TERMS OF SERVICE AND LICENSING AGREEMENT
Updated June 20, 2019
ACCEPTANCE OF TERMS
The following Terms of Service Agreement (TOS) is a legally binding agreement that governs the relationship between the National Head Start Association (NHSA) and all users of the NHSA Parent Gauge™ website and its related support and informational websites and services (Service).
By accessing and using this Service, you accept and agree to be bound by the terms and provision of this TOS agreement. In addition, when using the Service, you are subject to any guidelines or rules applicable to the Service, which may be modified from time to time. All such guidelines or rules are incorporated into the TOS, including text and website links.
BY USING THE PARENT GAUGE™ SERVICE, YOU AGREE TO THESE TERMS. IF YOU DO NOT AGREE TO ABIDE BY THIS TOS AGREEMENT, DO NOT ACCESS OR USE THE PARENT GAUGE™ SERVICE.
At its discretion, NHSA may offer additional website Services or products, and may update, modify, or revise the Service and/or the TOS agreement at any time. The TOS agreement, including all updates and modifications, applies to any and all additional Services and products, and any and all updated, modified or revised Services, unless otherwise stipulated.
Your continued use of the Services, including any updates, changes, and/or modifications to the Service and/or the TOS agreement, constitutes your acceptance of the updates, changes and/or modifications. If you do not agree to the updated, revised or modified Service or TOS agreement, do not access or use the Service.
Center: a facility operated by the Customer, providing a location, staff, and other resources to deliver a Program.
Content: All text, images, video, audio, or other files which are displayed in, played by, or downloaded from the Service, including but not limited to assessment questions, descriptive text, instructional guidance, references, links, examples, data visualizations, spreadsheets, text files, presentations, and all other text or files.
Customer: Legally-constituted organization from which National Head Start Association has received an Order for a Subscription to Parent Gauge™.
Delegate Agency: a legally-constituted organization subcontracted by a Customer to deliver the Program using the Delegate Agency’s location, staff, and resources.
Order: Written or online request for a Subscription to the Service which specifies the number of children enrolled in the Customer’s Program, the number of families to be assessed using the Service, and the NHSA membership status of the Customer.
PII: Personally identifiable information, collected for access and use of the Service, or collected by the User from children and family members as part of the assessment process for which the Service is used.
Program: a set of services and staff operated by a Customer, that serves a group of children and families.
NHSA: National Head Start Association, which is the licensor of the Service.
School Year: July 1st of any current calendar year through June 30 of the following calendar year.
Service: The Parent Gauge™ cloud-based assessment application, a standards-aligned instrument that measures parent experience and the impact of early childhood programs’ engagement efforts, and supporting sites and resources, includes but not limited to user documentation, admin documentation, instructional videos, audio files, customer support forums, user community tools, and informational web pages.
System Administrator: a User designated by the Customer to have the authority to create accounts for all Users, and to manage the use of the Service within the Customer’s organization.
Subscription: payment for access to the Service for one School Year, beginning 15 days from the receipt of an Order and ending on the last day of the current School Year.
User: any individual who has been granted login access to the Service. To be granted access as a User, an individual must be an employee, contractor, or officer of a Customer, or must be an employee, contractor, vendor, agent, representative, or officer of NHSA.
SERVICE LICENSE TERMS
NHSA grants to the Customer a non-exclusive, non-transferable, non-sublicenseable right and license for the duration of the Subscription to access, use, and operate the Service solely for Customer’s Program, and subject to the usage restrictions set forth in this TOS agreement. The purchase of an annual Subscription grants one license that may be used by the Program, Delegate Agencies, and Centers affiliated with that Program, for the duration of the Subscription. The Customer does not have any rights to possess a physical copy of the Service or the Content.
The Customer shall designate a System Administrator, who shall be responsible for creating login accounts for Users affiliated with the Customer by virtue of the User’s status as an employee, subcontractor, or officer of the Customer. There is no limit to the number of User accounts that may be created by the Site Administrator. Site Administrators may create NO accounts for individuals who are not employees, subcontractors, or officers of the Customer.
