1.1. Payments / Fees. The Phonics Service may have recurring subscription fees disclosed at the time of the initial enrolment. You are responsible for such recurring fees according to the terms and conditions of the Phonics Service. Subscription and membership fees are subject to change at any time at the sole and absolute discretion of Chark.
1.3. Rejection of Orders. Chark may reject your order for any reason. Reasons for rejecting an order include:
(a) pricing error
(c) rejection of payment
(d) suspected fraudulent activity
(e) orders connected with a previous credit card dispute
1.4. Sales Tax. Chark charges sales tax where required by law. If sales tax is charged, the appropriate charges will be added to your purchase and displayed in your shopping cart and on your invoice.
1.5. Price Changes. Chark may change the price of any item at any time.
1.6. Cancellation. At any time, and without cause, subscription to the service may be terminated by you, Chark, or the Phonics Service. When you cancel, you are liable all for charges incurred up to and including through your current subscription period. Once you cancel a subscription, it will result loss of access to at the end of your current subscription period. Cancelation requests may take up to 10 business days.
1.7. Cardholder Disputes/Chargebacks. All chargebacks are thoroughly investigated and may prevent you from making future purchases for other Phonics Service products and/or services.
1.8. Fraudulent Activities. Chark will prosecute to the fullest extent of the law any fraudulent activities related to any chargebacks or reversals of a valid charge for an order.
1.9. Returns / No Warranties. There are no product or service warranties of any kind. Subscriptions and digital content are not eligible to be returned or exchanged.
1.10. Authorization of Use. Unless you purchase an Organization License, any subscription you purchase grants you a single right of access. This right of access is authorized for the sole use by one (1) subscriber. All memberships, except Organization Licenses, are provided for personal use and shall not be used for any commercial purposes or by any third party. Commercial use of any personal subscription or any material found therein is strictly prohibited. Except for limited printing rights for Organizational Licenses, no material you access with a subscription may be transferred to any other person or entity, whether commercial or non-commercial. No material accessed through a subscription may be displayed publicly or shared. In addition, materials may not be modified, or altered.
1.11. No Transfer of Access Rights. You may not under any circumstances transfer your access right to any other person or entity, and are required to keep your access rights strictly confidential. If any breach of security, theft or loss of access rights, or unauthorized disclosure of access rights information occurs, you must immediately notify Chark of the security breach.
- WEBSITE ACCESS
2.1. Access. Chark grants you a limited, revocable, nonexclusive license to access the Phonics Service for your own personal use.
2.2. Account Creation. In order to access some features of the Phonics Service, you will have to create an account. You may never use another’s account. When creating your account, you must provide accurate and complete information. Should any of your information change after submitting it to the Phonics Service, you are required to update that information immediately.
2.3. Account Activity. You are solely responsible for the activity that occurs on your account, and you must keep your account password secure. You must notify Chark immediately of any breach of security or unauthorized use of your account. Although Chark will not be liable for your losses caused by any unauthorized use of your account, you may be liable for the losses of Chark or others due to such unauthorized use.
2.4. Automated Systems. You agree not to use or launch any automated system, including without limitation, “scrapers,” “robots,” “spiders,” and “offline readers” that access the Phonics Service. You agree not to collect or harvest any personally identifiable information, including account names, from the Phonics Service, nor to use the communication systems provided by the Phonics Service for any commercial solicitation or illegal or improper purposes.
2.5. Search Engines. Notwithstanding the foregoing, Chark grants the operators of recognized international public search engines, such as Google, Bing, and DuckDuckGo permission to use spiders to copy materials from the site for the sole purpose of creating publicly available searchable indices of the materials. Chark reserves the right to revoke these exceptions either generally or in specific cases.
2.9. Consent to Electronic Service. When you use the Phonics Service or send e-mails to us, you are communicating with us electronically. You consent to receive communications from us electronically. We will communicate with you by e-mail or by posting notices on the Phonics Service. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
- THIRD-PARTY CONTENT / INTERACTIVE FEATURES
3.1. The Phonics Service may permit the submission, hosting, sharing, and/or publishing of text, photographs, audio, videos, reviews, or other content by you, other users, and other third parties such as our partners or affiliates (“Third-Party Content”).
3.2. Third-Party Content also includes, but is not limited to, reviews, photograph submissions, profile submissions, and any other interactive area of the Phonics Service.
