This Agreement is between you (“you”) and The Speed Reading Group, with the brand name UseClark (“UseClark,” “we,” “us”) concerning your use of the online Product currently located at http://www.useclark.com (together with any successor site(s) and all Services (as defined below), the “Product”).
Acceptance of Terms. The Product is made available by UseClark subject to this Agreement. We reserve the right to update or make changes to this Agreement from time to time in our sole discretion, which changes we may provide to you by any reasonable means, including without limitation, by posting the revised version of this Agreement on the Product. You can determine when this Agreement was last revised by referring to the “LAST UPDATED” legend at the top of this Agreement. When using any Services (as defined below), you agree that you are subject to any additional posted guidelines, rules, terms and conditions applicable to such Services, which are hereby incorporated by reference into this Agreement. We reserve the right, at any time and from time to time, temporarily or permanently, in whole or in part, to: modify or discontinue the Product, with or without notice; charge fees in connection with the use of the Product; modify and/or waive any fees charged in connection with the Product; and/or offer opportunities to some or all users of the Product. You agree that we shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Product, in whole or in part, or of any Service, content, feature or product offered through the Product. Your continued use of the Product after such changes will acknowledge your acceptance of such changes. If you are a developer who has signed up to use UseClark’s SDK or APIs for the development of applications incorporating UseClark technologies, you also agree to the UseClark Developer’s Agreement.
Jurisdictional Issues. The Product is controlled and operated by UseClark from the Netherlands, and is not intended to subject UseClark to the laws or jurisdiction of any state, country or territory other than that of the the Netherlands. UseClark does not represent or warrant that the Product or any part thereof is appropriate or available for use in any particular jurisdiction other than the the Nethelands. In choosing to access the Product, you do so on your own initiative and at your own risk, and you are responsible for complying with all local laws, rules and regulations. You are also subject to the Netherlands export controls and are responsible for any violations of such controls, including any the Netherlands embargoes or other federal rules and regulations restricting exports. We may limit the Product’s availability, in whole or in part, to any person, geographic area or jurisdiction we choose, at any time and in our sole discretion. Not all products or services described on the Product are available in all states or territories.
Description of the Services. We provide users of the Product with access to certain content and services related to our UseClark text guiding technology, which may include, without limitation: (a) sales and support of software incorporating our technology and provision to developers of tools enabling the development of applications using our technology; (b) content such as information regarding our technology, news about UseClark and its technology; and (c) access to forums for discussion of issues of interest to the UseClark developer and/or user communities (such content and services), collectively, the “Services”).
Rules of Conduct. While using the Product you will comply with all applicable laws, rules and regulations. In addition, we expect users of the Product to respect the rights and dignity of others. Your use of the Product is conditioned on your compliance with the rules of conduct set forth in this section; your failure to comply with such rules may result in termination of your access to the Product pursuant to Section 14 below. You agree that you will not: • Post, transmit, or otherwise make available, through or in connection with the Product: o Any material that would give rise to criminal or civil liability. o Any virus, worm, Trojan horse, Easter egg, time bomb, spyware, or other computer code, file, or program that is harmful or invasive or may or is intended to damage or hijack the operation of, or to monitor the use of, any hardware, software or equipment. • Use the Product for any fraudulent or unlawful purpose. • Use the Product to defame abuse, harass, stalk, threaten or otherwise violate the legal rights of others, including without limitation others’ privacy rights or rights of publicity, or harvest or collect personally identifiable information about other users of the Product. • Impersonate any person or entity, including without limitation any representative of UseClark; falsely state or otherwise misrepresent your affiliation with any person or entity in connection with the Product; or express or imply that we endorse any statement you make. • Interfere with or disrupt the operation of the Product or the servers or networks used to make the Product available; or violate any requirements, procedures, policies or regulations of such networks. • Restrict or inhibit any other person from using the Product (including without limitation by hacking or defacing any portion of the Product). • Reproduce, duplicate, copy, sell, resell or otherwise exploit for any commercial purposes, any portion of, use of, or access to the Product. • Modify, adapt, translate, reverse engineer, decompile or disassemble any portion of the Product. • Remove any copyright, trademark or other proprietary rights notice from the Product or from materials originating from the Product. • Frame or mirror any part of the Product without UseClark’s express prior written consent. • Create a database by systematically downloading and storing Product content. • Use any meta tags or any other hidden text utilizing UseClark’s name or trademarks without UseClark’s express consent. • Use any robot, spider, Product search/retrieval application or other manual or automatic device to retrieve, index, “scrape,” “data mine” or in any way gather Product content or reproduce or circumvent the navigational structure or presentation of the Product without UseClark’s express prior written consent. Notwithstanding the foregoing, UseClark grants the operators of public search engines permission to use spiders to copy materials from the Product for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials. UseClark reserves the right to revoke these exceptions either generally or in specific cases. Additionally, you acknowledge and agree that you (and not UseClark) are responsible for obtaining and maintaining all telecommunications, broadband, and computer hardware, equipment, and services needed to access and use the Product, and paying all charges related thereto.
