TERMS OF USE AGREEMENT HARK CONNECT

IMPORTANT: READ CAREFULLY

This Terms of Use Agreement (the “Agreement”) is a legal agreement between “You” and Hark Connect, LLC (“HARK,” “We” or “Us”) for the Service (as such term is defined below).

The Service provided by HARK is meant to facilitate Your access to our research and collaborative communications concerning our research performed on the behalf of our clients. Note that some sections are specific to users with registered accounts. Please review this document carefully.

IF YOU DO NOT ACCEPT ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, HARK IS UNWILLING TO LICENSE THE SERVICE TO YOU, NO LICENSE IS GRANTED AND YOU ARE NOT AUTHORIZED TO INSTALL OR USE THE SERVICE.

By downloading, installing, creating a user account, or otherwise using the Service, You represent to Us that you are at least 18 years old and You agree to be bound by the terms of this Agreement along with the HARK Privacy Policy.

This Agreement governs your use of the Service only. Any other contractual agreements between You and HARK remain in effect.

Software Delivery and Acceptance

Subject to Your agreement to be bound by all terms and conditions of this Agreement, HARK authorizes You to use and access (i) HARK’s proprietary software application, which includes compiled software code, images, music, media, templates, data, a user interface, any documentation accompanying the program, and any updates or supplements of such software and documentation (collectively, the “App”); and (ii) HARK’s proprietary software and related media accessible at www.harkconnect.com, including all related subdomains (the “Website”). The App and Website are referred to herein collectively as the “Service”. The Service is deemed accepted by You when the App is initially downloaded by You, or when you access the Website.

License Terms and Conditions

Subject to all terms and conditions of this Agreement, HARK hereby grants You a nonexclusive, personal, non-transferable, non-assignable, limited license to use and access the Service in accordance with this Agreement and any and all agreements and documents executed by You or delivered by HARK. The Service is licensed to you, not sold, and HARK reserves the right to revoke such license at any time and disable your ability to use the Service for any reason or for no reason.

Apple App Store. If you obtained the App through the Apple App Store, the following terms apply:

You are not entering into an agreement with Apple, Inc. (“Apple”), and HARK, not Apple, is solely responsible for the App and its content (excluding User Content and Third-Party Content as defined below);
Your use is limited to use on Apple-branded Products that you own or control and as permitted by the Usage Rules set forth in the App Store Terms of Service, except that the App may be accessed and used by other accounts associated with the purchaser via Family Sharing or volume purchasing;
The terms of this Agreement are subject to the terms of the Apple App Store Terms of Service, which you acknowledge you have had the opportunity to review;
Apple and Apple’s subsidiaries are intended third-party beneficiaries of this Agreement;
In the event of any failure of the App to conform to any applicable warranty, You may notify Apple, and Apple will refund the purchase price, which to the extent permitted by law will constitute Apple’s sole and exclusive obligation with respect to the App;
HARK and You acknowledge that Apple and has no obligation whatsoever to furnish any maintenance and support services with respect to the App;
HARK, not Apple, is responsible for addressing Your claims relating to the App, including product liability claims, legal or regulatory noncompliance, and claims arising under consumer protection, privacy, or similar legislation; and
To the extent any obligation exists with respect to a third-party claim that the App infringes a third-party’s intellectual property rights, HARK, not Apple, will be responsible for the investigation, defense, settlement and discharge of such claim.
You acknowledge the App contains a method for filtering objectionable material from being posted to the App and a mechanism to report offensive content. You may report such content to HARK at info@harkconnect.com. HARK shall respond timely to any concerns. If necessary, HARK has the ability to block abusive users from the App and will exercise that ability at its sole discretion.

HARK Privacy Policy. The HARK Privacy Policy located at www.harkconnect.com is incorporated herein by reference (“Privacy Policy”). The Privacy Policy provides information about your privacy rights and explains how HARK protects your personal information.

Proprietary Rights

HARK Content is Protected by the Law. The Service is protected by copyright laws, international copyright treaties, and other intellectual property laws and treaties. All rights in the Service not expressly licensed under this Agreement are reserved to HARK. You shall not reproduce, retransmit, disseminate, sell, publish, broadcast, circulate, rent, lease, sublicense, assign, or otherwise transfer any portion of the Service except as expressly authorized in this Agreement. No right to use any trademark or trade name of HARK is granted to You hereunder other than the right to display the HARK marks that are placed on the Service and any HARK messages when they are rendered in the Service, in which case such marks may not be altered or removed by You without written approval by HARK.

