mClk Terms of Service
Welcome to mClk! mClk is a product of Acadium, Inc. Before you use this site, please read these Terms of Service carefully as they govern your use of the services provided at mClk (the "Services"). By using the Services you agree to the Terms of Service set forth below as they may be updated from time to time by Acadium, Inc., or ("Acadium"). Acadium may modify or terminate the Services from time to time, for any reason, and without notice, without liability to you, any other user or any third party, provided that when Acadium does so, it will update these Terms of Service. You are advised to periodically check the website for changes in the Terms of Service.
1. Pricing and Service Information.
The mClk service can be purchased via two separate pricing plans. Plan 1: Education /Training Pricing is based on the school or corporation paying for the service via check or purchase order paid directly to Acadium, Inc. Plan 1 pricing is based on monthly and annual charges and specific amounts are available on the pricing page: www.mclkonline.com/Pricing.aspx. Plan 2: Student Funded Pricing is based on a cell phone subscription model. Students individually subscribe to the mClk service and are billed $9.99 per month on their wireless carrier bills or deducted from their prepaid balances. Messaging and Data Rates Apply on both plans.
Number of messages per participant is based on participation. Teachers or presenters can display any number o f questions and students are then asked to respond.
To use the mClk system, audience participants (students or seminar attendees) can use the following keywords:
JOIN: Allows a participant to join an mClk presentation.
HELP: Provides information on the service.
STOP: Ends the subscription.
To end the subscription, text the word STOP to 29671. You will no longer be billed for the service and will not receive any further messages. For help, text the word HELP to 29671. Information on how receive help and access to the 800 number will be sent via text message. mClk is compatible with all major U.S. carriers including Alltel, AT&T, Boost, Cellular One, Nextel, Verizon Wireless, Sprint, T-Mobile, Virgin Mobile and US Cellular.
2. Purpose and Description of Services.
Acadium provides users with a means of adding polling tools to a classroom or seminar room. You will be provided with a presentation ID that corresponds to a keyword. The use of such keyword in the mClk service does not grant you ownership of such keyword. Acadium retains ownership of all keywords in its service and might change the keyword associated with your mClk presentation at any time. In such an event, Acadium would provide you with an alternative keyword. Acadium may determine, in its sole discretion, to limit the use of the Services, add data storage limitations, charge or change fees for the Services or otherwise modify the Services in the future. You acknowledge and agree that these changes may take place and that Acadium shall have no liability stemming from such changes.
Any additions or modifications to the Services shall be in the sole discretion of Acadium and will be subject to these Terms of Service. You are solely responsible for any fees, charges and expenses incurred by you in accessing and using the Services - including, but not limited to, standard text messaging charges that will depend on the plan that you have with your wireless carrier. Acadium uses reasonable efforts to ensure that the Services are available on a 24/7 basis. However, there will be occasions when the Service will be interrupted for maintenance, upgrades and emergency repairs or due to failure of telecommunications links and equipment that are beyond the control of Acadium. By using the Services you agree that Acadium shall not be liable to you for any modification, suspension or discontinuance of the Services.
All materials displayed on the Site including, but not limited to text, graphics, news articles, charts, presentations, User communications photographs, images and illustrations, shall be referred to herein as "Content." Acadium attempts to maintain a website that is absent of offensive, indecent or objectionable Content. You understand that by using Acadium, you may be exposed to this Content. Under no circumstances will Acadium be liable in any way for any Content, including, but not limited to, the subject matter of any Content, any errors or omissions in any Content, or for any loss or damage of any kind incurred as a result of the use of any Content posted, emailed, transmitted or otherwise made available via Acadium.
You may be provided the opportunity to register to receive updates from certain applications within the Services These updates may be in the form of text messages. This means you must be subscribed to Text Messaging to obtain these notices and you will be charged for all Text Messages in accordance with your subscription plan.
3. Restrictions on the use of the Services.
By using the Services you agree that you will not:
(a) Use the Services for any illegal purpose;
(b) Upload, email or otherwise transmit any User Content (as defined below) that is unlawful, obscene, harmful, threatening, defamatory or hateful or that contains objects or symbols of hate, invade the privacy of any third party, contain nudity or child erotica, or is otherwise objectionable.
(c) Upload, email or otherwise transmit any User Content that you do not have the lawful right to transmit (including any User Content that would violate any confidentiality or fiduciary obligations that you might have with respect to the content) or any User Content that infringes the intellectual or proprietary rights of any third party; or
(d) Interfere with or disrupt (or attempt to interfere with or disrupt) web pages available at the Site or servers or networks connected to the Site, or disobey any requirements, procedures, policies or regulations of networks connected to the Site.
(e) Attempt (or authorize, encourage or support others' attempts) to circumvent, reverse engineer, decrypt, break or otherwise alter or interfere with the Service, including the Content. You agree to advise Acadium promptly of any such unauthorized use(s) or attempt(s).
Furthermore, you are entirely responsible for any and all activities that occur under your account. You agree to notify Acadium immediately of any unauthorized use of your account or any other breach of security. Acadium will not be liable for any loss that you may incur as a result of someone else using your password or account, either with or without your knowledge.
Acadium reserves the right at all times to terminate your account, and delete any and all Content at, in whole or in part, for any reason including, but not limited to, violations of these Terms of Service. If you do violate these Terms of Service, Acadium reserves the right to share any information with any third party. In addition, Acadium reserves the right at all times to disclose any User Content as necessary to satisfy any law, regulation, governmental request or partner request, in its sole discretion.