Registration; User Names and Passwords. You may need to register to use all or part of the Product. You represent and warrant that all information submitted to UseClark in connection with such registration is complete and accurate. We may reject, or require that you change, any user name, password or other information that you provide to us in registering. Your user name and password are for your personal use only and should be kept confidential; you, and not UseClark, are responsible for any use or misuse of your user name or password, and you must promptly notify us of any confidentiality breach or unauthorized use of your user name or password, or your Product account. We reserve the right to invalidate your credentials an/or restrict your access to use the Product or Services at any time or for any reason.
Profiles and Forums. Product users may be permitted to post certain information and materials on “profile pages” (each, a “Profile”) or on interactive services (for example, message boards, forums, blogs, chat functionality, messaging functionality and comment functionality on the Product, among other services) that we may provide through the Product (each, a “Forum”). Please note that Product users may post messages or make statements in the Profiles and Forums that are inaccurate, misleading or deceptive. UseClark and its employees, officers, directors, shareholders, agents, representatives, licensors, suppliers and service providers (collectively, including UseClark the UseClark Entities”) neither endorse nor are responsible for any opinion, advice, information or statements made in the Profiles and Forums by third parties. Without limitation, the UseClark Entities are not responsible for any information or materials made available through the Profiles and Forums (including errors or omissions in Profiles and Forum postings or links or images embedded in a Profile or in Forum messages) or results obtained by using any such information or materials. Under no circumstances will any of the UseClark Entities be liable for any loss or damage caused by your reliance on such information or materials.
Written Submissions. The Product may make available certain functionality (including e-mail addresses, the developer “Sign Up” page, a “contact us” page, Forums and Profiles) through which you are able to post or send information and materials (each, a “Submission”). For purposes of clarity, subject to the terms and conditions of Paragraph 9 of this Agreement and UseClark’s Unsolicited Ideas Policy Unsolicited Ideas Policy, you retain any ownership rights that you may have in any of the Submissions that you post. For each Submission that you make available through or in connection with the Product, you hereby grant to us a world-wide, royalty-free, fully paid-up, non-exclusive, perpetual, irrevocable, transferable and fully sublicensable (through multiple tiers) license, without additional consideration to you or any third party, to: (i) reproduce, distribute, perform and display (publicly or otherwise), adapt, modify and otherwise use and exploit such Submission, in any format or media now known or hereafter developed, and for any purpose (including promotional purposes, such as displaying a user comment on the front page of the Product as a testimonial), and you hereby represent and warrant that you have all necessary rights to grant the foregoing license.
Feedback, Suggestions and Ideas. Unless we expressly agree otherwise in writing, if you provide us with any ideas, proposals, suggestions or materials (“Input”), whether related to the Product, the Services or otherwise, you hereby acknowledge and agree that (a) your provision of any Input is gratuitous, unsolicited and without restriction and does not place the Company under any fiduciary or other obligation; (b) any Input is not confidential and the Company has no confidentiality obligations with respect to such Input; and (c) to the extent permitted under applicable law, any Input will become our sole property. Without limiting the foregoing, you hereby grant to us a world-wide, royalty-free, fully paid-up, exclusive, perpetual, irrevocable, transferable and fully sublicensable (through multiple tiers) license, without additional consideration to you or any third party, to: (i) reproduce, distribute, perform and display (publicly or otherwise), adapt, modify and otherwise use and exploit such Input, in any format or media now known or hereafter developed, and you hereby represent and warrant that you have all necessary rights to grant the foregoing license. We may use Input for any purpose whatsoever without compensation to you or any other person. You are and remain responsible and liable for the content of any Input. Please see UseClark’s Unsolicited Ideas Policy for further information regarding unsolicited ideas you may provide to UseClark.
