THIS TERMS OF SERVICES AGREEMENT (“TOS”) CONSTITUTES A LEGAL AGREEMENT BETWEEN YOU (THE USER OF THE SOFTWARE) AND Total Reader LLC, a Delaware limited liability company ("TR LLC” or “TR LLC’s”, "we" or "us" or "our") AND ITS PARENT, SUBSIDIARIES AND AFFILIATES REGARDING YOUR LICENSE AND USE OF TR LLC’S SOFTWARE (“SOFTWARE” or “Software”), WEB SITE (“Web Site”), AND ANY PROVIDED SERVICE (“SERVICE” OR “Service”).
BY OPENING OR INSTALLING OR USING THE SOFTWARE THAT IS PROVIDED WITH THIS TOS, CLICKING THE “I acknowledge that I have read and accepted the Terms and Conditions of the Terms of Service" BUTTON, OR BY ENTERING THE TOTAL READER WEB SITE, THROUGH TR LLC’S PORTAL OR VIA A THIRD PARTY PORTAL, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS TOS, UNDERSTAND IT, AND AGREE TO BE LEGALLY BOUND BY IT.
IF YOU REJECT ANY OF THE TERMS OF THIS TOS, YOU ARE NOT AUTHORIZED TO ACCESS THIS WEB SITE OR RECEIVE OR USE ANY SOFTWARE OR SERVICES OFFERED THROUGH THIS WEB SITE AND SHOULD EITHER LOG OFF FROM ACCESS OR IMMEDIATELY REMOVE THE SOFTWARE FROM YOUR HARD DRIVE AND PERMANENTLY ERASE ALL COPIES OF THE SOFTWARE.
IF YOU HAVE OBTAINED ACCESS TO THIS WEB SITE AS A REGISTERED USER BY ANY LOCAL EDUCATION AGENCY THAT HAS LICENSED SOFTWARE AND SERVICES IDENTIFIED IN THE SEPARATE LICENSE AND SUBSCRIPTION AGREEMENT (“LICENSE AGREEMENT”) FOR THE SOFTWARE DESCRIBED THEREIN BY AND BETWEEN US AND THE SPECIFIC LEA, YOU ARE SUBJECT TO THE TERMS AND CONDITIONS OF THE LICENSE AGREEMENT AS WELL AS TO THIS TOS.
This Web site is owned and operated by TR LLC and contains material which is derived in whole or in part from TR LLC, its parent, subsidiary companies, affiliates and other sources and is protected by international copyright, trademark and other intellectual property laws. You may not modify, copy, reproduce, republish, upload, post, transmit, or distribute in any way any material from this Web site including code and software. You may download material from this Web site for your personal, non-commercial use only, provided you keep intact all copyright and other proprietary notices.
As part of the Service, TR LLC agrees to provide you with information and other computer services subject to this TOS. You agree to use our service in accordance with this TOS. Upon notice published on this Web site, or such other notice as may be given, TR LLC may amend or modify this TOS, or impose new conditions on use, at any time. Your use of this Service after such notice shall be deemed to constitute acceptance of the new TOS.
TR LLC does not discriminate based on sex, age, gender, sexual orientation, gender orientation, ethnicity, culture, religion, or socio-economic status.
The person responsible for payment must be at least 18 years old. All enrollment fees are nonrefundable and nontransferable.
GRANT OF LICENSE.
- This TOS grants to a Registered User a limited, non-transferable, non-sub-licensable, non-exclusive and non-transferable, personal, revocable in the event of breach, license to access and use the Software, Web site, and Service. A “Registered User” or “Registered Users” means each user(s) that accesses the licensed Software and registers as a(n) user(s) through an entity that has executed an appropriate and applicable licensing agreement with TR LLC (“Licensing Entity”) or has subscribed as an individual exclusive of a Licensing Entity. Except and otherwise provided herein, no other rights or licenses are being transferred or granted.