Subject to compliance with the TOS agreement, Users may access and use the Service.
CONFIDENTIALITY AND PROHIBITED USE OF THE SERVICE
The Customer agrees to keep confidential all Content of the Service, for the exclusive internal access and use by the Customer’s employees, contractors, or officers.
The Customer agrees that it will not provide access to the Service or Content, or demonstrate use of the Service or Content, to any individual who is not an employee, contractor, or officer of the Customer’s Program.
The Customer agrees not to replicate, duplicate, copy, download, trade, sell, resell, nor exploit for any commercial reason any part, use of, or access to the Service or Content.
The Customer may release information if required by law or court order.
Subject to the terms and conditions of this Agreement, NHSA hereby grants to Customer a non-exclusive, non-transferable, non-sublicenseable right and license for the duration of the Subscription to use the documentation provided by NHSA, solely for internal use by authorized Users. Customer acknowledges that no right is granted to publicly display, publish, distribute, or post the documentation on any internal or external website, without the prior written approval of NHSA.
Customers and Users may direct all business, legal, technical, and instructional inquiries to ParentGauge@nhsa.org.
FEES AND PAYMENTS
To receive a Subscription to the Service, the Customer shall complete an Order form. The Customer shall in good faith make an accurate and honest estimate of intended usage of the software and record such estimate on the Order form. The Customer’s actual usage shall be subject to audit for the duration of the Subscription and for a period of six months thereafter.
Receipt of an Order shall be confirmed via email within 24 hours of receipt, along with instructions on next steps. Access to the Service shall be granted by no more than 15 days from receipt of an Order.
The Customer shall pay to NHSA the fees as calculated on the Order form, in a one-time payment. Payment shall be submitted by check within 30 days of Order completion to the following physical address:
Attn: Parent Gauge™
National Head Start Association (NHSA)
P.O. Box 829929
Philadelphia, PA 19182-9929
The Customer will receive confirmation of payment via email in the form of a receipt and confirmation number. The Customer will be notified within 30-60 days of the termination date, and given the option to renew the Subscription. In order to guarantee that access to the software and services will be uninterrupted, the Customer must submit an Order for renewal no fewer than 15 days before the termination of the Subscription.
NHSA welcomes feedback regarding the Service. Please be advised that if a User or Customer sends any comments, suggestions or recommendations regarding the Service (Feedback) to NHSA, the User or Customer hereby assigns to NHSA all rights, title and interest in and to the Feedback. Accordingly, the Feedback will not be subject to any obligation of confidentiality and NHSA will not be liable for any use or disclosure of any Feedback. NHSA will be entitled to unrestricted use of the Feedback for any purpose whatsoever, commercial or otherwise, without compensation to the User, Customer, or any other person.
TERMINATION AND CANCELLATION
If a Customer violates the TOS agreement, NHSA may at its discretion suspend or cancel access to the Service for all Users affiliated with said Customer.
If a User violates the TOS agreement, NHSA may at its discretion suspend or cancel access to the Service for that User, and will report the TOS violation to the User’s Program organization.
NHSA may stop offering the Service at any time and for any reason. NHSA may modify or remove portions of the Service at any time and for any reason. Customers and/or System Administrators may modify or remove any affiliated User’s access to the Service at any time, for any reason.
NHSA shall not be liable to a Customer or to a User or to any third party with regards to the suspension or cancellation of access to the Service, or for the loss of any data associated with the suspension or cancellation of access to the Service.
A Customer may terminate a Subscription to the Service at any time and for any reason. If a Customer terminates a Subscription or does not renew a Subscription, NHSA will store the Customer’s assessment data for a period of one year after the date of termination. NHSA will provide a download of Customer’s assessment data upon request, up to one year after the date of termination.