Communications with Us. When you visit our Website or send e-mails to us, you are communicating with us electronically. You consent to receive communications with us electronically. You agree that, except where contrary to applicable law, that all agreements, notices, disclosures, policies and other communications that we provide to you electronically satisfy any legal requirement that all such communications be in writing.
Accuracy of Information. We attempt to ensure that information provided on or in connection with this Product is complete, accurate and current. Despite our efforts, such information may occasionally be inaccurate, incomplete or out of date. We make no representation as to the completeness, accuracy or currentness of such information.
Monitoring. You acknowledge and agree that (a) we reserve the right (but have no obligation) to do any or all of the following, at our discretion: (i) monitor Submissions; and/or (ii) disclose any Submissions or Input, and the circumstances surrounding their transmission, to any third party in order to operate the Product; to protect the UseClark Entities, and the Product’s users and visitors; to comply with legal obligations or governmental requests; to enforce this Agreement; or for any other reason or purpose.
UseClark’s Proprietary Rights. The information and materials made available through the Product, including the Services, are and shall remain the property of UseClark and its licensors and suppliers, and are protected by copyright, trademark, patent, and/or other proprietary rights and laws. Subject to your compliance with this Agreement, and solely for so long as you are permitted by UseClark to access and use the Product, you may view one (1) copy of any content on the Product to which we provide you access hereunder on any single computer solely for your personal, non-commercial use, provided that you keep intact all copyright and other proprietary notices. Except as expressly authorized in advance by UseClark in writing, you agree not to reproduce, modify, rent, lease, loan, sell, distribute, or create derivative works based (whether in whole or in part) on, all or any part of the Product or any materials made available through the Product. Trade names, trademarks and service marks of UseClark include without limitation, UseClark, UseClark’s distinctive guiding design, “UseClark” “UseClarking” and any associated logos or trade dress. All trademarks and service marks on the Product not owned by UseClark are the property of their respective owners. The trade names, trademarks and service marks owned by UseClark, whether registered or unregistered, may not be used in connection with any product or service that is not ours, in any manner that is likely to cause confusion. Nothing contained on the Product should be construed as granting, by implication, estoppel or otherwise, any license or right to use any of UseClark’s trade names, trademarks or service marks without our express prior written consent.
Links. The Product may provide links to other web sites and online resources. Because UseClark has no control over such sites and resources, you acknowledge and agree that the UseClark Entities are not responsible for the availability of such external sites or resources, and the UseClark Entities neither endorse nor are responsible or liable for any content, advertising, products or other materials on or available through such sites or resources. UseClark is not affiliated with any other company or organization, and the listing of any entity on the Product does not imply any endorsement by UseClark of that entity or its products or services. Other web sites may provide links to the Product with or without our authorization. You acknowledge and agree that the UseClark Entities do not endorse such sites, and are not and shall not be responsible or liable for any links from those sites to the Product, any content, advertising, products or other materials available on or through such other sites, or any loss or damages incurred in connection therewith. YOU AGREE THAT YOUR USE OF THIRD PARTY WEB SITES AND RESOURCES, INCLUDING WITHOUT LIMITATION, YOUR USE OF ANY CONTENT, INFORMATION, DATA, ADVERTISING, PRODUCTS, OR OTHER MATERIALS ON OR AVAILABLE THROUGH SUCH WEB SITES AND RESOURCES, IS AT YOUR OWN RISK AND IS SUBJECT TO THE TERMS AND CONDITIONS OF USE APPLICABLE TO SUCH SITES AND RESOURCES. UseClark shall have the right, at any time and in its sole discretion, to block links to the Product through technological or other means without prior notice.
