Terms of Use
• INDIVIDUAL–GENERATED CONTENT
o Data created by INDIVIDUALS other than INDIVIDUAL RESPONSES
• KIOSK
A physical Excel Photographers installation at a POE
A token enabling use of a set of HIGH5 features. Licenses typically expire or
count down to zero uses remaining.
A Local Educational Agency – a School or District – making use of Excel Photographers as a
client, as the case may be
The client making use of HIGH5
Data exports of various types including Tardy and Visitor Logs, triggered by
ORGANIZATION staff
A physical Point Of Entry at an ORGANIZATION
An INDIVIDUAL with custody over a STUDENT at an LEA ORGANIZATION,
including legal guardians
Data associated with a specific INDIVIDUAL by HIGH5
Content created by INDIVIDUALS, including textual responses, photographs
taken by Excel Photographers or submitted to Excel Photographers by INDIVIDUALS
The Excel Photographers system, encompassing the online databases and code comprising
the totality of experiences for end users and administrators
An INDIVIDUAL receiving instruction at an LEA ORGANIZATION, who may
be a minor
The totality of INDIVIDUALS, ORGANIZATION staff, PARENTS, and
RESELLERS
A regional representative of Excel Photographers working directly with an
ORGANIZATION
• LICENSE
• LEA ORGANIZATION
• ORGANIZATION
• ORGANIZATION REPORTS
• POE
• PARENT
• RECORD
• RESPONSES
• SOLUTIONS / HIGH5
• STUDENT
• STAKEHOLDERS
• TEAMMATE / RESELLER
Terms of Use – General
1. Overview
Excel Photographers is a bundle of solutions provided by Excel Photographers, a California Corporation
located in Sacramento, CA. The following explains and define the terms by which Organizations
(referred to as “you”) may use our Software and Solutions (referred to as the “Solutions”). If you
have questions about this Agreement, please contact sales@ExcelPhotographers.com
This Terms of Use agreement (Referred to as “TOU”) applies to Organizations that use the
Solutions, and governs the actions of individuals associated with those Organizations. Local
Educational Agencies (LEA) have additional terms of use, included in the TOU – School
Addendum.
2. Authority
When you create Excel Photographers account on behalf of an Organization, then (a) “you” includes you
and that Organization, and (b) you represent and warrant that you are an authorized
representative of the Organization with the authority to bind the Organization to this Agreement
and that you agree to this Agreement on the entity’s behalf.
If you are accessing and using Excel Photographers on someone else’s behalf, you represent that you have
the authority to bind that person as the principal to these Terms, and to the extent you do not
have such authority you agree to be bound to these Terms and to accept liability for harm caused
by any wrongful use of the Website resulting from such access or use. In such a scenario, the
words “you” and “your” when used in these Terms will apply to the entity on whose behalf you
are acting as well as you as an individual as appropriate.
If you are using our Services on behalf of a corporate entity or organization, then you agree to
these Terms on behalf of that corporate entity or organization and its affiliates and you represent
that you have the authority to do so. In such a scenario, the words “you” and “your” when used in
these Terms will apply to your or organization and its affiliates as well as you as an individual as
appropriate.
3. Permission and grant of license
By using the Solutions, and by logging onto our website you are affirmatively stating your desire
to use the Solutions, you signify that you have read, understood, and agree to be bound by this
Agreement and to the collection and use of your information as set forth in our Privacy Policy;
otherwise you may not use the Solutions.
Only users that are allowed to form a binding contract with Excel Photographers are allowed to accept these
Terms of Use.
Subject to the terms and conditions of this Agreement, we grant you a non–exclusive, limited,
non–transferable, freely revocable license to use the Solutions. We reserve all rights not
expressly granted to you as defined below.
4. Termination
We may terminate this license at any time for any or no reason. Commercially reasonable
restitution will be made for any unused portion of fees paid, in amounts not exceeding the total
fees collected by us from you.
5. Account Stewardship
You are responsible for any activity that occurs on your account. You may never use someone
else’s account without permission, and you must keep your account password secure. We are not
liable for any losses of any kind caused by any unauthorized use of your account.
6. Permission to contact
By providing your email address to us you consent to our using the email address to send you
Solutions–related notices, including any required legal notices and other messages, such as
additions or changes to the Solutions and/or notices of product offers.
7. Modifications
We may modify these Terms from time to time. We will attempt to notify you via the email
address you have provided us with, although we are not obliged to. It is therefore important that
you review these Terms regularly to ensure you are updated as to any changes.
Upon making changes, we will update the “Effective Date” found at the top of this page.
