2. Materials and Services. Through this App, SKED may make available to you including without limitation:
(a) certain articles, text, images, illustrations, photographs, video, stories, documents and other materials contained or displayed in or made available through the App (collectively, “Materials”); and
(b) various services operated by SKED, such as scheduling related services and others (collectively, “Services”).
3. License. SKED and its licensors grant to you a personal, non-exclusive, non-transferable license to:
(a) access, view, download, print, use and display Materials; and
(b) use any tools and software on the App (collectively, “Software”) for the purposes set forth on the App. In these TOU, all references to the “App” shall be deemed to include all “Software,” “Materials” and “Services,” unless otherwise expressly indicated. All rights not expressly granted by SKED to you are retained by SKED, and you may not use the App and/or any element of the App in any manner or for any purpose not expressly authorized by these TOU and/or the terms of the App. The rights granted to you do not include, and are not applicable to, the design or layout of the App, which are protected by trade dress and other laws and may not be copied or imitated in whole or in part.
4. Restrictions; Removal. You shall not:
(a) remove or destroy any proprietary rights marks or legends on or in the App;
(b) modify, enhance, adapt, translate, or create derivative works of the App;
(c) republish, post, transmit, transfer, distribute, assign, sublicense, rent, lease or sell the App;
(d) decompile, disassemble or reverse engineer the App;
(e) reproduce or make copies of the App;
(f) “frame” or “mirror” the App on any other server or Internet-based device; and/or
(g) access, view, download, print, use and/or display the App for any commercial or other money-making purpose, unless otherwise expressly provided herein or in the App. You acknowledge that certain elements of the App are, or may in the future be, licensed to SKED by third parties and that the availability of such elements may cease automatically, without notice or liability on the part of SKED.
6. Registration and Passwords.
6.1 Some areas of the App may be accessed and used only by those authorized individuals who are registered and have an account with SKED. To open an account, you must complete the registration process by providing SKED with current, complete and accurate information as prompted by the registration form, if any. Should SKED suspect that such information is untrue, inaccurate, not current or incomplete, SKED has the right to suspend or terminate your usage of the App. SKED is entitled to rely on the information you provide and you will be responsible for updating this information to maintain it as current.
6.2 Once you have become an authenticated user, you will choose one or more personal, non-transferable passwords. You are and will be responsible for maintaining the confidentiality of that password, for all activities conducted on and with the App that make use of that password, and for any charges or fees incurred by the use of that password, including any use you may subsequently contend was not unauthorized by you.
7. Account Information and Data.
7.3 You, not SKED, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and copyright of all Data and SKED shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Data, or for any actions or omissions which SKED takes in reliance upon your Data.
8. Ownership. SKED and/or its licensors own and shall retain all rights, title and interests, including all intellectual property rights, in and to the App, and all elements thereof. Except for the express licenses granted to you herein, you neither have nor acquire any rights, title or interests in or to the App, or any element thereof.
9. Marks and Logos. All names, marks, symbols and logos used in connection with the App are trademarks of SKED or other third parties (the “Marks”). SKED grants you no license, permission or authorization to reproduce or use any Marks, whether owned by SKED or a third party. You agree not to display, copy, redistribute or use any Marks in any manner for any reason without SKED’s prior express written consent.
10. Your Additional Responsibilities. You are solely responsible for any and all activities that occur under your account including inputting, maintaining, and managing accurate information and ensuring that you exit or log-off from your account at the end of each session of use. You shall notify SKED immediately of any unauthorized use of your password or account or any other breach of security that is known or suspected by you. You shall also use your best efforts to stop immediately any copying or distribution of the App that is known or suspected by you. SKED shall not be responsible for any unauthorized access to, or alteration of, your transmissions or Data, any material, information or data sent or received, regardless of whether the data is actually received by SKED, or any transactions entered into through the Service or failure to abide by these TOU.