3.2 Your License to HARK. If you are a user of a user account registered with HARK, You acknowledge that, as a necessary feature to allow You and the other users access to the full functionality of the Services and to facilitate Your use of the Services as an accounted user of HARK’s Services, HARK may reproduce your likeness, including, but not limited to, video recordings of You, photographic recordings of You, and audio recordings of You. You hereby grant to HARK the irrevocable right and permission to reproduce, publish, display, broadcast, exhibit, and in any other way use Your identifying characteristics, including without limitation your image, likeness, voice, photograph, name (including nicknames), actual and paraphrased statements, biographical information, and any other information associated with You that You chose to provide to HARK related to the Services, in whole or in part, distorted, altered, modified or adapted in character or form, alone or accompanied by other material, in any manner and without restriction of any kind, worldwide, in perpetuity and royalty-free, for any purpose related to the Services whatsoever, in all media now known or hereafter developed.

Service Usage

Overview & Fees.

Your use of the Service is included in the cost of Our engagement with You. Accessing the Service and creating an account pursuant to our agreement is free. Through the Service you may send messages to others, provide commentary, take notes, and engage in collaborative evaluation.

No Analysis or Guarantees Provided.

The Service is provided as a platform to collaborate while You and other users evaluate and analyze particular metrics. YOU ACKNOWLEDGE THAT WE DO NOT PROVIDE ANY ANALYSIS OF THESE METRICS AND THAT YOU DO NOT AND WILL NOT RELY ON ANY INFORMATION PROVIDED BY US THROUGH YOUR USE OF THE SERVICES IN MAKING DECISIONS.

User Content

HARK may allow you to upload or post audio, video, images, text or other content through the Service (“User Content”). Unless You and We otherwise agree, all User Content you provide to HARK, whether via the Service or otherwise, shall be deemed to be non-confidential. Subject to the Privacy Policy and applicable law, HARK shall be free to use such information on an unrestricted basis.

HARK does not have the obligation to, and does not, pre-screen any User Content. However, HARK reserves the right to remove or edit any User Content at any time and without notice to You. When you use the Service, you agree not to upload, post, modify, distribute, email, transmit, or otherwise make available any User Content that:
is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, harassing, threatening, harmful, invasive of privacy or publicity rights, abusive, inflammatory or otherwise injurious to third parties;
is protected by any patent, trademark, trade secret, copyright or other intellectual or proprietary right, unless you own such rights or have received all necessary consent;
impersonates any person or entity or otherwise misrepresents your affiliation with a person or entity, or interfere with someone else’s use of the Site;
falsely provides a review for a product or service that you have not purchased or used, or misrepresents your experiences relating to any products or services;
constitutes a charity request, petition for signatures, chain letter, letter or information relating to one or more pyramid schemes, advertising or solicitation for funds, political campaigning, mass mailing, any form of unsolicited commercial email or “spam,” or an offering or dissemination of fraudulent goods, services, schemes or promotions;
is sent via unsolicited email, if such email could reasonably be expected to provoke complaints from its recipients;
is harmful, including without limitation, viruses, Trojan horses, worms, time bombs, zombies, cancelbots, or any other computer programming routines that may damage, interfere with, surreptitiously intercept or expropriate any system, program, data or personal information; and/or
violates any applicable local, state, national or international law.
(collectively “Prohibited User Content”).

Digital Millennium Copyright Act – Notice & Takedown

If you are a copyright owner and believe that any HARK-displayed content infringes upon your copyright rights, you may submit a notification to HARK’s Designated Agent at: Hark Connect, Copyright Compliance, 11904 IH 35 N, Austin, TX 78753, info@harkconnect.com. Pursuant to the Digital Millennium Copyright Act 17 U.S.C. Sec. 512(c)(2), such notification must include:
A description of the copyrighted work that you claim has been infringed; a description of where the alleged infringing material is located; 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; an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; Your contact information (email and telephone number); 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 are authorized to act on the copyright owner’s behalf.

Representations and Warranties

You represent and warrant the following during your download, installation, and/or use of the Service:
You are not located in a country that is subject to a U.S. Government embargo, or has been designated by the U.S. Government as a “terrorist supporting” country;
You are not listed on any U.S. government list of prohibited or restricted parties;
You possess all necessary rights to post any User Content you post using the Service; and
You will not post any Prohibited User Content.

