Terms of Use

Last updated: December 2, 2013

These terms and conditions (the "Terms of Use") govern your access to and use of the Inkling Service provided by Inkling Systems, Inc. ("Inkling", "we" or "us"). The "Inkling Service" includes, without limitation, (i) www.inkling.com and all linked pages owned and operated by Inkling (the "Website"), including the reader client available through the Website ("Inkling Web Client"), (ii) an online e-commerce store available on or through the Website (the "Inkling Web Store") that allows for the purchase of licenses to electronic copies of books and other content (including chapters and other supported subpart thereof) (the "Titles"), and (iii) any cloud services we provide to you, whether accessed through the Website or any software application we license to you, excluding Inkling Habitat. For clarity , the Service excludes any webpages hosted on the Website that Inkling operates exclusively on behalf of a customer and which are subject to separate terms and conditions.

By accessing or using the Inkling Service, you are agreeing to be bound by these Terms of Use and are entering into a legally binding contract with Inkling. Do not access or use the Inkling Service if you are unwilling or unable to be bound by these Terms of Use.

Changes to the Terms of Use

You acknowledge and agree that we may modify these Terms of Use at any time, in our sole discretion. We will notify you of any changes by posting the revised version of our Terms of Use to this webpage, and the changes will be effective when posted. You should revisit these Terms of Service on a regular basis so that you are aware of any changes made to these Terms of Use since your last visit. You agree that your use of the Inkling Service after the date on which any changes are posted on this webpage will constitute your acceptance of such modifications.

Eligibility

To access or use the Service, you must be 13 years of age or older. If you are 13 or older but under the age of 18, you may only use the Service with the permission of your parent or legal guardian. If you are a parent or legal guardian who is registering for a child, you hereby agree to bind your child to these Terms of Use and to fully indemnify and hold us harmless if your child breaches or disaffirms any term or condition of these Terms of User. If you are using the Service on behalf of a company or other entity, you represent that you are authorized to legally bind that entity to these Terms of Use.

Your Inkling Account

In order to purchase licenses to Titles and access them, you may be required to establish an account ("Account"). You agree to provide accurate and complete information when you register with, and as you use the Service ("Registration Information"), and you agree to update your Registration Information to keep it accurate and complete. You agree that Inkling and/or any third party providing credit card processing services to Inkling may store and use the Registration Information you provide for use in maintaining and billing fees to your Account in accordance with our Privacy Policy (as further described in the section below entitled “Privacy Policy”).

Don’t reveal your Account information to anyone else. You are solely responsible for maintaining the confidentiality and security of your Account and for all activities that occur on or through your Account, and you agree to immediately notify Inkling of any security breach of your Account. Inkling will not be responsible for any losses arising out of the unauthorized use of your Account.

The Inkling Web Store

The Inkling Web Store allows you to purchase licenses to access Titles. Your use of the Inkling Web Store includes the ability to enter into agreements and/or to make transactions electronically. Your use of the Web Store constitutes your agreement and intent to be bound by and to pay for such agreements and transactions. Your agreement and intent to be bound by and to pay for such agreements and transactions applies to all records relating to all transactions you enter into on this website, including notices of cancellation, policies and contracts. In order to access and retain your electronic records, you may be required to have certain hardware and software, which are your sole responsibility.

Upon payment of all applicable fees (including applicable taxes) for access to a Title available through the Inkling Web Store, you are granted a non-exclusive license to the Title. See the section on "License and Usage Terms" for information regarding the scope of the license rights granted to you. For clarity, the Titles are licensed, not sold, to you. The license of any Title to you does not transfer any title or ownership of any intellectual property rights of Inkling, its publisher partners or any other of its licensors.

We reserve the right to refuse service to any person or to cancel any order in our sole discretion. Also, Inkling reserves the right to change, without prior notice, Title options and features and pricing, including by updating the content included within a Title.

Delivery, Access & Payment

When you purchase a license to a Title from the Inkling Web Store, a copy of the Title will be available for digital delivery immediately after payment has been processed. The company name on your receipt may appear as either "Standard Nine Inc." or "Inkling Systems, Inc." You will receive an email receipt following each credit card charge. The receipts may also be accessed by logging into your Account.

Inkling uses a third-party service provider to manage credit card processing, and your credit card information is transmitted directly to the third-party service. This third-party processing service is not permitted to store, retain, or use your billing information except as necessary to process your credit card information for current or future purchases through the Web Store. Your full credit card number is never transmitted to or viewed by anyone at Inkling (however, we are given and may print a portion of your credit card information on your receipt to let you know what credit card you used to make a purchase).

