SmartyCard Terms of Service
Introduction
Welcome to SmartyCard, a unique online learning environment for children. The SmartyCard site and service ("Service") is owned and operated by Gazillion, INC., D/B/A SMARTYCARD collectively referred to as "SmartyCard", "we", "us", or "our".
Please read this document carefully. YOU ARE ABOUT TO ENTER INTO A LEGALLY BINDING CONTRACT. Any references to "you" or "your" refer to both you and any person on whose behalf you act, if any. Your use of SmartyCard is subject at all times to the Terms of Service (TOS), our Privacy Policy, and any other applicable documents that you agree to. You represent that you have read and understood the TOS.
Each time you use or access our web site and service at www.SmartyCard.com ("Site"), you agree to be bound by the TOS. You may not access the SmartyCard site, register an account, purchase or redeem any SmartyCards unless you agree to the terms contained here. If you do not agree to - or cannot comply with - the TOS, then please do not use or access our site.
If you are a minor, your parent or guardian must click through "I have read and accept the TOS." They will take full responsibility for all obligations under this agreement. BY CLICKING THROUGH "I HAVE READ AND ACCEPT THE TOS," YOU REPRESENT THAT YOU ARE AN ADULT AND ARE EITHER ACCEPTING THE TERMS AND CONDITIONS OF THE TOS ON BEHALF OF YOURSELF OR ON BEHALF OF YOUR CHILD, IN WHICH CASE YOU REPRESENT THAT YOU PERSONALLY WILL BE BOUND BY ALL THE TERMS AND CONDITIONS.
IF YOU ARE A MINOR AND CLICK THROUGH "I HAVE READ AND ACCEPT THE TOS," YOU UNDERSTAND THAT YOU CAN NOT LATER VOID THIS AGREEMENT AS A MINOR WITHOUT LOSING ACCESS TO YOUR ACCOUNT. YOUR PARENTS WILL BE HELD RESPONSIBLE FOR YOUR ACTIONS AND ANY OBLIGATIONS YOU HAVE INCURRED WHILE USING THE SERVICE.
IN THE EVENT YOU CHOOSE NOT TO ACCEPT THE TOS OR BY TECHNICAL MEANS BYPASS OR DISABLE CLICKING THROUGH "I HAVE READ AND ACCEPT THE TOS," THEN BY ACCESSING OR OTHERWISE USING THE SERVICE, YOU AGREE TO BE BOUND BY THE TERMS OF THE THEN-CURRENT TOS.
Intellectual Property, Licenses, and Representations
Unless otherwise indicated, all materials on our Site - including, without limitation: text, images, software and databases ("Content") - are owned or controlled by SmartyCard, which retains ownership of all right, title, and interest in and to the Content, including without limitation the copyrights, trademarks (e.g. SmartyCard and SmartyCard.com), service marks and all intellectual property rights. You only receive a license to access our software and Content, and retain no ownership rights.
The Service and the Content are protected by copyright and trademark laws of both the United States and other countries, international conventions and other applicable laws. Content that you access via our Site may be displayed, reformatted, and printed for your personal, non-commercial use only. In no event shall you use the Content in any commercial or public manner, including without limitation any public exhibition, and you shall not download, reproduce, transmit, distribute or circulate the Service or the Content or any portion thereof without the prior written permission of SmartyCard.
This policy does not extend to any Content provided by our Site partners. Content on our Site provided by our partners is used by us with permission, and our Partners retain ownership to all right, title and interest to their Content. Content on our Site that is not the direct property of SmartyCard can only be displayed or reproduced with the express consent of the copyright holder.
You further agree not to interrupt, or attempt to interrupt, the operation of the Service in any way, nor shall you take any actions that disable, damage or impair the Service's control or security systems, including without limitation by hacking, de-compiling, disassembling or reverse-engineering the Service or the Content. Notwithstanding anything contained herein, you may download still images from the Service for personal, non-public use, provided that the images may not be edited or altered in any manner. You agree not to use the Content in any manner that is inappropriate for children.
You may not reverse engineer, disassemble, decompile or attempt to reverse engineer or derive source code from, all or any portion of our Site or Service, or permit any third party to do so except to the extent that this restriction is expressly prohibited by applicable law. In no event will such reverse engineering be considered "Fair Use" under Federal Copyright law, and you hereby agree to waive any claims of "Fair Use" as a defense for any reverse engineering, including any claims that such reverse engineering is being done for "interoperability purposes" under the Digital Millennium Copyright Act. Any such attempt shall exceed the "authorized access" you have to the Site as that term is defined under 18 U.S.C. Sec. 1030.
You agree not to use any trademarks, service marks, names, logos, or other identifiers of SmartyCard or its employees, licensors, independent contractors, providers, vendors, and affiliates (collectively, "Affiliates") without the prior written permission of SmartyCard or its relevant Affiliate.