11. Compliance with Laws; Prohibited Activities. You agree to abide by all applicable local, state, and federal laws, regulations, statutes, rules and ordinances, in connection with your use of the App. In addition, you agree not to use any device, software, or routine, including but not limited to any viruses, worms, time bombs, to interfere or attempt to interfere with the proper working of the App or any Service, or to intercept any system, data or personal information from the App, nor will you take any action that imposes an unreasonable or disproportionately large load on the App’s infrastructure.
12. Indemnification. You shall indemnify, defend and hold SKED, its licensors and information providers, and each such party’s parents, subsidiaries, affiliates, officers, directors, employees, attorneys, and agents, harmless from and against any and all claims, actions, proceedings, costs, damages, losses, liabilities, and expenses (including attorneys’ fees and costs) arising out of or in connection with your:
(a) access to and/or use of the App;
(b) Submissions, Data and other information provided to SKED;
(c) breach of these TOU; and/or
(d) violation of any applicable law or right of a third party.
13. DISCLAIMER OF WARRANTIES.
13.1 YOU ACKNOWLEDGE THAT: THE APP COULD INCLUDE TECHNICAL OR OTHER MISTAKES, INACCURACIES OR TYPOGRAPHICAL ERRORS; THE APP MAY BECOME INOPERABLE OR OTHERWISE UNAVAILABLE FOR PERIODS OF TIME; MATERIALS AND/OR SERVICES AT THE APP MAY BE OR BECOME OUT OF DATE AND SKED MAKES NO COMMITMENT TO UPDATE SUCH MATERIALS OR SERVICES. SKED ASSUMES NO RESPONSIBILITY FOR ERRORS OR OMISSIONS IN THE INFORMATION, DOCUMENTS, SOFTWARE, MATERIALS AND/OR SERVICES WHICH ARE REFERENCED BY OR LINKED TO THIS APP. REFERENCES TO THIRD PARTIES, THEIR SERVICES AND PRODUCTS, ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED.
13.2 YOUR USE OF THE APP IS AT YOUR OWN DISCRETION AND RISK AND WITH YOUR AGREEMENT THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM SUCH ACTIVITIES. NO ADVICE OR INFORMATION OBTAINED BY YOU FROM SKED, OR THROUGH OR FROM THE APP, SHALL CREATE ANY REPRESENTATION OR WARRANTY BY SKED.
13.3 THE APP IS PROVIDED TO YOU ON AN “AS IS” BASIS, WITHOUT ANY REPRESENTATION OR WARRANTY OF ANY KIND OR NATURE. WITHOUT LIMITING THE FOREGOING, NEITHER SKED, ITS LICENSORS NOR ANY CONTENT PROVIDERS MAKE ANY REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE APP, OR THAT THE USE OF THE APP WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEMS OR DATA. 13.4 ALL OTHER CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY SKED, ITS LICENSORS AND CONTENT PROVIDERS. Some jurisdictions do not allow the exclusion of implied warranties such that the above exclusion may not apply to you. This warranty gives you specific legal rights, and you may also have other rights that vary from jurisdiction to jurisdiction.
14. LIMITATION OF LIABILITY AND ACTIONS. REGARDLESS OF THE FORM OF ACTION OR THEORY OF RECOVERY, IN NO EVENT SHALL SKED, ITS LICENSORS OR CONTENT PROVIDERS BE LIABLE OR RESPONSIBLE TO YOU IN CONNECTION WITH THE APP, OR YOUR USE THEREOF, FOR ANY:
(A) INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, EVEN IF THEY ARE AWARE OF THE POSSIBILITY OF SUCH DAMAGES;
(B) LOST PROFITS, LOST REVENUE, LOSS OF DATA, LOST EXPECTANCY, BUSINESS INTERRUPTIONS AND/OR BENEFIT OF THE BARGAIN DAMAGES; AND/OR
(C) DIRECT DAMAGES IN AN AMOUNT GREATER THAN FIFTY DOLLARS ($50 USD). ANY CLAIM RELATED TO THE APP MUST BE INITIATED WITHIN ONE (1) YEAR OF THE DATE YOU KNEW, OR REASONABLY SHOULD HAVE KNOWN, OF THE EXISTENCE OF SUCH CLAIM AGAINST SKED.