Disclaimer of Warranties. THE PRODUCT AND ANY GOODS OR SERVICES MADE AVAILABLE THROUGH OR IN CONNECTION WITH THE PRODUCT ARE PROVIDED TO YOU “AS IS” WITHOUT ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY. YOU AGREE THAT YOU MUST EVALUATE, AND THAT YOU BEAR ALL RISKS ASSOCIATED WITH, THE USE OF THE PRODUCT, INCLUDING WITHOUT LIMITATION, ANY RELIANCE ON THE ACCURACY, COMPLETENESS OR USEFULNESS OF ANY MATERIALS AVAILABLE THROUGH THE PRODUCT. THE USECLARK ENTITIES DISCLAIM ALL WARRANTIES WITH RESPECT TO THE PRODUCT AND ANY PRODUCT OR SERVICE (INCLUDING WITHOUT LIMITATION, THIRD PARTY PRODUCTS AND SERVICES) OBTAINED THROUGH THE PRODUCT, TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, AND TITLE.
LIMITATION OF LIABILITY. THE USECLARK ENTITIES WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND, UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, USE, DATA, LOSS OF OTHER INTANGIBLES, LOSS OF SECURITY OF INFORMATION YOU HAVE PROVIDED IN CONNECTION WITH YOUR USE OF THE PRODUCT, OR UNAUTHORIZED INTERCEPTION OF ANY SUCH INFORMATION BY THIRD PARTIES, EVEN IF ADVISED IN ADVANCE OF SUCH DAMAGES OR LOSSES. IN PARTICULAR, AND WITHOUT LIMITATION, THE UseClark ENTITIES WILL NOT BE LIABLE FOR DAMAGES OF ANY KIND RESULTING FROM YOUR USE OF OR INABILITY TO USE THE PRODUCT OR FROM ANY CONTENT POSTED ON THE PRODUCT BY THE USECLARK ENTITIES OR ANY THIRD PARTY. YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH THE PRODUCT IS TO STOP USING THE PRODUCT. THE MAXIMUM LIABILITY OF USECLARK FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE) OR OTHERWISE, SHALL BE THE TOTAL AMOUNT, IF ANY, PAID BY YOU TO [COMPANY] TO ACCESS AND USE THE PRODUCT. IT IS POSSIBLE THAT APPLICABLE LAW MAY NOT ALLOW FOR LIMITATIONS ON CERTAIN IMPLIED WARRANTIES OR EXCLUSIONS OR LIMITATIONS OF CERTAIN DAMAGES; SOLELY TO THE EXTENT THAT SUCH LAW APPLIES TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS. While we try to maintain the integrity and security of the Product and the servers from which the Product is operated, we do not guarantee that the Product will be or remain secure, complete or correct, or that access to the Product will be uninterrupted. The Product may include inaccuracies, errors and materials that violate or conflict with this Agreement. Additionally, third parties may make unauthorized alterations to the Product. If you become aware of any unauthorized third party alteration to the Product, contact us at [email protected] with a description of the material(s) at issue and the URL or location on the Product where such material(s) appear.
Indemnity. You agree to defend, indemnify and hold harmless the UseClark Entities, from and against all claims, losses, costs and expenses (including attorneys fees) arising out of (a) your use of, or activities in connection with, the Product (including all Transactions); and/or (b) any violation of this Agreement by you.
Termination. This Agreement is effective until terminated. UseClark, in its sole discretion, may terminate your access to or use of the Product, at any time and for any reason, including if UseClark believes that you have violated or acted inconsistently with the letter or spirit of this Agreement. Upon any such termination, your right to use the Product will immediately cease. You agree that any termination of your access to or use of the Product may be effected without prior notice, and that UseClark may immediately deactivate or delete your password and user name, and all related information and files associated with it, and/or bar any further access to such information or files. You agree that the UseClark Entities shall not be liable to you or any third party for any termination of your access to the Product or to any such information or files, and shall not be required to make such information or files available to you after any such termination. Sections 2, 8, 9, 10, 12, 13 (other than the second sentence), 14–19 and 21-25 shall survive any expiration or termination of this Agreement.
