TERMS AND CONDITIONS OF USE

Transcription

1 TERMS AND CONDITIONS OF USE IMPORTANT: THIS SERVICE AND SOFTWARE IS PROVIDED FOR YOUR USE AS DESCRIBED HEREIN, AND THE SOFTWARE INVOLVES THE INSTALLATION AND OPERATION OF A SOFTWARE PROGRAM THAT WILL DELIVER AND DISPLAY TYPE TO LEARN 4 ONLINE APPLICATIONS ON YOUR COMPUTER. WHEN IN USE, THE SOFTWARE DOWNLOADED TO YOUR COMPUTER WILL ESTABLISH A CONNECTION BETWEEN YOUR PERSONAL COMPUTER AND SUNBURST DIGITAL, INC. S SERVERS. THEREFORE, YOU SHOULD CAREFULLY REVIEW ALL OF THE INFORMATION CONTAINED BELOW TO UNDERSTAND YOUR RIGHTS AND THE LIMITATIONS IN CONNECTION WITH THIS SERVICE AND THE SOFTWARE. Welcome to (the Web site ). This Web site, the Type to Learn 4 downloadable software product (the Software ) and all applications, and other services provided (collectively, the Service ) is maintained and operated by Sunburst Digital, Inc. Corporation ( we, us or Sunburst Digital, Inc. ). YOUR ACCESS AND USE OF THE SOFTWARE AND THE SERVICE IS SUBJECT TO THE FOLLOWING TERMS AND CONDITIONS OF USE (THE "TERMS & CONDITIONS") AND ALL APPLICABLE LAWS. BY ACCESSING OR USING ANY PART OF THE SERVICE, OR DOWNLOADING OR USING THE SOFTWARE, YOU ACCEPT, WITHOUT LIMITATION OR QUALIFICATION, THESE TERMS & CONDITIONS. IF YOU DO NOT AGREE WITH ALL OF THE TERMS & CONDITIONS SET FORTH BELOW, YOU MAY NOT USE ANY PORTION OF THE SERVICE OR DOWNLOAD OR USE THE SOFTWARE. Use of the Web Site, Service and Software Your use of this Web site, Service and the Software is subject to these Terms & Conditions. This Web site, Service and the Software is provided for your personal and non-commercial use and for informational and educational purposes only. Any other use of the Web site, Service or the Software requires the prior written consent of Sunburst Digital, Inc.. Downloads In order to use the Software and certain other portions of our Service, you will need to download and install certain applications onto your personal computer. Any decision to download and install applications onto a computer is at your sole discretion. Sunburst Digital, Inc. will not automatically install any application without first providing you with the opportunity to refuse such installation.

2 Operation of Downloads. The Software downloaded onto your computer through Sunburst Digital, Inc. as part of the Service will establish a connection between your personal computer and Sunburst Digital, Inc. s servers and allow Sunburst Digital, Inc. to deliver the Type to Learn 4 program, user scores and data, user guides, and other tutorials to your computer screen. By downloading and installing the Software, you expressly consent to the operation of the Software on your personal computer as described in these Terms & Conditions and acknowledge that you have considered the implications and have made an informed decision to do so. Sunburst Digital, Inc. may automatically transmit to and install on your computer, Software improvements, corrections, adaptations, conversions to more recent Software version or any other changes to the Software, with or without giving notice. Removal of Downloads. You may remove the Software from your computer at any time. To do so, you must access the uninstaller program and follow the uninstall steps outlined in the User Guide. This is the only method by which the Software can be completely removed from your personal computer. Sometimes other applications attempt to disable or remove applications such as the Software. You expressly consent that Sunburst Digital, Inc. may attempt to repair any damaged or removed installation of the Software if the Software has not been removed by the methods provided in this paragraph. Removing the Software from your computer will prohibit you from accessing the Type to Learn 4 online applications. Licenses We hereby grant you a non-exclusive, non-transferable, limited right to access and use the Service, including the Software, solely as permitted by these Terms & Conditions and by your end user license agreement provided upon your purchase of the Type to Learn 4 Software. This Web license is contingent upon a yearly data maintenance fee; without such annual payment your license will be terminated. The Service, including, without limitation, the Software, is owned by, or licensed for use by, Sunburst Digital, Inc. and may not be copied, distributed, reverse engineered, decompiled or modified, nor may derivative works be created based on the Service or the Software, without the prior written consent of Sunburst Digital, Inc., except as expressly permitted in these Terms & Conditions. Proprietary Rights Sunburst Digital, Inc. is the exclusive owner of, or is authorized to use or provide access to, all parts of the Service site, including the Software and all other text, software, graphics, designs and all copyrights, trademarks, patents and other intellectual property or proprietary rights contained therein. Except as expressly set forth in these Terms & Conditions, no license is granted to you and no rights are conveyed by virtue of accessing or using the Service or the Software. All rights not granted under these Terms & Conditions are reserved by Sunburst Digital, Inc.