Accounts and Access
Accounts are available to individual, natural persons who are adults or, in the discretion of such an adult, his or her minor child.
Child Accounts are available to individuals under the age of 18. We require Child Accounts to be approved by a parent or guardian. A minor registering for a Child Account will be asked to select a unique username and password for themselves. We do not knowingly collect any Personally Identifiable Information (PII) from any user under the age of 13. For details on the information that we collect and use, please visit our Privacy Policy.
If you are age 18 or over, you are eligible to register for a Parent Account. We may ask you to supply certain personal information in order for us to provide the Service, including without limitation your name, shipping address, telephone number(s), applicable payment data (e.g., credit card number and expiration date), and an e-mail address.
If your Service is for a Parent Account, you will be asked to select a unique username and password for yourself and for each child you wish to put under your Parent Account. You may also associate an existing Child Account with your Parent Account if you are able to verify the Child Account's username and password.
We reserve the right to cancel or modify any username, if in our sole discretion, the name is objectionable or offensive, uses the intellectual property rights of any other person, or is used or capable of use for impersonating another person.
By completing the registration process for SmartyCard, you are permitted to establish no more than one (1) Parent Account ("Account") per e-mail address provided, and to access SmartyCard's site through your valid, authorized Account by means of an Internet connection - which SmartyCard does not provide. While you do not have to download or install any software from SmartyCard in order to use our Service, you may need to update your browser or download certain applications to view our Site correctly. You are responsible for all hardware, software, service and other costs you incur to access your Account.
The Service is subject to the SmartyCard Privacy Policy, unless otherwise indicated in respect of features on the Service operated by or with a third party. If your access to the Service has been provided by or through a third party, that third party may have provided us with information about you so that we may provide you with access to the Service.
You agree to provide only true, accurate, current and complete information to us in connection with your registration for the Service, and you acknowledge and agree that the username and password selected by you in connection with your Account are for your individual use only. You are responsible for maintaining the confidentiality of your Account, as well as the accuracy of your Account information, including all contact and billing information.
You shall not share your Account with anyone or allow anyone else other than you to access or use your Account, other than your parent(s) or guardian(s) who have rights to access and manage your Child Account if you are a minor. A minor is never permitted to access a Parent Account. It is your responsibility as a parent to maintain the confidentiality of your Parent Account. You are responsible and liable for all activities conducted through your Account, regardless of who conducts those activities.
You further agree to accept all responsibility for activities that occur under your Account, and that you will not sell, transfer or assign your account or allow others to use it or rent it from you. DISCLOSURE TO OR USE OF A PASSWORD BY ANOTHER PERSON IS A BREACH OF THE TOS. If your Account is distributed to third parties or otherwise misused, SmartyCard shall have the right - in its sole discretion and without notice to you - to terminate this agreement and your Account, as well as all Accounts that share the name, phone number, e-mail address, internet protocol address, or credit card number with the discontinued account.
It is prohibited to obtain, attempt to obtain, use, or attempt to use the password of anyone else. We will never ask you for your password by telephone or e-mail, and you should not disclose it this way if someone asks you to do so. In no event shall SmartyCard be held responsible for any damage that occurs to your account, nor is SmartyCard liable for any financial or emotional damage or distress you may suffer as a result of any Account breach.
No player may use the player name of another to impersonate or falsely represent his or her identity. It is also prohibited to obtain, attempt to obtain, use, or attempt to use the login and/or player name of anyone else. While you are encouraged to use a pseudonym, especially if you are a minor, you may not pick a name that violates anyone's trademarks, publicity rights or other proprietary rights. Acceptance of a pseudonym by the System does not constitute a finding or acknowledgment by SmartyCard that your chosen pseudonym does not violate any third party's trademarks, publicity rights or other proprietary rights, and the user is responsible for any liability in the choosing of a pseudonym. SmartyCard retains the right to reject any pseudonym it concludes, in its sole discretion, is indecent, obscene, or otherwise violates standards of good taste, or in the event SmartyCard has reasonable belief that such pseudonym violates the intellectual property rights of others. SmartyCard also reserves the right to invoke the "safe harbor" provision of the Digital Millennium Copyright Act (17 U.S.C. Sec. 512(c)) concerning the removal of copyrighted or trademarked materials from the Service or related websites.
Beta Tests
You may be given the opportunity to test new Site and Service features ("Beta Test"). Your participation as a Beta Tester is subject to the following terms:
Closed Beta Tests
Closed Beta Tests are confidential. The Closed Beta Test, including information about features and functionality to be offered as part of the Service, are confidential. If you participate in a Closed Beta Test, you must safeguard and prevent unauthorized access to, copying, disclosure, and unauthorized use of the Closed Beta Test Service. You will carry out the testing personally and not provide access to the Closed Beta Test Service to any other person. You agree that breach of the above confidentiality obligations will cause irreparable harm to SmartyCard. SmartyCard is entitled to (in addition to any other remedies available to it) limit or remove your access to any Beta content - without notice to you - to prevent any breach, potential breach or threatened breach of the TOS. Your obligation to keep the Closed Beta Test confidential will continue until SmartyCard publicly distributes, or has otherwise disclosed to the public through no fault of yours, the Content that you are testing.