If the Customer is an educational agency or institution that receives funds under a program administered by the U.S. Department of Education and therefore is subject to the confidentiality provisions under the Family Educational Rights and Privacy Act (FERPA), then it must comply with those confidentiality provisions of FERPA instead of the provisions in this subpart. If the Customer serves a child who is referred to, or found eligible for services under, IDEA, then a program must comply with the applicable confidentiality provisions in Part B or Part C of IDEA to protect the PII in records of those children, and, therefore, the provisions in this subpart do not apply to those children.
NHSA may disclose personal information when required by law or in the good-faith belief that such action is necessary to conform to the edicts of the law and comply with legal process served on NHSA.
DATA OWNERSHIP AND SHARING
The Customer owns all of the content and information that the Customer’s authorized Users post in the Service. By using the Service, you grants NHSA a non-exclusive, transferable, sub-licensable, royalty-free, perpetual, worldwide license to use any content for any reason.
NHSA uses aggregate data to determine how the Service is being used, how we can improve the Service, and to enhance the quality and availability of the Service. Data may be aggregated for research and publication purposes. Data will be used anonymized; all PII will be removed from the data before it is utilized for research or publication.
MEMBER ACCOUNT, USERNAME, PASSWORD, AND SECURITY
The User is the sole authorized user of your account. The User is responsible for maintaining the secrecy and confidentiality of the User’s password, and for all activities that transpire on or within the User’s account. The User is responsible for any activity in the Service performed when the Service is accessed with the User’s account, including any violation of the TOS. The User is responsible for notifying NHSA immediately of any unauthorized access or use of the User’s account or password, or of any other breach of security. NHSA shall not be held liable for any loss and/or damage arising from any failure to comply with this provision of the TOS.
The Service, including any NHSA support, training, and informational websites and tools, are accessed and used by community members who expect courtesy and professionalism. Users must use the Service responsibly.
As a User, you herein acknowledge, understand and agree that all information, text, data, images, audio, video, or any other content, whether it is publicly or privately posted and/or transmitted, is the expressed sole responsibility of the individual from whom the content originated. The User is solely responsible for any and all content posted, uploaded, transmitted or otherwise made available by way of the Service, and as such, NHSA not guarantee the accuracy, integrity or quality of such content. It is expressly understood that by use of the Service, Users may be exposed to content including, but not limited to, any errors or omissions in any content posted, and/or any loss or damage of any kind incurred as a result of the use of any content posted, transmitted or otherwise made available by NHSA.
Furthermore, User agrees to the following Code of Conduct:
- User will not use the Service for any illegal purpose.
- User will not use the Service for any activity that exploits, harms, or threatens to harm children.
- User will not send spam (unsolicited bulk postings or messages) or help any third party to send spam.
- User will not post, upload, or transmit any vulgar, obscene, or inappropriate content.
- User will not engage in any activity that is false or misleading, including making false claims, impersonating NHSA employees or online community moderators, or misrepresenting expertise or affiliation.
- User will not post, upload, or transmit any source that may contain a software virus, malware, bots, or other potentially harmful computer code.
- User will not post, upload, or transmit any content that may infringe upon any patent, copyright, trademark, or any other proprietary or intellectual rights of any other party.
- User will not engage in any activity that violates the privacy or rights of others.
- User will follow any additional direction regarding conduct communicated by NHSA community moderators. National Head Start Association reserves the right to pre-screen, refuse and/or delete any content available through the Service. In addition, we reserve the right to remove and/or delete any such content that would violate the TOS or which would otherwise be considered offensive to other visitors, users and/or members. Users may be timed out or banned from any community at any time at the discretion of the moderators.
User acknowledges that NHSA owns all right, title and interest, including all patent, copyright, trade secret, trademark, moral rights, mask work rights, and other intellectual property rights in and regarding the licensed Service and Content, and that NHSA expressly reserves all rights not expressly granted to the User in this TOS agreement. User shall not engage in any act or omission that would impair NHSA’s intellectual property rights in the licensed Service and Content, as well as any other materials, information, processes, or subject matter that is proprietary to NHSA.
EXPORT CONTROL LAWS
The Services, Content, and the Customers and/or User’s use of the Services and Content, are subject to U.S. and international laws, restrictions, and regulations that may govern the import, export, and use of the Software, Services, and Content. The Customer and User agree to comply with all the laws, restrictions, and regulations.