Third Party Content

The Service may display, include, make available or link to content, data, information, applications, websites or materials introduced into the Services by third parties (“Third-Party Content”). HARK is not responsible for the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, efficiency, advertising, terms of use, privacy policy, practices, software code or any other aspect of the Third-Party Content. HARK disclaims all liability arising from or relating to the Third-Party Content.
Third-Party Content may contain proprietary content, information and material that is protected by applicable intellectual property and other laws, including but not limited to copyright and trademark laws. You may not use such proprietary content, information, or materials in any way whatsoever except to use the Service for its intended purposes.

Internet Access

Use of the Service requires an internet connection and may result in charges from your cellular service provider. HARK is not responsible for any such charges. HARK is also not liable for any disruption, failure or malfunction of the Internet or other service providers or for any other situation or event that is out of HARK’s direct control. HARK IS NOT RESPONSIBLE FOR ANY ACTS OR OMISSIONS OF YOUR CELLULAR COMMUNICATION OR INTERNET SERVICE PROVIDERS, OR UNAVAILABILITY OR ERRORS ASSOCIATED WITH THEIR SYSTEMS OR SERVICES.

Restrictions on Use

Unless and to the extent specifically provided otherwise in writing by HARK, you may not:

separate any individual component of the Service for use;
incorporate any portion of the Service into other software or compile any portion of it in combination with other software;
use the Service, or any portion of Service, with any other service or over a network;
sell, rent, lease, lend, loan, distribute, assign or sublicense the Service or otherwise transfer any rights to it in whole or in part;
modify, reverse engineer, decompile, remove any proprietary notices or disassemble the Service in whole or in part, or create any derivative works from or of the Service, or encourage, assist or authorize any other person to do any of these things; or
make copies of or distribute the Service or electronically transfer it or any portion of it from one computer to another or over a network.

We may discontinue some or all of the functionality of the Service at any time. We may also terminate your right to use the Service at any time, and in such event we may modify it to make it inoperable. You agree to abide by all laws and regulations in effect regarding your use of the Service, including without limitation, all driving laws and laws relating to copyright-protected content. You may not authorize or assist any third party to do any of the things prohibited in this paragraph.

Updates

HARK may from time to time, in its sole discretion, make updates, modifications, supplements or new versions of the Service or portions thereof available to You under this Agreement for the purpose of, among other things, distributing bug fixes, patches and feature improvements. We highly recommend that you enable automatic updating on your mobile device or that you promptly install all updates as they appear. HARK disclaims any and all liability relating to Your failure to install any updates to the Service. Notwithstanding the foregoing, HARK does not have any obligation to provide any bug fixes, modifications, updates, or technical or end user support for the Service.

Collection and Use of Data

You acknowledge that the Service automatically collects information, data and statistics relating to your use of the Service, and compiles such information, data and statistics. Subject to the terms of the Privacy Policy, HARK reserves the right to use such information, data and statistics in the course of HARK’s business, and you hereby agree to HARK’s use. Unless specifically agreed in writing by HARK, HARK is not responsible for, and hereby disclaims all warranties relating to, the storage of any data for use with the Service.

Login Credentials.

You shall not share Your user account information with others or allow third parties to use Your login credentials to the Service at any time or for any reason unless otherwise allowed in writing by HARK. You warrant, and HARK may assume and rely on the assumption, that any and all activity and use of the Service under Your user account is done by You. You are solely responsible for maintaining the security of, for example, your username, password, and all other user account information, and You agree that HARK will not be liable for any loss or damages resulting from use of your account by others.

Indemnification

You shall defend, indemnify, and hold harmless, HARK and its owners, officers, members, managers, directors, shareholders, subsidiaries, joint-ventures, partners, employees, agents, licensors, and licensees from and against any and all claims, actions, suits, proceedings, demands, losses, liabilities, damages, judgments, settlements, penalties, costs, and expenses (including without limitation all reasonable attorneys’ fees), known and unknown, arising out of (i) your use of the Service; (ii) any dispute between you and any other user or users; (iii) your use, creation or posting of Prohibited User Content; (iv) your violation or breach of this Agreement, or (v) the infringement by you (or any other user of your username or account) of any intellectual property or right of any person or entity.