3 Unauthorized Use You may not use spiders, robots, data mining techniques or other automated devices or programs to catalog, download, store or otherwise reproduce, store or distribute the Service. You may not take any action to interfere with, or disrupt, the Software or Web site or any other user's use of the Service, including, without limitation, via means of overloading, flooding, mail bombing or crashing the services, circumventing security or user authentication measures or attempting to exceed the limited authorization and access granted to you under these Terms & Conditions. You may not frame portions of the Web site within another web site or establish links from any other web site to any page of the Web site other than the home page. You may not resell use of, or access to, the Service or the Software to any third party without our prior written consent. You may not, or attempt to (or otherwise authorize, encourage or support others attempts to) circumvent, re-engineer, decrypt, break or otherwise alter or interfere with the Service, including, but not limited to, the Software. Privacy Sunburst Digital, Inc. takes the privacy of you and your information very seriously. For further information about how we use information collected from you, please view our Privacy Policy. Communications Subject to the paragraph above, any communication or material you transmit online to Sunburst Digital, Inc. by or otherwise, including any data, questions, comments, suggestions, or the like is, and will be treated as, non-confidential and nonproprietary. Anything you transmit or post may be used by Sunburst Digital, Inc. for any purpose, including but not limited to, reproduction, disclosure, transmission, publication, broadcast and posting. Furthermore, Sunburst Digital, Inc. is free to use any ideas, concepts, know-how, or techniques contained in any communication you send to Sunburst Digital, Inc. without compensation and for any purpose whatsoever, including but not limited to, developing, manufacturing and marketing products and services using such information. Portions of these pages and of the Software provide users an opportunity to exchange ideas and information. The ideas and information posted do not necessarily reflect the views of Sunburst Digital, Inc.. While using these pages, you may not post, transmit, or otherwise distribute any material that may be unlawful, obscene, defamatory, threatening, infringing on any copyright or other rights of others, or damaging to software or hardware. You may not advertise or solicit on these pages without Sunburst Digital, Inc.'s express permission.

4 Sunburst Digital, Inc. reserves the right, which it may or may not exercise, to review, edit, or delete any material that it deems to be inappropriate or in violation of these Terms and Conditions and to deny access to anyone who violates these Terms and Conditions. NOTWITHSTANDING THE ABOVE, Sunburst Digital, Inc. EXPRESSLY DISCLAIMS ANY RESPONSIBILITY OR LIABILITY FOR ANY MATERIAL COMMUNICATED BY THIRD PARTIES THROUGH THESE PAGES OR THE SOFTWARE, OR FOR ANY CLAIMS, DAMAGES, OR LOSSES RESULTING FROM THE USE THEREOF. By posting or submitting material to these pages or to the Software, you represent that you have all necessary rights in and to such material and that such material will not infringe on any personal or proprietary rights of any third parties. You authorize Sunburst Digital, Inc. to use and/or authorize others to use such material in any manner or medium. You may obtain access to other sites on the Internet through these pages. By providing this service, Sunburst Digital, Inc. is not undertaking any responsibility or liability for information or publications of third parties on the Internet even if you access them through these pages. Termination of Access If you violate these Terms & Conditions or your end user license agreement, we may suspend, limit or terminate your access to all or a portion of the Service at any time with or without notice. Such termination may include removing, disabling or modifying the Software and is in addition to any right or remedy that may be available to us under these Terms & Conditions or applicable laws. NO WARRANTIES THE SERVICE, AND THE SOFTWARE, INCLUDING ALL CONTENT AND OTHER MATERIALS MADE AVAILABLE ON OR ACCESSED THROUGH THE SERVICE, IS PROVIDED "AS IS". TO THE FULLEST EXTENT PERMISSIBLE BY LAW, SUNBURST DIGITAL, INC. MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER FOR THE SERVICE OR THE SOFTWARE. FURTHER, SUNBURST DIGITAL, INC. DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, NON-INFRINGEMENT, TITLE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. SUNBURST DIGITAL, INC. DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SERVICE, THE SOFTWARE OR ANY MATERIALS OR CONTENT CONTAINED OR ACCESSED THROUGH THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SERVICE, THE SOFTWARE OR THE SERVER THAT MAKES IT AVAILABLE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. SUNBURST DIGITAL, INC. SHALL NOT BE LIABLE FOR ANY USE AND ANY ERRORS CONTAINED THEREIN. IN NO EVENT WILL SUNBURST DIGITAL, INC. BE LIABLE UNDER ANY THEORY OF TORT, CONTRACT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY LOST PROFITS, LOST DATA, LOST OPPORTUNITIES, COSTS OF COVER, EXEMPLARY, PUNITIVE, PERSONAL INJURY/WRONGFUL DEATH, DIRECT, SPECIAL, INCIDENTAL, INDIRECT OR OTHER CONSEQUENTIAL DAMAGES, EACH OF WHICH IS HEREBY EXCLUDED BY AGREEMENT OF THE PARTIES REGARDLESS OF WHETHER OR NOT EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