Governing Law; Jurisdiction. This Agreement is governed by and shall be construed in accordance with the laws of the State of Massachusetts, U.S.A., without regard to its principles of conflicts of law. EXCEPT FOR (a) DISPUTES THAT QUALIFY FOR SMALL CLAIMS COURT (b) DISPUTES ARISING UNDER OR RELATING TO THE USECLARK DEVELOPER’S AGREEMENT; OR (c) DISPUTES REGARDING INTELLECTUAL PROPERTY OWNED BY USECLARK, ALL DISPUTES ARISING OUT OF OR RELATED TO THESE TERMS OR ANY ASPECT OF THE RELATIONSHIP BETWEEN US, WHETHER BASED IN CONTRACT, TORT, STATUTE, FRAUD, MISREPRESENTATION OR ANY OTHER LEGAL THEORY OR ANY ASPECT OF THE RELATIONSHIP BETWEEN YOU AND USECLARK, WILL BE RESOLVED THROUGH FINAL AND BINDING ARBITRATION BEFORE A NEUTRAL ARBITRATOR INSTEAD OF IN A COURT BY A JUDGE OR JURY AND, BY YOUR ACCESS TO OR USE OF THIS PRODUCT, YOU AGREE THAT USECLARK AND YOU ARE EACH WAIVING THE RIGHT TO TRIAL BY A JURY. BY YOUR ACCESS TO OR USE OF THE PRODUCT, YOU AGREE THAT ANY ARBITRATION UNDER THESE TERMS WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED AND, BY YOUR ACCESS TO OR USE OF THE PRODUCT, YOU ARE AGREEING TO GIVE UP THE ABILITY TO PARTICIPATE IN A CLASS ACTION. The arbitration will be administered by the American Arbitration Association under its Commercial Arbitration Rules and Supplementary Procedures for Consumer-Related Disputes (“Supplementary Procedures”), as amended by these Terms. The arbitrator will conduct hearings, if any, by teleconference or videoconference, rather than by personal appearances unless the arbitrator determines upon request by you or by us that an in-person hearing is appropriate. Any in-person appearances shall be held at a location which is reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination should be made by the AAA or by the arbitrator. The arbitrator’s decision will follow these Terms and will be final and binding. The arbitrator will have authority to award temporary, interim or permanent injunctive relief or relief providing for specific performance of these Terms, but only to the extent necessary to provide relief warranted by the individual claim before the arbitrator. The award rendered by the arbitrator may be confirmed and enforced in any court having jurisdiction thereof. Notwithstanding any of the foregoing, nothing in these Terms will preclude you from bringing issues to the attention of federal, state, or local agencies, and, if the law allows, they can seek relief against us for you.
Contact Us. If you have any questions regarding the meaning or application of this Agreement, please direct such questions to [email protected] Please note that e-mail communications will not necessarily be secure; accordingly you should not include credit card information or other sensitive information in your e-mail correspondence with us.
Copyright and Trademark Infringement Claims. The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that materials available on the Product infringe your copyright, you (or your agent) may send UseClark a notice requesting that UseClark remove the material or block access to it. If you believe in good faith that someone has wrongly filed a notice of copyright infringement against you, the DMCA permits you to send UseClark a counter-notice. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA. See http://www.copyright.gov/ for details. Notices and counter-notices should be sent to: UseClark Inc., Oudeschans 83-2, 1011 KW Amsterdam, the Netherlands; or by email to [email protected] We suggest that you consult your legal advisor before filing a notice or counter-notice. If you believe in good faith that materials available on the Product infringe your trademark, please provide detailed information regarding the alleged infringement and specific identification of the allegedly infringed marks (including registration information, if any) to the same addresses provided above for DMCA notices regarding copyright.
Notice for California Residents. Under California Civil Code Section 1789.3, California users are entitled to the following consumer rights notice: If you have a question or complaint regarding the Product, please contact us by writing to UseClark, Oudeschans 83-2, 1011 KW Amsterdam, the Netherlands; or by email to [email protected]
Ability to Enter Into This Agreement. By using the Product, you affirm that you are of legal age to enter into this Agreement.
Filtering. We hereby notify you that parental control protections (such as computer hardware, software or filtering services) are commercially available that may assist you in limiting access to material that is harmful to minors. Information identifying current providers of such protections is available on the two web sites GetNetWise (http://kids.getnetwise.org/) and OnGuard Online (http://onguardonline.gov/). Please note that Company does not endorse any of the products or services listed at such Product.
Product © 2016 UseClark, Inc. unless otherwise noted. All rights reserved.