All Beta Tests (Closed And Open)
As a Beta Tester, you are invited to use our Site for the sole purpose of evaluating the Content and identifying errors. Nothing in the TOS or through the Site shall be construed as granting you any rights or privileges of any kind with respect to the Beta Test or Content that you find here. The Beta Test is provided for testing on an "as is" and "as available" basis and we make no warranty to you of any kind, express or implied.
When participating in a Beta Test you may accumulate points ("Points") or other value or status indicators. This data may be reset at any time during the testing process. We reserve the right to reset any data for any reason. If Points are given away free during Beta, they may be removed prior to public launch.
By using the Service during the Beta Period, you agree that: (i) testing our Service is at your own risk and that you know the Service may include known or unknown bugs, (ii) any value or status indicators that you achieve through the Service may be erased at any time, (iii) SmartyCard has no obligation to make any Content available for use without charge for any period of time, nor to make them available at all, (iv) Content may be available by subscription or other fees once the testing process is complete or at any time in the future; (v) the TOS applies to your use of the Content during the testing phase, and (vi) if it is a Closed Beta Test, you will keep all information about the Beta Content confidential as stated above and not disclose such information to any other person.
If you accept our TOS as a Beta Tester, it is understood and agreed that your participation in the Beta Test is voluntary and that your relationship with SmartyCard will be that of an independent tester and nothing in the TOS shall be construed to create a partnership, joint venture, or employer-employee relationship (even if you are an employee of SmartyCard or its parent or affiliates for other purposes). You agree that you will use your own equipment and participate in the Beta Test at your own premises.
SmartyCard, or its designee, will provide support to you in its sole discretion. You further acknowledge and agree that you are not considered an employee of SmartyCard or its designee, even if you are an employee of SmartyCard, its parent or affiliates for other purposes, and that you will not be entitled to any benefits which SmartyCard or its designee may make available to its employees, including without limitation, vacation pay, sick leave, insurance programs, including group health insurance or retirement benefits. In addition, you acknowledge and agree that as a voluntary independent tester, you will not be eligible to recover worker's compensation in the event of any injury (even if you are an employee of SmartyCard, its parent or affiliates for any other purposes). You further agree that, even if you are employed by SmartyCard, its parent or affiliates for other purposes, you will not represent yourself as an agent, representative, press representative or legal representative of SmartyCard and/or its designee for any purpose whatsoever.
Beta Test Accounts are non-transferable under any circumstances.
Service and Rewards
Our Site allows users to engage with online learning activities in order to earn Points that can be redeemed for virtual or physical prizes ("Rewards"). We reserve the right to change our Reward partners or our Reward structure at any time, with or without notice to you.
We work with a number of third party sites and vendors to provide Rewards. Some Rewards may be redeemed online through one of our partners. We strongly suggest that you review the terms and conditions, privacy policies and all applicable documents of our partner sites. If your child would like to redeem Points for a physical Reward, we must contact you in order to obtain a shipping address, or ask you to create a Parent Account, as we do not keep personal information of Child Account holders without parent permission.
We take great effort to screen all of our partners to ensure that they provide child-appropriate content, but there is still a possibility that at any time there may be language or other material accessible through a third party link that may be inappropriate for children or offensive to users of any age. Please contact our customer support department if you have questions about this policy.
Points earned through free or unfunded Accounts cannot be used for redemption purposes until the account is properly funded.
Conduct and Misconduct
While our site does contain educational content, we provide our Service for entertainment purposes only. There are certain practices that SmartyCard prohibits.
You may not use any of your own or third party software to modify the Site or to change any aspect of the Service. You may not use our intellectual property rights contained in the Content or the Site to create or provide any other means through which the Content may be accessed or the Service may be played by others, as, for example, through server emulators, whether for profit or not.
You may not take any action that imposes an unreasonable or disproportionately large load on our Service. You may not use any "dupes," "cheats," "bots," "hacks" or other patterns of play that allow you access to Content, Points or any Rewards at an accelerated rate when compared with ordinary Site usage. You may not use your software or third party software to rewrite or modify the user interface or otherwise manipulate data in any way.
Any conduct or practice that results in an Account containing excessive funds, Points or Rewards gained inappropriately is strictly prohibited. Funds, Points or Rewards gained through misconduct will be removed at SmartyCard's discretion and your Account terminated.