National Head Start Association shall reserve the right at any time it may deem fit, to modify, alter and or discontinue, whether temporarily or permanently, our service, or any part thereof, with or without prior notice. In addition, we shall not be held liable to you or to any third party for any such alteration, modification, suspension and/or discontinuance of our Services, or any part thereof.
The Customer and the User may be able to access third-party websites or resources via the Service. NHSA is not responsible for third-party websites, services, or material available through those third-party services. The Customer and the User are solely responsible for any dealings with third parties, including advertisers. Use of third-party websites or services may be subject to that third party’s terms and conditions.
LIMITATION OF LIABILITY
NHSA shall be released from liability to the Customer, the User, and any and all third parties for: (a) any errors in the software, services, or reports; (b) any loss of use, data, goodwill, or profits, whether or not foreseeable; and (c) any special, incidental, indirect, consequential, or punitive damages whatsoever (even if we have been advised of the possibility of these damages), including those (x) resulting from loss of use, data, or profits, whether or not foreseeable, (y)based on any theory of liability, including breach of contract or warranty, negligence or other tortious action, or (z) arising from any other claim arising out of or in connection with use of or access to the Service. Nothing in these terms limits or excludes our liability for gross negligence, for our (or our employees’) intentional misconduct, or for death or personal injury.
YOU HEREIN EXPRESSLY ACKNOWLEDGE AND AGREE THAT:
a) THE USE OF NATIONAL HEAD START ASSOCIATION SERVICES AND SOFTWARE ARE AT THE SOLE RISK BY YOU. OUR SERVICES AND SOFTWARE SHALL BE PROVIDED ON AN “AS IS” AND/OR “AS AVAILABLE” BASIS. NATIONAL HEAD START ASSOCIATION AND OUR SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES OF ANY KIND WHETHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
b) NATIONAL HEAD START ASSOCIATION AND OUR SUBSIDIARIES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS MAKE NO SUCH WARRANTIES THAT (i) NATIONAL HEAD START ASSOCIATION SERVICES OR SOFTWARE WILL MEET YOUR REQUIREMENTS; (ii) NATIONAL HEAD START ASSOCIATION SERVICES OR SOFTWARE SHALL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (iii) THAT SUCH RESULTS WHICH MAY BE OBTAINED FROM THE USE OF THE NATIONAL HEAD START ASSOCIATION SERVICES OR SOFTWARE WILL BE ACCURATE OR RELIABLE; (iv) QUALITY OF ANY PRODUCTS, SERVICES, ANY INFORMATION OR OTHER MATERIAL WHICH MAY BE PURCHASED OR OBTAINED BY YOU THROUGH OUR SERVICES OR SOFTWARE WILL MEET YOUR EXPECTATIONS; AND (v) THAT ANY SUCH ERRORS CONTAINED IN THE SOFTWARE SHALL BE CORRECTED.
c) ANY INFORMATION OR MATERIAL DOWNLOADED OR OTHERWISE OBTAINED BY WAY OF NATIONAL HEAD START ASSOCIATION SERVICES OR SOFTWARE SHALL BE ACCESSED BY YOUR SOLE DISCRETION AND SOLE RISK, AND AS SUCH YOU SHALL BE SOLELY RESPONSIBLE FOR AND HEREBY WAIVE ANY AND ALL CLAIMS AND CAUSES OF ACTION WITH RESPECT TO ANY DAMAGE TO YOUR COMPUTER AND/OR INTERNET ACCESS, DOWNLOADING AND/OR DISPLAYING, OR FOR ANY LOSS OF DATA THAT COULD RESULT FROM THE DOWNLOAD OF ANY SUCH INFORMATION OR MATERIAL.
d) NO ADVICE AND/OR INFORMATION, DESPITE WHETHER WRITTEN OR ORAL, THAT MAY BE OBTAINED BY YOU FROM NATIONAL HEAD START ASSOCIATION OR BY WAY OF OR FROM OUR SERVICES OR SOFTWARE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TOS.