- Your rights to use the Software, Web Site, and Service, are limited to the subscription period. So long as you or your LEA is not in default pursuant to the License Agreement, and/or you are not in default pursuant to this TOS, you may continue using the Software until the end of the applicable subscription period, as renewed or extended. After the expiration of the subscription, most features of the Software will stop running.
- The Software is licensed, not sold. This TOS only gives you some rights to use the Software. We reserve all other rights. Unless applicable law gives you more rights despite this limitation, you may use the Software only as expressly permitted in this TOS and where applicable, any License Agreement. In doing so, you must comply with any technical limitations in the Software that only allow you to use it in certain ways.
- All intellectual property (including copyright, trademark, and patent) in the Software, including all animations, audio, images, maps, music, photographs, video, and text incorporated into the Software, are owned by us and our suppliers and licensors, and are protected by United States laws and international treaty provisions. We and our suppliers and licensors retain all rights not expressly granted. You must treat the Software like any other copyrighted material.
- This TOS does not constitute a sale and does not authorize a sale of the Software or anything created thereby. You may not transfer your rights under this TOS or if applicable, the License Agreement except as permitted therein.
- You may not use, or permit the use of, the Software on more than one computer or over a network or any other transfer device (including the Internet) without each additional user registering as a Registered User and having been authorized to use the Software and its documentation in such manner as permitted in any applicable License Agreement. Use of the Software by persons that are not Registered Users or by more Registered Users than the number of licenses permitted in any applicable License Agreement constitutes copyright infringement and may be punishable by civil fines, criminal penalties, or both.
- You may not rent or lease the Software. You may not modify, translate, reverse engineer, decompile, or disassemble the Software, except to the extent that this restriction is expressly prohibited by applicable law. You may not remove any proprietary notices or labels in the Software.
- You may not copy the printed materials accompanying the Software or distribute printed copies of any user documentation provided in electronic format. You may not publicly perform or publicly display the Software including without limitation, make the Software available for public use over the Internet or any other digital access method (i.e., sublicense or subscription access or otherwise) except as authorized by any applicable License Agreement.
- The restrictions contained herein apply regardless of the type of media you receive; you may use only the portion appropriate for your Registered Users as applicable to the licenses purchased. In the event you fail to comply with any of the terms or conditions of this license, your rights to use the Software will end; you shall stop using the Software, remove the Software from your computers, and permanently erase all copies of the Software. You may not export or re-export the Software or any underlying information or technology except in full compliance with all United States and other applicable laws and regulations.
NO WARRANTIES. To the maximum extent permitted by applicable law, TR LLC expressly disclaims any warranty for the Software. The Software and any related documentation are provided "as is" without warranty of any kind, either express or implied, including, without limitation, the implied warranties of merchantability or fitness for a particular purpose. The entire risk arising out of use or performance of the Software remains with you.
REMEDIES. In the event of any breach of this TOS or any applicable License Agreement or the Limited Warranty contained herein, your exclusive remedy shall be, at our sole option, (a) the refund of the amount paid for the Software by the installer/licensee, or (b) repair or replacement of the Software, provided that the defective Software is returned to us at: TR LLC, Client Support Department, 5473 Kearny Villa Road, Suite 300 San Diego, CA 92123, along with proof of the date of installation within ninety (90) days from the date of license installation. Any Limited Warranty is void if failure of the Software has resulted from user accident, abuse, neglect, or misapplication. Any replacement Software will be warranted for the remainder of the original warranty period or thirty (30) days, whichever is longer. Except as set forth above, the Software is licensed "as-is", without any express or implied warranties of any kind.
U.S. GOVERNMENT RESTRICTED RIGHTS. The Software and user documentation are provided with RESTRICTED RIGHTS AND LIMITED RIGHTS. Use, duplication, or disclosure by the Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software -Restricted Rights at 48 CFR 52.227-19, as applicable.