3.3. By posting, submitting or uploading Third-Party Content to any area of the Phonics Service, you automatically grant, and you represent and warrant that you have the right to grant, to Chark an irrevocable, perpetual, non-exclusive, fully paid, sublicensable, transferable, worldwide license to host, use, distribute, modify, run, copy, publicly perform, display, and translate said Third-Party Content and to prepare derivative works of, or incorporate into other works, said Third-Party Content, and to grant and authorize sublicenses (through multiple tiers) of the foregoing. Furthermore, by posting Third-Party Content to the Phonics Service, you automatically grant Chark all rights necessary to prohibit any subsequent aggregation, display, copying, duplication, reproduction, or exploitation of the Third-Party Content by any party for any purpose. You acknowledge that by participating in any interactive area on this website, you are granting Chark the unrestricted right, throughout the world and in perpetuity, to copy, sublicense, adapt, transmit, perform, display or otherwise use, at no cost whatsoever to Chark, any and all material or content you post or submit, including, without limitation, all intellectual property rights embodied therein.
3.4. You acknowledge that the interactive features on the Phonics Service are not for private communications. You acknowledge that you have no expectation of privacy with regard to any content you submit to the Phonics Service. Chark cannot guarantee the security of any information you disclose through the Phonics Service. You make such disclosures at your own risk. Chark has no obligation to retain or provide you copies of Third-Party Content.
3.5. By posting Third-Party Content to the Phonics Service or by using any other interactive area of the website, you specifically agree to comply with each of the following:
(a) You will not post or transmit any material that violates or infringes the rights of any other party, including, without limitation, rights of privacy, rights of publicity, copyright, trademark, or other intellectual property rights.
(b) If your employer has rights to intellectual property you create, you have either (i) received permission from your employer to post or make available the material, or (ii) secured from your employer a waiver as to all rights in or to the material.
(c) You have fully complied with any third-party licenses relating to the material you post or transmit and have done all things necessary to successfully pass through to Chark any required terms.
(d) You will not post or transmit any material that is false, deceptive, misleading, or deceitful.
(e) You will not post or transmit any material that is abusive, hateful, racist, bigoted, sexist, harassing, threatening, inflammatory, defamatory, vulgar, obscene, sexually-oriented, profane or is otherwise in violation of any applicable law, rule or regulation.
(f) You will not post or transmit any material that deceptively impersonates any person or entity.
(g) Your username or the material you submit is not named in a manner that misleads users into thinking that you are another person or company.
(h) You will not post content that constitutes or contains any form of advertising or solicitation or for commercial purposes.
(i) You will not post or transmit any software or computer files that contains malware, computer viruses, worms, Trojan horses, rootkits, spyware, adware, and other malicious or unrequested software, computer code, or file.
(j) You will not post or transmit any content that is intended to promote or commit an illegal act.
Failure to comply with the above rules may lead to you being immediately and permanently banned, with notification to law enforcement and/or your internet service provider.
3.6. When posting Third-Party Content, you agree never to use a third-party agent, service, or intermediary that offers to post Third-Party Content to the Phonics Service on your behalf (“Posting Agent”). Posting Agents are not permitted to post Third-Party Content on behalf of others, to cause Third-Party Content to be so posted, or otherwise access the Phonics Service to facilitate posting Third-Party Content on behalf of others, except with express written permission from Chark.
3.7. You must not describe or assign keywords to your Third-Party Content in a misleading or unlawful manner, including in a manner intended to trade on the name or reputation of others, and Chark may change or remove any description or keyword that it considers inappropriate or unlawful in Chark’s sole discretion.
3.8. You are and shall remain solely responsible for any and all Third-Party Content you make through the Phonics Service. You acknowledge that any information you disclose through the Phonics Service becomes public information and can be used by people you do not know. Accordingly, you should exercise caution when deciding to disclose any information on the Phonics Service. Any such disclosures are at your own risk.
3.9. You understand that when using the Phonics Service, you will be exposed to Third-Party Content from a variety of sources, and that Chark is not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such Third-Party Content. You further understand and acknowledge that you may be exposed to Third-Party Content that is inaccurate, offensive, indecent, or objectionable, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against Chark with respect thereto, and agree to indemnify and hold Chark, its owners, operators, affiliates, and agents, licensors and licensees, harmless to the fullest extent allowed by law regarding all matters related to your use of the site.
3.10. Third-Party Content may contain the views and opinions of individual content authors. Chark does not endorse any Third-Party Content or any opinion, recommendation, or advice expressed therein, and Chark expressly disclaims any and all liability in connection with Third-Party Content.