By purchasing a Title, you acknowledge and agree that the Titles may only be accessed through the Inkling iOS® app, the Inkling Web Client and any other platform that Inkling may in the future choose to support in its discretion. Use of the Titles you purchase a license to through the Inkling Web Store requires compatible devices, Internet access, and certain software; may require periodic updates; and may be affected by the performance of these factors. Meeting these requirements, which may change from time to time, is your responsibility. For example, use of the Inkling iOS app requires that you are using the latest version of the app on an Apple® iOS device, and the Inkling Web Client requires a high-speed Internet connection and use of a compatible Internet browser -- for example, Safari version 5.1 or later or Chrome version 18 or later. You are responsible for obtaining, configuring and maintaining all computer hardware, software and communications equipment needed to access and use the Service, and for paying all third-party access charges (e.g., ISP, telecommunications, licenses etc.) incurred in meeting such requirements.

Pricing, Availability & Refunds

All prices and availability of a title or chapter are subject to change at any time.

Titles that you place in your shopping cart reflect the most recent price displayed on the Title’s product page. Placing a Title in your cart doesn't reserve the price shown at that time. The price may change after placing it in your shopping cart. It is also possible that a Title’s price may decrease between the time you place it in your cart and the time you purchase it. If a Title’s listed price is lower than the correct price, we may, at our discretion, cancel your order or ask you whether you would like to process the order at the correct price.

In general, all sales transacted through the Inkling Web Store are final and non-refundable. However, if you are unable to access a copy of a Title within a reasonable time after payment due to technical problems on our end, we’re happy to help you troubleshoot the problem and may, at our discretion, provide you with a refund – please contact us at support@inkling.com.

As an accommodation to you, after downloading a Title to the Inkling iOS app that you’ve purchased a license to, you may download the Title again. However, in the rare event one of our publisher partners requests that we remove a Title you’ve purchased a license to, Inkling may not provide you with a refund and may be required to revoke your ability to download or otherwise access that Title again. Therefore, it’s your responsibility to download a copy of the content using the Inkling iOS app and not to lose, destroy, or damage the copy of the Title you’ve downloaded at the time of purchase.

In most cases, you will have the option of purchasing one or more chapters or other supported subparts of an electronic book or the entire book ("Supported Subpart"). The price of an individual Supported Subpart is typically much less than the price of the entire book. We may offer you the ability to purchase the remaining Supported Subparts of the book at a price that is less than the aggregate individual price of the remaining Supported Subparts or the price of the complete book. Such offers to complete your purchase of the book at a discount may not always be available or offered at the same price.

License and Usage Terms

License to Titles

You agree to use the Titles purchased in the Inkling Web Store in compliance with all applicable usage terms.

Unless the Inkling Web Store indicates that one of the six regularly used Creative Commons copyright licenses (a "CC License") applies to a Title or as may otherwise be indicated in writing, upon payment of all applicable fees (including applicable taxes) for access to a Title, you are granted a perpetual, non-exclusive right to view, use, and display such Title, solely using a software program (including, Inkling’s iPad® app and the Inkling Web Client) licensed or provided to you by Inkling and solely for your personal, non-commercial use, subject to the terms and conditions set forth in these Terms of Use.

However, if the Inkling Web Store indicates that a CC License applies to a Title, such CC License shall govern your use of the publisher-provided content included in the Title (e.g., text, images and video) ("Publisher Content"), notwithstanding any conflict with any term or condition set forth herein. For the avoidance of doubt, in the foregoing case, (a) a CC License shall apply solely to the Publisher Content and not to any Inkling-owned or controlled intellectual property rights (including, without limitation, the Inkling Web Client or the Inkling Store), and (b) any term or condition set forth herein that does not conflict with the applicable CC License shall also apply to your use of the Publisher Content.

Any additional terms and conditions which are included in the contents of a Title shall only have effect to the extent they (i) do not conflict with the applicable usage terms set forth or referenced herein, and (ii) relate to rights and obligations solely between you and the publisher of the Title.

Title Usage Terms

Except to the extent otherwise permitted under an applicable Creative Commons license, the following additional terms and conditions shall apply to your use of a Title:

  • You are authorized to use the Titles only for your own internal or personal use.
  • Except as permitted by any software (including, Inkling’s iPad® app) or other means of accessing the Title licensed or provided to you by Inkling, you will not comingle the content included in any Title with any content provided by a third party without the consent of the publisher of such Title.
  • Except as permitted by any software (including, Inkling’s iPad® app) or other means of accessing the Title licensed or provided to you by Inkling, you will not modify any Titles in any manner or form, or use modified versions of the Titles, for any purpose including unauthorized access to such Titles or the Inkling Service.