ACTIVATION AND VALIDATION. The Software will from time to time require activation and/or validation. Activation associates the use of the Software with a Registered User. Validation verifies that the Software has been activated and is properly licensed. Validation also permits you to use certain features of the Software or to obtain additional benefits. Without proper activation or validation, the functionality of the Software may be affected. During activation and/or validation, the Software will send various information about the Software and the device to us. BY USING THE SOFTWARE, YOU CONSENT TO THE TRANSMISSION OF THIS INFORMATION.
MAINTENANCE AND SUPPORT. We provide certain telephone and internet-based maintenance and support services with the Software as described in the specifications for the Software. Except as otherwise noted in materials accompanying a service, we may change or cancel any service at any time.
TELEPHONE AND INTERNET-BASED SERVICES.
We may provide certain telephone and internet-based services with the Software, including certain computer identification, web content, digital certification and other information services. Except as otherwise noted in materials accompanying a service, we may change or cancel any service at any time. Certain services may send various information to us or to you. BY USING THESE FEATURES, YOU CONSENT TO THE TRANSMISSION OF THIS INFORMATION. You may not use these services in any way that could harm them or impair anyone else’s use of them. You may not use the services to try to gain unauthorized access to any service, data, account, or network by any means.
Where applicable, please see the License Agreement for special terms applicable to your license of the Software, including, without limitation, needs assessment, implementation, maintenance, support, training, pricing, length of term, etc.
ACCEPTANCE OF TERMS. Your use of the Service is subject to this TOS. TR LLC reserves the right to update and change, from time to time, this TOS and all documents incorporated by reference by publication of the changes on TR LLC's Web site.
DISCLAIMER. TR LLC has provided links and pointers to Internet sites maintained by third parties. Neither TR LLC, its parent, subsidiary companies, nor their affiliates operate or control in any respect any information, products, or services on these third-party sites. The materials in this Web site and the third-party Web sites are provided "as is" and without warranties of any kind either express or implied. To the fullest extent permissible pursuant to applicable law, TR LLC disclaims all warranties, express or implied, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose. TR LLC does not warrant that the functions contained in the materials will be uninterrupted or error-free, that defects will be corrected, or that these Web sites, including bulletin boards, or their server that makes it available, are free of viruses or other harmful components.
TR LLC does not warrant or make any representations regarding the use or the results of the use of the materials in this Web site or in third-party Web sites in terms of their correctness, accuracy, timeliness, reliability, or otherwise. You (and not TR LLC) assume the entire cost of all necessary maintenance, repair, or correction.
DESCRIPTION OF TOTAL READER SOFTWARE AND SERVICE. TR LLC does not discriminate based on sex, age, gender, sexual orientation, gender orientation, ethnicity, culture, religion, or socio-economic status. The Total Reader Software and Service includes a personal "gateway" that is password-protected; evaluated reading passages organized into categories; word completion "Passages" containing passage content; a mechanism for scoring results of "Passages" using MetaMetrix Bayesian Lexile scoring; various progress charts and graphs; tables of related information; and various other links to specific information.
As part of the Service, TR LLC agrees to provide you with information and other computer services subject to this TOS. You agree to use our Service in accordance with this TOS.
OWNERSHIP OF AND USE OF WEB SITE. Our Web site is owned and operated by TR LLC and contains material which is derived in whole or in part from TR LLC, its parent, subsidiary companies, affiliates and other sources and is protected by international copyright, trademark and other intellectual property laws. You may not modify, copy, reproduce, republish, upload, post, transmit, or distribute in any way any material from this Web site including code and software. You may download material from this Web site for your personal, non-commercial use only, provided you keep intact all copyright and other proprietary notices.
TERM OF ENROLLMENT, PAYMENT TERMS, AND CANCELLATION.