Fees and Billing
Some Services offered on our Site are Fee-based ("Fee-based Services"). You have the option of making one-time payments or set up recurring billing. If you open a SmartyCard account you hereby agree to pay all charges to your account, including applicable taxes, in accordance with the billing terms in effect at the time the fee or charge becomes payable. We reserve the right to change the amount of - or basis for determining, any fees or charges for services we provide - and to institute new fees, charges, or terms effective upon notice to customers. If you have set up a recurring payment, any changes to fees will apply to your next billing cycle charge. If you do not agree to any such changes to fees, charges, or terms, your sole remedy will be to terminate use of SmartyCard. You will receive notice of any fee change at least 30 days before the scheduled date of the transaction. Failure to cancel your account as set forth below will constitute acceptance of such fee change.
Billing, account maintenance, account customer service, and other support functions for our Service may be provided by a third party billing service provider ("Billing Service Company") and not by us. By signing up for our Service, you agree to be bound by the Terms and Conditions and all other applicable documents (including its Privacy Policy) by the Billing Service Company, in addition to our TOS.
You may need a valid credit card in order to register for our Service. You acknowledge that:
Your credit card information or other payment method ("Payment Method") provided is valid and that you are authorized to use such Payment Method;
SmartyCard or the Billing Service Company is authorized and may charge such Payment Method as set forth in the payment terms section below, including without limitation for automatic membership renewals, recurring account value loads, one-time charges and account value loads, and all additional charges that may be incurred;
if you make a purchase, we will save your billing information, including credit card information and billing address, unless you request removal through e-mailing us at customerservice@SmartyCard.com.
the Parent Account and all Child Account members will at all times comply with this Terms of Service; and
all registration data and other information submitted is complete, true, accurate and up-to-date, and the Parent Account will update all registration data and other information submitted as necessary to keep it current. Any fraudulent, abusive or otherwise illegal activity will be grounds for immediate termination of the Parent Account and any Child Accounts in SmartyCard's sole discretion and may be reported to appropriate law enforcement agencies. The Parent Account will indemnify and hold SmartyCard and the Billing Service harmless from any claims, losses, damages or liabilities arising out of any breach of the foregoing representations, warranties and covenants.
Each user of our Service must have their own account. If you have reason to believe that your account is no longer secure (for example, in the event of a loss, theft or unauthorized disclosure or use of your ID, password, or any credit, debit or charge card number), you will immediately notify us of the problem to avoid possible liability for any unauthorized charges to your account.
You will not be entitled to a refund during Service outages that are caused by our maintenance on the servers or the technology that underlies our Service, failures of our service providers (including telecommunications, hosting and power providers), computer viruses, natural disasters or other destruction or damage of our facilities, an act of God, war, civil disturbance or other cause beyond our control.
Your Membership will be automatically renewed if you select a recurring payment method. Your credit card account (or other Payment Method account) will be charged as follows without further authorization from you based on the terms set forth below:
the periodic rate you have selected from among the options offered by SmartyCard.
authorization to charge your Payment Method account will remain in effect until you notify us of termination of this authorization or of a change to your selected Payment Method; provided, that such notice will not affect charges submitted before SmartyCard could reasonably act. Your non-termination reaffirms authorization to charge your Payment Method. If you fail to provide the notice of termination, you agree that you will continue to be charged for any product or services on your account unless you have terminated your membership or canceled the recurring billing feature.
your charges may be payable in advance, in arrears, per usage, or as otherwise described when you ordered the applicable product or service. You agree that charges may be accumulated as incurred and may be submitted as one or more aggregate charges during or at the end of the applicable billing cycle.
If you have selected a recurring billing option (monthly subscription, 3 month subscription etc.), your account will be credited with points at a discounted rate as compared to non-recurring or non-subscription payment options. The recurring billing or subscription option will function in the manner described below:
Your payment method will be charged the periodic rate selected by you and as described above v(i).
The target account receiving recurring or subscription funds will be credited with the selected amount once per month per paid subscription
The target account receiving funds will be able to earn up to their monthly balance of subscription points, making the earned points eligible for reward redemption
Subscription points made eligible for redemption (earned) will "roll over" to the next month's SmartyCard balance
Subscription points not made eligible for redemption (not earned) during the month credited will expire and be no longer valid for use or reward redemption once the subsequent month's points are credited.
We may occasionally offer promotional trial SmartyCards for free or at special discounted prices to new customers. If you sign up for a trial SmartyCard, your Account will remain active following the trial period but will not be allowed to access any more of our learning Content until the account is funded. Discounted prices will not be honored past the trial period, although you may still be eligible for other promotions or discounts in the future.
We may also occasionally offer discounts or promotions to existing customers. We reserve the right to limit, expire, change, modify or disqualify any promotional offer for fraud, discount stacking or any other reason, and to charge you at current rates.