License to Service and Content

We hereby grant you a limited, personal, non-exclusive and non-transferable license to use and to display the text, images, videos, graphics, icons and data available on the Websites (the "Content") solely for your informational, non-commercial and personal use. This license is subject to your compliance with the terms and conditions of these Terms of Use and does not include or authorize: (a) any resale or commercial use of the Content; (b) the collection and use of any Title listings, pictures, profiles, ratings or descriptions; (c) the distribution, public performance or public display of any Content, (d) modifying or otherwise making any derivative uses of the Content, or any portion thereof; (e) the use of any data mining, robots or similar data gathering or extraction methods; (f) downloading (other than the page caching) of any portion of the Websites or any information contained therein, except as expressly permitted on the Websites; or (g) any use of the Content other than for its intended purpose. Any use of the Content other than as specifically authorized herein is strictly prohibited and will terminate the foregoing license. Such unauthorized use may also violate applicable laws including without limitation copyright and trademark laws and applicable communications regulations and statutes. This license is revocable at any time.

We also grant you a limited, personal, non-sublicensable, non-transferable, nonexclusive license to access and use the Web Client and Downloadable Apps, solely to access and view the Titles and solely for your non-commercial and personal use.

Inkling Service Usage Terms

When using this Platform, you agree to abide by common standards of etiquette and act in accordance with the law. For example and without limitation, you agree:

  • Certain Titles and other portions of the Inkling Service may include security technology that limits your use of the Titles or the Inkling Service. You will not violate, circumvent, reverse-engineer, decompile, disassemble, or otherwise tamper with any of the security technology related to any Title or portion of the Inkling Service for any reason, or attempt to assist another person to do so.
  • You will not access any of the Titles other than through the Website (if available) or any software provided by us to you, whether directly or through a third party store (including, the Apple iTunes App Store).
  • You will not provide access to your Account or any Title to any other person.
  • You will not access or attempt to access an Account that you are not authorized to access.
  • You will not (i) use the Inkling Service to transmit any computer viruses, worms, defects, Trojan horses or other items of a destructive nature, (ii) use any device, software or routine that interferes with the proper working of the Inkling Service, or otherwise attempt to interfere with the proper working of the Inkling Service, or (iii) use the Inkling Service to violate the security of any computer network, crack passwords or security encryption codes, disrupt or interfere with the security of, or otherwise cause harm to, the Inkling Service, any Title or any Content.
  • Your access to any Title may be restricted as to the number of devices on which you can download or access any Title and on the number of users that can concurrently access a Title.
  • You will not encourage or enable any other individual or group to do any of the foregoing.

This list of prohibitions provides examples and is not complete or exclusive. We reserve the right to terminate access to your Account and your ability use the Service with or without cause and with or without notice, for any reason or no reason, or for any action that we determine is inappropriate or disruptive to the Service. we may report to law enforcement authorities any actions that may be illegal, and any reports we receive of such conduct. When legally required or at our discretion, we will cooperate with law enforcement agencies in any investigation of alleged illegal activity on or through the Service or on the Internet.

Except for the foregoing licenses, you have no other rights in the Service or Content and you may not modify, edit, copy, reproduce, create derivative works of, reverse engineer, alter, enhance or in any way exploit any of the Service or Content in any manner. All rights not granted in these Terms of Use are reserved.

We may modify, suspend, or discontinue the Inkling Service, in whole or in part, at any time.

At the request of our publisher partners or otherwise, we may impose restrictions on your use of a Title, including by imposing conditions or limitations on, or preventing, your ability to print or cut and paste.

The Inkling Service allows you to post and share content within certain Titles (including any annotations, bookmarks, notes or similar markings that you might make), and such functionality is provided as an accommodation to you. We make no guarantee as to the availability or accessibility of such content. Such content may be stored on servers that are located outside the country in which you live. content included in a Title.

Third Party Content & Links

The Inkling Service may contain links to certain Internet websites ("third party websites") or other content ("third party content") developed, sponsored or maintained by third parties unaffiliated with us. Should you leave the Inkling Service using such a link, the content on the third party website you are viewing is third party content and is not provided or controlled by us. In other instances, we may embed or otherwise incorporate third party content in portions of the Inkling Service. When we do this, we will indicate to you that the information is coming from a third party and not from us. For example, we may post a Twitter® feed which shows what our customers are saying about us or which may provide links to third party websites. All of this information is third party content and is also not provided or controlled by us.

We have not developed, checked for accuracy or otherwise reviewed the content of any third party content or privacy policy of any third party website that we may embed or link to. Additionally, third party content could be offensive, indecent or objectionable. By providing access to third party content or third party websites, we are not recommending, endorsing or sponsoring any aspect of those websites. We are merely doing this as a convenience to our users. As such, we make no promises to you regarding any third party websites or any third party content accessible on or from the Inkling Service.