3.11. Chark does not prescreen Third-Party Content submitted and Chark has no duty to monitor any interactive area of its website. Although we may monitor or review Third-Party Content from time to time, we do not actively monitor the Third-Party Content of the interactive areas, and we are not under any obligation to do so. Each user is solely responsible and liable for the contents of his or her Third-Party Content, and we are not responsible in any way for the content or opinions expressed therein. We have the right, but not the obligation, to remove, edit or move, at any time, any material posted, in each case as we deem appropriate. Chark may refuse, to post, deliver, remove, modify or otherwise use or take any action with respect to any submission in any Phonics Service forum.
- INTELLECTUAL PROPERTY INFORMATION
4.1. Ownership. Other than Third-Party Content, all content on the Phonics Service, including without limitation, the text, software, scripts, tools, graphics, photos, sounds, music, videos, and interactive features (“Content”) and the trademarks, service marks and logos contained therein (“Marks”), are owned by or licensed to Chark. The Content and Marks are protected to the maximum extent permitted by intellectual property laws and international treaties. The Phonics Service is protected by copyright law as a collective work and/or compilation, pursuant to copyrights laws, and international conventions.
4.2. Derivative Works / Redistribution Prohibited. Any reproduction, modification, creation of derivative works from or redistribution of the site or the collective work, and/or copying or reproducing the sites or any portion thereof to any other server or location for further reproduction or redistribution is prohibited without the express written consent of Chark.
4.3. Reproduction Prohibited. You further agree not to reproduce, duplicate or copy Content from the Phonics Service without the express written consent of Chark, and agree to abide by any and all copyright and other legal notices displayed on the Phonics Service. You may not decompile or disassemble, reverse engineer or otherwise attempt to discover any source code contained in the Phonics Service. Without limiting the foregoing, you agree not to reproduce, duplicate, copy, sell, resell or exploit for any commercial purposes, any aspect of the Phonics Service.
4.4. Embedded Content / Frames. You may not embed the Phonics Service or place the Phonics Service within inline links, frames, or iframes.
- WARRANTY DISCLAIMER
5.1. THE PHONICS SERVICE, INCLUDING ANY CONTENT, THIRD-PARTY CONTENT, OR ANY SITE-RELATED SERVICE, IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. CHARK HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE.
5.2. CHARK MAKES NO WARRANTY THAT: (I) THE PHONICS SERVICE WILL MEET YOUR REQUIREMENTS, (II) THE PHONICS SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE PHONICS SERVICE WILL BE ACCURATE OR RELIABLE, OR (IV) ANY ERRORS IN THE PHONICS SERVICE WILL BE CORRECTED.
5.3. CHARK IS NOT RESPONSIBLE AND SHALL HAVE NO LIABILITY FOR THE CONTENT, PRODUCTS, SERVICES, ACTIONS OR INACTIONS OF ANY USER, OR ANY OTHER THIRD PARTY AND CHARK WILL HAVE NO LIABILITY WITH RESPECT TO ANY WARRANTY DISCLAIMED HEREIN.
5.4. YOU ACKNOWLEDGE THAT CHARK HAS NO CONTROL OVER AND DOES NOT GUARANTEE THE QUALITY, SAFETY OR LEGALITY OF PRODUCTS AND SERVICES ADVERTISED ON THE PHONICS SERVICE, THE TRUTH OR ACCURACY OF ANY THIRD-PARTY CONTENT.
5.5. CHARK, ITS AFFILIATES AND ITS SPONSORS ARE NEITHER RESPONSIBLE NOR LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE OR OTHER DAMAGES ARISING OUT OF OR RELATING IN ANY WAY TO THE PHONICS SERVICE, SITE-RELATED SERVICES AND/OR CONTENT OR INFORMATION CONTAINED WITHIN THE PHONICS SERVICE. YOUR SOLE REMEDY FOR DISSATISFACTION WITH THE PHONICS SERVICE AND/OR SITE-RELATED SERVICES IS TO STOP USING THE PHONICS SERVICE AND/OR THOSE SERVICES.
- UNSOLICITED MATERIAL AND IDEAS
7.1. We are happy to hear from users and welcome feedback regarding the Phonics Service. However, if you transmit unsolicited submissions to us through the Phonics Service or otherwise, you grant Chark a worldwide, royalty-free, perpetual, irrevocable, non-exclusive right and fully sub-licensable, assignable and transferrable license to use, copy, reproduce, distribute, publish, publicly perform, publicly display, modify, adapt, translate, archive, store, and create derivative works from such submissions, and you understand and agree that such submissions may be adapted, broadcast, changed, copied, disclosed, licensed, performed, posted, published, sold, transmitted, or otherwise used as Chark sees fit.