You are required to keep your billing account information current, complete and accurate (such as a change in billing address, credit card number or expiration date) and notify SmartyCard if your Payment Method is canceled (e.g., for loss or theft).
You agree to make payment using the selected Payment Method. You agree that we have the right to correct any errors or mistakes in your billing statement even if we have already requested or received payment, including without limitation billing you for any applicable taxes regardless whether such amounts were previously itemized on your bill. Your right to use our Service is subject to any financial limits that may be established from time to time by us, the Billing Service Company, or by your credit card issuer, financial institution or other provider of your chosen payment method ("Payment Method Provider").
If payment cannot be charged to your Payment Method or your charge is returned for any reason, including without limitation chargeback, we and/or the Billing Service Company reserve the right to either suspend or terminate your access and account without notice, thereby terminating this agreement and all obligations of Smartycard hereunder.
Refund Policy
Fees paid in advance for our Service are not refundable in whole or in part, except where required by state law. If you have a balance due on any Account, you agree that we can charge these unpaid fees to the Payment Method that you have provided. All fees and/or charges incurred are non-refundable except in the event that the Account holder who incurred the subject fees and/or charges can prove that the charges were fraudulent and not done with the Account holder's knowledge.
If you have any questions regarding our refund policy, please contact our customer service department through help.smartycard.com or by e-mailing billing@smartycard.com.
Third party Audio/Visual Content, Promotional Material and Advertising We may embed on our Site audio/visual content, promotional material, and advertisements for third party products and services. By clicking through "I have read and accept the TOS," you are acknowledging and agreeing that you may be able to view such content, promotional materials and advertising embedded within the Site.
Links
This Site includes links to other Internet sites. SmartyCard may not endorse any such linked sites or the information, material, products or services contained on other linked sites or accessible through other linked sites. Furthermore, SmartyCard makes no express or implied warranties with regard to the information, material, products or services that are contained on or accessible through linked sites. Access and use of linked sites, including information, material, products and services on linked sites or available through linked sites is solely at the user's own risk. You are responsible for reviewing applicable terms and policies for any third party site that you may visit.
Disclaimers and Liability
We cannot guarantee and we do not promise any specific results from the use of our Site and Service. SmartyCard does not warrant or guarantee that use of the Service will result in actual improved grades in school or improved test scores.
SMARTYCARD CANNOT AND DOES NOT WARRANT THAT THE OPERATION OF THE SERVICE OR YOUR ACCESS TO THE SERVICE, THE SITE, THE SOFTWARE, OR THE CONTENT WILL BE UNINTERRUPTED OR ERROR-FREE. SMARTYCARD MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO THE ACCURACY OR COMPLETENESS OF THE INFORMATION OR CONTENT PRODUCED OR DISPLAYED IN CONNECTION WITH THE SERVICE. SMARTYCARD MAKES NO WARRANTY AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE INFORMATION PROVIDED HEREUNDER, OR AGAINST INFRINGEMENT. NO WARRANTY, REPRESENTATION, COVENANT, EXPRESS OR IMPLIED, WRITTEN OR ORAL, STATUTORY OR OTHERWISE, AS TO THE CONDITION, QUALITY, AVAILABILITY, DURABILITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE OR USE OF THE SERVICE IS GIVEN OR ASSUMED BY SMARTYCARD; ALL SUCH WARRANTIES, REPRESENTATIONS, COVENANTS, UNDERTAKINGS AND TERMS ARE HEREBY EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW.
EXCEPT FOR EXPRESS WARRANTIES STATED IN THESE TOS, IF ANY, THE SERVICE, ALL INFORMATION AND CONTENT ACCESSIBLE THROUGH OUR SITE, YOUR ACCOUNT, USER CONTENT, ALL OTHER SERVICES, AND THE SOFTWARE ARE PROVIDED WITH ALL FAULTS, AND THE ENTIRE RISK AS TO COMPATIBILITY WITH YOUR COMPUTER SYSTEMS, SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND EFFORT IS WITH THE USER.
We will make reasonable commercial efforts to keep Service downtime to a minimum, but we can't promise that the Service or any data stored or transmitted in connection with the Service will be uninterrupted, secure or error-free or will achieve particular results. We reserve the right to suspend operation of some or all aspects of the Service at any time without notice for repairs, maintenance, improvements or for any other reason.
The Site, the Service, and all Content is provided on "as-is" basis. Our Site may be incomplete, or otherwise contain bugs, defects and errors. We make no promise that the Service will operate either fully or in part on any specific computer, with any specific software, or that it is free from viruses or anything else which may have a harmful effect on any technology. We are not responsible or liable for any damage, whether temporary or permanent, occurring to either equipment or software that might occur while using the Content.