Disclaimers; Limitations of Liability

HARK DOES NOT PROMISE THAT THE SERVICE OR ANY FUNCTIONALITY THEREOF WILL BE ERROR-FREE OR UNINTERRRUPTED OR THAT YOUR USE OF THE SERVICE WILL PROVIDE SPECIFIC RESULTS. THE SERVICE IS PROVIDED BY HARK “AS-IS” AND “AS-AVAILABLE” WITHOUT ANY OTHER WARRANTY OR REPRESENTATION OF ANY KIND. HARK CANNOT ENSURE THAT THE SERVICE OR ANY FILES OR OTHER DATA YOU DOWNLOAD IN RELATION TO THE SERVICE WILL BE FREE OF VIRUSES OR CONTAMINATION OR DESTRUCTIVE FEATURES. YOUR USE OF THE SERVICE, AND THE RESULTS AND PERFORMANCE ACHIEVED USING THE SERVICE, IS AT YOUR OWN RISK. HARK DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE WITH RESPECT TO THE SERVICE. THE ENTIRE RISK AS TO THE QUALITY, OR ARISING OUT OF THE USE OR PERFORMANCE OF THE SERVICE REMAINS WITH YOU.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL HARK BE LIABLE FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, PUNITIVE, INCIDENTAL OR SPECIAL DAMAGES WHATSOEVER (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, AND THE LIKE) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SERVICE, ANY PROVISION OF OR FAILURE TO PROVIDE SUPPORT, OR OTHERWISE UNDER OR IN CONNECTION WITH THIS AGREEMENT, EVEN IN THE EVENT OF THE FAULT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF CONTRACT OR BREACH OF WARRANTY OF HARK, AND EVEN IF HARK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
If, notwithstanding the other provisions of this Agreement, HARK is found to be liable to you for any damage or loss which arises out of or is in any way connected with your use of the Service, HARK’s liability shall in no event exceed the greater the total of any subscription or similar fees with respect to the Service paid in the six months prior to the date of the initial claim made against HARK. Some jurisdictions do not allow limitations of liability, so the foregoing limitation may not apply to you.

Termination

Without limiting its rights and remedies, if You fail to comply with the terms and conditions of this Agreement, HARK may, in its sole discretion, terminate this Agreement upon any such failure. Upon termination of this Agreement, You must promptly cease all use of the Service and discontinue exercising all license rights granted by this Agreement. Sections 2 through 21 of this Agreement will survive any termination of this Agreement.

Dispute Resolution; Choice of Law

This Agreement shall be construed and controlled by the laws of the State of Texas without reference to its choice of law provisions, and You consent to exclusive jurisdiction and venue in the federal courts sitting in Austin, Texas, unless no federal jurisdiction exists, in which case You consent to exclusive jurisdiction and venue in the applicable Texas State Court located in Austin, Texas. You waive and covenant not to assert all defenses of lack of personal jurisdiction and forum non conveniens.

Export Law Compliance

You acknowledge that the Service is of U.S. origin. You agree to comply with all applicable international and national laws that apply to the Service, including all applicable U.S. export-control laws and regulations, as well as any end-user, end-use and destination restrictions issued by U.S. and other governments.

Other Agreements

This Agreement constitutes an individual consent by You to be bound by the terms of this Agreement and is the entire agreement between You and HARK with respect to Your use of the Service, and any and all other written or oral agreements or understandings previously existing between You and HARK with respect to such use are hereby superseded and cancelled. This Agreement is not intended to supersede or replace any other agreements entered into with HARK by You or Your company, including, without limitation, any HARK website terms of use. To the extent there are any conflicts or inconsistencies between this Agreement and any other agreement, policy or documentation, the following order of precedence will apply for resolving such conflicts or inconsistences: (ii) this Agreement shall control; and then (iii) any other agreements, policies, or documentation.

Void Where Prohibited

Although the Service is accessible worldwide, not all features, products or services discussed, referenced, provided or offered through or on the Service are available to all persons or in all geographic locations, or appropriate or available for use outside the United States. HARK reserves the right to limit, in its sole discretion, the provision and quantity of any feature, product or service to any person or geographic area. Any offer for any feature, product or service made on the Service is void where prohibited. If you choose to access the Service from outside the United States, you do so on your own initiative and you are solely responsible for complying with applicable local laws.

Miscellaneous

If any of the provisions of this Agreement are held by a court or other tribunal of competent jurisdiction to be void or unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary and replaced with a valid provision that best embodies the intent of this Agreement, so that this Agreement shall remain in full force and effect. HARK’ failure to insist on or enforce strict performance of this Agreement shall not be construed as a waiver by HARK of any provision or any right it has to enforce this Agreement, nor shall any course of conduct between HARK and you or any other party be deemed to modify any provision of this Agreement. This Agreement shall not be interpreted or construed to confer any rights or remedies on any third parties.