Last revised: September 24, 2014
This Agreement (as defined below) applies to Your (as defined below) access and use of the Services (as defined below). Please read this Agreement carefully.
1.2 Eligibility. Use of the Services are available only to individuals who can form legally binding contracts under applicable law. You represent and warrant that You are: (i) at least eighteen (18) years of age; and/or (ii) otherwise recognized as being able to form legally binding contracts under applicable law.
1.3 Modification. We reserve the right to change the terms of this Agreement at any time by publishing the revised Agreement on the Website. The revised Agreement shall become effective within thirty (30) days of such publication, unless You expressly accept the revised Agreement earlier by clicking on the then applicable accept button (if this option is made available). Your express acceptance or Your continued use of the Services after expiry of the notice period of thirty (30) days, shall constitute Your acceptance to be bound by the terms and conditions of the revised Agreement.
1.4 Scope of the Services.
(a) The Services are comprised of a calculation tool used to illustrate a child’s use of language relative to other children of the same sex and age (measured by the number of months since the child’s birth date) and use of the same language. You acknowledge and agree that the Services and Reports are to be administered, scored, and interpreted by speech-language pathologists, educational diagnosticians, psychologists, clinicians, health professionals, early interventionists and other professionals who have training or experience in administering, scoring, and interpreting the results of standardized tests.
(b) The content on the Website or contained in the Services and any Reports is not intended or designed as a recommendation, promotion or endorsement of any specific tests, medical practice, program or agenda or any other product, procedure, opinion or other information.
(c) You acknowledge and agree that Reports are generated from the data and information that You or a Participant provide and enter online using the Services and that reliance on any information accessible through the Website, the Services and/or Reports is solely at Your own risk. We will not be liable for any error or misinformation provided by You or a Participant. You further acknowledge and agree that Reports do not provide or contain all information that may be relevant or necessary to diagnose a particular medical or health condition. WE WILL NOT BE LIABLE TO YOU, PARTICIPANTS, YOUR CLIENT OR ANY OTHER PERSON FOR THE USE, MISUSE OR RELIANCE ON ANY REPORTS OR THE SERVICES.
2. DEFINITIONS. Capitalized terms used in this Agreement, and not otherwise defined in this Agreement, shall have the following meanings:
2.1 “Account” has the meaning given in Section 3.2.
2.2 “Agreement” means these terms and conditions of use as it may be supplemented, amended, restated or replaced.
2.3 “Our”, “Us” or “We” means Knowledge in Development Inc.
2.4 “Participant” means a parent or legal guardian of Your client invited by You through Your Account to use the Services for the purposes of generating a Report.
2.5 “Person” means a natural person or any legal, commercial or governmental entity, such as, but not limited to, a corporation, general partnership, joint venture, limited partnership, limited liability company, trust, business association, group acting in concert, or any person acting in a representative capacity.
2.6 “Personal Information” means any information that identifies an individual or for which it is reasonably foreseeable in the circumstances that it could be utilized, either alone or with other information, to identify an individual, recorded in any form.
2.8 “Report” means a report that is generated by a Participant’s use of the Services.
2.9 “Services” means the online version of Our proprietary tools and services known as “Language Use Inventory” and which are available at the Website and your Account.
2.10 "Your Data" means: (i) any data or information, including, but not limited to, Personal Information, disclosed or provided to Us by You or a Participant during the course of Your or a Participants access and use of the Services; and (ii) data or information generated by You or a Participant’s use of the Services, other than the Report.
2.11 “Website” means the secure portions of the website located at languageuseinventory.com that are used to access Your Account (as defined below), the Services and Reports.
3. ACCESS AND USE OF THE SERVICES
3.1 Services License Grant. Subject to the terms and conditions of this Agreement, We grant You a limited, revocable, non-exclusive, non-transferable, non-sublicensable licence to: (i) access and use the Services; (ii) to permit Participants to access and use the Services for the purposes of generating a Report; (iii) view and download Reports from the Website; and (iv) print Reports. The foregoing license is personal to You.