Class/School/District Bulk Purchases
The Software and Service are provided on an enrollment basis, which commences on the date access to the Software is first enabled and shall continue for an initial term, as mutually agreed-to by the parties, which may be renewed by mutual agreement, unless terminated sooner pursuant to the effective Licensing Agreement. Payment for Software and Services is due within thirty (30) days of the Effective Date of the Licensing Agreement executed by both parties. All currency references are in U.S. dollars. Payment for Service is on an annual basis and is nonrefundable. If you cancel your enrollment before the end of the enrollment term, your cancellation will take effect at the end of that term.
Individual Subscription Purchases
The Software and Service are provided on an enrollment basis for a term of one (1) year. Any credit card that you provide in connection with your registration will be billed immediately. All currency references are in U.S. dollars. Payment for Software and Service is on an annual basis and is nonrefundable. If you cancel your enrollment before the end of the enrollment term, your cancellation will take effect at the end of that term. If your credit card is invalid for any reason, your enrollment will be cancelled and all the information contained within it deleted permanently. TR LLC is not liable for deletion of information due to an invalid credit card.
The person responsible for payment must be at least 18 years old. All enrollment fees are nonrefundable and nontransferable.
PROHIBITED ACTIVITIES. We reserve the right to remove any content that we find, in our sole discretion, violates this TOS or is otherwise in violation of the law. You may not use our Software and Service, including our Web site to:
- Make unsolicited offers or proposals or to send junk mail to users of our Services or our Software;
- Post or transmit or in any way exploit any information, software, or other material for commercial or non-commercial purposes, or that contains advertising;
- Harass, defame or defraud users of our Service;
- Promote or provide material that is grossly offensive to the online community, including blatant expressions of bigotry, prejudice, racism, hatred or profanity;
- Promote or provide material or instructional information about illegal activities;
- Promote physical harm or injury;
- Knowingly damage or interfere with the operation of our Software Service, any software that utilizes our Service, or any user's enjoyment of them, by any means, including uploading or otherwise disseminating viruses, worms or other harmful code;
- Disable, circumvent, avoid, bypass, remove, deactivate, impair or otherwise interfere with security-related features of our Service, features that enforce restrictions or limitations on use of our Service, or features that prevent or restrict use or copying of any content or other material accessible through use of our Service;
- Upload, transfer or otherwise make available, files that contain images, photographs, software or other material protected by intellectual property laws including without limitation copyright, trademark, patent, or trade secret laws or by rights of privacy or publicity, unless you own or control the rights or have received all necessary consent to do so;
- Upload, transfer or otherwise make available images, photographs, software or other material that is lewd, pornographic, obscene or otherwise offensive;
- Download any file posted by another user that you know, or reasonably should know, cannot be legally reproduced, displayed, performed, and/or distributed in this manner;
- Access or use our Software or Service in violation of any local, state, national, or international law, including, without limitation, laws governing the provision of financial services, data protection and privacy, obscenity, child pornography or other pornography and/or export or import control;
- Use any robot, spider, scrapper or other automated means to access our Web site for any purpose without our express written permission;
- Take any action that imposes, or may impose in our sole determination an unreasonable or disproportionately large load on our infrastructure;
- Bypass any robot exclusion headers or other measures we may use to prevent or restrict access to our Web site;
- Restrict or inhibit any other user from using and enjoying this Web site or the Software or Service offered through this Web site; or
- Otherwise access or use our Software and Service or this Web site in violation of these terms and conditions or any other applicable agreement.
CONSEQUENCES OF UNACCEPTABLE USE.We reserve the right to take any and all action we deem appropriate if we become aware of conduct that we believe does not conform to the requirements of any agreement pursuant to which you use our Service or any Software that utilizes them, the terms and conditions for use of this Web site, or applicable law, including without limitation: (a) terminating your right to use this Web site; (b) terminating any registration or license you have to use our products, services or this Web site or any portion thereof; (c) banning you from future use of our Software or Service or this Web site by name, e-mail address, IP address and/or any other means; or (d) any other action that we deem appropriate in our sole discretion.