In the event you have a dispute, you agree to release National Head Start Association (and its officers, directors, employees, agents, parent subsidiaries, affiliates, co-branders, partners and any other third parties) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected or unsuspected, disclosed and undisclosed, arising out of or in any way connected to such dispute.
EXCLUSION AND LIMITATIONS
There are some jurisdictions which do not allow the exclusion of certain warranties or the limitation of exclusion of liability for incidental or consequential damages. Therefore, some of the above limitations of sections warranty disclaimers and limitation of liability may not apply.
THIRD PARTY BENEFICIARIES
The Customer and the User herein acknowledge, understand and agree, unless otherwise expressly provided in this TOS, that there shall be no third-party beneficiaries to this agreement.
NHSA may furnish the Customer and the User with notices, including those with regards to any changes to the TOS, including but not limited to email, regular mail, text messaging, postings on our website, or other reasonable means. Any such notices may not be received if the Customer or the User violates any aspects of the TOS by accessing the Service in an unauthorized manner. The Customer’s and/or the User’s acceptance of this TOS constitutes agreement that the Customer and/or the User are deemed to have received any and all notices that would have been delivered had the Customer and/or the User accessed the Service in an authorized manner.
The Customer and the User herein acknowledge, understand and agree that all of the National Head Start Association and Parent Gauge™ trademarks, copyright, trade name, service marks, and other National Head Start Association and Parent Gauge™ logos and any brand features, and/or product and service names are trademarks and as such, are and shall remain the property of National Head Start Association. You herein agree not to display and/or use in any manner the National Head Start Association or Parent Gauge™ logo or marks without obtaining National Head Start Association’s prior written consent.
This TOS constitutes the entire agreement between the Customer and/or the User and NHSA, and shall govern the use of the Service, superseding any prior version of this TOS. The Customer and/or the User may also be subject to additional terms and conditions that may apply to the use or purchase of certain other NHSA Services, affiliate Services, third-party content or third-party software.
CHOICE OF LAW AND FORUM
It is at the mutual agreement of both you and National Head Start Association with regard to the TOS that the relationship between the parties shall be governed by the laws of the state of Virginia without regard to its conflict of law provisions and that any and all claims, causes of action and/or disputes, arising out of or relating to the TOS, or the relationship between you and National Head Start Association, shall be filed within the courts having jurisdiction within the County of Fairfax, Virginia or the U.S. District Court located in said state. You and National Head Start Association agree to submit to the jurisdiction of the courts as previously mentioned, and agree to waive any and all objections to the exercise of jurisdiction over the parties by such courts and to venue in such courts.
WAIVER AND SEVERABILITY OF TERMS
At any time, should National Head Start Association fail to exercise or enforce any right or provision of the TOS, such failure shall not constitute a waiver of such right or provision. If any provision of this TOS is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the TOS remain in full force and effect.
NO RIGHT OF SURVIVORSHIP NON-TRANSFERABILITY
You acknowledge, understand and agree that your account is non-transferable and any rights to your ID and/or contents within your account shall terminate upon your death. Upon receipt of a copy of a death certificate, your account may be terminated and all contents therein permanently deleted.
STATUTE OF LIMITATIONS
You acknowledge, understand and agree that regardless of any statute or law to the contrary, any claim or action arising out of or related to the use of our Services or the TOS must be filed within 5 year(s) after said claim or cause of action arose or shall be forever barred.
NHSA shall be excused from performance of its obligations under this agreement if such a failure to perform results from compliance with any requirement of applicable law, acts of god, fire, strike, embargo, terrorist attack, war, insurrection, riot, or other causes beyond the reasonable control of NHSA. Any delay in services resulting from such causes shall excuse performance, in whole or in part, as may be reasonable under the circumstances.
Please report any and all violations of this TOS to National Head Start Association as follows:
National Head Start Association
1651 Prince Street
Alexandria, Virginia 22314
Telephone: (703) 739-0875