End User License Agreement
IMPORTANT: THIS IS A LEGAL AGREEMENT ("AGREEMENT") BETWEEN YOU (WHETHER AN INDIVIDUAL OR AN ENTITY, "YOU" OR "YOUR") AND KCR2 (KIDS COUNT & READ TOO) L.L.C., AN IOWA LIMITED LIABILITY COMPANY ("LICENSOR"). YOU MUST CAREFULLY READ THIS AGREEMENT BEFORE USING THE SERVICE. BY USING ANY OF THE SERVICE, YOU ARE AGREEING TO AND WILL BECOME BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT YOU MUST CLICK "DECLINE" BELOW, IN WHICH CASE YOU CANNOT USE IN ANY WAY ANY OF THE SERVICE.
Definitions. These definitions shall apply for purposes of this Agreement:
- "Documentation" means any and all written or printed guides, manuals, instructions or other documentation as Licensor may, in its sole and absolute discretion, from time to time supply or provide in connection with the Software, whether on-line or in machine readable, printed or other form.
- "Service" means, collectively, the Documentation and the Software.
- "Software" means the software provided as a service by Licensor pursuant to this Agreement, which is referred to as "Time ReDesigned" as that software may be updated, upgraded, enhanced, improved, corrected, modified, amended, adapted or otherwise changed by Licensor from time to time, in Licensor’s sole and absolute discretion.
- Fees. As a condition to Your use of the Service, You must pay the fees owed to Licensor in full. No fees will ever be refunded to You. Fees for the Service, including but not limited to annual subscription plan fees, are subject to change upon 30 days’ notice from Licensor. Such notice may be provided by posting the changes to the Service. If any fee is not paid when due, You will owe Licensor the amount of the fee plus interest on the fee from the date the fee was due until You paid in full at the lower of (i) the maximum per annum rate of interest allowed by applicable law, or (ii) eighteen percent (18%) per annum.
- Ownership and All Other Rights Reserved in Licensor. You acknowledge and agree that the Service contains copyrighted material, trade secrets and other confidential or proprietary information and materials of Licensor, and that the Service is protected by United States copyright laws and international laws, treaties and conventions, and other federal, state and other laws protecting the trade secrets or confidential and proprietary information and materials of Licensor, and You agree to fully comply with those laws. Licensor reserves all patent, copyright, trade secret, trademark, service mark, and all other confidential, proprietary, intellectual and other rights whatsoever in and to the Service and all rights and interests in and to the Service will at all times remain Licensor’s sole and exclusive property. You agree that You will not obscure, remove or otherwise alter any identification, legends or notices of Licensor’s ownership or other proprietary rights, including any patent or copyright notices, from any part of the Service or any output derived from any of the Service. You acknowledge and agree that this Agreement does not grant You any rights in connection with any trademarks or service marks of Licensor.
- Ownership Of Improvements and Derivative Works. In the event You devise, design, discover, formulate or otherwise develop any update, upgrade, enhancement, improvement, correction, modification, amendment, adaptation or other change to any of the Service, notwithstanding that such act is a breach of this Agreement, each and all of the same shall, at Licensor’s option, be part of the Service and the sole and exclusive property of Licensor.
- No Right to Updates or Services. You have no right to receive any updates, upgrades, enhancements, improvements, corrections, modifications, amendments, adaptations or any other changes to any of the Service. Licensor may elect, however, in its sole and absolute discretion, to from time to time provide You with updates, upgrades, enhancements, improvements, corrections, modifications, amendments, adaptations or other changes to some or all of the Service, all of which will be provided as part of the Service and subject to and upon all of the terms and conditions of this Agreement. You also do not have the right to receive any support, maintenance or other services from Licensor with respect to the Service. Licensor may, however, in its sole and absolute discretion, elect to provide You with support, maintenance or other services with respect to the Service (if any, the "Support Services").
- Nondisclosure of the Service by You. You acknowledge and agree that the Service constitutes valuable property of Licensor that is proprietary and confidential to Licensor. You therefore shall use, hold and protect the Service from unauthorized use, disclosure or access. Licensor’s rights and remedies upon a breach or imminent breach of this Section include, without limitation, the right to preliminary and permanent injunctive relief restraining You and Your employees from any further violation of this Section. The provisions of this Section are in addition and cumulative to, and not a limitation or restriction on, any proprietary or confidential information covenants or similar covenants set forth in any other agreement between You and Licensor, and You shall also hold all of the Service subject to and in accordance with all such other proprietary or confidential information or other covenants.