Continued use of the Solutions after notification of any changes constitutes your acceptance of
the new terms.
8. Pricing
We reserve the right to modify our prices at any time, subject to our provision of at least six (6)
months written notice to you.
9. Suitable devices
Although we make commercially reasonable efforts to provide compatibility with current and
recent devices, accessing the Solutions via older or non–standard devices may provide
unsatisfactory results.
10. PROHIBITIONS
You are restricted from doing anything to harm our product or try to hack our service.
Specifically, by using the Solutions, you agree not to do any of these things: (i) copy, distribute,
or disclose any part of the Solutions in any medium, including but not limited to by any
automated or non–automated “scraping”; (ii) use any automated system, including but not limited
to “robots,” “spiders,” “offline readers,” etc., to access the Solutions in a manner that sends more
request messages to the Excel Photographers servers than a human can reasonably produce in the same
period of time by using a conventional online web browser; (iii) transmit spam, chain letters, or
other unsolicited email; (iv) attempt to interfere with, compromise the system integrity or
security or decipher any transmissions to or from the servers running the Solutions; (v) take any
action that imposes, or may impose an unreasonable or disproportionately large load on our
infrastructure; (vi) upload invalid data, viruses, worms, or other software agents through the
Solutions; (vii) collect or harvest any third–party personally identifiable information, including
account names or Individual Data, from the Solutions; (viii) use the Solutions for any
commercial solicitation purposes; (ix) impersonate another person or otherwise misrepresent
your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your
identity; (x) interfere with the proper working of the Solutions; (xi) access any content on the
Solutions through any technology or means other than those provided or authorized by the
Solutions; or (xii) bypass the measures we use to prevent or restrict access to the Solutions,
including but not limited to features that prevent or restrict use or copying of any content or
enforce limitations on use of the Solutions or related content.
If this Agreement ends you continue to be bound by it in any interactions, you may have with the
Solutions.
11. Quality of Service / Continuation of Service
We continually update our Solutions to offer the best possible product. While we plan to
continue to offer and improve our Solutions, we may, without prior notice, change, cancel, create
usage limits for, or permanently or temporarily stop offering or allowing you access to the
Solutions generally (“Service Changes”). While we’ll try to give you advance notice of Service
Changes that will adversely affect you, this might not be practical or possible and we retain the
right to make Service Changes without notice or liability for any reason.
12. CONTENT RIGHTS AND RESPONSIBILITES
“Individual Data” means any information associated with an individual in the Solutions. While
we may need to access Individual Data to provide the Solutions to you, you own the Individual
Data and remain responsible for it. Individual Data may include “educational records” as defined
by the Family Educational Rights and Privacy Act (“FERPA”); see our Schools Terms of Use
Policy for more detail.
“Intellectual Property Rights” means all worldwide patent rights, copyright rights, moral rights,
rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights
and other intellectual property rights as may now exist or hereafter come into existence, and all
related applications and registrations, renewals and extensions.
Except for Individual Data, the Solutions and all materials made available to you in connection
with them, including, but not limited to, software, images, text, graphics, illustrations, logos,
patents, trademarks, service marks, copyrights, photographs, audio, videos, music, and any
content belonging to other Users (the “Excel Photographers Content”), and all related Intellectual Property
Rights, are the exclusive property of Excel Photographers and its licensors. Except as specified in this
Agreement, nothing may be deemed to create a license in or under any such Intellectual Property
Rights, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit,
publicly display, publicly perform, publish, adapt, edit or create derivative works from any
Excel Photographers Content. To be clear: any use of Excel Photographers Content for a purpose not expressly
permitted by this Agreement is strictly prohibited.
13. Feedback
If you send us ideas or comments about our Solutions, you agree that we may freely use or
reference those ideas and comments and we do not owe you any payment or have any other
obligation of any kind for such ideas or comments.
14. Excel Photographers DATA
Certain parts of the Solutions may allow you to obtain or access analytics or other data or
information associated with your account (“Excel Photographers Data”). Excel Photographers Data is licensed to
you
for your use on a limited basis and is governed solely by the terms of this Agreement and
available for distribution only at our sole discretion. Excel Photographers owns the account you use to
access the Solutions along with any rights of access or rights to data stored by or on behalf of
Excel Photographers on Excel Photographers servers (except with respect to any Individual Data that we may be
storing for you), including but not limited to any data representing any or all of your Excel Photographers
Data. Excel Photographers has the right to manage, control and even eliminate Excel Photographers Data, except
that
Excel Photographers may only use Individual Data as specifically permitted by this Agreement.