SPECIAL NOTICE REGARDING COPYRIGHT INFRINGEMENT.You may not use our Service to infringe copyrights. We will attempt to terminate service to anyone who we become aware is repeatedly using our Service in violation of copyright law. IT IS YOUR SOLE RESPONSIBILITY TO USE THE SERVICES IN COMPLIANCE WITH ALL APPLICABLE COPYRIGHT LAWS. Notification of claimed copyright infringement should be made in accordance with our Notice and Procedure for Making Claims of Copyright Infringement. NOTICES UNRELATED TO ALLEGED COPYRIGHT INFRINGEMENT OR NOT IN CONFORMANCE WITH THIS PROCEDURE WILL NOT RECEIVE A RESPONSE.
NOTICE AND PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT.Pursuant to Title 17, United States Code, Section 512(c), all notifications of claimed copyright infringement using our Service should be sent ONLY to our Designated Agent. NOTE: THE FOLLOWING INFORMATION IS PROVIDED EXCLUSIVELY FOR NOTIFYING TR LLC THAT YOUR COPYRIGHTED MATERIAL MAY HAVE BEEN INFRINGED. DO NOT SEND ANY NOTICES OR INQUIRIES UNRELATED TO ALLEGED INFRINGEMENT OF YOUR COPYRIGHTS TO OUR DESIGNATED AGENT. YOU WILL NOT RECEIVE A RESPONSE. Your written notification must be sent to the following Designated Agent:
Under Title 17, United States Code, Section 512(c)(3)(A), your Notification of Claimed Infringement must include the following:
- Service Provider: TR LLC, Inc.
- Agent Designated to Receive Notice: Rick Wells, Vice President and Chief Financial Officer
- Address of Designated Agent: 5473 Kearny Villa Road, Suite 300 San Diego, CA 92123
- Telephone Number of Designated Agent: 858-712-9341
- Facsimile Number of Designated Agent: 858-712-9448
- E-Mail Address of Designated Agent: email@example.com
- An electronic or physical signature of the owner or of the person authorized to act on behalf of the owner of the copyright interest;
- Identification of the copyrighted work(s) that you claim have been infringed;
- A description of the material that you claim is infringing, and the location where the original of an authorized copy of the copyrighted work exists (for example, the URL of the page of the Web site where it is lawfully posted; the name, edition and pages of a book from which an excerpt was copied, etc.);
- Your address, telephone number, and e-mail address;
- A statement that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
- A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf.
PASSWORDS.When you enroll, you will either be provided with or asked to choose a password. You are entirely responsible for maintaining the confidentiality of your password. You agree to not use the account, username, or password of another user at any time or to disclose your password to any third party. You are solely responsible for any and all use of your account. Sharing your account with another individual or group is grounds for immediate termination and any fees will not be refunded.
INDEMNIFICATION. YOU WILL INDEMNIFY AND HOLD TR LLC AND ITS DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS, CONTROLLED OR CONTROLLING ENTITIES, BUSINESS PARTNERS, AGENTS, THIRD PARTY CONTENT PROVIDERS, LICENSORS, AND SUPPLIERS HARMLESS FROM AND AGAINST ALL CLAIMS, DAMAGES AND LOSSES (INCLUDING ATTORNEYS FEES) ARISING OUT OF OR CAUSED BY YOUR BREACH OF THIS TOS.
- EXPORT AND IMPORT RESTRICTIONS. You agree that you don’t intend to or will, directly or indirectly, export or transmit (a) the Software or related documentation and technical data that is the subject of this TOS (or any part thereof), or process, or service that is the direct product of the Software to any country to which such export or transmission is restricted by any applicable U.S. regulation or statute, without the prior written consent, if required, of the Bureau of Export Administration of the U.S. Department of Commerce, or such other governmental entity as may have jurisdiction over such export or transmission.