Portions of the Inkling Service may allow you and other users of the Inkling Service to post content or submit material, including on the Website, within a Title or via third party websites (including, Facebook® and Twitter®). You may not post any content or submit any material that is illegal, obscene, threatening, harassing, defamatory, invasive of privacy, infringing of intellectual property rights, or otherwise injurious to third parties or objectionable, nor may such content or material consist of or contain software viruses, political campaigning, commercial solicitation, chain letters, mass mailings, or any form of "spam." You acknowledge that Inkling reserves the right (but has no obligation) to remove or edit such content and that content or material that has been posted or submitted by others may be offensive, indecent or objectionable. Inkling takes no responsibility and assumes no liability for any content posted by you or any third party.

Portions of the Inkling Service may allow you and other users of the Inkling Service to post content or submit material, including on the Website, within a Title or via third party websites (including, Facebook® and Twitter®). You may not post any content or submit any material that is illegal, obscene, threatening, harassing, defamatory, invasive of privacy, infringing of intellectual property rights, or otherwise injurious to third parties or objectionable, nor may such content or material consist of or contain software viruses, political campaigning, commercial solicitation, chain letters, mass mailings, or any form of "spam." You acknowledge that Inkling reserves the right (but has no obligation) to remove or edit such content and that content or material that has been posted or submitted by others may be offensive, indecent or objectionable. Inkling takes no responsibility and assumes no liability for any content posted by you or any third party.

Intellectual Property Rights

Except as may otherwise be permitted under a CC License with respect to a Publisher Content, you may only use the Inkling Service, including its applications and features, for your internal or personal use. As between you and us, the Inkling Service is owned by Inkling, its publisher partners and its other licensors and is protected by applicable intellectual property and other laws, including patent and copyright laws. We, our publisher partners and our other licensors reserve all of our and their rights in the intellectual property rights included in the Inkling Service, which have not been expressly granted to you. You may not remove any patent, copyright, trademark or other proprietary notices from any Content, Title or Title Content. Further, you may not distribute, modify, transmit, lease, sublease, loan, sell, reuse, re-post, use or create derivative works based on any Content, Title or Title Content for public or commercial purposes (except to the extent otherwise permitted under a CC License for Publisher Content). Any use not expressly permitted could violate our or our licensors’ intellectual property rights, including our or our licensors’ copyrights in the Titles.

Inkling, the Inkling logo and Habitat are trademarks of Inkling Systems, Inc. and are the subject of trademark registrations and applications in the U.S. and other countries. Apple, iPad and iOS are registered trademarks of Apple Inc. All other brand and product names are or may be trademarks of their respective owners. You do not have any license or right, by implication, estoppel, or otherwise, to use any trademark, logo or service mark displayed on the website without our written permission.

DMCA Copyright Notice

If you believe that your work has been copied in a way that constitutes copyright infringement, please provide Inkling’s DMCA Copyright Agent with the following written information:

  • an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
  • a description of the copyrighted work that you claim has been infringed upon;
  • a description of where the material that you claim is infringing is located on the site, including the auction ID number, if applicable; your address, telephone number, and e-mail address;
  • 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; 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.

Please note that this procedure is exclusively for notifying Inkling that your copyrighted material has been infringed.

Inkling’s DMCA Copyright Agent can be reached using the following contact information:

Mail: Inkling Systems, Inc.

153 Kearny St., 4th Floor
San Francisco, CA 94108
Attn: DMCA Copyright Agent

phone: (415) 975-4420
fax: (415) 975-4425
e-mail: support@inkling.com

Feedback & Idea Submission Policy

Product Feedback

If you want to send us your feedback we ask that you send it to support@inkling.com and provide us only with specific feedback on Inkling’s existing products and services; however, do not include any ideas, suggestions or materials that our Idea Submission Policy will not permit us to accept or consider. Any feedback you provide to us shall be deemed non-confidential, and Inkling shall be free to use such information on an unrestricted basis.

Idea Submission Policy

It’s Inkling’s policy not to accept or consider unsolicited ideas, including ideas for new advertising campaigns, new promotions, new or improved products or technologies, product enhancements, source code, processes, materials, marketing plans or new product names. Please do not submit any unsolicited ideas, original creative artwork, suggestions or other works in any form (“submissions”) to us or to any of our employees. The purpose of this policy is to avoid potential misunderstandings or disputes when Inkling’s products or other aspects of our business might seem similar to ideas submitted to us. If you send us your ideas, despite our policy, then regardless of what your letter says, you agree to the following terms:

  1. Your submissions and their contents will automatically become the property of Inkling, without any compensation to you.
  2. Inkling may use, disclose or redistribute the submissions and their contents for any purpose and in any way.
  3. There is no obligation for Inkling to review the submission, respond to you or return any materials included in any submissions.
  4. There is no obligation to keep any submissions confidential.