3.2 Accounts. You will have to register for and create an online account (“Account”) in order to access and use the Services. You represent and warrant to Us that all information that You submit when You register for Your Account is accurate, current and complete, and that You will keep Your Account information accurate, current and complete. If We have reason to believe that any of Your Account information is untrue, inaccurate, out-of-date or incomplete, We reserve the right, in Our sole and absolute discretion, to terminate Your Account. You are solely responsible for the activity that occurs on Your Account, whether authorized by You or not, and You must keep Your Account information secure, including without limitation Your login, password and Payment Method(s) (as defined below). You must notify Us immediately of any breach of security or unauthorized use of Your Account. WE WILL NOT BE LIABLE FOR ANY LOSS YOU INCUR DUE TO ANY UNAUTHORIZED USE OF YOUR ACCOUNT. YOU, HOWEVER, MAY BE LIABLE FOR ANY LOSS INCURRED BY US OR OTHERS CAUSED BY YOUR ACCOUNT, WHETHER CAUSED BY YOU OR BY AN UNAUTHORIZED PERSON. The foregoing sentence shall survive the termination of this Agreement.
3.3 Prohibited Activity.
(a) You shall not use the Services in any fashion except as expressly permitted by this Agreement. Without limiting the generality of the foregoing, You shall not, and shall not permit any other Person to, directly or indirectly, do any of the following acts: (i) reverse engineer, de-compile, disassemble or otherwise attempt to discover the source code or underlying algorithms of the Services, the Website and/or any part of either of them; (ii) modify, translate, or create derivative works based on any portion of the Services and/or the Services; (iii) rent, lease, distribute, license, sublicense, sell, resell, assign, or otherwise commercially exploit any portion of the Services, the Website and/or any part of either of them; (iv) publish or disclose to any Person the Reports; (v) create any link to the Services or frame or mirror any content contained or accessible from the Services and/or the Website; (vi) wilfully tamper with the security of any portion of the Services, the Website and/or any part of either of them; (vii) knowingly access data on or available through the Services and/or the Website not intended for You; (viii) attempt to probe, scan or test the vulnerability of any portion of the Services and/or the Website or to breach the security or authentication measures without proper authorization; (ix) unlawfully use, transmit, disseminate or otherwise make available content on or through the Services that is unlawful, threatening, abusive, libellous, slanderous, defamatory or otherwise offensive or illegal; (x) providing or using “tracking” or monitoring functionality in connection with the Services, including, without limitation, to identify any other Person’s actions or other activities on the Services; (xi) impersonating or attempting to impersonate Us or Our employees (including, without limitation, the use of email addresses associated with any of the foregoing); (xii) using the account, username, or password of another user of the Services at any time or disclosing Your password to any third party or permitting any third party to access Your Account; or (xiii) violate any local, provincial, state, federal or foreign law, treaty, regulation or convention applicable to You in connection with use of the Services.
(b) You acknowledge and agree that the Services contains Our valuable trade secrets and confidential information. Accordingly, You agree, unless otherwise permitted by this Agreement, to maintain the information contained in the Services and Your Reports in strict confidence. You will not use the Services (or any part of the Services) for any purpose or activity that may be competitive with Our business.
3.4 Your Obligations. In addition to the obligations set forth elsewhere in this Agreement, You shall be solely responsible for the accuracy, quality, integrity and legality of Your Data and the means by which You acquire Your Data.
4. FEES AND PAYMENT FOR SERVICES
4.1 Fees and Billing. You agree to pay all prices and fees due, as applicable, for Your access and use of the Services (collectively, the “Fees”). You shall be responsible for all sales, use, value added, or other taxes or duties, as applicable, with respect to all Fees, or otherwise arising out of or in connection with this Agreement. All Fees are non-refundable unless otherwise expressly noted.
5. PROPRIETARY RIGHTS
5.1 Reservation of Rights. This Agreement does not transfer or assign to You or any Participant any intellectual property right including, but not limited to, any patent, design, industrial design, trademark, servicemark, copyright or rights in any confidential information or trade secrets, in or related to the Services, the Website, Reports and/or or any part thereof. The Services, the Website (including, without limitation, any text, data, files, images, photos, video, works, works of authorship, applications, or any other materials) and, subject to Section 5.2, the Reports and all copies thereof remain the property of Us and are licensed to You under this Agreement. You acknowledge and agree that there are no implied licenses granted under this Agreement, and all rights, granted to You hereunder shall remain with Us. We have no obligation to You with respect to providing notice of or acquiring such licenses. Nothing in this Agreement shall adversely affect any rights and recourse to remedies, including, but not limited to, injunctive relief, that We may have under any applicable laws relating to the protection of Our intellectual property or other rights.
