act on behalf of the owner.
The above information must be submitted to the following DMCA Agent:
Attn: DMCA Notice
Level Data, Inc.
Address: 4787 Campus Dr
Kalamazoo, MI 49008
UNDER FEDERAL LAW, IF Customer KNOWINGLY MISREPRESENT THAT ONLINE MATERIAL IS INFRINGING, Customer MAY BE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY AND CIVIL PENALTIES, INCLUDING MONETARY DAMAGES, COURT COSTS, AND ATTORNEY’S FEES.
Please note that this procedure is exclusively for notifying us and our affiliates that Customer’s copyrighted material has been, or may have been, infringed. The preceding requirements are intended to comply with our rights and obligations under the DMCA, including 17 U.S.C. §512(c), but do not constitute legal advice. It may be advisable to contact an attorney regarding Customer rights and obligations under the DMCA and other applicable laws.
In accordance with the DMCA and other applicable law, we have adopted a policy of terminating, in appropriate circumstances, users who are deemed to be repeat infringers. We may also at our sole discretion limit access to the Applications and the Managed Service and terminate the accounts of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
The relationship between Customer and Level Data under the Agreement is that of independent contractors only. Nothing in this Agreement will be construed so as to constitute a partnership, joint venture, or agency relationship. Neither party will have any power or authority to bind the other in any transaction with a third-party. Unless otherwise expressly agreed by the parties, the services rendered hereunder shall be on a non-exclusive basis and the party rendering them shall be free to accept other engagements at all times.
All notices, requests, claims, demands, and other communication under this Agreement may be delivered by any method chosen by the sender that positively establishes legally valid and admissible evidence of actual receipt by the named recipient. The sender shall bear the burden of establishing delivery with respect to the method chosen.
This Agreement sets forth the entire understanding and agreement of the parties with respect to the subject matter hereof and supersedes all other oral or written representations and understandings. Any additions or modifications to this Agreement must be made in writing and must be signed by the authorized representatives of both parties. If any provision of this Agreement is determined to be invalid or unenforceable, the remainder shall be enforceable to the maximum extent possible.
Neither party may assign or transfer this Agreement without the prior written consent of the other party, except that either party may assign this Agreement without consent in connection with a merger, consolidation, restructuring, or sale of all or substantially all of its equity, business, or assets to which this Agreement relates.
This Agreement will be governed by and construed in accordance with the laws of the State of Michigan, without regard to its conflict of laws principles. Each party hereby expressly and irrevocably consents to the exclusive jurisdiction of the state and federal courts located in Kalamazoo County, Michigan in connection with any action to enforce the provisions of this Agreement, to recover damages or other relief under this Agreement, or otherwise arising under or by reason of this Agreement.
Neither the waiver by either party of a breach of or a default under any of the provisions of this Agreement, nor the failure of either party, on one or more occasions, to enforce any of the provisions of this Agreement, or to exercise any right or privilege hereunder will thereafter be construed as a waiver of any subsequent breach or default of a similar nature, or as a waiver of any of such provisions, rights, or privileges hereunder.
Each party will comply with all federal, state, and local laws, rules, and regulations, as amended from time to time, applicable to such party’s performance of its obligations under this Agreement, including all applicable export laws, rules, and regulations of the United States and other applicable jurisdictions, and those related to data privacy.
Neither party will be liable for any failure of performance hereunder or for damages caused by any delay or failure to perform hereunder if performance is made impracticable or impossible due to any occurrence beyond its control, including without limitation: acts of God, fires, floods, wars, riots or civil disorders, acts of a public enemy, sabotage, accidents, enactment or act of any government or governmental instrumentality (whether federal, state, local, or foreign, and whether valid or invalid), failure of technical facilities, and any other occurrence which would have a material adverse impact on a party’s ability to perform under this Agreement which is not reasonably within such party’s control.
If Customer is a federal, state, or local government entity in the United States using the Applications or Managed Service in Customer official capacity and legally unable to accept the controlling law, jurisdiction, or venue clauses above, then those clauses do not apply to Customer. For such U.S. federal government entities, the Agreement and any action related thereto will be governed by the laws of the United States of America (without reference to conflict of laws) and, in the absence of federal law and to the extent permitted under federal law, the laws of the State of Michigan (excluding choice of law).
The Terms herein control the relationship between Level Data and Customer. If Customer does not comply with these Terms, and Level Data does not take action right away, this does not mean that Level Data is giving up any rights that Level Data may have, such as taking action in the future. If a provision of these Terms is found unenforceable, the remaining provisions of these Terms will remain in full effect and an enforceable term will be substituted reflecting the original intent as closely as possible.
The laws of Michigan, U.S.A., will apply to any disputes arising out of or relating to these Terms or the Services. All claims arising out of or relating to these Terms or the Services will be handled exclusively in the federal or state courts of Kalamazoo County, Michigan, and Customer and Level Data consent to venue and personal jurisdiction in those courts.
For information about how to contact Level Data, please visit Level Data’s contact page or send an email to firstname.lastname@example.org.