Privacy Policy

Your use of the Inkling Service, including any information you submit or post to the Inkling Service or otherwise provide to us, is governed by Inkling’s Privacy Policy. Please take a moment to read through it.

Any information you provide to a third party (including by authorizing us to submit content via your Facebook or Twitter account) will be subject to the privacy notice or any similar terms that the third party provides to you, and will not be subject to Inkling’s Privacy Policy.

Termination

If you fail, or we reasonably believe you have failed, to comply with any of the provisions of these Terms of Use or any other applicable usage terms, Inkling, in its sole discretion, reserves the right to (i) terminate your Account, and you will be responsible for any amounts due under your Account immediately prior to termination, (ii) terminate the license to any Title, and/or (iii) prevent or restrict your access to the Inkling Service.

DISCLAIMERS AND LIMITATION OF LIABILITY

THERE MAY BE DELAYS, OMISSIONS ERRORS OR INACCURACIES IN THE INKLING SERVICE AND THE CONTENT. THE INKLING SERVICE AND THE CONTENT IS PROVIDED TO YOU ON AN "AS IS" BASIS WITHOUT WARRANTIES OF ANY KIND. INKLING, ITS PUBLISHER PARTNERS AND THEIR RESPECTIVE AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND LICENSORS DO NOT MAKE ANY REPRESENTATIONS AND, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY DISCLAIM, WITH RESPECT TO THE INKLING SERVICE (INCLUDING ALL CONTENT, MATERIAL REFERENCED IN SUCH CONTENT, INFORMATION SUBMITTED BY ANY PERSON TO THE INKLING SERVICE, AND ANY THIRD PARTY CONTENT), ALL EXPRESS, IMPLIED AND STATUTORY WARRANTIES OF ANY KIND TO YOU OR ANY THIRD PARTY, INCLUDING, BUT NOT LIMITED TO, REPRESENTATIONS AND WARRANTIES REGARDING ACCURACY, TIMELINESS, RESULTS, COMPLETENESS, CURRENTNESS, RELIABILITY, STABILITY, READINESS, IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, AND ANY REPRESENTATIONS OR WARRANTIES ARISING FROM USAGE OR CUSTOM OR TRADE OR BY OPERATION OF LAW. INKLING, ITS PUBLISHER PARTNERS AND THEIR RESPECTIVE AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND LICENSORS ASSUME NO RESPONSIBILITY FOR THE CONSEQUENCES OF ANY ERRORS OR OMISSIONS. ANY MATERIAL, INFORMATION OR CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE INKLING SERVICE IS ACCESSED AT YOUR OWN RISK AND DISCRETION AND YOU ALONE WILL BE RESPONSIBLE FOR ANY DAMAGE OR LOSS TO YOU, INCLUDING AND NOT LIMITED TO YOUR COMPUTER SYSTEM, DATA, ANY PROPERTY, OR LOSS OF REVENUE THAT RESULTS FROM THE DOWNLOAD OR ACCESS OF ANY TITLE OR USE OF THE INKLING SERVICE.

UNDER NO CIRCUMSTANCES WILL INKLING, ITS PUBLISHER PARTNERS OR THEIR RESPECTIVE AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, OR LICENSORS BE LIABLE DIRECTLY OR INDIRECTLY IN ANY WAY FOR ANY CONTENT, INCLUDING FOR ANY INACCURACY, DELAY, INTERRUPTION IN SERVICE, ERROR OR OMISSION, REGARDLESS OF CAUSE, OR FOR ANY DAMAGES RESULTING THEREFROM. IN NO EVENT WILL INKLING, ITS PUBLISHER PARTNERS, OR ANY OF THEIR RESPECTIVE AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR LICENSORS BE LIABLE TO YOU OR TO ANYONE ELSE FOR (A) ANY DIRECT, SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES OR ANY OTHER LOSS OR INJURY CAUSED IN WHOLE OR IN PART BY CONTINGENCIES BEYOND THEIR CONTROL, INCLUDING BUT NOT LIMITED TO, LOST TIME, LOST MONEY, LOST PROFITS OR GOODWILL, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT SUCH DAMAGES ARE FORESEEN OR UNFORESEEN WITH RESPECT TO ANY USE OF THE INKLING SERVICE (INCLUDING ANY CONTENT); (B) ANY NEGLIGENCE, INCLUDING ANY GROSS NEGLIGENCE, IN PROCURING, PROVIDING, COMPILING, EDITING, WRITING, TRANSMITTING OR DELIVERING ANY CONTENT; OR (C) ANY DAMAGES ARISING FROM YOUR USE OF ANY THIRD PARTY SOFTWARE OR SERVICES REQUIRED TO ACCESS AND/OR USE THE SERVICE. IN ANY CASE, INKLING’S AND ITS PUBLISHER PARTNERS’ AGGREGATE LIABILITY UNDER THIS AGREEMENT WITH RESPECT TO ANY CLAIM RELATING TO THE PURCHASE OF ANY TITLE SHALL NOT EXCEED THE AMOUNT YOU ACTUALLY PAID FOR A LICENSE TO THAT TITLE.