5.2 Our Use of Your Data.
(a) You acknowledge and agree that certain features and/or functionality of the Services require the provision and transfer of Your Data to Us. We require certain license rights from You to Your Data in order to provide access and use of Services and Reports and, in connection with the foregoing, You hereby grant to Us a royalty-free, worldwide, non-exclusive right and license to use, reproduce, modify, adapt, publish, translate, distribute, and display Your Data solely: (i) on and through the Services and Reports; and (ii) for the purposes of providing the Services and Reports to You.
(b) We will not disclose Your Data, except: (i) where You expressly authorize us to do so; (ii) as necessary to provide the Services to You; or (iii) in order to comply with this Agreement or the request of regulatory or governmental bodies, subpoenas or court orders. We shall not modify or access Your Data except to provide the Services, prevent or address service or technical problems or in connection with customer support matters.
5.3 Suggestions. Notwithstanding any term of this Agreement, You acknowledge and agree that any suggestions, enhancement requests, recommendations or other feedback provided to Us by You relating to the Services (collectively, “Submissions”) shall become Our sole property. We shall own exclusive rights, including all intellectual property rights, in and to all Submissions. We shall be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to You. In the event that any intellectual property rights in and to any Submissions vests, or has vested, in You, You hereby assign to Us all of Your right, title and interest in all such Submissions and You hereby waive to and in favour of Us any of Your moral rights in and to all such Submissions.
6.1 Indemnification by You. You shall defend, indemnify, and hold Us harmless from any claims, costs, damages, losses, settlement fees, and expenses (including without limitation legal fees and disbursements) incurred directly or indirectly as a result of or otherwise relating to: (i) any breach of this Agreement; (ii) Your or a Participants use of the Services and Reports, including, without limitation, any interpretation, assessment or diagnosis provided by You to a Participant in reliance upon a Report; (iii) Your violations of applicable laws, rules or regulations in connection with the Services; or (iv) any violations of Your obligations of privacy to any Person.
7. WARRANTIES AND DISCLAIMERS
7.1 Disclaimer of Warranties. TO THE MAXIMUM EXTENT PERMISSIBLE BY LAW, YOUR LICENSE, ACCESS TO AND USE OF THE SERVICES AND ALL REPORTS ARE PROVIDED "AS IS". WE MAKE NO REPRESENTATIONS OR WARRANTIES, AND THERE ARE NO CONDITIONS, ENDORSEMENTS, UNDERTAKINGS, GUARANTEES, REPRESENTATIONS OR WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED, (INCLUDING WITHOUT LIMITATION ANY EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS OF QUALITY, PERFORMANCE, RESULTS, FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY, TITLE, NON-INFRINGEMENT OR ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF THE TRADE) ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ARISING OUT OF OR RELATED TO THE SERVICES, THE WEBSITE, OR REPORTS. WE DO NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SERVICES (OR ANY PART OF THE SERVICES) OR THE CONTENT OF ANY REPORTS WILL MEET YOUR REQUIREMENTS OR THOSE OF USERS OR THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. Some jurisdictions do not allow the exclusion of certain warranties. Accordingly, some of the above limitations of liability may not apply to You.
7.2 Information Disclaimer. You agree that We shall not be bound by any statement of a general nature, which may be posted on the Website, the Services, Reports and/or contained in Our promotional materials or links to other websites contained on the Website.
8. LIMITATION OF LIABILITY
8.1 Limitations of Liability.
(a) TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL WE BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY OR ANY OTHER DAMAGES INDIRECTLY ARISING OUT OF OR RELATED TO THE SERVICES, THE WEBSITE OR THE REPORT, WHETHER OR NOT SUCH DAMAGES COULD REASONABLY BE FORESEEN OR THEIR LIKELIHOOD HAS BEEN DISCLOSED TO US. IN NO EVENT SHALL OUR AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT PAID BY YOU TO US IN THE 2 MONTH PERIOD PRECEDING THE INCIDENT. AS SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, THE ABOVE LIMITATIONS OR EXCLUSION MAY NOT APPLY TO YOU.