YOU ACKNOWLEDGE AND AGREE THAT IN NO EVENT SHALL SMARTYCARD BE LIABLE TO YOU OR ANY THIRD PARTY FOR: (i) ANY DAMAGES OF ANY TYPE CAUSED TO ANY COMPUTER SYSTEM OR OTHER PERSONAL PROPERTY, OR FOR PERSONAL INJURY, INCLUDING WITHOUT LIMITATION, DEATH, RESULTING FROM ACCESS TO, OR USE OF, THE SITE OR SERVICE, THE SOFTWARE OR DOWNLOAD OF INFORMATION OR MATERIALS CONNECTED WITH THE SITE OR SERVICE, OR;
(ii) ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL, RELIANCE, OR OTHER DAMAGES OR PENALTIES, INCLUDING WITHOUT LIMITATION, PERSONAL INJURY OR DEATH, LOSS OF PROFITS, OR LOST SAVINGS, INCOME, REVENUE, DATA OR USE, WHETHER IN AN ACTION IN CONTRACT OR TORT, INCLUDING WITHOUT LIMITATION NEGLIGENCE, OR OTHERWISE, ARISING OUT OF THIS AGREEMENT OR YOUR USE, MISUSE OF OR ACCESS TO THE SITE OR SERVICE, OR CONTENT RELATING TO IT, OR THE EXCHANGE OF INFORMATION WITH THE SITE OR SERVICE, EVEN IF ANY THOSE PARTIES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU ASSUME ANY AND ALL RISK ASSOCIATED WITH THE ACCESS AND USE OF, OR EXCHANGE OF INFORMATION OR DATA WITH, THE SITE OR SERVICE.
IN NO EVENT SHALL SMARTYCARD'S CUMULATIVE LIABILITY FOR ANY DAMAGES, PENALTIES, OR LOSS, REGARDLESS OF THE FORM OF THE ACTION OR CLAIM UNDER THIS AGREEMENT, EXCEED THE AGGREGATE AMOUNT OF ONE HUNDRED U.S. DOLLARS ($100). IN THE EVENT ANY OF THE FOREGOING DISCLAIMERS OR LIMITATIONS ON LIABILITY ARE DECLARED TO BE VOID OR UNENFORCEABLE, THEN SMARTYCARD'S LIABILITY SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAW.
You hereby understand, and acknowledge, that there is no guarantee that SmartyCard shall continue offering access to its Service on a going-forward basis. You specifically acknowledge that the time you spend accessing our Site is being done for purposes of your entertainment only, and that you claim no interest in the value of time spent accessing our site, nor in the Points that you may accumulate through our Site. SmartyCard is not liable for any emotional distress you may suffer in the event that your Account - or the Service as a whole - is terminated.
Indemnification
You are responsible for maintaining the confidentiality of your username(s), password(s), and your account(s), as well as all activities that occur under your account(s). You hereby agree to indemnify, defend, and hold us, our licensors, licensees, distributors, agents, representatives and other authorized users, and each of the foregoing entities' respective resellers, distributors, service providers and suppliers, and all of the foregoing entities' respective officers, directors, owners, employees, agents, representatives and assigns (collectively, the "Indemnified Parties") harmless from and against any and all losses, damages, liabilities and costs (including settlement costs and any legal or other fees and expenses for investigating or defending any actions or threatened actions) incurred by the Indemnified Parties in connection with any claim arising out of any breach by you of these Terms of Service or claims arising from your use of the Site and/or your account(s). You shall use your best efforts to cooperate with us in the defense of any claim. We reserve the right, at our own expense, to employ separate counsel and assume the exclusive defense and control of any matter otherwise subject to indemnification by you.
You represent and warrant that your participation in our Service is in compliance with all applicable laws and regulations of your jurisdiction and with the terms and conditions of the TOS, and that all information provided to SmartyCard or its designee by you in connection with this TOS - including, without limitation, all registration information - is true, correct and accurate. You must promptly provide SmartyCard with an update if any of your information changes.
Your use of the Site and Service constitutes your agreement to defend, indemnify and hold harmless SmartyCard and its affiliated companies, employees, contractors, officers and directors from any claims, demands, damages and expenses, including reasonable attorney fees, incurred directly or indirectly by SmartyCard, arising out of or relating to your use or misuse of the Service, your access to the Site or your Account, including a third party's use or misuse of your Account and/or password, or any actual or alleged breach or non-performance by you of your representations, warranties or obligations hereunder. SmartyCard shall have the right to retain counsel of its choice to defend any action or suit subject to your indemnification obligations hereunder, at your expense.
Parental Guidance
This Service is intended for children age 7 through 13, as well as their respective parents or guardians. The Content presented on our Site is carefully reviewed. Users of our Site have no method of contacting each other, and we currently do not offer a chat room or a forum.