LIMITATION ON LIABILITYIN NO EVENT WILL WE OR OUR SUPPLIERS AND LICENSORS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, ECONOMIC, COVER, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE, USER DOCUMENTATION, OR SOFTWARE-RELATED TECHNICAL SUPPORT OR SERVICES, INCLUDING, WITHOUT LIMITATION, DAMAGES OR COSTS RELATING TO THE LOSS OF PROFITS, BUSINESS, GOODWILL, PERSONAL OR BUSINESS DATA (INCLUDING LOSS OF ANY SUCH DATA CAUSED BY THIRD PARTIES), TIME OR COMPUTER PROGRAMS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL WE AND OUR SUPPLIERS' AND LICENSORS' LIABILITY EXCEED THE AMOUNT PAID IF ANY, BY YOU TO TR LLC FOR THE SERVICES DURING THE TERM OF ENROLLMENT REGARDLESS OF THE FORM OF THE CLAIM (INCLUDING, WITHOUT LIMITATION, ANY CONTRACT, PRODUCT LIABILITY, OR TORT CLAIM).
TR LLC'S RESERVATION OF RIGHTS.TR LLC expressly reserves the right to immediately modify, suspend or terminate your enrollment and account and refuse current or future use of any TR LLC service, if TR LLC, in its sole discretion believes you or someone on your account has: (i) violated or tried to violate the rights of others; or (ii) acted inconsistently with the spirit or letter of this TOS or other documents incorporated by reference into this TOS.
NOTICES. This TOS applies to your access to and use of this Web site and our Software and Service. Some of these terms and conditions may be modified or superseded by expressly designated legal notices located on other pages of this Web site or by the terms and conditions of the TOS or other agreements pursuant to which you obtain our Software or Service. A specific provision in any of those notices, licenses, or agreements that addresses the same subject matter as a provision on this page overrides the provision in this TOS.
NO WAIVERS. No delay or failure to take any action or exercise any right that TR LLC may take or exercise pursuant to these terms and conditions or applicable law will constitute a waiver of that action or right by TR LLC.
GOVERNING LAW AND VENUE.The terms and conditions contained in this TOS will be governed by and interpreted in accordance with the laws of the State of California, USA, without regard to any of its choice of law rules that might lead to application of the law of another jurisdiction. Any litigation arising out of or related to your access to or use of this Web site and Service provided by it will be brought only in the United States District Court for the Southern District of California, San Diego Division, or, if federal subject matter jurisdiction is lacking, then in any California state District Court located in San Diego, California. By accessing or using this Web site, you submit to the personal jurisdiction of these courts and waive all objections to placing venue exclusively before them. The prevailing party in any litigation will be entitled, in addition to any other relief granted to it, to recover reasonable attorney's fees, expenses and costs incurred in connection with the litigation.
SEVERABILITY.The provisions of this TOS are severable. If any of the terms or conditions are determined to be invalid or unenforceable by a court of competent jurisdiction, then the remaining terms and conditions will remain in full force and effect, and the invalid or unenforceable term or condition will be deemed superseded by a valid, enforceable term or condition that matches the practical effect of the original provision as closely as possible.
MODIFICATIONS TO THESE TERMS. We may modify this TOS from time to time to comply with applicable laws or changes to our operations. Modifications to this TOS shall take effect proactively once you access the Website after modification of the Terms. Please feel free to print out a copy of these Terms for your records. We may cancel, change, modify, discontinue, terminate, or change fees charged at any time for any reason for the online services advertised as part of this product.
TERMINATION.This TOS is effective until terminated by TR LLC at any time without notice. However, the disclaimers and limitations of liabilities set forth in this TOS will survive.
ENTIRE AGREEMENT.These terms and conditions set forth in this TOS constitute our entire agreement with you related to your use of this Web site, our Software and Service and they prevail over any other communications we may have regarding its use, with the exception of an agreement signed by an authorized representative of TR LLC that explicitly authorizes a use which is inconsistent with these terms and conditions. Upon notice published on this Web site, or such other notice as may be given, TR LLC may amend or modify this TOS, or impose new conditions on use, at any time. Your use of any Service after such notice shall be deemed to constitute acceptance of the new TOS.