(b) WE ARE NOT RESPONSIBLE FOR LATE, LOST, INCOMPLETE, ILLEGIBLE, MISDIRECTED OR STOLEN MESSAGES OR MAIL, UNAVAILABLE NETWORK CONNECTIONS, FAILED, INCOMPLETE, GARBLED OR DELAYED COMPUTER TRANSMISSIONS, ON-LINE FAILURES, HARDWARE, SOFTWARE OR OTHER TECHNICAL MALFUNCTIONS OR DISTURBANCES OR ANY OTHER COMMUNICATIONS FAILURES OR CIRCUMSTANCES AFFECTING, DISRUPTING OR CORRUPTING COMMUNICATIONS.
(c) WE ASSUME NO RESPONSIBILITY, AND WILL NOT BE LIABLE FOR, ANY DAMAGES TO, OR ANY VIRUSES AFFECTING YOUR COMPUTER EQUIPMENT OR OTHER PROPERTY ON ACCOUNT OF YOUR ACCESS TO, USE OF, OR BROWSING ON THE WEBSITE OR YOUR DOWNLOADING OF ANY MATERIALS, DATA, TEXT, IMAGES, VIDEO OR AUDIO FROM THE WEBSITE, OR THROUGH USE OF THE SERVICES.
9. TERM AND TERMINATION
9.1 Term. The term of this Agreement will commence upon Your acceptance of this Agreement as set forth above. The Agreement will remain in effect until terminated by You or Us in accordance with the terms and conditions of this Agreement.
9.2 Termination By You. You agree that You will be responsible for notifying Us should You desire to terminate Your Account. You may notify Us at any time in order to cancel Your Account.
9.3 Termination By Us. We may, in our sole discretion, terminate or suspend Your access to all or part of the Services at any time, with or without notice, for any reason, including, without limitation, breach of this Agreement. In addition to any of Our termination rights set out elsewhere in this Agreement, We reserve the right to suspend or terminate Your access to the Services and/or Your Account if Your usage of the Services results in, or is the subject of, legal action or threatened legal action, against Us or any of Our affiliates or partners, without consideration for whether such legal action or threatened legal action is eventually determined to be with or without merit.
9.4 Effect of Termination. Upon the termination of this Agreement Your and any Participant rights to access and use the Services shall be terminated and Your Account and all of Your Reports will be deleted.
9.5 Surviving Provisions. Any terms and conditions of this Agreement, which by their nature extend beyond the termination of this Agreement, shall survive the termination of this Agreement including, without limitation, Sections 1, 2, 4.1, 5.1, 5.3, 6.1, 7, 8 and 10.
10. GENERAL PROVISIONS
10.1 Entire Agreement. This Agreement, together with all documents, policies and agreements incorporated into this Agreement by reference, constitutes the entire agreement between You and Us and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter.
10.2 Governing Law. This Agreement shall be construed in accordance with and governed by the laws of the Province of Ontario and the laws of Canada applicable in that Province without regards to conflict of laws principles. The parties hereby expressly and irrevocably attorn to the exclusive jurisdiction of the courts in the Province of Ontario. The United Nations Convention on Contracts for the International Sale of Goods (also called the Vienna Convention, and which is cited in the statutes of Canada as the International Sales of Goods Contracts Convention Act) will not apply to this Agreement or the transactions contemplated by this Agreement.
10.3 Force Majeure. We shall not be liable to You for any failure or delay in performance by circumstances beyond Our control, including, but not limited to, acts of God, fire, labour difficulties, governmental action or terrorism.
10.4 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
10.5 Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated in this Agreement, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
10.6 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
10.7 Assignment. You may not assign any of Your rights or obligations hereunder, whether by operation of law or otherwise, without Our prior written consent (which may be unreasonably withheld).
10.8 Headings and References. The division of this Agreement into sections and subsections and the insertion of headings are for convenience of reference only and shall not affect the construction or interpretation of this Agreement. The terms “this Agreement”, “hereof”, “hereunder” and similar expressions refer to this Agreement and not to any particular section, subsection or other portion hereof and include any agreement supplemental hereto. Unless something in the subject matter or context is inconsistent therewith, references herein to “Sections” are to sections, subsections and further subdivisions of sections of this Agreement.