Additional Mobile Application Terms

To use any downloadable apps developed by us and provided to you directly or on our behalf (“Apps”), including all iOS apps bearing the “Inkling” logo and the Inkling Android app our mobile reader applications, you must have a mobile device that is compatible with it. We do not warrant that the Apps will be compatible with your mobile device. We hereby grant to you a non-exclusive, non-transferable, revocable license to install and use an object code copy of the Apps for one registered account on one mobile device owned or leased solely by you, for your personal use. You may not: (i) modify, disassemble, decompile or reverse engineer any App, except to the extent that such restriction is expressly prohibited by law; (ii) rent, lease, loan, resell, sublicense, distribute or otherwise transfer any App to any third party or use any App to provide time sharing or similar services for any third party; (iii) make any copies of any App; (iv) remove, circumvent, disable, damage or otherwise interfere with security-related features of any App, features that prevent or restrict use or copying of any content accessible through an App, or features that enforce limitations on use of an App; or (v) delete the copyright and other proprietary rights notices on any App. You acknowledge that we may from time to time issue upgraded versions of an App, and may automatically electronically upgrade the version of an App that you are using on your mobile device, but that we have no obligation to do so. You consent to such automatic upgrading on your mobile device, and agree that the terms and conditions of these Terms of Use will apply to all such upgrades. The foregoing license grant is not a sale of the Apps or any copy thereof, and we and our third party licensors or suppliers retain all right, title, and interest in and to all Apps (and any copies thereof). Standard carrier data charges may apply to your use of an App.

The following additional terms and conditions apply with respect to any App that we provide to you that is designed for use on an Apple iOS-powered mobile device (an “iOS App”):

  • You acknowledge that these Terms are between you and us only, and not with Apple, Inc. (“Apple”).
  • Your use of the iOS App must comply with Usage Rules set forth in Apple’s then-current App Store Terms of Service.
  • We, and not Apple, are solely responsible for our iOS App and the services and content available thereon. You acknowledge that Apple has no obligation to provide maintenance and support services with respect to our iOS App. To the maximum extent permitted by applicable law, Apple will have no warranty obligation whatsoever with respect to our iOS App and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure of the iOS App to conform to any warranty.
  • You agree that we, and not Apple, are responsible for addressing any claims by you or any third party relating to our iOS App or your possession and/or use of our iOS App, including, but not limited to: (i) product liability claims; (ii) any claim that the iOS App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation, and all such claims are governed solely by these Terms and any law applicable to us as provider of the iOS App.
  • You agree that we, and not Apple, shall be responsible, to the extent required by these Terms, for the investigation, defense, settlement and discharge of any third party intellectual property infringement claim related to our iOS App or your possession and use of our iOS App.
  • You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) You are not listed on any U.S. Government list of prohibited or restricted parties.
  • You agree to comply with all applicable third party terms of agreement when using our iOS App (e.g., you must not be in violation of your wireless data service terms of agreement when using the iOS App).
  • You agree that Apple and Apple’s subsidiaries are third party beneficiaries to these Terms as they relate to your license to use the iOS App. Upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as they relate to your license of the iOS App as a third party beneficiary thereof.

Dispute Resolution and Arbitration; Class Action Waiver.

Please read this carefully. It affects your rights.

Most customer concerns can be resolved quickly and to a customer’s satisfaction by contacting us at support@inkling.com. This Dispute Resolution and Arbitration Provision facilitates the prompt and efficient resolution of any disputes that may arise between you and us. Arbitration is a form of private dispute resolution in which persons with a dispute waive their rights to file a lawsuit, to proceed in court and to a jury trial, and instead submit their disputes to a neutral third person (or arbitrator) for a binding decision. You have the right to opt-out of this Dispute Resolution and Arbitration Provision (as explained below), which means you would retain your right to litigate your disputes in a court, either before a judge or jury.