4. Age Requirements and Limitations on Use of Services.
Users of the Services must be at least 13 years of age.
Children under the age of 13 are not permitted to use the Service and no information of children under the age of 13 will be knowingly collected by Acadium. If Acadium determines that it has collected personal information of children under the age of 13, Acadium will immediately delete such information.
If you are between the ages of 18 and 13 and you use our Services, you promise and agree that you have your parent's permission to use the Services.
5. Trademarks and Copyrights
All trademarks, brands and service marks used in conjunction with the Services by Acadium shall be the property of Acadium. Acadium shall be the owner of all copyright and database rights in the Services. You may not publish, distribute, extract or reproduce any such content in any material form, except as it relates to the personal use of the Services. This license does not apply to any third party content stored at Acadium. Permission for use of such content must be obtained from the copyright owner. Acadium claims no ownership interest in the User Content.
6. Copyright Infringement.
Acadium respects the intellectual property rights of others. However, you agree that Acadium is not responsible for any violations of any intellectual property rights in any User Content. If you believe that your intellectual property rights have been infringed by another party please contact Acadium via the email address:
a. an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
b. a description of the copyrighted work or other intellectual property that you claim has been infringed;
c. a description of where the material that you claim is infringing is located on the site;
d. your address, telephone number, and email address;
e. a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
f. a statement by you, made under penalty of perjury, that the above information provided by you is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf.
Upon receiving your complaint, Acadium may, in its sole discretion, remove the User Content that you believe infringes your copyright. In addition, Acadium may terminate the account of the user who appears to be infringing your intellectual property rights.
7. Disclaimer of Warranty and Limitations of Liability.
Acadium expressly disclaims any responsibility or liability for the use of the Services by you.
THE SERVICES, CONTENT, SITE AND ANY SOFTWARE ARE PROVIDED ON AN "AS IS" BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
UNDER NO CIRCUMSTANCES SHALL ACADIUM BE LIABLE TO YOU OR ANY USER ON ACCOUNT OF THAT USER'S USE OR MISUSE OF AND RELIANCE ON THE SITE OR SERVICES. SUCH LIMITATION OF LIABILITY SHALL APPLY TO PREVENT RECOVERY OF DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, AND PUNITIVE DAMAGES (EVEN IF ACADIUM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). SUCH LIMITATION OF LIABILITY SHALL APPLY WHETHER THE DAMAGES ARISE FROM USE OR MISUSE OF AND RELIANCE ON THE SITE OR SERVICES, FROM INABILITY TO USE THE SERVICES, OR FROM THE INTERRUPTION, SUSPENSION, OR TERMINATION OF THE SERVICES OR DAMAGES INCURRED BY REASON OF OTHER SERVICES OR GOODS RECEIVED THROUGH OR ADVERTISED ON THE SERVICES. THE FOREGOING DISCLAIMERS, WAIVERS AND LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
FREE SERVICE USERS: YOU AGREE THAT THE AGGREGATE LIABILITY OF ACADIUM TO YOU FOR ANY AND ALL CLAIMS ARISING FROM THE USE OF THE SITE OR SERVICES IS LIMITED TO TEN ($10) U.S. DOLLARS. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN ACADIUM AND YOU.
MCLK SERVICE USERS: YOU AGREE THAT THE AGGREGATE LIABILITY OF TEXTMARKS TO YOU FOR ANY AND ALL CLAIMS ARISING FROM THE USE OF THE SITE OR SERVICES IS LIMITED TO LOWER OF THE AMOUNTS YOU HAVE PAID TO ACADIUM DURING THE THREE MONTH PERIOD PRIOR TO SUCH CLAIM, FOR ACCESS TO AND USE OF THE SITE OR SERVICES, OR ONE-HUNDRED ($100) DOLLARS. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN ACADIUM AND YOU.
You agree to defend, indemnify, and hold harmless Acadium and its subsidiaries and other affiliated companies, and their employees, officers, directors, contractors, agents, licensors and suppliers, from all liabilities, losses, damages, claims, costs and expenses, including reasonable attorney's fees, that arise from (i) use or misuse of the Services or any person to whom you have granted access to the Services, (ii) your violation of any of these Terms of Service, or (iii) any other activity related to your account (including negligent or wrongful conduct). Acadium reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to defense by you, in which event you will cooperate with Acadium and its counsel in the conduct of such defense.
9. Forum and Choice of Law.
These Terms of Service shall be governed by and construed in accordance with the laws of the State of Colorado, without regard to its conflicts of law rules. You expressly agree that the exclusive jurisdiction for any claim or action arising out of or relating to these Terms of Service or your use of the Service shall be filed only in the federal courts located in the State of Colorado, or state courts located in the county of Denver and you further agree and submit to the exercise of personal jurisdiction of such courts for the purpose of litigating any such claim or action. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Services or these Terms of Service must be filed within one (1) year after such claim or cause of action arose or be forever barred.
10. Entire Agreement.
These Terms of Service constitute the entire agreement between the you, the user, and Acadium with respect to the subject matter contained herein and supersedes any other agreement, proposals and communications, written or oral, between Acadium and you with respect to the subject matter hereof. If a court should find that one or more rights or provisions contained in these Terms of Service are invalid, you agree that the remainder of the Terms of Service shall be enforceable.
Any correspondence, notice or request permitted to be given under or in connection with this Agreement or the subject matter hereof shall be sent by prepaid, certified, first class mail, or courier service with receipt of delivery obtained directly to Acadium, Inc., addressed as follows:
6699 West Thirteenth Avenue
Denver, CO 80214