No Warranties from Licensor. The Service and any Support Services are and will be provided only on an "as is" basis, and Licensor makes no express warranties, and hereby excludes and disclaims in entirety all implied warranties, including, without limitation, the implied warranties of merchantability, fitness for a particular purpose and noninfringement, with respect to the Service, any Support Services, and all other matters whatsoever. Without limiting the foregoing, Licensor does not warrant that the Service will meet Your needs or requirements, or that the operation or use of any of the Service will be uninterrupted, defect-free, error-free, virus-free or otherwise problem-free. You assume the full responsibility to take, and the entire cost of, all precautions and safeguards which are necessary or appropriate to prevent or protect against, or to mitigate or remedy, any loss of data or other damages or losses to Your computers or other operations which could be caused by errors, defects, deficiencies, viruses or other problems in or with any of the Service.
Without limiting the generality of the foregoing, Licensor is not responsible for any incorrect or inaccurate content posted on the Service. The Service may be temporarily unavailable from time to time for maintenance or other reasons. Licensor has no responsibility for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, user communications. Licensor is not responsible for any problems or technical malfunction of any telephone network or lines, computer online systems, servers or providers, computer equipment, software, failure of email on account of technical problems or traffic congestion on the Service, including injury or damage to users or to any other person’s computer related to or resulting from use of the Service.
- Licensor Has No Liability to You. You acknowledge that Licensor will not be liable to You under any circumstances or theories, including breach of contract, negligence or tort, for any lost profits, business or goodwill, or for any exemplary, punitive, special, incidental or consequential damages, or any other direct, indirect or other types of damages whatsoever, which are in any way related to or connected with or arise out of this Agreement, the Service, the Support Services, or Your use of, or inability to use, the Service or Support Services (and even if Licensor knew or should have known of the possibility of any of those damages), including, without limitation, to, with or out of any performance or nonperformance by Licensor, the loss of data or the use or performance or nonperformance of or inability to use the Service, Support Services or any of Your other hardware, software or other goods for any reason and for any purpose whatsoever. Further, You agree that under no circumstances or theories, including negligence or breach of contract, will Licensor’s aggregate liability to You for any claim or counterclaim in any way related to or arising out of this Agreement ever exceed the amount of the fees paid by You.
- This Agreement is governed by the laws of the State of Iowa, but without regard to conflicts of law principles thereof. You hereby consent to the exclusive jurisdiction of the state and federal courts sitting in Des Moines, Iowa, for and with respect to any claim, counterclaim, demand or other matter whatsoever arising out of this Agreement.
- Any claim or counterclaim arising out of or related to this Agreement must be brought no later than one (1) year after it has accrued, or the claim or counterclaim will be lost and forever barred.
- If any provision of this Agreement shall for any reason be held to be invalid, illegal or unenforceable, in whole or in part, the remaining provisions of this Agreement shall not be affected thereby and shall continue to be valid and enforceable. If any provision of this Agreement is held to be invalid, illegal or unenforceable as written, but valid, legal and enforceable if modified, then such term shall be deemed to be written and construed and shall be enforced as so modified. Any finding of invalidity, illegality or unenforceability in any jurisdiction shall not invalidate or render illegal or unenforceable such term in any other jurisdiction. Without limiting the foregoing, it is expressly agreed that each and every provision of this Agreement which provides for a limitation or disclaimer of liability or remedies, a disclaimer or exclusion of warranties or a limitation, disclaimer or exclusion of damages is intended to be subject to this subparagraph.
- This Agreement shall not be construed more strongly against You or Licensor, regardless or who was more responsible for its preparation.
- This Agreement may be amended from time to time by Licensor upon notice to You, which notice may be posted on or otherwise provided through the Service, through other electronic means or otherwise.
- This Agreement is assignable by Licensor without any notice to You and without Your approval or consent, and this Agreement shall inure to the benefit of, and shall be enforceable by, Licensor’s successors and assigns. Neither this Agreement nor any of Your rights under this Agreement are assignable by You without the prior written consent of Licensor, which consent may be withheld by Licensor in Licensor’s sole and absolute discretion.
- Nothing contained in this Agreement and no action taken or omitted to be taken by You or Licensor pursuant to this Agreement shall be deemed to constitute You and Licensor a partnership, an association, a joint venture or other entity.
- You hereby waive any right to a jury trial with respect to and in any action, proceeding, claim, counterclaim, demand or other matter whatsoever arising out of or relating to this Agreement.