While SmartyCard takes great effort to monitor our Service, there is still a possibility that at any time there may be language or other material accessible either through our Service or through a third party link that may be inappropriate for children or offensive to users of any age. We are not responsible for monitoring or filtering any content available through our Service, a third party link or through a fansite, if any.
SmartyCard will abide by the Children's Online Privacy Protection Act ("COPPA"), in that it will not collect any information about children beyond that necessary to establish an account and log into the Site, which you as a parent agree to as part of the TOS, and SmartyCard will not disseminate any such information to any third party unless compelled pursuant to the section "Disclosure of Personally-Identifiable Information" below or in accordance with our Privacy Policy.
Disclosure of Personally-Identifiable Information
We cannot ensure that your personally identifiable information given to us will not be disclosed to third parties. For example, we may be forced to disclose information to the government or third parties under certain circumstances, or third parties may unlawfully intercept or access transmissions or private communications. Additionally, we can (and you hereby expressly authorize us to) disclose any information about you to private entities, law enforcement or other government officials, as we, in our sole discretion, believe necessary or appropriate to investigate or resolve possible crimes, especially those that may involve personal injury.
You agree that we may communicate with you via email and any similar technology for any purpose relating to the Site, Service and Content and any services or software which may in the future be provided by us or on our behalf. You are encouraged to read our Privacy Policy which governs the collection and use of personally identifiable information.
Term/Termination
The terms of the TOS shall commence upon the date that you accept the TOS or you otherwise begin participating in the Service and shall continue until the date that you terminate your SmartyCard account.
If you or anyone using any of your Accounts materially breaches the TOS, or makes any unauthorized use of the Site or Service, or infringes the intellectual property rights of SmartyCard or any third party, or if we are unable to verify or authenticate any information you provide to us, or we become aware of any activity within your Account which is - in our reasonable discretion - inappropriate and/or in violation of the TOS, then SmartyCard may terminate this agreement with you, close all of your Accounts, and cancel all rights granted to you under the TOS. Such termination shall be effective upon notice delivered via electronic mail or any other means reasonably calculated to reach you. Termination by SmartyCard shall be without prejudice to or waiver of any and all other rights or remedies which SmartyCard may have, all of which are expressly reserved, shall survive termination, and shall be cumulative.
Upon reasonable prior notice, SmartyCard may terminate the TOS, end or prevent access to the Site or Service, in whole or in part, for any reason in its sole discretion.
You may terminate your Account with SmartyCard at any time, upon notice to SmartyCard, whereupon all your Accounts will be closed, and all rights granted to you in the TOS will be canceled, effective upon your notice.
Photosensitivity Seizure Warning
A very small percentage of users may experience seizures when exposed to certain light patterns or flashing lights. Exposure to certain patterns or backgrounds on a video monitor, or while playing video games attached to a television set, may induce an epileptic seizure. These conditions may induce previously undetected epileptic symptoms even in persons who have no history of prior seizures or epilepsy.
If you, or anyone in your family, have an epileptic condition, consult your physician prior to playing. If you experience any of the following symptoms while playing a video or computer game - dizziness, altered vision, eye or muscle twitches, loss of awareness, disorientation, any involuntary movement, or convulsions - IMMEDIATELY discontinue use and consult your physician before resuming play.
Governing Law
This Site is operated and controlled from our offices in North America. It can be accessed from various countries of the world. The laws of the State of California, without regard to conflicts of law provisions, will apply to all matters arising out of or in connection with the Site and your connection to and use of the Site and/or Service. By accessing or using the Site and/or Service, you submit and consent to the exclusive jurisdiction of state and federal courts in Northern California with respect to any dispute or cause of action arising out of or in connection with these Terms of Service and/or your use of the Site or Service.
THE TOS, AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HERETO, SHALL BE GOVERNED IN ALL RESPECTS BY THE INTERNAL LAWS OF THE STATE OF CALIFORNIA AS SUCH LAWS ARE APPLIED TO AGREEMENTS ENTERED INTO AND TO BE PERFORMED ENTIRELY WITHIN CALIFORNIA BETWEEN CALIFORNIA RESIDENTS, BUT WITHOUT REGARD TO THE CONFLICTS OF LAWS PRINCIPLES OF CALIFORNIA LAW. THE UN CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS IS EXPRESSLY DISCLAIMED.