Please read this Dispute Resolution and Arbitration Provision carefully. It provides that all Disputes between you and us shall be resolved by binding arbitration. Arbitration replaces the right to go to court. In the absence of this arbitration agreement, you may otherwise have a right or opportunity to bring claims in a court, before a judge or jury, and/or to participate in or be represented in a case filed in court by others (including, but not limited to, class actions). Except as otherwise provided, entering into this agreement constitutes a waiver of your right to litigate claims and all opportunity to be heard by a judge or jury. There is no judge or jury in arbitration, and court review of an arbitration award is limited. The arbitrator must follow this agreement and can award the same damages and relief as a court (including attorney’s fees).

For the purpose of this Dispute Resolution and Arbitration Provision, “we” or “us” means Inkling Systems, Inc., and our parents, subsidiaries, and affiliate companies, and each of their respective officers, directors, employees, and agents. The term “Dispute” means any dispute, claim, or controversy between you and us regarding any aspect of your relationship with us, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, or negligence), or any other legal or equitable theory, and includes the validity, enforceability or scope of this Dispute Resolution and Arbitration Provision (with the exception of the enforceability of the Class Action Waiver clause below). “Dispute” is to be given the broadest possible meaning that will be enforced, and shall include any claims against other parties relating to services or products provided or billed to you (such as our licensors, suppliers, dealers or third party vendors) whenever you also assert claims against us in the same proceeding.

WE EACH AGREE THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL DISPUTES, AS DEFINED ABOVE, WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT IN ACCORDANCE WITH THIS PROVISION.

Pre-Arbitration Claim Resolution

For all Disputes, whether pursued in court or arbitration, you must first give us an opportunity to resolve the Dispute. You must commence this process by mailing written notification to Inkling Systems, Inc., Attn: Legal Department, 153 Kearny St., 4th Floor, San Francisco, CA 94108. That written notification must include (1) your name, (2) your address, (3) a written description of your Claim, and (4) a description of the specific relief you seek. If we do not resolve the Dispute within 45 days after it receives your written notification, you may pursue your Dispute in arbitration. You may pursue your Dispute in a court only under the circumstances described below.

Exclusions from Arbitration/Right to Opt Out

Notwithstanding the above, you or we may choose to pursue a Dispute in court and not by arbitration if (a) the Dispute qualifies, it may be initiated in small claims court; or (b) YOU OPT-OUT OF THESE ARBITRATION PROCEDURES WITHIN 30 DAYS FROM THE DATE THAT YOU FIRST CONSENT TO THIS AGREEMENT (the “Opt-Out Deadline”). You may opt out of this Dispute Resolution and Arbitration Provision by mailing written notification to Inkling Systems, Inc., Attn: Legal Department, 153 Kearny St., 4th Floor, San Francisco, CA 94108. Your written notification must include (1) your name, (2) your address, and (3) a clear statement that you do not wish to resolve disputes with us through arbitration. Your decision to opt-out of this Dispute Resolution and Arbitration Provision will have no adverse effect on your relationship with us. Any opt-out request received after the Opt-Out Deadline will not be valid and you must pursue your Dispute in arbitration or small claims court.

Arbitration Procedures

If this Dispute Resolution and Arbitration Provision applies and the Dispute is not resolved as provided above (Pre-Arbitration Claim Resolution) either you or we may initiate arbitration proceedings. The American Arbitration Association (“AAA”), www.adr.org, or JAMS, www.jamsadr.com, will arbitrate all Disputes, and the arbitration will be conducted before a single arbitrator. The arbitration shall be commenced as an individual arbitration, and shall in no event be commenced as a class arbitration. All issues shall be for the arbitrator to decide, including the scope of this Dispute Resolution and Arbitration Provision.

For arbitration before AAA, for Disputes of less than $75,000, the AAA’s Supplementary Procedures for Consumer-Related Disputes will apply; for Disputes involving $75,000 or more, the AAA’s Commercial Arbitration Rules will apply. In either instance, the AAA’s Optional Rules For Emergency Measures Of Protection shall apply. The AAA rules are available at www.adr.org or by calling 1-800-778-7879. For arbitration before JAMS, the JAMS Comprehensive Arbitration Rules & Procedures and the JAMS Recommended Arbitration Discovery Protocols For Domestic, Commercial Cases will apply. The JAMS rules are available at www.jamsadr.com or by calling 1-800-352-5267. This Dispute Resolution and Arbitration Provision governs in the event it conflicts with the applicable arbitration rules. Under no circumstances will class action procedures or rules apply to the arbitration.