YOU UNDERSTAND AND AGREE THAT ANY DATA, ACCOUNT HISTORY AND
ACCOUNT CONTENT RESIDING ON Excel Photographers’ SERVERS MAY BE DELETED AT
ANY TIME FOR ANY REASON IN Excel Photographers’ SOLE DISCRETION, WITH OR
WITHOUT
NOTICE AND WITH NO LIABILITY OF ANY KIND. WE DO NOT PROVIDE OR
GUARANTEE, AND EXPRESSLY DISCLAIM, ANY VALUE, CASH OR OTHERWISE,
ATTRIBUTED TO ANY DATA RESIDING ON Excel Photographers’ SERVERS.
15. SECURITY AND PRIVACY
By using the Solutions you consent to the collection, use and disclosure of your information
(including but not limited to Individual Data) as set forth in our Privacy Policy and, if you’re a
School, in the Schools Terms of Use, and to have your information (including but not limited to
Individual Data) collected, used, transferred to and processed pursuant to our Privacy Policy.
16. THIRD–PARTY INTERACTIONS
Our website may contain links to third–party websites or other materials or information that are
not owned or controlled by us. For example, we use a third party to look up sex offenders. We do
not endorse or assume any responsibility for any third–party sites, information, materials,
products, or Solutions. If you access a third party website, you do so at your own risk; this
Agreement, the Schools Terms of Use Information, and our Privacy Policy do not apply to your
use of those sites or Solutions—those sites and Solutions have their own applicable terms and
policies.
17. RESPONSIBITY TO INDEMNIFY
You agree to defend, indemnify and hold harmless Excel Photographers and its subsidiaries, agents,
licensors, managers, and other affiliated companies, and their employees, contractors, agents,
officers and directors, from and against any and all claims, damages, obligations, losses,
liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from:
(i) use of and access to the Solutions by yourself or any Individual affiliated with your
Organization, including any data or content transmitted or received by same; (ii) your violation
of any term of this Agreement, including but not limited to your breach of any of the
representations and warranties above; (iii) your violation of any third–party right, including but
not limited to any right of privacy or intellectual property rights; (iv) your violation of any
applicable law, rule or regulation, including but not limited to COPPA; (v) any content or
information that is submitted via your account; or (vi) any other party’s access and use of the
Solutions with your unique username, password or other appropriate security code.
18. DISCLAIMER OF WARRANTY
THE SOLUTIONS IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. USE OF
THE SOLUTIONS IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED
BY APPLICABLE LAW, THE SOLUTIONS IS PROVIDED WITHOUT WARRANTIES OF
ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO,
IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, OR NON–INFRINGEMENT. WITHOUT LIMITING THE FOREGOING,
Excel Photographers, ITS SUBSIDIARIES, ITS AFFILIATES, AND ITS LICENSORS DO NOT
WARRANT THAT THE CONTENT IS ACCURATE, RELIABLE OR CORRECT; THAT
THE SOLUTIONS WILL MEET YOUR REQUIREMENTS; THAT THE SOLUTIONS WILL
BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR
SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE
SOLUTIONS IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY
CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE
SOLUTIONS IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY
RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF
DATA THAT RESULTS FROM SUCH DOWNLOAD OR YOUR USE OF THE
SOLUTIONS.
WE DO NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY
FOR ANY PRODUCT OR SOLUTIONS ADVERTISED OR OFFERED BY A THIRD
PARTY THROUGH THE SOLUTIONS OR ANY HYPERLINKED WEBSITE OR
SOLUTIONS (INCLUDING WITHOUT LIMITATION APPLICATIONS), AND WE WILL
NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN
YOU AND THIRD–PARTY PROVIDERS OF PRODUCTS OR SOLUTIONS (INCLUDING
WITHOUT LIMITATION DEVELOPERS). FEDERAL LAW, SOME STATES, PROVINCES
AND OTHER JURISDICTIONS DO NOT ALLOW EXCLUSIONS AND LIMITATIONS OF
CERTAIN IMPLIED WARRANTIES, SO SOME OF THE ABOVE LIMITATIONS MAY
NOT APPLY TO YOU.