5 If any part of these warranty disclaimers or limitations of liability is found to be invalid or unenforceable for any reason, then our aggregate liability for all claims under such circumstances for liabilities that otherwise would have been limited, shall not exceed the greater of fifty dollars ($50.00) or the amount paid by you for your use of the Service. In addition to publishing proprietary products, Sunburst Digital, Inc. is a distributor of a broad range of educational technology, hardware, software, accessories, and supplemental products for educators. Many of the products distributed by Sunburst Digital, Inc. originate with other companies. Sunburst Digital, Inc. offers no product warranties for these third party products purchased through it and directs its customers to the manufacturer's warranty (if any) packaged with the product. In no event will Sunburst Digital, Inc. be liable for any claims of any kind for loss or damage related to third party products, including but not limited to, claims of infringement and/or product liability, whether the claim is based on contract, tort (including negligence), or strict liability. Sunburst Digital, Inc.'s maximum liability shall in any event be limited to the portion of the product price retained by it as its sales commission for distributing the product which gives rise to any claim or action. LAW AND LEGAL NOTICES This Agreement and any other terms or documents referred to herein represent your entire agreement with Sunburst Digital, Inc. with respect to your use of the Service. You understand and agree that, except as expressly set forth herein, this Agreement is not intended to confer and does not confer any rights or remedies upon any person other than the parties to this Agreement. If any part of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect. Sunburst Digital, Inc. s failure to pursue any available claim or defense pursuant to this Agreement or otherwise will not be a waiver of such claim or defense. The headings used in this Agreement are for convenience only, and will have no effect on the interpretation or legal enforceability of the terms herein. The laws of the State of Illinois shall govern these Terms and Conditions. YOU HEREBY EXPRESSLY CONSENT TO EXCLUSIVE JURISDICTION AND VENUE IN THE COURTS LOCATED IN THE STATE OF ILLINOIS FOR ALL MATTERS ARISING IN CONNECTION WITH THESE TERMS AND CONDITIONS OR YOUR ACCESS OR USE OF THE WEB SITE. Changes Sunburst Digital, Inc. reserves the right to change these Terms and Conditions at any time without notice. We will make such changes by posting them on the Web site. You should check the Web site for such changes frequently. Your continued access of the Service and/or use of the Software after such changes conclusively demonstrates your acceptance of those changes.

6 Indemnification You agree to indemnify, defend and hold harmless Sunburst Digital, Inc., its affiliates, business partners, licensors or clients from and against any and all third party claims, demands, liabilities, costs or expenses, including attorney s fees and costs, arising from, or related to, any breach by you of any of these Terms and Conditions or applicable law. Severability If any part of these Terms and Conditions shall be held or declared to be invalid or unenforceable for any reason by any court of competent jurisdiction, such provision shall be ineffective but shall not affect any other part of these Terms and Conditions. Waiver; Remedies The failure of Sunburst Digital, Inc. to partially or fully exercise any rights or the waiver of Sunburst Digital, Inc. of any breach of these Terms and Conditions by you, shall not prevent a subsequent exercise of such right by Sunburst Digital, Inc. or be deemed a waiver by Sunburst Digital, Inc. of any subsequent breach by you of the same or any other term of these Terms & Conditions. The rights and remedies of Sunburst Digital, Inc. under these Terms & Conditions shall be cumulative, and the exercise of any such right or remedy shall not limit Sunburst Digital, Inc. s right to exercise any other right or remedy. The online applications of Type to Learn 4 are subject to a one time license fee and an annual data maintenance fee, as defined in your end user license agreement, neither of which is refundable. Upon the expiration of your license (provided your data maintenance fee is not timely paid), you will no longer have access to Type to Learn 4 s online applications. Questions Should you have any questions regarding these Terms & Conditions you may contact Sunburst Digital, Inc. at: Address: 3150 W. Higgins Rd., STE 140, Hoffman Estates, IL Telephone: (800) Address: If you do not agree with these Terms & Conditions, do not use the Web site or Service hosted by Sunburst Digital, Inc.