Because the Service, the App and these Terms concern interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all Disputes. However, the arbitrator will apply applicable substantive law consistent with the FAA and the applicable statute of limitations or condition precedent to suit.

Arbitration Award – The arbitrator may award on an individual basis any relief that would be available pursuant to applicable law, and will not have the power to award relief to, against or for the benefit of any person who is not a party to the proceeding. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party. Such award will be final and binding on the parties, except for any right of appeal provided by the FAA, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.

Location of Arbitration – You or we may initiate arbitration in either San Francisco County, CA or the federal judicial district that includes your billing address. In the event that you select the federal judicial district that includes your billing address, we may transfer the arbitration to San Francisco County, CA in the event that it agrees to pay any additional fees or costs you incur as a result of the transfer, as determined by the arbitrator.

Payment of Arbitration Fees and Costs – we will pay all arbitration filing fees and arbitrator’s costs and expenses upon your written request given prior to the commencement of the arbitration. You are responsible for all additional fees and costs that you incur in the arbitration, including, but not limited to, attorneys or expert witnesses. Fees and costs may be awarded as provided pursuant to applicable law. In addition to any rights to recover fees and costs under applicable law, if you provide notice and negotiate in good faith with us as provided in the section above titled “Pre-Arbitration Claim Resolution” and the arbitrator concludes that you are the prevailing party in the arbitration, you will be entitled to recover reasonable attorney’s fees and costs as determined by the arbitrator.

Class Action Waiver

Except as otherwise provided in this Dispute Resolution and Arbitration Provision, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a class or representative proceeding or claims (such as a class action, consolidated action or private attorney general action) unless both you and we specifically agree to do so following initiation of the arbitration. If you choose to pursue your Dispute in court by opting out of the Dispute Resolution and Arbitration Provision, as specified above, this Class Action Waiver will not apply to you. Neither you, nor any other user of the Service or any App can be a class representative, class member, or otherwise participate in a class, consolidated, or representative proceeding without having complied with the opt-out requirements above.

Severability

If any clause within this Dispute Resolution and Arbitration Provision (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this Dispute Resolution and Arbitration Provision, and the remainder of this Dispute Resolution and Arbitration Provision will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable, this entire Dispute Resolution and Arbitration Provision will be unenforceable and the Dispute will be decided by a court.

Continuation

This Dispute Resolution and Arbitration Provision shall survive the termination of these Terms. Notwithstanding any provision in this Agreement to the contrary, we agree that if we make any change to this Dispute Resolution and Arbitration Provision (other than a change to the Notice Address), you may reject any such change and require us to adhere to the language in this Dispute Resolution and Arbitration Provision if a dispute between us arises.

General Terms

We reserve the right to enforce these Terms of Use, including by terminating access to the Inkling Service. If we do not enforce any part of our Terms of Use, that does not mean that we waive our right to do so.

Please note that these Terms of Use are governed by the laws of the State of California, without regard to principles of the conflicts of law, and may not be modified except as expressly stated herein. Except for Disputes subject to arbitration as described above, any dispute arising out of or relating in any way to these Terms of Use will be adjudicated in any state or federal court in San Francisco County, California, U.S.A., and you consent to exclusive jurisdiction and venue in such courts.

You will use the Inkling Service, including all Titles, in compliance with all applicable laws. In addition, you will comply with all applicable export and re-export restrictions and regulations, and you will not transfer, or encourage, assist, or authorize the transfer of any software included in the Inkling Service to a prohibited country or otherwise in violation of any such restrictions or regulations. In particular, but without limitation, no portion of the Inkling Service may be exported or re-exported (a) into any U.S.-embargoed countries or (b) to anyone on the U.S. Treasury Department's Specially Designated Nationals List or the U.S. Department of Commerce Denied Persons List or Entity List. By using the Inkling Service, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use these products for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture, or production of nuclear, missile, or chemical or biological weapons.

The Inkling Service (including, all Titles) is provided to the U.S. Government as "commercial items," "commercial computer software," "commercial computer software documentation," and/or "technical data," as defined in the U.S. Federal Acquisition Regulation and the U.S. Defense Federal Acquisition Regulation Supplement, and are being licensed to U.S. Government end users (a) only as commercial items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein.

We reserve the right to make changes to our site, policies, and these Terms of Use at any time. This is the entire agreement between us and you regarding the Inkling Service and supersedes all prior understandings regarding such subject matter. If any term or condition of these Terms of Use is deemed invalid, void, or for any reason unenforceable, that part will be deemed severable and will not affect the validity and enforceability of any remaining term or condition.

Contact: support@inkling.com Inkling Systems Inc., San Francisco, CA.