19. LIABILITY LIMITATIONS
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT
SHALL Excel Photographers, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS
OR LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL,
CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION
DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE
LOSSES, THAT RESULT FROM THE USE OF, OR INABILITY TO USE, THE
SOLUTIONS. UNDER NO CIRCUMSTANCES WILL Excel Photographers BE RESPONSIBLE FOR
ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR
OTHER UNAUTHORIZED ACCESS OR USE OF THE SOLUTIONS OR YOUR ACCOUNT
OR THE INFORMATION CONTAINED THEREIN.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, Excel Photographers
ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR
INACCURACIES OF CONTENT; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF
ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF THE
SOLUTIONS; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE
SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN;
(IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE
SOLUTIONS; (V) ANY BUGS, VIRUSES, TROJAN HORSES, MALWARE OR THE LIKE
THAT MAY BE TRANSMITTED TO OR THROUGH THE SOLUTIONS BY ANY THIRD
PARTY; (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR
DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED,
EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE
SOLUTIONS; AND/OR (VII) ORGANIZATION CONTENT OR THE DEFAMATORY,
OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY. IN NO EVENT SHALL
Excel Photographers, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS, OR
LICENSORS BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES,
OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE
AMOUNT YOU PAID TO Excel Photographers HEREUNDER OR $100.00, WHICHEVER IS
GREATER.
THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED
LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR
ANY OTHER BASIS, EVEN IF Excel Photographers HAS BEEN ADVISED OF THE POSSIBILITY
OF
SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO
THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL
OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS
MAY NOT APPLY TO YOU. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS,
AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE.
THE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS OF LIABILITY UNDER THIS
AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE
LAW.
You are fully responsible for your interactions with other Users, and we have no liability for
your interactions with any other Users, or for any User’s actions or inactions with respect to you.
20. LAWS GOVERNING THE SOLUTIONS
You agree that: (i) the Solutions will be deemed solely based in California; and (ii) the Solutions
will be deemed passive Solutions that do not give rise to personal jurisdiction over us, either
specific or general, in jurisdictions other than California. This Agreement will be governed by
the laws of the State of California, without respect to its conflict of laws principles. The
application of the United Nations Convention on Contracts for the International Sale of Goods
does not apply. You agree to submit to the personal jurisdiction of the federal and state courts
located in Riverside County, California for any actions related to this Agreement.
21. ADDITIONAL INFORMATION
This Agreement, and any rights and licenses granted hereunder, may not be transferred or
assigned by you, but may be assigned by us in accordance with the terms of our Privacy Policy.
This Agreement, together with any amendments and any additional agreements you may enter
into with Excel Photographers in connection with the Solutions including other agreements referenced
herein, constitute the entire agreement between you and Excel Photographers concerning the Solutions. If
any provision of this Agreement is deemed invalid by a court of competent jurisdiction, the
invalidity of such provision will not affect the validity of the remaining provisions of this
Agreement, which will remain in full force and effect. No waiver of any term of this Agreement
will be deemed a further or continuing waiver of such term or any other term, and Excel Photographers’
failure to assert any right or provision under this Agreement will not constitute a waiver of such
right or provision. If access to the Solutions is licensed to the United States government or any
agency thereof, or any state or county then the Solutions will be deemed to be “commercial
computer software” and “commercial computer software documentation,” pursuant to DFARS
Section 227.7202 and FAR Section 12.212, respectively, as applicable. Any use, reproduction,
release, performance, display, or disclosure of the Solutions and any accompanying
documentation by the U.S. Government will be governed solely by this Agreement and is
prohibited except to the extent expressly permitted by this Agreement.
Terms of Use – School Addendum
If and only if you are a LEA, the following applies to you.
“Student Data” means “Individual Data” associated specifically with individuals attending your
LEA. By using the Solutions provided by Excel Photographers, you authorize us to receive Student Data or
other information via entry or file from registered Organization users.
1. COMPLIANCE WITH APPLICABLE LAWS
Both parties agree to uphold their responsibilities under the Family Educational Rights and
Privacy Act (“FERPA”), the Protection of Pupil Rights Amendment (“PPRA”), and the
Children’s Online Privacy and Protection Act (“COPPA”). We provide the Solutions as an
outsourced institutional function under FERPA 34 CFR Part 99.31(a)(1). The Children’s Online
Privacy and Protection Act (“COPPA”) requires that online service providers obtain clear and
verifiable parental consent before collecting personal information from children under 13.
YOU REPRESENT AND WARRANT THAT YOU HAVE RECEIVED CONSENT FROM
PARENTS OR HAVE THE AUTHORITY TO PROVIDE CONSENT ON BEHALF OF
PARENTS, FOR US TO RECEIVE STUDENT DATA RELATED TO CHILDREN UNDER
13.
We recommend that all Schools provide appropriate disclosures to students and parents
regarding their use of service providers such as Excel Photographers and that they provide a copy of our
Privacy Policy to parents and guardians.
2. AUTHORIZATION TO ACCESS DATA
A. ACCESS BY US AND OUR AGENTS