7.2. By using the Phonics Service and transmitting an unsolicited submission to us, you agree that you are not entitled to any compensation, credit or notice whatsoever with respect to such submission, and that by sending an unsolicited submission you waive the right to make any claim against the Phonics Service, Chark and its affiliated companies, officers, directors or employees relating to our use of such submission, including, without limitation, infringement of proprietary rights, unfair competition, breach of implied contract or breach of confidentiality, even if material or an idea is used that is or may be substantially similar to the idea you sent.
8.1. You agree to defend, indemnify and hold harmless Chark, its affiliated companies, officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from:
(a) your use of and access to the Phonics Service;
(b) your participation in any interactive area of the Phonics Service and any material posted by you thereto.
(d) your violation of any third party right, including without limitation any copyright, property, or privacy right;
(e) your violation of any law, rule or regulation of the United States, any state, or any other country;
(f) any claim that Third-Party Content posted by you or using your account caused damage to another party.
(g) any other party’s access and use of the Phonics Service with your account.
- DIGITAL MILLENNIUM COPYRIGHT ACT
9.1. Infringement Not Permitted. Chark does not permit copyright infringing activities and infringement of intellectual property rights on its Website, and Chark will remove any content if properly notified that such content infringes on another’s intellectual property rights. Chark reserves the right to remove any content without prior notice.
9.2. DMCA Notice. If you are a copyright owner or an agent thereof and believe that any Third-Party Content or other Content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing our Copyright Agent with the following information in writing (see 17 U.S.C 512(c)(3) for further detail):
(a) A physical or electronic signature of a 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, if 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 you, such as an address, telephone number, and, if available, an electronic mail;
(e) A statement that you have 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 you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Chark’s designated Copyright Agent to receive notifications of claimed infringement is:
Attn: Copyright Agent
8987 W. Flamingo Road, Suite 100
Las Vegas, Nevada 89147
You acknowledge that if you fail to comply with all of the requirements of this Section, your DMCA notice may not be valid.
9.3. Counter-Notice. If you believe that your Third-Party Content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to post and use the content in your Third-Party Content, you may send a counter-notice containing the following information to the Copyright Agent:
(a) Your physical or electronic signature;
(b) Identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled;
(c) A statement that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content; and
(d) Your name, address, telephone number, and e-mail address, a statement that you consent to the jurisdiction of the federal court in Las Vegas, Nevada, and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
9.4. Effect of Counternotice. If a counter-notice is received by the Copyright Agent, the Phonics Service may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at the Phonics Service’s sole discretion.
- GOVERNING LAW / DISPUTES
11.1. You agree that the Phonics Service shall be deemed solely based in the State of Nevada.
11.2. The Phonics Service shall be deemed a passive website that does not give rise to personal jurisdiction over Chark, either specific or general, in jurisdictions other than Nevada.
11.4. Disputes. Any dispute, claim or controversy arising out of or relating to the Phonics Service, this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in Las Vegas, Nevada, before one arbitrator. At the option of the first to commence an arbitration, the arbitration shall be administered either by JAMS pursuant to its Streamlined Arbitration Rules and Procedures, or by the American Arbitration Association pursuant to its Commercial Arbitration Rules. The arbitrator may not award any consequential, indirect, exemplary, special or incidental damages arising from or relating to your use of the Phonics Service (including, without limitation, damages for loss of business profits, business interruption, loss of business information, or other pecuniary loss). Judgment on the Award may be entered in any court having jurisdiction. You and we will each pay one-half of the costs and expenses of such arbitration, and each of the parties will separately pay their counsel fees and expenses. Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may bring an action in state or federal court in Clark County, Nevada to protect its intellectual property rights (“intellectual property rights” means patents, copyrights, trademarks, and trade secrets, but not privacy or publicity rights). For any actions brought in court, You and Chark consent to the sole and exclusive jurisdiction of the courts located in Clark County, Nevada, including for acts occurring outside of the United States
11.6. Class Action Waiver. You agree that any arbitration shall be conducted in your individual capacity only and not as a class action or other representative action, and you expressly waive your right to file a class action or seek relief on a class basis. YOU AND CHARK AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
- ASSIGNMENT / MODIFICATION