15.1 SKED controls and operates the App from its location(s) in the United States of America. SKED makes no representation that the App is appropriate or available for use in other locations. Those who choose to access the App do so on their own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable. You are expressly prohibited from using or accessing the App from any location in which the App and/or any Software, Materials and/or Services would violate any law within of that jurisdiction. Any diversion of the Software, Materials and/or Services contrary to United States law is prohibited.
15.2 Software from the App may further be subject to United States export controls. No Software from the App may be downloaded or otherwise exported or re-exported:
(a) into (or to a national or resident of) Cuba, Iraq, Libya, North Korea, Iran, Syria, or any other country to which the U.S. has embargoed goods; or
(b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders. By downloading or using the Software, you represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list.
16. Term and Termination.
16.1 These TOU, and your right to access and use the App, are effective until terminated by either you or SKED. You may terminate these TOU at any time by discontinuing use of the App and destroying all materials obtained from or through the App, and all related documentation and all copies and installations thereof, whether made under these TOU or otherwise.
16.2 These TOU, and your access to and/or use of the App, may be terminated by SKED immediately without notice to you if in SKED’s sole discretion you fail to comply with any term or provision of these TOU. Upon termination, you must destroy all materials obtained from or through the App, and all related documentation and all copies and installations thereof, whether made under these TOU or otherwise.
16.3 Subject to the terms of these TOU, all provisions of these TOU relating to ownership, limitations of liability, confidentiality, indemnification and other provisions which by their nature survive termination of these TOU shall survive termination of these TOU.
17. Michigan Law and Jurisdiction. In order to ensure consistency in the interpretation and enforcement of these TOU and SKED’s rights in the App, these TOU will be governed exclusively by Michigan law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction. You expressly agree that any litigation arising between you and SKED related, in any way, to the App and/or these TOU, and/or any and all disputes, actions, claims, or causes of action related thereto, shall be initiated and maintained only in U.S. District Court, and/or a State Circuit Court in Michigan. You expressly consent and irrevocably submit to the exclusive personal jurisdiction and venue of such courts.
18. Notice and Procedure for Making Claims of Copyright Infringement.
18.1 Pursuant to Title 17, United States Code, Section 512(c)(2), notifications of claimed copyright infringement must be submitted to the following SKED Designated Agent: Erik Kowalke
18.2 To be effective, the notification must be a written communication that includes the following.
(a) A physical or electronic signature of person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
(b) Identification of the copyrighted work claimed to have been infringed, or multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
(c) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material;
(d) Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;
(e) A statement that the complaining party has a good-faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
(f) A statement that the information in the notification is accurate and, under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
18.3 SKED may give notice to SKED’s users by means of a general notice on this App, electronic mail to a user’s e-mail address on SKED’s records, or by written communication sent by first-class mail to a user’s address on SKED’s records.
19. Severability. If any provision of these TOU is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision shall be modified to the extent necessary to be valid and enforceable, and all other provisions of these TOU shall remain in full force and effect.
20. Waiver. The failure of SKED to enforce any right or provision in these TOU shall not constitute a waiver of such right or provision unless acknowledged and agreed to by SKED in writing. No waiver shall be implied from a failure of either party to exercise a right or remedy. In addition, no waiver of a party’s right or remedy will affect the other provisions of these TOU.
21. Relationship. The relationship between you and SKED is that of independent contract. No joint venture, partnership, employment, or agency relationship exists between you and SKED as a result of these TOU or your access to the App. Neither party has the authority to create any obligations for the other, or to bind the other to any representation, statement or document.