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT THE SOLE AND EXCLUSIVE FORUM FOR RESOLVING ANY CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO THE TOS, OR OTHERWISE RELATING TO ANY RIGHTS IN, ACCESS TO OR USE OF, THE SITE, THE SYSTEM, THE SERVICE, CONTENT AND/OR THE RIGHTS AND OBLIGATIONS OF THE PARTIES HERETO SHALL BE BINDING ARBITRATION, UNDER THE AMERICAN ARBITRATION ASSOCIATION ("AAA") COMMERCIAL ARBITRATION RULES, THEN IN EFFECT. THE PARTIES ALSO AGREE THAT THE AAA OPTIONAL RULES FOR EMERGENCY MEASURES OF PROTECTION SHALL ALSO APPLY TO THE PROCEEDINGS. JUDGMENT ON THE AWARD RENDERED BY THE ARBITRATORS MAY BE ENTERED IN ANY COURT HAVING JURISDICTION THEREOF. IN THE EVENT THAT THIS PARAGRAPH IS HELD INVALID OR UNENFORCEABLE, THE REMAINING PORTIONS OF THIS SECTION SHALL REMAIN IN FULL FORCE AND EFFECT.
IN THE EVENT THAT YOU INITIATE AN ARBITRATION PROCEEDING AGAINST SmartyCard, IF YOU INITIATE THAT ARBITRATION IN CALIFORNIA, THEN SmartyCard AGREES TO PAY ONE-HALF (1/2) OF THE INITIAL COSTS OF BRINGING THAT ACTION, SUBJECT TO RECOUPMENT AT THE END OF THE ARBITRATION IN THE EVENT THAT THE ARBITRATORS DO NOT AWARD YOU THE AMOUNT OF DAMAGES SPECIFIED IN YOUR CLAIM. IN THE EVENT THAT YOU INITIATE AN ARBITRATION PROCEEDING IN ANY OTHER FORUM, YOU WILL BE REQUIRED TO PAY THE FULL AMOUNT OF THE ARBITRATION FEE, IN LIGHT OF THE COSTS SmartyCard WILL BE REQUIRED TO INCUR IN DEFENDING AN ACTION IN A FOREIGN JURISDICTION. IN THE EVENT THAT THIS PARAGRAPH IS HELD INVALID OR UNENFORCEABLE, THE REMAINING PORTIONS OF THIS SECTION SHALL REMAIN IN FULL FORCE AND EFFECT.
Void Where Prohibited
SmartyCard is only available in the United States ("Territory"). You agree not to use or attempt to use the Service from outside of the available Territory, and that we may use technologies to verify your compliance. In the event that you access the Service from outside the Territory, we reserve the right to disable your SmartyCard Account, remove Points, and reclaim Rewards earned in conjunction with the Account.
We make no representation or warranty that any material on the Site, Service or any Content is lawful in every jurisdiction from which such content can be accessed, or is available for use in all jurisdictions. If you access or use the Site or the Service from a jurisdiction outside the State of California you are responsible for compliance with all applicable local laws.
Miscellaneous
If any provision of the TOS is held to be invalid or unenforceable, that provision will be deemed to be restated to reflect as nearly as possible the original intention in accordance with applicable law, and the remainder of the TOS will remain in full force and effect. The TOS constitute the entire agreement between the parties with respect to the subject matter hereof and supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter. Any waiver of any provision of the TOS will be effective only if in writing and signed by us. The failure of party to assert any right under the TOS shall not be considered a waiver of that party's right will remain in full force and effect. In addition, the TOS and the Privacy Policy, including our enforcement of those policies, are not intended to confer, and do not confer, any rights or remedies upon any person. The TOS and all related documents are written and shall be interpreted in the English language.
You acknowledge and agree that any breach or threatened breach by you of this TOS may result in immediate and irreparable damage to SmartyCard or its licensors or designees for which there is no adequate remedy at law, and in such event SmartyCard, its designee or its licensors, as applicable, shall be entitled to appropriate equitable relief, including, without limitation, injunctive relief, without the necessity of posting bond or other security.
Amendment
The terms and conditions of this Agreement may be amended or modified from time to time. The fact that the TOS has been amended or modified shall be communicated to you at the time you log into your Account. You will be asked to review the revised TOS, and to indicate and confirm your acceptance by clicking through "I have read and accept this TOS" as a condition of access to your Account. If you accept the revised TOS, you will be granted access to your Account.
If the revision alters a material term, and you, in good faith, determine that the modification is adverse to you and unacceptable, then you shall have the right to close your Account. You may exercise these rights by clicking through "I decline" where indicated. Upon clicking through "I decline," you will be deemed to have exercised your right to terminate this agreement and close your Account. If you fail to click through "I have read and accept this TOS" or click through "I decline" in the manner specified above, your access to the Site will be discontinued.
SmartyCard has the right to modify, suspend or discontinue the Service or any portion of the Service at any time, including the availability of any area of the Service, or the fees, Points, Rewards structure, and availability of Rewards. SmartyCard may also impose limits on certain features and services or restrict your access to parts or all of the Service without any notice or liability to you.
The Terms of Service posted on this Site was updated on or about February 6, 2009.
Contact Us
If you have any questions, complaints, or comments regarding the TOS, or have other questions or suggestions about our Site, please contact us via e-mail at customerservice@SmartyCard.com
